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2021 DIGILAW 465 (HP)

Suresh Kumar v. State Of H P & Ors.

2021-07-27

AJAY MOHAN GOEL

body2021
JUDGMENT Ajay Mohan Goel, J. - This petition was initially filed as Original Application before learned Himachal Pradesh Administrative Tribunal, which after the abolition of the learned Tribunal has been transferred to this Court and registered as civil writ petition. 2. Brief facts necessary for the adjudication of the present petition are as under:- The petitioner was engaged as a Driver on daily wage basis in Hamirpur Division of the Forest Department of the State. It is not in dispute that since his engagement and till the filing of the original application, which now stands transferred to this Court and registered as writ petition, the petitioner had put in 240 days work in each calendar year. 3. Petitioner approached erstwhile Tribunal earlier by way of original application No. 4909 of 2017, titled as Suresh Kumar vs. State of Himachal Pradesh and another, inter alia praying for his regularization as a Driver in the respondentdepartment, which original application stood disposed of by learned Tribunal in the following terms:- "6. In view of the above, the original application is disposed of in terms of the aforesaid CWP No. 2735 of 2010 and the connected matters, with a direction to the respondents/competent authority that subject to the above verification and on finding the applicant to be similarly situate as above, benefit of the said judgment, if the same has attained finality and implemented, shall also be extended to him alongwith consequential benefits, if any, as per law, within three months from the date of production of certified copy of this orderalongwith copy of the aforementioned judgment before the said authority by the applicant." 4. Vide order dated 18.01.2018 passed by the competent authority in compliance to the directions passed by learned Tribunal (appended with the petition as Annexure A-5), the competent authority rejected the claim of the petitioner of regularization, feeling aggrieved by which, the petitioner has preferred the present petition, praying for the following reliefs:- "i) That the impugned order dated 18.01.2018 Annexure A-5 may very kindly be quashed and set aside. ii) That the respondents may very kindly be directed to regularize the services of the applicant as Driver with effect from the completion of daily wage service i.e. 01.01.2013 with all consequential benefits in the interest of justice. ii) That the respondents may very kindly be directed to regularize the services of the applicant as Driver with effect from the completion of daily wage service i.e. 01.01.2013 with all consequential benefits in the interest of justice. iii) That the entire record of the case of the applicant may kindly be ordered to be summoned from the respondents for the kind perusal of the Hon'ble Tribunal. iv) That any such or further order which this Hon'ble Tribunal may deem just and proper in the facts and circumstances of the case, may also kindly be passed in favour of the applicant and against the respondents." 5. It is a matter of record that during the pendency of this petition, services of the petitioner have been regularized by the respondents w.e.f. 28.06.2021. 6. I have heard learned Counsel for the petitioner as well as learned Additional Advocate General and gone through the pleadings as well as documents appended therewith. 7. During the course of hearing of the case, on 13.07.2021, this Court passed the following order:- "Heard for some time. The Court stands informed that now the services of the petitioner have been regularized. Learned Additional Advocate General to inform the Court as to on which date, the post against which the petitioner has now been regularized, actually became available with the department. List on 23.07.2021 for continuation." 8. In compliance to above quoted order, learned Additional Advocate General has placed on record the instructions which so stand imparted to the office of learned Advocate General from the office of Principal Chief Conservator of Forests, Himachal Pradesh, dated 22nd July, 2021, which are ordered to be taken on record as jointly prayed for by learned Counsel for the parties. 9. It is not in dispute that after the engagement of the petitioner and before his regularization by the respondent-department, two policies stood issued by the Government of Himachal Pradesh regarding regularization of daily waged workers. 9. It is not in dispute that after the engagement of the petitioner and before his regularization by the respondent-department, two policies stood issued by the Government of Himachal Pradesh regarding regularization of daily waged workers. The petitioner has placed on record as Annexure A-6, a copy of policy of regularization of daily waged workers/contingent paid workers, dated 19th June, 2017, in terms whereof, the government took a conscious decision that daily waged/contingent paid workers, who have completed 5 years of continuous service (with a minimum of 240 days in a calendar year except specified otherwise for the tribal areas) as on 31.03.2017, may be regularized only against available vacancies in the respective Departments. Alongwith the reply filed by the State, copy of an earlier policy issued by the respondent-State, dated 22nd April, 2016, is appended as Annexure R-4, in terms whereof the government had decided that daily waged workers/contingent paid workers, who have completed 7 years of continuous service (with a minimum of 240 days in a calendar year except specified otherwise for the tribal areas) as on 31.03.2016 and due to complete 7 years service as on 30.09.2016, may be regularized only against available vacancies in respective Departments. 10. When the matter was being heard earlier, learned Additional Advocate General submitted that undoubtedly the right of regularization, in terms of the policy mentioned hereinabove, accrued upon the petitioner, but the same does not ipso facto mean that as from the date of completion of requisite number of years in terms of policies mentioned hereinabove, the person concerned is conferred an unfettered right of regularization. Said right of regularization accrues in favour of an employee only from the date, when a post, against which such a person can be regularized, becomes available. It is in this background that the Court had passed order dated 13.07.2021 to find out as to when did the post/vacancy became available with the department against which the petitioner was regularized in the year 2021. 11. It is in this background that the Court had passed order dated 13.07.2021 to find out as to when did the post/vacancy became available with the department against which the petitioner was regularized in the year 2021. 11. A perusal of the instructions which have been made available to the Court by learned Additional Advocate General, mentioned hereinabove, demonstrates that vacant posts of driver were available with the department on 31.12.2015, yet, though the petitioner became eligible after the commencement of regularization policy of the government dated 22nd April, 2016, he was offered appointment on regular basis only on 28.06.2021 pursuant to approval accorded by the government dated 16.04.2021. 12. Relevant portion of the instructions (supra) is quoted herein below: "5. It is further submitted that though, as per available record in this office, 3 vacant posts of Driver were available in the department on 31.12.2015 but the petitioner became eligible for regularization after the commencement of regularization policy dated 22.04.2016. He was given offer of appointment vide this office letter No. Ft. 43-50/2017/(E-II) OA dated 28.06.2021 (Annexure R-III) pursuant to approval accorded by the Government vide letter No. FFE-A(E) 2-27/2018 dated 16.04.2021 (Annexure R-I) in view of undertaking given by the respondents in OA No. 892/2018 now registered as CWPOA 4075/2020 which is pending adjudication. Against this offer, he joined as driver on 29.06.2021. It is, therefore, requested that the above case may kindly be defended as per the advice/opinion conveyed by the Government of HP vide letter No. FFE-A(E)2-27/2018 dated 16.4.2021 (Annexure R-I) and Hon'ble High Court may kindly be apprised of facts accordingly." 13. As mentioned hereinabove also, the petitioner was initially engaged on daily wage basis on 01.01.2008. In terms of regularization policy framed by the government dated 22.04.2016 (Annexure R-4) appended with the reply of the State, a daily wage worker was to be regularized on completion of 7 years service as on 31.03.2016, provided such worker had put in minimum 240 days in each calendar year. The petitioner herein completed 7 years of continuous service as daily wage driver by putting 240 days in each calendar year as on 01.01.2016. The petitioner herein completed 7 years of continuous service as daily wage driver by putting 240 days in each calendar year as on 01.01.2016. Thus, on 31.03.2016, in terms of the provisions of the policy of regularization framed by the State Government dated 22.04.2016, the petitioner was entitled to be considered for regularization as he fulfilled the criteria of having 7 years service as daily waged worker as on 31.03.2016, with 240 days in each calendar year. Now, but of course, the right of regularization could have been claimed by the petitioner and could have been conferred upon the petitioner, provided the post of Driver was available. The instructions (supra) demonstrate that three posts of driver were available in the department as on 31.12.2015 and it was against one of these vacant posts that the petitioner was ultimately regularized in the year 2021. This is not in dispute. In the considered view of the Court, once the post of driver was available in the department on 31.12.2015 and right of regularization accrued in favour of the petitioner, post completion of 7 years service as daily waged driver, in terms of policies of regularization dated 22.04.20216 w.e.f. 01.09.2016, then the petitioner ought to have been regularized against the available post of driver w.e.f. 01.04.2016 and denial of the same by the respondents to the petitioner is arbitrary. It is not the stand of the State that the petitioner was not regularized in the year 2016 either because of non-availability of vacancies or that there were other daily waged drivers senior to the petitioner, who were to be accommodated before the petitioner. Therefore also, the act of the respondents of not regularizing the petitioner w.e.f. 01.04.2016, i.e. the date when he became eligible to be considered for regularization as per policy of the State in vogue for regularization of daily wagers, is not sustainable in law. The policy of regularization of daily waged/contingent paid workers has been framed by the State itself, which is to be applicable to all its departments. The policy of regularization of daily waged/contingent paid workers has been framed by the State itself, which is to be applicable to all its departments. As it was a conscious decision taken by the State that daily waged/contingent paid workers, who fulfilled the criteria as laid down in regularization policy dated 22.04.2016, be regularized post completion of 7 years service against the available vacancies, then, the petitioner ought to have been given the benefit of said policy of regularization from due date and denial of the same to the petitioner without any cogent explanation is not sustainable in law. 14. Accordingly, in view of the findings returned hereinabove, this writ petition is allowed by holding that the petitioner is entitled for regularization against the post of Driver w.e.f. 01.04.2016 and the respondents are directed to regularize the services of the petitioner as Driver w.e.f. 01.04.2016 with all consequential benefits, including seniority. It is clarified that as from 01.04.2016 up to the date of filing of the original application, monetary benefits shall be conferred notionally and as from the date of filing of the original application, i.e. 28.02.2018, actual monetary benefits shall be paid to the petitioner. Arrears be paid within six months. 15. The petition stands disposed of in above terms. Pending miscellaneous application(s), if any, also stand disposed of.