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2019 DIGILAW 645 (HP)

State of H. P. v. Davinder Chauhan

2019-05-29

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT : Dharam Chand Chaudhary, J. Heard. 2. Order Annexure P-3 dated 18.12.2017 passed by H.P. State Administrative Tribunal in T.A. No. 2708 of 2015 is under challenge in this writ petition. The complaint, in a nut shell, is that the petitioners herein (respondents in the Transferred Application), had rightly ordered to regularize the services of the petitioner as Receptionist-cum-Complaint Attendant w.e.f. 4.1.2006 vide order dated 12.4.2010 in compliance to the judgment dated 17.7.2009 passed in CWP (T) No. 13708 of 2008 instituted previously by the respondent-writ petitioner while following the ratio of the judgment Annexure P-4 again rendered by a Division Bench of this court on 29.12.2007 in CWP No. 778 of 2006 titled Gauri Dutt vs. State of H.P. and its connected matters. Learned Tribunal, therefore, was not justified in issuing the direction to regularize the services of the respondent-writ petitioner as Complaint Attendant/Receptionist w.e.f. 1.1.2002. The impugned order Annexure P-3, as such, has been sought to be quashed and set aside. 3. Admittedly, the respondent-writ petitioner was engaged as Beldar on daily wage basis in the year 1992. He continued, as such, till 1993 and thereafter issued the muster roll of Receptionist, Class-III in the year 1994. He was regularized as Beldar vide order dated 4.1.2006. He accepted his regularization so ordered as Beldar without any protest. Subsequently, he however, preferred O.A. No.1829 of 2006 in the H.P. State Administrative Tribunal and claimed regularization as Receptionist (Class-III) w.e.f. 4.1.2006 with all consequential benefits. On abolition of the Tribunal, the original application was transferred to this Court and registered as CWP (T) No. 13708 of 2008. The same came to be dismissed by a Division Bench of this Court vide judgment dated 17.7.2009 Annexure P-5. Since the respondent-writ petitioner had worked initially as Beldar and thereafter as Receptionist on daily wage basis and opted for his regularization as Receptionist, therefore, this Court vide judgment Annexure P-4 directed the respondents to consider regularization of the respondent-writ petitioner as Complaint Attendant/Receptionist in case the policy of regularization was in existence and being followed by them. The respondents, therefore, proceeded to regularize the services of the respondent-writ petitioner as Receptionist vide order dated 12.4.2010 Annexure P-8 to the writ/record of O.A w.e.f. 4.1.2006 and vide corrigendum dated 1.2.2012 Annexure P-10 sought to recover the amount, the respondent-petitioner had drawn as regular beldar. The respondents, therefore, proceeded to regularize the services of the respondent-writ petitioner as Receptionist vide order dated 12.4.2010 Annexure P-8 to the writ/record of O.A w.e.f. 4.1.2006 and vide corrigendum dated 1.2.2012 Annexure P-10 sought to recover the amount, the respondent-petitioner had drawn as regular beldar. The respondent-writ petitioner, however, being aggrieved and dissatisfied thereby has assailed the order Annexure P-8 and P-10 initially in this Court by filing the writ petition which ultimately was transferred to the Administrative Tribunal and registered as T.A. No. 2708 of 2015. It is, this transferred application (T.A.) which has been decided vide impugned order Annexure P-3 dated 18.12.2017. 4. As a matter of fact, learned Tribunal has held the petitioner entitled to regularization as Complaint Attendant/Receptionist w.e.f. 1.1.2002 with all consequential benefits and also quashed the order Annexure P-10 whereby certain recoveries were sought to be effected qua the salary drawn by the petitioner on his regularization as Beldar w.e.f. 4.1.2006. 5. On hearing learned Addl. Advocate General and going through the record, we find that there is no dispute qua engagement of the respondent-writ petitioner as Beldar in the year 1992. There is no controversy so as to he worked as Beldar on daily waged basis till 1993 and in the year 1994, muster roll of Receptionist (Class-III) was issued to him and he continued as such till his regularization as Beldar vide order dated 12.4.2016 w.e.f. 4.1.2006. Thus, he accepted the offer of his regularization as Beldar w.e.f. 4.1.2006, however, simultaneously to get his grievance qua his regularization as Receptionist redressed, preferred O.A. No. 1829 of 2006 in the H.P. State Administrative Tribunal. On abolition of the Tribunal in the year 2008, the same was transferred to this Court and registered as CWP (T) No. 13708 of 2008. The same was disposed of by a Division Bench of this Court vide judgment dated 17.7.2009 Annexure P-5 to this Writ petition. As per this judgment, the petitioner was to be considered for regularization as Receptionist as per the policy being followed by the respondent-State as he had opted for regularization as Receptionist instead of Beldar. The same was disposed of by a Division Bench of this Court vide judgment dated 17.7.2009 Annexure P-5 to this Writ petition. As per this judgment, the petitioner was to be considered for regularization as Receptionist as per the policy being followed by the respondent-State as he had opted for regularization as Receptionist instead of Beldar. He, therefore, was ordered to be regularized as Receptionist w.e.f. 4.1.2006, however, not as per the policy prevalent because the Government has framed the Policy on 3.4.2000, further modified on 6.5.2000 and as per the same, the daily waged/contingent paid workers in all the departments, including Public Works were ordered to be regularized on completion of 8 years of continuous service with a minimum of 240 days in each calendar year as on 31.3.2000. The petitioner, admittedly was working as Receptionist on daily waged basis from the year 1994 onwards. He, therefore, completed 8 years of service in the year 2001. Therefore, as per the policy dated 3.4.2000 read with order dated 6.5.2000 was entitled for regularization from the year 2002 because regularization policy circulated vide order dated 3.4.2000 read with order dated 6.5.2000 remained in force till 9.6.2006, when new policy came to be framed. Since the petitioner had acquired 8 years of service on daily waged basis as Receptionist with 240 days in each calendar year in the interregnum i.e. in the year 2001, therefore the respondents were under an obligation to regularize his services as Receptionist from the year 2002 in view of the ratio of the judgment of this Court in Rakesh Kumar vs. State of H.P., CWP No. 2735 of 2010, decided on 28.7.2010 in which the policy circulated vide letter dated 3.4.2000 and 6.5.2000 were held to be in force till 9.6.2006, the day when new policy came to be introduced for regularization of the services of daily waged/contingent paid staff. 6. Learned Tribunal, therefore, has rightly followed the judgment of this Court in Gauri Dutt’s case (supra) and also in Rakesh Kumar’s case while allowing the transferred application vide impugned judgment Annexure P-3 to this writ petition. 6. Learned Tribunal, therefore, has rightly followed the judgment of this Court in Gauri Dutt’s case (supra) and also in Rakesh Kumar’s case while allowing the transferred application vide impugned judgment Annexure P-3 to this writ petition. Order Annexure P-10 to the T.A. initiating thereby the proceedings to recover the amount the respondent-petitioner in the capacity of regular Beldar had drawn has rightly been quashed and set aside for the reason that the petitioner was eligible for being regularized as Receptionist, a Class-III post form the year 2002 and till then he had right to claim the wages of Receptionist. Being so, there is no occasion to the respondents-State to have initiated the proceedings to recover the so called excess amount from him. Learned Tribunal has, therefore, neither committed any illegality nor any irregularity while allowing the Transferred Application. Otherwise also, the impugned order passed on 18.12.2017 has now been assailed in this Writ petition after a period over one year without there being any explanation to the delay so occurred. Therefore, in the peculiar facts and circumstances, as discussed hereinabove, no case is made out for interference by this Court with the impugned order at this stage. The impugned judgment, as such, cannot be said to be legally and factually unsustainable. The same rather is affirmed and this writ petition is dismissed in limine.