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2017 DIGILAW 1256 (HP)

State Of H. P. v. Dr. Rohit Sharma

2017-11-14

AJAY MOHAN GOEL, SANJAY KAROL

body2017
JUDGMENT Ajay Mohan Goel, J. (Oral) - By way of this writ petition, the State has assailed order, dated 31.03.2016, passed by the learned Himachal Pradesh Administrative Tribunal, Shimla in T.A. No. 1710 of 2015, vide which, learned Tribunal disposed of the Transfer Application in the following terms: "The applicants were appointed as Veterinary Officers, on contract, and joined service on 17.06.2006. They had completed six years service for regularization in terms of decision dated 8.8.2012 taken by the CMM of Himachal Pradesh. The respondent did not regularize the services of the applicant on completion of six years service. The cut off date mentioned in notification dated 31.8.2012 superseding the decision of the CMM that the persons who had completed six years service as on 31.3.2012 were to be regularized was illegal. The applicants have completed six years service, on contract, for regularization. 2. Consequently, the transferred application is allowed and the respondents are directed to consider case of the applicants for regularization on completion of six years service. 3. The pending miscellaneous application(s), if any, also stand disposed of." 2. Brief facts necessary for the adjudication of the present petition are that respondents before this Court joined the services of the respondent-State as Veterinary Officer on contract basis in June 2006. Vide instructions, dated 17th August, 2012, issued by the Department of Personnel, Government of Himachal Pradesh, on the subject "Regularization of contract appointees in the Government Departments-Instructions thereof", it was notified that matter regarding regularization of services of contractual employees working in various departments which was under consideration of the Government, stood decided by the Government, wherein a decision had been taken to regularize the services of the contractual appointees after completion of six years of service, provided they had been engaged as such after observing all codal formalities. By virtue of said instructions right of regularization accrued upon the present respondents on completion of six years of service as contract employees, as they had been engaged after observing all codal formalities. However, Department of Personnel again issued instructions, dated 31st August, 2012, wherein it was mentioned that the Government has decided to regularize the services of only those contractual appointees after completion of six years service, who had put in six years of service on contract basis as on 31.03.2012. However, Department of Personnel again issued instructions, dated 31st August, 2012, wherein it was mentioned that the Government has decided to regularize the services of only those contractual appointees after completion of six years service, who had put in six years of service on contract basis as on 31.03.2012. Present respondents were aggrieved by the issuance of the said instructions, dated 31st August, 2012, because as per them, the right of regularization, which had accrued upon them vide instructions, dated 17th August, 2012, was arbitrarily curtailed by mentioning a cut off date, i.e., 31.03.2012. As per the present respondents, as a result of this arbitrary act on the part of the respondent-State, their regularization was delayed by nine months'' time, as rather than their services being regularized after completion of six years of service on contract basis, the respondent-State regularized their services on 31.03.2013. Accordingly, they assailed the said act of the State by filing CWP No. 8926/2012. The impugned instructions were inter alia also challenged on the ground that whereas instructions, dated 17th August, 2012 were in consonance with the decision of the Cabinet, i.e. the decision taken vide Item No. 27 in the Cabinet meeting held on 08.08.2012, which correctly stood reflected in instructions, dated 17.08.2012, however, the subsequent instructions, dated 31.08.2012, were not in consonance with the decision of the Cabinet, dated 08.08.2012, as there was no cut off date mentioned in the Cabinet decision. 3. This writ petition was subsequently transferred to the learned Administrative Tribunal and the same stood disposed of vide order, dated 31.03.2016, which we have already quoted above, which stands assailed before this Court by way of this writ petition. 4. We have heard the learned Additional Advocate General as well as learned counsel for the respondent. We have also perused the original records of the case, which were made available for the perusal of the Court by the learned Additional Advocate General. 5. Records demonstrate that there was no cut off date prescribed in the Cabinet memorandum, wherein the decision was taken by the Cabinet to regularize the services of employees serving in various departments of the Government, who had completed more than six years of service. 5. Records demonstrate that there was no cut off date prescribed in the Cabinet memorandum, wherein the decision was taken by the Cabinet to regularize the services of employees serving in various departments of the Government, who had completed more than six years of service. Learned Additional Advocate General also did not dispute the fact that instructions, dated 31.08.2012 were not issued after getting necessary approval from the Cabinet or in other words, that the insertion of the cut off date, which finds mentioned in the said instructions was not with the approval of the Cabinet. 6. Having heard learned counsel for the parties and having gone through the records of the case, we do not find any infirmity with the order passed by the learned Tribunal. We say so for the reason that in terms of the decision of the Cabinet, dated 08.08.2012, the right of regularization stood conferred upon the present respondents on completion of six years of service and this right stood crystallized by the Government pursuant to the issuance of instructions, dated 17.08.2012. It is not the case of the State that inadvertently the cut off date was not mentioned in instructions, dated 17.08.2012. Explanation which has been given at the Bar by the learned Additional Advocate General is that the cut off date was given for the sake of convenience, because otherwise the State would have had to issue the orders of regularization almost every day, as employees serving in various Departments of Government complete six years of service every other day. 7. Be that as it may, when Cabinet had taken the decision to confer the right of regularization on contract employees, who had been so appointed after observing all codal formalities, then this right of regularization on completion of six years of service could not have been arbitrarily delayed by the State, as has been done by it by issuance of instructions, dated 31.08.2012. Convenience of the Executive cannot defeat the right of regularization, which stood conferred upon the employees by virtue of the decision of the Cabinet. In fact, in our considered view, as instructions, dated 17.08.2012, were issued on the basis of the recommendations of the Cabinet, no alteration in the same could have been done by the State without the approval of the Cabinet. In fact, in our considered view, as instructions, dated 17.08.2012, were issued on the basis of the recommendations of the Cabinet, no alteration in the same could have been done by the State without the approval of the Cabinet. In this background, when we peruse order, dated 31.03.2016 passed by the learned Tribunal, we do not find any infirmity with the same. Learned Tribunal has rightly held that the cut off date mentioned in instructions, dated 31.08.2012, supersedes the decision of the Cabinet and the same thus was illegal. 8. Therefore, as we do not find any infirmity with the order, dated 31.03.2016, passed by the learned Tribunal and further as we are also of the view that the right of regularization conferred upon the private respondents on completion of six years of service by the Cabinet could not have been arbitrarily altered or delayed to their disadvantage by the Executive, we dismiss the present writ petition being devoid of any merit. Miscellaneous application(s), if any, also stand disposed of.