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2020 DIGILAW 478 (HP)

Dev Prakash v. State of H. P.

2020-08-10

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, Judge (Oral): By way of this petition, the petitioner has, inter alia, prayed for the following relief: ?(i) That the Office Order dated 30.12.2014 at Annexure A-11, whereby the claim of the applicant for regularization as Bill Distributor Clerk has been rejected may kindly be quashed and set aide and the respondents may further be directed to regularize the services of the applicant as Bill Distributor Clerk instead of Bill Distributor w.e.f. the date of regularization of his services as Bill Distributor, with all consequential benefits.? 2. The case of the petitioner is that he was initially appointed as Bill Distributor-cum-Ledger Clerk in IPH Sub-Division Barsar, Tehsil Barsar, District Hamirpur, H.P. on 01.06.1979. Vide letter dated 06.09.1988 (Annexure A-1), Assistant Engineer, IPH Sub- Division, Barsar sent his case to the Executive Engineer, IPH Sub-Division, Basar with regard to his appointment as Bill Distributor-cum-Ledger Clerk. Vide Memorandum dated 05.08.1988, the petitioner was offered the post of Bill Distributor-Non Industrial Workcharged converted into regular cadre from the date of his joining. It appears that being dis-satisfied with the said order of appointment, the petitioner filed an Original Application before the erstwhile Himachal Pradesh Administrative Tribunal, which was dismissed by the learned Tribunal on 31.10.1996. The review petition also met with the same fate. Petitioner thereafter filed CWP No. 3979 of 2011 before this Court, which was dismissed by the Hon'ble Single Bench of this Court on the ground of delay. Hon'ble Division Bench of this Court in LPA No. 16 of 2013, titled as Dev Prakash Vs. State of H.P. and another, on 27th May, 2014, permitted the petitioner to withdraw the appeal as well as the writ petition filed by him with liberty to the petitioner to make a representation in view of the law laid down by this Court in Gauri Dutt and others Vs. State of H.P., reported in Latest HLJ 2008 (HP) 366. Thereafter, a representation was made by the petitioner on 21.07.2014 (Annexure A-9), which stands rejected by the competent authority vide Office Order dated 20.12.2014 (Annexure A-11). 3. Feeling aggrieved, the petitioner has filed this writ petition. 4. I have heard learned counsel for the parties and have also gone through the pleadings as well as documents appended therewith. 5. Thereafter, a representation was made by the petitioner on 21.07.2014 (Annexure A-9), which stands rejected by the competent authority vide Office Order dated 20.12.2014 (Annexure A-11). 3. Feeling aggrieved, the petitioner has filed this writ petition. 4. I have heard learned counsel for the parties and have also gone through the pleadings as well as documents appended therewith. 5. The issue with regard to regularization of the petitioner as Bill Distributor (Class-IV employee) has attained finality, as it is the own case of the petitioner that the Original Application which was preferred by him against his order of regularization as such was dismissed by the learned Tribunal and the Review Petition was also dismissed. Though it is a matter of record that subsequent writ petition filed by the petitioner against the order passed by the learned Tribunal as well as Letters Patent Appeal were permitted to be withdrawn by the Hon'ble Division Bench of this Court, with liberty to the petitioner to file a representation in terms of the law laid down by this Court in Gauri Dutt's case, however, the order of rejection of the Original Application of the petitioner with regard to his initial order of regularization, was not set aside by this Court, meaning thereby that the order passed by the learned Tribunal has attained finality. 6. As far as the Office Order vide which representation of the petitioner was rejected is concerned, a perusal of the same demonstrates that reasons stand assigned therein by the Authority concerned as to why the case of the petitioner was not covered by the judgment of this Court in Gauri Dutt's case (supra). Relevant portion of the order is quoted hereinbelow: ?...And whereas, the Executive Engineer, IPH Division Barsar submitted the point wise reply vide his office letter No. IPH-PHSD-BSR-Court Case Dev Prakash/2014-17810 dated 24.11.2014 and stated that as per Gauri Dutt's judgment if a worker has worked on daily wages in two or more posts, then after completion of 10 years of service, he can be regularized in the lowest post/scale by combining the total service rendered in different capacities, but if he declines to join in lower post/scale in that event, he has to wait for completion of 10 years in higher scale/post. But, in the instant matter the petitioner has accepted the offer on lower post without any protest and worked as such till his retirement. But, in the instant matter the petitioner has accepted the offer on lower post without any protest and worked as such till his retirement. He further stated that the petitioner was regularized under the policy of 1988, wherein the State Govt. decided to regularize the services of those non-industrial workers, who were on the establishment of IPH Department up to the year 1979. He has also submitted the man days Chart of the petitioner. And, whereas, I have considered the whole matter and perused the record. It has been observed that the petitioner's services were regularized under the policy in 1988 i.e., much much prior to the judgment and order passed by the Hon'ble Supreme Court in Mool Raj Upadhyaya's case which was further explained in 2006 by the Hon'ble High Court of Himachal Pradesh in Gauri Dutt's case. Moreover, he has not worked continuously for 10 years as Bill Distributor Clerk. Therefore, I am of the considered view that these judgments are not attracted to the present case as it had been settled prior to the pronouncement of these judgments. Thus, the settled position cannot be unsettled now. Further, as intimated by the Engineer223 in-Chief, I & PH Department, Shimla vide his office letter No. IPHES- III-D/W, Court Case Vol-42/2014-5450-52 dated 13.10.2014, the case of the petitioner submitted by Chief Engineer, (C/Z) I & PH Department, Mandi vide his office letter No. IPH-CE-(CZ)-EA-IV- 4/Vol-11/2006-1846-47 dated 15.5.2006 has already been rejected and is not pending in his office, therefore nothing survives in his argument for regularization of his services as Bill Clerk from 2006 i.e., the date when his case was recommended and forwarded to Engineer-in-Chief, I & PH Department Shimla by the Chief Enngineer (C/Z) I & PH Department, Mandi on 15.05.2006.? 7. During the course of arguments, learned counsel for the petitioner could not demonstrate that the findings so contained in order dated 20.12.2014 were incorrect and contrary to the record. Even otherwise, as it is a matter of record that the order of initial regularization of the petitioner was unsuccessfully assailed by him before the learned Tribunal, in that view of the matter also, the findings returned by the competent authority cannot be faulted with, as it is not in dispute that the case of the petitioner had attained finality before the judgment was pronounced in Gauri Dutt's case by this Court. Therefore also, undoing what stood done in the year 1988, would otherwise also open a Pandora's box. 8. One more fact which is of relevance here is that the judgment pronounced by this Court in Gauri Dutt's case is that in case a person has performed duties against two posts, then an option has to be given to him when he completes requisite number of years for being regularized against the lower post as to whether he wants to be regularized against the lower post or wants to wait to be regularized against a higher post upon completion of requisite number of years in terms of the Policy in place. In the year 1988, the petitioner initially accepted his regularization against the post of Bill Distributor. It is thereafter that he approached the learned Tribunal assailing said order with the plea that his services ought to have been regularized as a Class-III worker and not as Class-II worker, which Original Application was dismissed by the learned Tribunal, as already mentioned hereinabove. Therefore, in these peculiar circumstances, the petitioner otherwise also cannot claim the benefit of judgment in Gauri Dutt's case (supra). 9. In view of the findings returned hereinabove, as there is no merit in this petition, the same is dismissed, so also pending miscellaneous applications, if any.