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Himachal Pradesh High Court · body

2015 DIGILAW 199 (HP)

Madan Kumar v. State of H. P.

2015-03-18

MANSOOR AHMAD MIR

body2015
JUDGMENT : Mansoor Ahmad Mir, J. Petitioner was initially engaged as daily wage worker on 19th June, 1996, made representation for regularization, but the respondents failed to do so, constraining him to file the writ petition, being CWP No.2489 of 2010, titled Madan Kumar vs. State of H.P. and others, which came to be decided on 28th May, 2010 and the respondents were directed to look into the grievance of the petitioner and take a decision. 2. Pursuant to the aforesaid directions, the respondents took the decision on 1st November, 2010, (Annexure P-4), constraining the petitioner to file the present writ petition seeking similar relief, as was sought in the earlier writ petition. 3. Respondents resisted the writ petition on flimsy grounds by filing reply. It is apt to reproduce paragraphs 4 and 5 of the reply filed by respondent No.2, as under: “4. That the petitioner was to be considered for regularization as Peon-cum-Chowkidar as per the said policy in accordance with the provisions of Recruitment and Promotion Rules for the post of Peon-cum-Chowkidar against the available sanctioned and vacant post. But no post of Peon-cum-Chowkidar, Class-IV, is available at present to accommodate the petitioner at this juncture. Notwithstanding the fact that though the petitioner is appeared at Sr.No.23 in terms of seniority amongst similar situate persons and 22 similar situated persons are fairly senior to the petitioner, and have not been regularized for want of vacant & sanctioned posts. The relevant abstract of seniority is appended hereto as Annexure R-2 (Colly). Though the petitioner has acquired the essential education qualification as middle pass, as per the R&P Rules and thus eligible for the purpose of regularization. But, he shall be regularized subject to availability of post being one of the conditions envisaged under said policy of Regularization. Notwithstanding the factum that no sanctioned post exists at present, thus, daily waged services of the petitioner cannot be regularized unless, necessary approval qua creation of additional posts of Peon-cum-Chowkidar is granted by the competent Authority of the State Government. 5. That 55 sanctioned posts of Class-IV, Peon-cum- Chowkidar are available at present and 54 posts already stand filled up except one, which has been kept unfilled with the orders of Hon’ble High Court in another similar writ petition in compliance of the orders dt. 5. That 55 sanctioned posts of Class-IV, Peon-cum- Chowkidar are available at present and 54 posts already stand filled up except one, which has been kept unfilled with the orders of Hon’ble High Court in another similar writ petition in compliance of the orders dt. 16.01.2009 passed by this Hon’ble Court in CWP No.186/2009 titled as Man Singh versus State of H.P. & ors. Therefore, no post of Peon-cum-Chowkidar is available at present so as to accommodate the petitioner for regularization. The replying respondent Board, thus, needs additional posts of Peon-cum-Chowkidar to accommodate and regularize the daily waged services of the petitioner and other DPLs, who are senior to him. It is therefore made clear that DPLs working with the APMCs were not engaged against the sanctioned posts but were engaged as helper to assist the functionaries of the APMCs. The respondent board has already moved a case to the Government to sanction additional posts so that the services of the DPLs could be regularized. Till the approval is received from the competent authority the daily waged services cannot be regularized. The copy of the same is appended hereto as Annexure-R-3, for kind perusal of this Hon’ble High Court.” 4. Heard. I have gone through the reply. The consideration order (Annexure P-4) has been made by the respondents in violation of the orders made by this Court and in breach of the Rules. 5. Accordingly, the consideration order (Annexure P-4) is quashed and the respondents are directed to consider the case of the petitioner afresh and pass orders in terms of the judgment, supra, read with paragraphs 4 and 5 of the reply filed by respondent No.2 and the Rules occupying the field. 6. The writ petition is disposed of accordingly, so also the pending CMPs, if any.