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2019 DIGILAW 320 (HP)

Kartar Chand v. State Of H. P.

2019-03-27

SANDEEP SHARMA, SURYA KANT

body2019
JUDGMENT Sandeep Sharma, J. (Oral) - Instant Letters Patent Appeal filed under Clause 10 of the High Court of Delhi Rules as applicable to High Court of Himachal Pradesh, is directed against the judgement date 1.3.2012, passed by the learned Single Judge in CWP No. 3924 of 2009, whereby the writ petition having been filed by the petitioner-appellant came to be dismissed. 2. Briefly stated facts as emerge from the record are that the petitioner (hereinafter referred to as ''''the appellant") after having served Indian Army for almost 16 years and 10 months, got himself registered in the Ex-Servicemen Employment Exchange Cell, Hamirpur, District Hamirpur, H.P., in the year, 2002, with a view to get re-employment in the State of Himachal Pradesh. Vide letter dated August, 2000 (Annexure P-2), Directorate of Sainik Welfare (Ex-Servicemen Employment Cell), Hamirpur, nominated/sponsored name of the appellant against the vacancy reserved for the exservicemen in the department of Ayurveda and requested the concerned department to issue call letter to the appellant as well as other nominated candidates for the post of Ayurveda Pharmacist. However, fact remains that pursuant to aforesaid recommendations, the appellant never came to be appointed as Ayurveda Pharmacist. Subsequently, vide order dated 21.7.2007, Government of Himachal Pradesh on the recommendation of the Regional Directorate of Sainik Welfare Board, Hamirpur, recommended the name of the appellant for the post of Chawkidar in HP Civil Secretariat on daily wages, where after, appellant was afforded appointment to the post as Chawkidar on daily wage basis vide office order dated 31.7.2007 with a further direction to submit his joining in the control room through Estate Section Officer (Annexure P-5). After joining as Chawkidar in HP Secretariat on daily wage basis, appellant made representation to respondent No.1 dated 17.8.2009, praying therein for regularisation of his service under l5 percent reserved quota as per the Demobilised Armed Forces Personnel Reserved Vacancy Rules, 1972. But since no heed was paid to his aforesaid prayer, he approached this Court by way of CWP No. 3924 of 2009, praying therein for following main relief: ''''i)That the respondents may kindly be directed to regularise the service of the petitioner under 15% quota of Ex-servicemen category forthwith either on Class-III post or Class-IV post with all consequential benefits in the interest of justice and fair play." 3. Learned Single Judge vide judgement dated 1.3.2012, dismissed the writ petition by holding that this Court cannot issue directions to the respondent-State to fill up the post on regular basis. Learned Single Judge vide impugned judgement further held that it is the sole prerogative of the employer to fill up the post either on regular basis, daily wage basis, contractual basis/tenure basis and no direction in this regard, can be passed while exercising power under Article 226 of the Constitution of India. The appellant has filed this intra-court appeal. 4. Having heard the learned counsel for the parties and perused material available on record vis--vis reasoning assigned by the learned Single Judge while passing the impugned judgement, we see no illegality and infirmity in the impugned judgement and as such, same does not call for any interference. Close scrutiny of appointment letter dated 31.7.2017 (Annexure P-5) issued in favour of the appellant clearly reveals that on recommendations of the Regional Employment Officer, Directorate of Sainik Welfare Board, Hamirpur, respondent-State considered the appellant for the post/vacancy of Chawkidar on daily wage basis. In the aforesaid appointment letter, it stood duly mentioned that appointment is purely on temporary basis and his services can be terminated any time without giving any notice. Moreover, it has been further mentioned in the appointment letter that daily payment will be payable as fixed by the Government from time to time. Condition No. 6 contained in the appointment letter further reveals that the appellant was advised to give joining report in case conditions contained in the letter are acceptable to him. 5. It is not in dispute that appellant pursuant to aforesaid appointment letter joined the department concerned without raising any objection/query, if any, with regard to his eligibility/right, if any, to be appointed against the post in question on regular basis. It is only in the year, 2009, that the appellant made representation to the Secretary (SAD) State of Himachal Pradesh, praying therein for regularisation on daily wages against 15 % reserved quota. In the said representation, he claimed that State of Himachal Pradesh has wrongly converted Regular Ex-Servicemen Quota to Daily Wage Workers against 15 % reserved quota. It is only in the year, 2009, that the appellant made representation to the Secretary (SAD) State of Himachal Pradesh, praying therein for regularisation on daily wages against 15 % reserved quota. In the said representation, he claimed that State of Himachal Pradesh has wrongly converted Regular Ex-Servicemen Quota to Daily Wage Workers against 15 % reserved quota. He further claimed that 15 % reserved quota for the Ex-Servicemen has been issued by the Central Government and as such, it was not in the domain of the State to convert the regular post into daily wages posts. In the aforesaid representation, appellant also claimed that since State of Himachal Pradesh has framed the policy to regularise the Daily Wage Workers after completion of eight years, his services ought to have been regularised. Respondent No.3 i.e. Secretary, SAD Government of Himachal Pradesh by way of reply claimed before the writ court below that post of Chawkidar in the concerned department came to be filled on the basis of daily wages basis through direct recruitment. Respondent No.3 further claimed that since 15% quota has been provided to Ex-Servicemen in direct recruitment, therefore after the approval from the competent authority, requisition was sent to the Director, Sainik Welfare (Ex-Servicemen Cell) Hamirpur to recommend the name of the candidate to fill up two posts of Chawkidar on daily wage basis. Respondent-State (Department of Personnel) further apprised the writ court that as per letter No. Per (AP)-C- B(2)-1/2006-Vol-VIII dated 7.5.2010, instructions have been issued to regularise the services of those daily wage employees, who have completed 8 years service as on 31.3.2010, but since the appellant joined his service as Chawkidar on 27.7.2007 on daily wage basis, he does not fulfil the eligibility criteria of 8 years daily wage service for regularisation. 6. We find from the record that name of the appellant was recommended against the daily wage post under 15 % quota of Ex-Servicemen, pursuant whereof, State of Himachal Pradesh, made his appointment on daily wage basis vide communication dated 31.7.2007 and as such, argument having been raised by Ms. 6. We find from the record that name of the appellant was recommended against the daily wage post under 15 % quota of Ex-Servicemen, pursuant whereof, State of Himachal Pradesh, made his appointment on daily wage basis vide communication dated 31.7.2007 and as such, argument having been raised by Ms. Megha Kapur Gautam, his learned counsel that service rendered by the appellant in the Army ought to have been taken into consideration by the department for determining the minimum period required for regularisation for his service in terms of policy decision taken by the State, is wholly untenable, especially, in view of the fact that no such prayer ever came to be made on behalf of the appellant in the writ petition having been filed by him, rather in nutshell, his case as projected in the writ petition is/was that he ought to have been appointed on regular basis under 15 % quota of ex-servicemen category either on Class-III or class-IV post. 7. As has been taken note herein above, name of the petitioner was recommended by the Ex-Servicemen Cell for the post of Chawkidar on daily wages against 15 %quota and as such, learned Single Judge while dismissing the writ petition rightly observed that court, while exercising power under Article 226 of the Constitution of India, has no power to direct the respondents-department to appoint the appellant on regular basis because decision in this regard, if any, can only be taken by the State of Government. Moreover, during the hearing of the case, we have been informed that after completion of eight years service having been rendered by the appellant, his services were regularised and as of today, he stands superannuated. 8. Consequently, in view of the detailed discussion made herein above, we find no reason to interfere with the well reasoned judgement passed by the learned Single Judge and as such, appeal is dismissed accordingly being devoid of any merits.