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Himachal Pradesh High Court · body

2014 DIGILAW 1572 (HP)

Sita Ram son of Shri Bihari Lal v. State of H. P.

2014-11-04

P.S.RANA

body2014
JUDGMENT : P.S. Rana, J. 1. Order Present civil writ petition is filed under Article 226 of the Constitution of India pleaded therein that petitioner was initially appointed as Water Carrier in the Rajiv Gandhi Government Degree College Chaura Maidan Shimla on daily wages basis vide order dated 21.7.1997 out of the Amalgamated Fund. It is pleaded that copy of appointment order dated 21.7.1997 is Annexure P1 and subsequently petitioner was appointed as a part time contingent paid Sweeper through Employment Exchange vide order dated 29.9.1997 vide Annexure P-2. It is further pleaded that for the purpose of conferment of whole time contingent paid status and subsequently regular status all part time Water Carriers and Sweepers are considered jointly based on their date of initial appointments in either of the categories. It is further pleaded that petitioner has rendered more than 21 years of service but he has not been conferred the status of whole time contingent paid worker. It is pleaded that case of the petitioner is not considered for the conferment of whole time contingent worker. It is pleaded that service rendered by the petitioner on daily wage basis w.e.f. 21.7.1997 to 29.9.1997 is ignored on the plea that petitioner was paid out of the Amalgamated Fund of the College. It is further pleaded that action of respondents is highly illegal and arbitrary in view of judgments of the Hon'ble High Court of H.P. announced in CWP No. 859 of 2010 titled Rishi Pal v. State of H.P. and others decided on dated 24.5.2010 and CWP No. 5444 of 2010 titled Jeet Ram v. State of H.P. and others decided on dated 28.9.2011. It is further pleaded that copy of judgments are Annexures P3 and P4. It is also pleaded that petitioner be conferred the status of whole time contingent paid worker and thereafter he should be regularized. Prayer for acceptance of civil writ petition sought. 2. Per contra reply filed on behalf of respondents pleaded therein that category of part time Water Carrier/part time sweeper is covered on the basis of combined seniority in the District Cadre for the purpose of granting whole time contingent paid status and thereafter regularised as Class IV employee. It is pleaded that grant of such status is dependant upon availability of posts. It is also pleaded that conferment of whole time contingent paid worker is not automatic in nature. It is pleaded that grant of such status is dependant upon availability of posts. It is also pleaded that conferment of whole time contingent paid worker is not automatic in nature. It is pleaded that Government has framed a committee consisting of President of part time Water Carrier association, President NGO federation and representative of Law, Finance, Personal departments both Directors Higher and Elementary Education and further pleaded that committee would submit the recommendation. It is pleaded that petitioner was appointed purely on temporary basis as stop gap arrangement against leave vacancy on dated 21.7.1997 with the condition that services of the petitioner will stand terminated on the joining of regular employee. It is further pleaded that thereafter through interview held on dated 21.9.1997 petitioner was appointed as part time Sweeper by the Principal RGGCC Shimla on dated 29.9.1997 for two and a half hours daily pursuant to the recruitment scheme notified on dated 6.7.1996 and copy of appointment order is Annexure R1. It is further pleaded that petitioner could be considered for further promotion/regularization benefits w.e.f. 29.9.1997 instead on 21.7.1997. It is further pleaded that w.e.f. 21.7.1997 to 29.9.1997 petitioner could not be treated for consequential benefits as during this period petitioner was engaged purely on temporary basis as a stop gap arrangement out of amalgamated fund for smooth functioning of the college on the demand of the students. It is also pleaded that petitioner was placed at seniority No. 584 and at present part time employees up to seniority No. 466 have been converted to the post of whole time contingent paid employees. It is pleaded that petitioner will also be considered for the next higher post as per his seniority on the availability of vacancies. 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 conditional services of petitioner as water carrier on daily wages w.e.f. 21.7.1997 to 29.9.1997 would be considered for appointment as whole time contingent paid worker and thereafter for seniority and regularisation as alleged? 2. Final Order. Findings on point No.1 5. 4. Following points arise for determination in this civil writ petition:- 1. Whether conditional services of petitioner as water carrier on daily wages w.e.f. 21.7.1997 to 29.9.1997 would be considered for appointment as whole time contingent paid worker and thereafter for seniority and regularisation as alleged? 2. Final Order. Findings on point No.1 5. Submission of learned Advocate appearing on behalf of the petitioner that service of the petitioner as water carrier on daily wages w.e.f. 21.7.1997 to 29.9.1997 be considered for the purpose of seniority and whole time contingent paid worker in view of rulings of Hon'ble High Court of H.P. announced in CWP No. 859 of 2010 titled Rishi Pal v. State of H.P. and others decided on dated 24.5.2010 and in view of CWP No. 5444 of 2010 titled Jeet Ram v. State of H.P. and others decided on dated 28.9.2011 is rejected being devoid of any force for the reasons mentioned hereinafter. Court has carefully perused the above said orders passed by Hon'ble High Court of H.P. in aforesaid CWPs carefully. In both CWPs, Hon'ble High Court of H.P. did not announce that if a person is appointed on daily wages purely on temporary basis as stop gap arrangement against the leave vacancy even then benefit of stop gap arrangement service would be given to the employee for the purpose of seniority and regularization. Court has carefully perused the office order passed by the Principal Government Collage Chaura Maidan Shimla dated 21.7.1997 wherein the petitioner was appointed on daily wages purely on temporary basis as stop gap arrangement. There is recital in office order that service of petitioner would stand terminated on joining of regular employee who had proceeded on long leave due to her illness. Office order dated 21.7.1997 is quoted in toto:- "No. EDN-GCCM-Funds (AF)/97-98-314 Govt. College Chauramaidan Shimla-171004 Dated Shimla-171004 the 21st July 1997. Office Order The following candidates are hereby appointed on daily wages purely on temporary basis (Stop-gap arrangement) with immediate effect against vacancy/Leave vacancy and their services will stand terminated on joining of regular hand/joining of duties by a regular Sweeper who has been proceeded on long leave due to her illness taking into consideration the demands of the students and will be paid out of College Amalgamated Fund according to approved rates of the H.P. Government:- 1. Shri Shavi Pal Sweeper Purana Raj Bhawan, Shimla-171004 2. Sh. Shri Shavi Pal Sweeper Purana Raj Bhawan, Shimla-171004 2. Sh. Sita Ram Water Carrier Village Bagrath, P.O. and Teh. Suni, Distt.Shimla (HP) 2. In case above terms and conditions are acceptable to them they will report for duty forthwith failing which the offer will be treated as cancelled. Sd/- (J.S. Chauhan) Principal Govt. College Chaura Maidan Shimla-171004 Endst.No.Edn.GCCM-Fund(AF)/97-98- Dt.Shimla-4 the Copy of above for information and necessary action. 1. Pursar, G.C. Chauramaidan, Shimla-171004 2. Individual concerned. Sd/- Principal Govt. College Chaura Maidan Shimla-171004" 6. It is proved on record that appointment of the petitioner as water carrier was (1) Purely on temporary basis. (2) The appointment of petitioner was as stop gap arrangement. There is recital in office order that service of the petitioner would stand terminated automatically on joining of regular employee. There is further recital in office order that amount would be paid to the petitioner from the College Amalgamated Fund according to rates approved by H.P. Government. Copy of office order was supplied to the petitioner. After receiving the office order the petitioner has him self voluntarily accepted the condition of office order dated 21.7.1997. Petitioner has voluntarily accepted that he would work (1) Purely on temporary basis as stop gap arrangement. (2) Petitioner has admitted that his service would be terminated automatically on joining of regular employee. Court is of the opinion that petitioner has voluntarily accepted the terms and conditions of the conditional appointment order. It is held that petitioner cannot be allowed to approbate and reprobate the conditional appointment order dated 21.7.1997. Petitioner has himself admitted that he would work purely on temporary basis as stop gap arrangement and petitioner has himself admitted that his service would automatically terminate after joining the regular employee who was proceeded on leave. It was held in case reported in AIR 1989 SC 696 titled Haribans Misra and others v. Railway Board and others that person appointed on ad-hoc basis cannot claim lien on post to which he was so appointed. It was held in case reported in AIR 1992 SC 2070 titled Director Institute of Management Development UP v. Smt. Pushpa Srivastava that appointment on contractual basis is only for a limited period and after expiry of period of contract post comes to an end automatically. It was held in case reported in AIR 1992 SC 2070 titled Director Institute of Management Development UP v. Smt. Pushpa Srivastava that appointment on contractual basis is only for a limited period and after expiry of period of contract post comes to an end automatically. It is well settled law that when there is conflict between judgments of Hon'ble Apex Court of India and Hon'ble High Court then judgment announced by Hon'ble Apex Court of India always prevails as per Constitution of India. It is well settled law that employee is appointed in particular cadre of post only upon the availability of vacancy and after recommendation of Selection Committee constituted by competent authority in accordance with law. As per Article 309 of Constitution of India recruitment and conditions of public service of Union or State are governed by Rules framed by competent authority of law and Rules so framed shall have effect subject to the provision of any Act. It is also well settled law that employee cannot be appointed on public post contrary to Rules framed by Union or State as per Article 309 of Constitution of India. It is well settled law that Constitution of India is supreme and all public authorities are under legal obligation to strictly comply the provision of Constitution of India. Petitioner did not place on record any evidence in order to prove that as of today vacancy of whole time contingent worker is available in the department. Petitioner also did not place on record any evidence on record in order to prove that his name has been recommended by competent authority of law for appointment as whole time contingent worker. In view of above facts point No. 1 is answered in negative. Final Order 7. In view of above said findings (1) It is held that conditional service of petitioner upon leave vacancy w.e.f. 21.7.1997 to 29.9.1997 will not be considered for whole time contingent worker because as per Anenxure P-1 the petitioner was appointed purely on temporary basis as stop gap arrangement from College Amalgamated Fund with condition that service of petitioner would stand terminated automatically after joining of regular employee and petitioner has voluntarily accepted terms and conditions of service of Water Carrier. Petitioner is not permitted to approbate and reprobate. Petitioner is not permitted to approbate and reprobate. (2) It is held that status of whole time contingent worker will be given to the petitioner strictly as per his seniority and strictly as per recommendation of Selection Committee subject to availability of post. Civil writ petition stands disposed of. Parties are left to bear their own costs. Pending miscellaneous applications if any also stands disposed of. Petition disposed of.