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2024 DIGILAW 30 (HP)

Babu Ram v. State of Himachal Pradesh

2024-01-05

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. CMP(T) No.17 of 2024 For the reasons stated therein, present application seeking early hearing of the petition is allowed. CWPOA No.4461 of 2020 2. With the consent of the parties, the case was taken up for consideration today itself. 3. By way of this writ petition, the petitioner has inter-alia, prayed for the following reliefs:- i) “That the impugned office order/rejection letter dated 25.11.2017, passed by respondents may very kindly be quashed and set aside. ii) That the respondents may very kindly be directed to give daily wage status after completion of 10 years of uninterrupted service and thereafter regularized the services of the applicant after completion of 8 years of daily wage services with all consequential benefits.” 4. Brief facts necessary for the adjudication of the case are that the petitioner was initially engaged as a Sweeper on Part Time basis in the year 1986. According to him, his services were converted on daily wage basis in the year 2008 and he was retired as such in the year 2012. Thereafter, he approached the Erstwhile Administrative Tribunal by way of Original Application No.5481 of 2016, titled Babu Ram vs. State of Himachal Pradesh and others, decided on 28.10.2016 praying for direction to the respondents to grant daily wage status to the petitioner as a Sweeper immediately after completion of 10 years of continuous service and thereafter regularization as per law. Learned Tribunal disposed of the Original Application by directing the authority to consider the case of the petitioner in light of the law declared by this Court in CWP(T) No.8964 of 2008, titled as Prem Raj and others versus State of Himachal Pradesh and others. In terms of the impugned order, (Annexure P-6), dated 25.11.2017, the case of the petitioner has been rejected by the authority by assigning the following reasons:- “In view of above, in the matter of Prem Raj and others in CWP(T) No.8964 of 2008, the learned Single Judge, has directed the respondent/competent authority to consider the cases of the petitioners (Part Time Cook) for grant of status of contingent/while time cook/daily wage status after completion of 10 years w.e.f. 26.4.1999, 11.04.1997, 01.08.1999, 14.07.2004 and 01.11.1993, respectively and thereafter regularize service of petitioner after completion of 8 years alongwith all consequential benefits. However, the State Government has framed policies dated 27.02.2004 and 05.07.2007 having cut off date and also policies for regularization of daily waged workers having cut off date subject to creation and sanction of posts. Since the judgment passed in Prem Raj and others in CWP(T) No.8964 of 2008 is against the policy/decision of the Government dated 27.02.2004 and 05.07.2007 and subsequent 8 years regularization policies of Government, hence said to be judgment in per incuriam and is in personam, not in rem and not applicable in the present matter. The applicant is not entitled for his coverage under Pension Rule 1972 not he is entitled for retirement gratuity being his daily wage service below 5 years under Gratuity Act, 1972.” 5. Having perused the impugned order and after going through the reasoning that has been assigned by the authority while rejecting the case of the petitioner, all that this Court can observe is that the order is a glorifying example of what actually perversity is. The Executive Engineer rejected the case of the petitioner by holding that the judgment passed by this Court was per incuriam and it was not inconsonance with the policy of regularization issued by the State and judgment was also in personam. 6. This Court fails to understand as to who gave this authority to the Executive Engineer to hold that that the judgment of this Court was per incuriam. As the judgment in issue was that of the High Court, Administrative Authority holding in an administrative order that the judgment passed by the High Court is per incuriam not only amounts to grave misconduct, but also ex facie contempt of the Court. 7. Learned Additional Advocate General is called upon to specifically bring the order passed by the authority to the notice of the Chief Secretary to the Government of Himachal Pradesh so that the authorities can be sensitized as to what language is to be used and what language is not to be used while dealing with the judgments of this Court. 8. 8. Be that as it may, taking into consideration the fact that the case of the petitioner has been rejected by the authority vide impugned order on the grounds, which are not at all sustainable in the eyes of law, this petition is allowed to the extent that impugned order (Annexure A-6), dated 25.11.2017, is quashed and set aside with further direction to the authority concerned to re-decide the case of the petitioner in terms of the judgment passed by the learned Tribunal within a period of six weeks from today. Pending miscellaneous applications, if any, also stands disposed of.