Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 2008 (HP)

Rajinder Kumar v. State Of H P

2019-12-23

ANOOP CHITKARA, TARLOK SINGH CHAUHAN

body2019
JUDGMENT Tarlok Singh Chauhan, J. - This petition has been filed for the grant of following relief: (i) That Annexure P-1 may be set aside/quashed and the respondents may be ordered to regularize the services of the petitioner on completion of 5 years service as per the policy with all the benefits incidental thereof." 2. The petitioner as per averments made in the writ petition is serving as a daily wager since 2003 in the various departments and since October, 2010, the petitioner is serving under the Deputy Commissioner, Una in Bachat Bhawan, but his services so far have not been regularised. Hence this petition. 3. The respondents have filed the reply wherein it is averred that the petitioner vide his application dated 6.9.2010 had requested the then Deputy Commissioner, Una to appoint him as Chowkidar in Bachat Bhawan, Una and on his request, the petitioner was appointed as such on daily waged basis for a period of 89 days w.e.f. 01.10.2010 to 28.12.2010 and thereafter, his being engaged for 89 days to the post of Chowkidar and after completion of 89 days, he is put on one day break and thereafter he is being reengaged/ re-appointed for 89 days and as such, since the services of the petitioner are not constant, therefore, he is not entitled to regularisation in service. It is also averred that the matter regarding regularisation of the services of the petitioner were referred to the Administrative Department i.e. Revenue Department, but was declined. It has also come in the reply that earlier to the current assignment, the petitioner was working as daily wager in the office of the Temple Officer, Chintpurni, District Una w.e.f. 01.01.2008 to 13.03.2009. 4. We have heard learned counsel for the parties and have gone through the material placed on record. 5. At the out-set, it needs to be observed that the practice of engaging workmen for a period of 89 days on each occasion and thereafter giving them one day break and thereafter re-engaging them, has been repeatedly deprecated by the Hon''ble Supreme Court. 5. At the out-set, it needs to be observed that the practice of engaging workmen for a period of 89 days on each occasion and thereafter giving them one day break and thereafter re-engaging them, has been repeatedly deprecated by the Hon''ble Supreme Court. Reference in this regard can conveniently be made to the judgment rendered in Union of India vs. Ramchander, (2005) 9 SCC 365 where such practice was held to be impermissible and it was observed as under: "4.The respondents were appointed against casual labourers but nevertheless they continued in service for four spells and that too their reappointments were made immediately within a few days of termination on completion of 89 days. It shows that sufficient work was available with the employer and had there been no termination on completion of 89 days, they would have completed 240 days of continuous employment. In that view of the matter the appellants had violated Section 25-G of the Industrial Disputes Act. We do not find any error or illegality in the decision rendered by the Division Bench. We direct the appellants to reemploy the respondents as daily-wagers." 6. No doubt, the appointment of the petitioner cannot be said to be regular appointment, but at the same time, it cannot also be held that he has been illegally appointed and having put in 10 years of more services, his services are required to be regularised even in terms of the Constitution Bench judgment of the Hon''ble Supreme Court in Secretary, State of Karnataka and others vs. Umadevi (3) and others, (2006) 4 SCC 1 wherein in para 53 an exception was carved out by the Hon''ble Supreme Court observing that Union of India, the State Government and their instrumentalities should take steps to regularise the services of such irregularly employees, who have put in more than 10 years and para 53 reads as under: "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore Vs. S.V. Narayanappa, (1967) 1 SCR 128 , R.N. Nanjundappa Vs. T. Thimmiah, (1972) 1 SCC 409 , and B.N. Nagarajan Vs. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore Vs. S.V. Narayanappa, (1967) 1 SCR 128 , R.N. Nanjundappa Vs. T. Thimmiah, (1972) 1 SCC 409 , and B.N. Nagarajan Vs. State of Karnataka, (1979) 4 SCC 507 , and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme." 7. Considering the facts of the present case on the touchstone of the law laid down in Umadevi''s case (supra), it will be seen that the petitioner has been in continuously working though under different Employer but under the State w.e.f. 01.01.2008 and, therefore, on completion of 10 years services, his services are liable and required to be regularised. 8. In view of the aforesaid discussion, the present petition is allowed and the respondents are directed to regularise the services of the petitioner immediately on completion of 10 years of service w.e.f. 01.01.2008 from 01.01.2018 with all consequential benefits including seniority and pay etc. 9. 8. In view of the aforesaid discussion, the present petition is allowed and the respondents are directed to regularise the services of the petitioner immediately on completion of 10 years of service w.e.f. 01.01.2008 from 01.01.2018 with all consequential benefits including seniority and pay etc. 9. The petition is disposed of in the aforesaid terms, so also the pending application(s), if any, leaving the parties to bear their own costs.