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Himachal Pradesh High Court · body

2014 DIGILAW 1506 (HP)

Bansi Ram v. State of H. P.

2014-10-22

P.S.RANA

body2014
JUDGMENT P.S. Rana, J. Present civil writ petition is filed under Article 226 of the Constitution of India pleaded therein that in May 1999 petitioner was appointed as a daily waged driver by the respondents. It is further pleaded that service of petitioner was terminated by the respondents on dated 22.12.2012 on the charges of misconduct. It is further pleaded that thereafter on dated 29.9.2004 petitioner approached the H.P. Industrial Tribunal-cum-Labour Court Dharamshala District Kangra H.P. and on dated 25.7.2006 H.P. Industrial Tribunal-cum-Labour Court allowed the claim of petitioner and awarded the seniority benefits to the petitioner. It is further pleaded that in the month of September 2006 petitioner gave his joining report to the respondents but the same was not accepted by them. It is pleaded that in the year 2006-07 learned Labour Commissioner called the explanation of concerned officer for not implementing the orders passed by H.P. Industrial Tribunal-cum-Labour Court and in the month of March 2007 petitioner gave his joining which was duly accepted by the respondents and since then petitioner is working under the respondents. It is further pleaded that on dated 6.10.2007 one Shri Bhagwan Dass was regularized as a driver in the department though he was illiterate. It is further pleaded that respondents be directed to regularize the services of petitioner w.e.f. May 2007 with all consequential benefits and seniority. 2. Per contra reply filed on behalf of respondent Nos. 1 to 3 pleaded therein that present civil writ petition is not maintainable. It is admitted that petitioner had worked as daily wage driver since 1999 to 2002. It is pleaded that petitioner was re-engaged as daily wage driver during the year 2007 as per award announced by Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala. It is pleaded that petitioner did not work for 240 days in each calendar year. It is further pleaded that petitioner is not entitled for regular post of driver. Prayer for dismissal of petition sought. 3. Court heard learned Advocate appearing on behalf of the petitioner and learned Additional Advocate General appearing on behalf of the respondents and Court also perused the entire record carefully. 4. Following points arise for determination in this civil writ petition:- 1. Whether petitioner is legally entitled for regularization of his service subject to availability of vacancy with all consequential benefits, as alleged? 2. Final Order. Findings on point No.1 5. 4. Following points arise for determination in this civil writ petition:- 1. Whether petitioner is legally entitled for regularization of his service subject to availability of vacancy with all consequential benefits, as alleged? 2. Final Order. Findings on point No.1 5. Submission of learned Advocate appearing on behalf of the petitioner that petitioner is legally entitled for regularization of his service w.e.f. 6.10.2007 subject to availability of regular post of driver is partly answered in yes and partly answered in no. It is well settled law that regularization of public post is always conducted by appointment authority after the recommendation of Selection Committee constituted for regularization of the services of an employee. Petitioner did not place on record any material in order to prove that he was recommended by Selection Committee for regularization on the post of driver. Petitioner also did not place on record any document in order to prove that regular vacancy of driver is available as of today. It is well settled law that regularization in public post is not automatic in nature same is subject to recommendation of Selection Committee constituted by appointing authority. 6. Submission of learned Advocate appearing on behalf of the petitioner that one Shri Bhagwan Dass was regularized as driver in the department on dated 6.10.2007 though he was an illiterate person and on this ground petitioner should also be regularized is rejected being devoid of any force for the reasons hereinafter mentioned. Petitioner did not implead Shri Bhagwan Dass as co-respondent in present petition. It is well settled law that no adverse order can be passed against any person who is not impleaded as co-party in the civil writ petition on the concept of audi-alterm-partem (No one should be condemned unheard). Hence it is held that it is not expedient in the ends of justice to pass any adverse order against Bhagwan Dass because Bhagwan Dass is not co-respondent in present civil writ petition. Point No.1 is decided accordingly. Final Order 7. Hence it is held that it is not expedient in the ends of justice to pass any adverse order against Bhagwan Dass because Bhagwan Dass is not co-respondent in present civil writ petition. Point No.1 is decided accordingly. Final Order 7. In view of decision rendered by Hon’ble High Court of H.P. in CWP No. 7035 of 2012-D titled Trilok Raj vs. State of H.P. and others decided on dated 19.11.2012 and in view of ruling of Hon’ble Apex Court of India reported in (1990)1 SCC 361 titled Bhagwati Prasad vs. Delhi State Mineral Development Corporation it is directed that petitioner will file a representation for regularization of his service before the respondents within one month. It is further held that respondents will consider the representation of petitioner subject to availability of regular vacancy of driver in the department and keeping in view the recommendation of Selection Committee constituted by appointment authority within further two months in accordance with law. Any other reliefs sought by petitioner decline in the interest of justice. Civil writ petition stands disposed of. All pending miscellaneous application(s) if any also stands disposed of.