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Himachal Pradesh High Court · body

2017 DIGILAW 781 (HP)

Man Singh v. State of H. P.

2017-07-10

AJAY MOHAN GOEL, SANJAY KAROL

body2017
JUDGMENT : Ajay Mohan Goel, J. By way of this writ petition, the petitioner herein has challenged the order passed by the learned Himachal Pradesh Administrative Tribunal in O.A.(M) 230/2001, dated 17.08.2007, vide which learned Tribunal rejected the claim of the present petitioner/original applicant of issuing direction to the respondents to regularize his services as a Clerk (Class-III) employee w.e.f. 09.11.1998 with all consequential benefits. 2. Brief facts necessary for the adjudication of the present case are as under: As per the petitioner, he was initially appointed as a daily rated Clerk by Municipal Committee, Mandi w.e.f. 02.02.1986 up to October 1987 and thereafter from November, 1987 onwards, he was called upon to accept the Muster roll of Beldar, which he accepted as he had no other option. It was further his case that vide communication dated 09.11.1998, respondent No. 2 accorded permission to fill up vacant posts in Municipal Committee, Mandi from amongst Class IV employees. As per the petitioner, despite the fact that he was performing the duties of a Clerk, he was arbitrarily denied appointment by the respondents against a Class-III post of a Clerk, which act of the respondents was discriminatory and amounted to exploitation, as it was the admitted case even of Municipal Committee, Mandi that the petitioner was actually performing the duties of a Clerk, though he was being issued a Muster roll of Beldar only. In this background, by way of filing Original Application before the learned Himachal Pradesh Administrative Tribunal, the petitioner assailed his regularization as a Beldar with the prayer that respondents be directed to regularize him as a Clerk. 3. Respondents while denying the claim of the petitioner before the learned Tribunal, took a stand that though the petitioner was initially temporarily engaged as a daily rated Clerk for about one and a half years, however, thereafter he was offered job of daily rated Beldar, which he accepted. Thereafter, he served as such and accordingly, his services were regularized as Beldar w.e.f. 01.01.1998 vide office order dated 17.02.1998 as per policy of the State Government. As per the respondents, not only the case of the petitioner was ill-founded, but the same was also time barred as the services of the petitioner stood regularized as Beldar on 01.01.1998 and he approached the learned Tribunal beyond the period of limitation. 4. As per the respondents, not only the case of the petitioner was ill-founded, but the same was also time barred as the services of the petitioner stood regularized as Beldar on 01.01.1998 and he approached the learned Tribunal beyond the period of limitation. 4. Learned Tribunal vide order dated 17th August, 2007, besides holding that the Original Application filed before it was hopelessly time barred, further on merit held that even otherwise, the petitioner/applicant had no case for regularization of his services as a Clerk, because neither his initial engagement as a Clerk nor as a Beldar was in accordance with Recruitment and Promotion Rules and as his initial engagement was de hors the Rules and without any competitive selection process having been adopted, he did not deserve the reliefs prayed for. While arriving at the said conclusion, learned Tribunal relied upon the judgment passed by the Hon’ble Supreme Court in State of Karnataka and others Vs. Uma Devi and others 2006 (3) SLR 1 . 5. Order so passed by the learned Tribunal stands assailed by the petitioner by way of this petition. 6. We have heard the learned counsel for the parties and have also gone through the records of the case. 7. It is not in dispute that the services of the petitioner were regularized as a Beldar w.e.f. 01.01.1998. Original Application assailing his regularization as a Beldar instead of a Clerk with a further prayer that he be regularized as a Clerk was filed by the petitioner before the learned Tribunal in the month of June, 2001. Services of the petitioner as a Beldar were regularized w.e.f. 01.01.1998 vide order dated 17.02.1998. Meaning thereby that the cause of action accrued in favour of the petitioner/original applicant on 17.02.1998, when his services were regularized as a Beldar w.e.f. 01.01.1998. Under the statutory provisions of the Administrative Tribunal Act, the said order was required to be assailed within a period of one year. As per the petitioner/applicant, he had filed representation to the respondents against his non-regularization as a Clerk. Be that as it may, even then, the limitation gets extended only by six months, as it is settled law that in case a representation is not decided within a period of six months, then it is deemed to have been rejected. As per the petitioner/applicant, he had filed representation to the respondents against his non-regularization as a Clerk. Be that as it may, even then, the limitation gets extended only by six months, as it is settled law that in case a representation is not decided within a period of six months, then it is deemed to have been rejected. It is not the case of the petitioner that he filed the Original Application before the learned Tribunal within one and a half years from the passing of the order vide which his services were regularized as a Beldar. Therefore, in this view of the matter, the findings returned by the learned Tribunal to the effect that the Original Application was hopelessly time barred, cannot be termed to be perverse findings. Besides this, the order passed by the learned Tribunal that the services of the petitioner could not be ordered to be regularized as a Clerk as he was not initially appointed as a Clerk by following some competitive selection process, can also not be faulted with. This is for the reason that it is not the case of the petitioner that his initial engagement though for a very short tenure as a Clerk and thereafter as a Beldar was by following procedure of Recruitment as was prescribed in the relevant Recruitment and Promotion Rules or his initial engagement was by following some transparent process, in which all other similarly situated eligible persons were also invited to participate in the selection process. Besides this, it is a matter of record that the petitioner had not objected to his being offered the Muster roll of Beldar and therefore also, the act of the State of regularizing his services as a Beldar after he had completed 8 years of service as such, cannot be faulted with. 8. In view of the above discussion, as we do not find any infirmity with the order passed by the learned Tribunal, which stands assailed by way of the present writ petition, accordingly the same is dismissed being devoid of any merit.