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2015 DIGILAW 1768 (HP)

Rakesh Kashyap v. State of Himachal Pradesh

2015-12-03

P.S.RANA

body2015
ORDER : 1. Present Civil Writ Petition is filed under Article 226 of the Constitution of India with prayer that non-petitioners be directed to regularize the services of the petitioners after completion of six years of service with all consequential benefits as per State Government Policy. Additional relief sought to allow petitioners to sit in the test/interview in case any regular post is to be filled up by way of relaxation in age. BRIEF FACTS OF THE CASE 2. That on dated 17.6.2004 petitioner No. 1 has qualified his diploma in PET. The post of PTI was vacant in Cantonment Board Middle School Kasauli District Solan Himachal Pradesh and name of petitioner No. 1 was duly sponsored by the Employment Exchange. Petitioner No. 1 was duly interviewed and was appointed as PTI on contract basis in Cantonment Board Middle School Kasauli in the year 2006. Petitioner No. 1 is working as PTI till date on contract basis. 3. That petitioner No. 2 has qualified his diploma in Art & Craft in the year 2006. The post of Art & Craft teacher in Cantonment Board Middle School Kasauli District Solan Himachal Pradesh was advertised and the name of petitioner No. 2 was duly sponsored by the Employment Exchange and petitioner No. 2 was duly interviewed and was appointed as Art & Craft teacher on contract basis. Petitioner No. 2 is working as Art & Craft teacher till date on contract basis. 4. That petitioner No. 3 has qualified her graduation in Sanskrit in May, 2003 and post of Sanskrit Teacher was lying vacant in Cantonment Board Middle School Kasauli and the name of petitioner No. 3 was duly sponsored by the Employment Exchange. Petitioner No. 3 was duly interviewed and appointed on contract basis in Cantonment Board Middle School Kasauli in the year 2006 and petitioner No. 3 is working on contract basis till date. 5. That on 14.7.2010 petitioners were given fictional breaks in the end of each session and thereafter petitioners were re-engaged. It is pleaded that petitioners are working as teachers since the year 2006 and now they have crossed the age of appointment fixed by the State Government. It is further pleaded that employees of Cantonment Board are entitled to pay and allowances as applicable to the State Government. It is pleaded that petitioners are working as teachers since the year 2006 and now they have crossed the age of appointment fixed by the State Government. It is further pleaded that employees of Cantonment Board are entitled to pay and allowances as applicable to the State Government. It is further pleaded that services of the petitioners are not regularized till date and they have completed six years of service. Prayer for acceptance of writ petition sought. 6. Per contra response filed on behalf of non-petitioners No. 1 and 2 that i.e. State of Himachal Pradesh and Director of Elementary Education Himachal Pradesh pleaded therein that Cantonment Board Middle School Kasauli District Solan is not under the control of non-petitioners No. 1 and 2. It is further pleaded that grievances of the petitioners are to be redressed by non-petitioners No. 3 and 4 i.e. Chief Executive Officer Kasauli Cantonment Board Middle School Kasauli District Solan and GOC-in-Chief Western Command Chandimandir Panchkula Haryana. 7. Per contra separate response filed on behalf of non-petitioners No. 3 and 4 i.e. Chief Executive Officer Cantonment Board Middle School Kasauli District Solan and GOC-in-Chief Western Command Chandimandir Panchkula Haryana pleaded therein that posts of petitioners are to be filled up through direct recruitment as provided under Rule 5 B (1) of Cantonment Fund Servants Rules 1937. It is further pleaded that petitioners have filed CWP No. 4615 of 2013-B which was disposed of by the Hon’ble High Court of Himachal Pradesh vide order dated 24.9.2013. It is further pleaded that another CWP No. 9535 of 2013 was filed by the petitioners on the same cause of action which was also dismissed by the Hon’ble High Court of H.P. vide order dated 12.12.2013 with costs of Rs. 10,000/-. It is further pleaded that petitioners are misusing the process of Court and it is further pleaded that present writ petition is not maintainable. Prayer for dismissal of writ petition sought. 8. Court heard learned Advocates appearing on behalf of the petitioners and non-petitioners and also perused the entire record carefully. Following points arise for determination:- (1) Whether Civil Writ Petition filed under Article 226 of the Constitution of India is liable to be accepted as mentioned in the memorandum of grounds of writ petition? (2) Relief. Findings upon point No. 1 with reasons: 9. Following points arise for determination:- (1) Whether Civil Writ Petition filed under Article 226 of the Constitution of India is liable to be accepted as mentioned in the memorandum of grounds of writ petition? (2) Relief. Findings upon point No. 1 with reasons: 9. It is proved on record that LPA No. 178 of 2010 titled Chief Executive Officer Kasauli vs. Rakesh Kashyap and Others was filed. It is also proved on record that LPA No. 178 of 2010 was disposed of by the Division Bench of Hon’ble High Court of Himachal Pradesh on 17.6.2013 with direction that regular posts to be created in the stated schools if any would be filled up in accordance with law. 10. It is proved on record that thereafter another CWP No. 4615 of 2013 titled Rakesh Kashyap and Others vs. State of Himachal Pradesh and Others was filed by the petitioners and the same was disposed of on 24.9.2013 by the Division Bench of Hon’ble High Court with observations that policy of the State Government would not be applicable upon petitioners because petitioners are governed by the Central Legislation. Hon’ble Division Bench of Himachal Pradesh High Court in CWP No. 4615 of 2013 observed that as per Rule 5 B(1) and 5 B(2) of the Cantonment Fund Servants Rules 1937, no person aged below 18 years and more than 25 years would be appointed to any post under the Board. Hon’ble Division Bench of the High Court further held that Chief Executive Officer Cantonment Board Middle School Kasauli and GOC-in-Chief Western Command Chandimandir Panchkula Haryana are bound by the stipulation mentioned in Rules 5 B(1) and 5 B(2) of the Cantonment Fund Servants Rules 1937. Hon’ble Division Bench further held that petitioners would apply for relaxation of age limit specified in Rule 5 B(2) of Rule 1937 and if such representation would be made then appropriate authority would decide the same expeditiously and if relaxation would be granted then petitioners would participate in the selection process. 11. Thereafter petitioners again filed CWP No. 9535 of 2013 titled Rakesh Kashyap and Others vs. State of Himachal Pradesh and Others which was decided by the Division Bench of Hon’ble High Court on 12.12.2013. The Division Bench held that petitioners have no right for being considered for regularization against the sanctioned posts. 11. Thereafter petitioners again filed CWP No. 9535 of 2013 titled Rakesh Kashyap and Others vs. State of Himachal Pradesh and Others which was decided by the Division Bench of Hon’ble High Court on 12.12.2013. The Division Bench held that petitioners have no right for being considered for regularization against the sanctioned posts. Hon’ble Division Bench further held that Hon’ble Division Bench in CWP No. 4615 of 2013 directed the petitioners to approach non-petitioners No. 3 and 4 for relaxation of age but instead of approaching non-petitioners, petitioners have filed CWP No. 9535 of 2013 with a prayer for framing the policy for their regularization. Hon’ble Division Bench of High Court in CWP No. 9535 of 2013 held that petitioners have no legal enforceable right warranting any interference and dismissed the writ petition with costs quantified at Rs. 10,000/- (Ten thousand). 12. Thereafter again petitioners have filed present writ petition No. 1453 of 2015 on the same grounds. It is held that in view of the findings of Division Bench of Hon’ble High Court in CWP No. 4615 of 2013 titled Rakesh Kashyap and Others vs. State of Himachal Pradesh and Others decided on 24.9.2013 and in view of the findings of Hon’ble Division Bench in CWP No. 9535 of 2013 titled Rakesh Kashyap and Others vs. State of Himachal Pradesh and Others decided on 12.12.2013 present writ petition is barred by the concept of resjudicata. It is well settled law that concept of res-judicata is applicable in writ Courts. In view of the above stated facts point No. 1 is decided in negative against the petitioners. Point No. 2 (Relief): 13. In view of the findings upon point No. 1 above CWP No. 1453 of 2015 titled Rakesh Kashyap and Others vs. State of Himachal Pradesh and Others is dismissed. However if any application of petitioners for relaxation of age limit is pending under Rule 5 (B)(2) of Rules of 1937 before Non-petitioners No. 3 and 4 same will be disposed of within one month in accordance with law. No order as to costs. Pending applications if any also disposed of. Petition is disposed of.