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2021 DIGILAW 972 (HP)

State of Himachal Pradesh v. Naresh Kumar S/o Late Shri Dhan Singh

2021-12-18

SANDEEP SHARMA

body2021
ORDER : CMP (T) No. 1297 of 2020 1. By way of instant application filed under Rule 8(3) of HPSAT (Procedure) Rules, 1986, prayer has been made on behalf of the applicants/petitioners for condoning the delay in filing the Review Petition. Reply to the application stands filed, wherein, prayer made in the instant application has been opposed on the ground that no plausible explanation has been rendered on record qua the inordinate delay in filing the review petition. 2. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that the delay in maintaining the accompanying Review Petition is neither intentional nor willful, rather same has occurred on account of lengthy administrative process and as such, delay of 408 days, which otherwise stands sufficiently explained, is condoned. 3. Application stands disposed of. Review Petition (T) No. 1 of 2021 4. By way of instant petition filed under Section 22(3) (F) of Administrative Tribunal Act,1995, prayer has been made to review the order dated 28.08.2015, passed by erstwhile H.P. State Administrative Tribunal in T.A. No. 4058/2015, titled Sh. Naresh Kumar vs. State of H.P. and Others, whereby Tribunal below, while allowing the Original Application having been filed by respondent, directed review petitioners to issue appropriate orders regarding regularization of applicant w.e.f. 2nd November, 2002 alongwith all consequential benefits. 5. Precisely, the grouse of the review petitioners as emerges from the record is that the judgment rendered by Division Bench of this Court in CWP No. 7908/2013, titled Neelam vs. State of H.P. and Others, could not be made applicable in case of the respondent, because judgment rendered by Division Bench of this Court pertains to the employee, who prior to being accorded daily wage status, was working as a part-time worker, whereas, respondent in the case at hand, was appointed on daily wages at the first instance and his services were regularized w.e.f. 15.06.2005. 6. Having carefully perused the judgment dated 20.03.2014, passed by Division Bench in CWP No. 7908/2013, Annexure P-2, this Court finds force in the submissions made on behalf of review petitioners, because bare perusal of aforesaid judgment clearly suggests that same was passed in the case of a person, who at the first instance, was appointed on part-time basis and thereafter her services were converted to daily wager after completion of 10 years. In the case at hand, respondent was engaged as Computer Operator on daily wage basis on 2nd November, 1994 and his precise claim raised in the Transferred Application (TA) having been filed by him before erstwhile H.P. State Administrative Tribunal, was that the Department ought to have regularized his services after completion of 8 years of daily wage service with 240 days in each calendar year. 7. Since, the review petitioners regularized the services of the respondent/petitioner w.e.f. 15.06.2005, i.e. after 11 years of his initial appointment as daily wager, he approached the erstwhile Tribunal seeking therein direction to review petitioners/ Department to regularize his services w.e.f. from 02.11.2002, i.e. after completion of 8 years of daily wage services. Though, the Tribunal, while disposing of the TA, directed the review petitioners to regularize the services of the respondent w.e.f. 02.11.2002, i.e. after completion of 8 years, but wrongly recorded in the judgment that Department ought to have accorded such benefit on completion of seven years daily wage service, in terms of judgment dated 20.03.2014, passed by Division Bench in CWP No. 7908/2013, which actually had no application in the present case. 8. Though, on aforesaid account, prayer made in the instant petition to review the judgment dated 28.08.2015, passed by erstwhile H.P. State Administrative Tribunal deserves to be considered, but since Tribunal, while passing final order directed the Department to regularize the services of the respondent w.e.f. 2nd November, 2002, i.e. after completion of 8 years, review petitioners cannot be permitted to state, at this stage, that the Tribunal wrongly allowed the petition filed by the respondent in terms of the judgment dated 20.03.2014, passed by Division Bench of this Court in CWP No. 7908 of 2013. Though, there is mention of aforesaid judgment in the order sought to be reviewed, but definitely, directions issued to review petitioners are not in terms of the aforesaid judgment and as such, review petition, deserves to be dismissed. 9. Besides above, one additional ground has been raised by the review petitioners for reviewing the order passed by the Tribunal that since in the Regularization Policy framed in the year 2002, cutoff date was 31.03.2000, by which time, respondent had not completed 8 years, his prayer for regularization after his having completed 8 years, could not have been considered. 9. Besides above, one additional ground has been raised by the review petitioners for reviewing the order passed by the Tribunal that since in the Regularization Policy framed in the year 2002, cutoff date was 31.03.2000, by which time, respondent had not completed 8 years, his prayer for regularization after his having completed 8 years, could not have been considered. However, this Court finds no merit in the aforesaid submission of the review petitioners, for the reasons that the policy for regularization framed by Government of H.P. came to be extended from time to time, it is not in dispute that prior to promulgation of policy of 2002, regularization policy of year 2000 was very much in existence and as such, it cannot be said that persons who completed 8 years of service in the interregnum, can be denied such benefit on the basis of cut-off date, if any, fixed in the subsequent policy. 10. Coordinate Bench of this Court in CWP No. 2415 of 2012, titled Mathu Ram vs. Municipal Corporation, decided vide judgment dated 31.07.2014, has already held that the mere fact that there was a time gap in issuance of the policy of regularization, which prescribed different cut off dates, cannot be a ground to deny the benefit of regularization to the petitioner on his completion of 8 years of service on daily wage basis in terms of the judgment passed by this Court in CWP No. 2735 of 2010, dated 28.07.2010, titled Rakesh Kumar vs. State of H.P. and Others. Para-5 of Mathu Ram (supra) is reproduced herein-below: “5. It cannot be disputed that the policy of regularisation has been extended from time to time. The mere fact that there was a time gap in issuance of the policy of regularisation which prescribed different cut off dates cannot be a ground to deny the benefit of regularisation to the petitioner on his completion of 8 years of service on daily waged basis in terms of Rakesh Kumar (supra).” 11. Reliance is also placed to the judgment dated 12.03.2020, passed by this Court in CWP No. 4482 of 2019, titled State of H.P. and Another vs. Rajinder Kumar, wherein, this Court held as under: “10. Reliance is also placed to the judgment dated 12.03.2020, passed by this Court in CWP No. 4482 of 2019, titled State of H.P. and Another vs. Rajinder Kumar, wherein, this Court held as under: “10. The net result is that once the Government itself has framed policy of regularization and the same is extended from time to time, then the mere fact that there was a time gap in issuance of the policy of regularization, which prescribed different cut off dates, cannot be a ground to deny the benefits of regularization to workmen on its completion of the requisite length of service.” 12. It has been also held by Division Bench of this Court in CWP No. 6912 of 2021, titled State of H.P. and Others vs. Swaran Rekha, wherein this court held as under: “11. Yet another judgment of the Division Bench of this Court relied upon by the Tribunal was delivered in LPA No. 44 of 2015, titled Municipal Corporation Shimla and Others vs. Mathu Ram, decided on 13.10.2015, facts of which case are somewhat identical to the present case. In that case, respondent was appointed in November, 1993. He completed service of eight years in 2001. In the present case also, respondent-original applicant was appointed on 16.08.1993 and completed service of eight years on 16.08.2001. The employee concerned in that case was claiming that he was required to be regularized immediately on completion of eight years’ service. The appellant-Corporation, however, resisted the claim. It was held by this Court that practice of the respondent Corporation in not regularizing the service of the workmen even though they have completed eight years of service, amounts to unfair labour practice. It may be noted that this judgment was also subject to challenge before the Hon’ble Supreme Court in SLP No. 1708 of 2016 and was upheld.” 13. Consequently, in view of the detailed discussion made herein above as well as the law discussed supra, this Court finds no merit in the present petition and accordingly, same is dismissed alongwith all pending applications.