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2019 DIGILAW 1515 (HP)

Komal Chand v. State Of H. P.

2019-10-15

DHARAM CHAND CHAUDHARY, L.NARAYANA SWAMY

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JUDGMENT : Dharam Chand Chaudhary, J. The petitioner, presently working as Peon in the Office of Range Forest Officer, Sunni, District Shimla has filed this writ petition with a prayer to quash order dated 24.12.2015 (Annexure P-7) whereby his claim for conferment of work charge status in terms of the judgment of this Court in CWP No. 2735 of 2010 titled Rakesh Kumar Vs. State of H.P. & ors. has been rejected and in the alternative for regularization of his services as Peon on completion of 8 years on daily wage basis with all consequential benefits. 2. As a matter of fact, this case has a chequered history. The petitioner, initially engaged as Beldar on daily wage basis in the year 1998 had filed CWP No. 1541 of 2009 against the action of the respondents whereby they refused to regularize the period of his absence from 1.8.1998 to 15.9.1998 and 1.5.2002 to 30.6.2002 on account of delayed production of medical certificate on 6.8.2007 issued by a Private Practitioner and regularization of his services. The writ petition was disposed of vide judgment dated 12.9.2012 directing thereby the respondents to consider the medical certificate supplied by the petitioner and regularize him as Class-IV employee. Consequently, the services of the petitioner were regularized on and w.e.f. 13.9.2012 vide order Annexure P-3. Aggrieved by his regularization not on completion of 8 years continuous service and rather from a subsequent date, he preferred CWP No. 8723 of 2013 in this Court. The same was transferred to State Administrative Tribunal and registered as TA No. 5782 of 2015. It was allowed vide judgment Annexure P-6 directing thereby the respondents to consider the case of the petitioner for conferment of work charge status on completion of 8 years service by him with all consequential benefits. In compliance to the judgment Annexure P-6, the respondent-Department has considered the matter and passed the impugned order Annexure P-7. The petitioner has not been held entitled to conferment of work charge status. 3. In compliance to the judgment Annexure P-6, the respondent-Department has considered the matter and passed the impugned order Annexure P-7. The petitioner has not been held entitled to conferment of work charge status. 3. It is the order Annexure P-7 which has been challenged by the petitioner in this writ petition on the grounds inter alia that he is entitled to conferment of work charge status immediately on completion of period of 10 years in view of the judgment of the Apex Court in Mool Raj Upadhyaya's case and in the alternative for regularization on completion of 8 years of service in view of the judgment of this Court in CWP No. 2735 of 2010 titled Rakesh Kumar Vs. State of H.P. & ors. 4. The respondents have resisted and contested the claim of the petitioner on all counts while submitting that the petitioner could have not been brought on work charge establishment nor regularized from a back date as his absence w.e.f. 1.8.1998 to 15.9.1998 and 1.5.2002 to 30.6.2002 has rightly been declined to be regularized for the reason, firstly that the medical certificate he submitted was issued by a Private Practitioner and secondly that the same was produced after 6 years i.e. on 6.8.2007. Therefore, up to the year 2002, he never completed 240 days in a calendar year. His services, therefore, were rightly regularized in terms of the policy on and w.e.f. 13.9.2012 vide order Annexure P-3. However, no reply is forthcoming to the averments in the writ petition that the persons junior to the petitioner and similarly situated were regularized much before him with retrospective effect while regularizing the period of their absence on the basis of similar medical certificates produced by them also at a belated stage. Therefore, on 11.6.2019, following order came to be passed in this Writ Petition: "Learned Deputy Advocate General has placed on record the written instructions which reveal that the services of the petitioner stand regularized w.e.f. 13.09.2012. He, however, is seeking his regularization from an early date while counting the period on daily wage basis from 1.8.1998 to 15.9.1998. The written instructions further reveal that during the period from 1998 to 2002, he failed to complete 240 days in each calendar month and the medical certificate he produced at belated stage on 6.8.2007 was not taken into consideration. The written instructions further reveal that during the period from 1998 to 2002, he failed to complete 240 days in each calendar month and the medical certificate he produced at belated stage on 6.8.2007 was not taken into consideration. Prima-facie the relief to which the petitioner is entitled has already been granted to him. Any how, learned counsel seeks time to have instructions in the matter. Allowed. List on 18.07.2019." 5. The matter when heard further on 18.7.2019, further information was sought to be produced by the respondent-State. The order dated 18.7.2019, reads as follows: "Heard for sometime. Let learned Additional Advocate General to produce the mandays chart in respect of the petitioner and also order No. 620/2007 whereby medical certificate issued for regularization of the alleged period of ailment w.e.f. 1.8.1998 to 15.9.1998 and 1.5.2002 to 30.6.2002 was rejected by the competent authority. List on 20.8.2019." 6. Consequently, the respondent-State has filed he supplementary affidavit. A bare perusal of the same reveals that similarly situated persons, namely, Jai Ram had preferred CWP No. 5844 of 2010 whereas Prem Singh had preferred CWP No. 5607 of 2010. The writ petitions they preferred were disposed of by this Court with a direction to consider their cases in the light of the judgment of this Court in CWP No. 2735 of 2010 titled Rakesh Kumar Vs. State of H.P. & ors. after taking into consideration the medical certificates they already supplied for regularization of the period of their absence. The supplementary affidavit further reveals that Prem Singh aforesaid engaged in the year 1997 remained absent from duty w.e.f. 1.4.2002 to 23.4.2002. The medical certificate he furnished on 4.11.2008 for continuity in service was accepted and his services regularized on completion of 8 years continuous service with 240 days in a calendar year in the year 2009. Similarly, Jai Ram aforesaid engaged on daily wage basis in the year 1998 also submitted the medical certificate of a Private Practitioner for regularization of the period of his absence w.e.f. 4.1.2000 to 10.1.2000, 1.1.2002 to 22.1.2002, 1.7.2002 to 15.7.2002 and 1.10.2002 to 25.10.2002 and 7.11.2002 to 12.11.2002 (75 days) in the year 2001 for continuity in service and he was also regularized in the year 2009. 7. 7. In view of the factual details so brought on record by the respondent-department itself, the petitioner, who is similarly situated to Prem Singh and Jai Ram aforesaid could have not been discriminated in the matter of his regularization from a later date by rejecting the medical certificate dated 6.8.2007 he produced for regularization of the period of his absence from duty on the ground of delayed production and the same having been issued by a Private Practitioner. The period of his absence, therefore, has to be regularized as the respondents did in the case of Prem Singh and Jai Ram aforesaid. 8. If it is so and the petitioner admittedly was engaged in the year 1998, he had completed the period of 8 years in the year 2006. He therefore, is entitled to regularization on completion of 8 years of service and at least in the year 2009 when the services of Prem Singh and Jai Ram were regularized because they were also engaged as Beldars in the year 1997 and 1998, respectively. The petitioner, though has claimed his regularization immediately on completion of 8 years of service, however, in the given facts and circumstances when his senior Prem Singh and Jai Ram also engaged on daily wage basis in the year 1998 like the petitioner, similarly situated, have been regularized in the year 2009, therefore, he is also entitled to his regularization from the date in the year 2009 when they both were regularized with all consequential benefits. 9. In view of the above, this petition succeeds and the same is accordingly allowed. Consequently, the respondents are directed to regularize the services of the petitioner as Class-IV from the date in the year 2009 when Prem Singh and Jai Ram, similarly situated (Beldars) were regularized with all consequential benefits. The due and admissible arrears be paid to him within three months from today, failing which, together with interest @ 6% per annum. In that event, the amount to be paid to him by way of interest will be recovered from the erring officer/official(s). The writ petition is accordingly disposed of, so also the pending application(s), if any.