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2025 DIGILAW 412 (HP)

Santosh Kumar v. State of H. P.

2025-03-20

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. By way of instant petition, the petitioner has prayed for grant of following substantive relief: (1) That directions may very kindly be issued to the respondents to regularize the services of the applicant w.e.f. 01.01.2007 i.e. on completion of eight years of regular service as per the policy with all consequential benefits of pay, arrear, seniority etc., as has been given to the similarly situated persons in the Department and the arrears may very kindly be ordered to be paid to the applicant along with an interest at the rate of 9% per annum in the interest of law and justice. 2. Undisputed facts of the case are that the petitioner was engaged as Driver on daily wages by respondent No.3 in the year 1998. 3. Despite the policy formulated by the State Government to regularize the services of those contractual employees who had rendered eight years continuous service on daily wages, the services of petitioner were not regularized. 4. The petitioner approached this Court by way of CWP No.1709 of 2011 seeking direction against the respondents to regularize his services. It was averred that the Director, Urban Development, Shimla (respondent No.2 in the said petition) had already made a reference to the Government of Himachal Pradesh for creating a post of Driver in regular pay scale in the establishment of respondent No.3, but the State Government had not taken any decision. Reliance was also placed on the resolution passed by respondent No.3 in the year 2008 authorizing regularization of the services of petitioner. The stand of the respondents in CWP No.1709 of 2011 was that though the petitioner was eligible for regularization and had been recommended by the screening committee but for want of post of driver, his services had not been regularized. It was further stated that as and when the decision was taken by the Government to create the post, the services of the petitioner would be regularized. 5. This Court disposed of CWP No. 1709 of 2011 vide order dated 22.09.2011 in the following terms: “4. In view of the above stated position, writ petition is disposed of, with a direction to respondent No.1 to take a decision, on the already made reference by respondent No.2 as also by respondent No.3, for creation of the post of driver, within two months from today. In view of the above stated position, writ petition is disposed of, with a direction to respondent No.1 to take a decision, on the already made reference by respondent No.2 as also by respondent No.3, for creation of the post of driver, within two months from today. While taking the decision, Government may keep in mind that respondent No.3, while writing to respondent No.2, vide letter dated 20.8.2010, copy Annexure P-7, has stated that it (respondent No.3-Nagar Panchayat) has already passed a resolution on 2.6.2009 that it is capable of bearing the expenditure of the pay of the post of driver, in regular pay scale.” 6. The respondents did not implement the judgment passed in CWP No.1709 of 2011 and petitioner was forced to file contempt petition before this Court. During the pendency of the contempt petition, the services of petitioner were regularized prospectively vide office order dated 28.06.2012. 7. The petitioner has filed the instant petition with the grievance that his right to be regularized on completion of eight years continuous daily wage services has been prejudiced. As per policy of the State Government, he had become entitled for regularization in the year 2007, whereas, he has been regularized on completion of almost 14 years of daily waged services in the year 2012. The petitioner has also pointed out discriminatory attitude of the respondents by highlighting the case of one Sh. Ashwani Kumar, who was also engaged as a driver on contract basis by the Nagar Panchayat in the year 2000. On failure of the respondents to regularize him on completion of eight years of continuous daily waged services, the said Ashwani Kumar had also approached this Court by way of CWP No. 10747 of 2012, which came to be decided on 22.11.2013, with direction to regularize the services of Sh. Ashwani Kumar as driver, after creating the post immediately on completion of eight years of service. It is averred that in compliance to said judgment, Sh. Ashwani Kumar was regularized from retrospective date i.e. immediately on completion of eight years of contract services. It is also the case of the petitioner that in this manner, Sh. Ashwani Kumar, who had been engaged on daily wage basis at subsequent stage has not only become senior to the petitioner but is also drawing more salary. 8. Ashwani Kumar was regularized from retrospective date i.e. immediately on completion of eight years of contract services. It is also the case of the petitioner that in this manner, Sh. Ashwani Kumar, who had been engaged on daily wage basis at subsequent stage has not only become senior to the petitioner but is also drawing more salary. 8. In the reply filed by respondents No. 1 and 2, the claim of the petitioner has been alleged to be time barred. It is alleged that the services of petitioner were regularized in the year 2012, but he approached the erstwhile State Administrative Tribunal after five years in the year 2017. The main contest by the respondents is that the services of petitioner could not be regularized before 2012 as there was no post available for the purpose and it was only on creation of the post that the benefit of regularization was granted to the petitioner. It is alleged that the petitioner had no right to be regularized in absence of existence of a post. 9. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 10. Evidently, there is no denial to the contention of the petitioner that respondent No.3 had been ready and willing to regularize the services of petitioner on completion of eight years of contract service by bearing the financial burden and had passed resolution in that respect. There also is no denial to the fact that the Director, Urban Development had moved the case for creation of the post of driver in respondent No.3. Rather, such factual position is strengthened from the observations made by a co-ordinate Bench of this Court while deciding CWP No. 1709 of 2011 vide judgment dated 22.09.2011. It was in aforesaid background that CWP No. 1709 of 2011 was disposed of with a direction to the State Government to take a decision for creation of the post of driver within two months from the date of passing of judgment i.e. 22.09.2011. 11. The State Government had implemented the judgment after almost 10 months by creation of post, which eventually resulted in issuance of regularization order of the petitioner. 12. 11. The State Government had implemented the judgment after almost 10 months by creation of post, which eventually resulted in issuance of regularization order of the petitioner. 12. The respondents have simply come up with the defence that since there was no post of driver in the establishment of respondent No.3, the benefit of regularization could not be granted to the petitioner till the post was created. No explanation has been rendered by respondents No. 1 and 2 as to why undue delay was caused in creation of post. It has also not been shown as to what impediment, if any, prevented respondent No.1 from creating the post with promptitude. Admittedly, respondent No.3 had given its consent and requirement for the post of driver and had also undertaken to bear the financial burden. That being so, the action of respondent No.1 in not creating the post of driver in respondent No.3, for such a long period, is highly unjustified. 13. Further, the respondents have not rendered any explanation as how the case of petitioner was different from the case of Ashwani Kumar in CWP No. 10747 of 2012, where the respondents had regularised the service of said incumbent from retrospective effect. The respondents cannot apply different standards for different persons, though identically placed. 14. The petitioner cannot be made to suffer for unjustified inaction of the respondents. He is entitled to the same treatment as has been granted to above referred Ashwani Kumar. Clearly there was no impediment for the respondent No.1 to create the post of driver in the establishment of 3rd respondent, which eventually was done belatedly. 15. The indulgence of Government in a Welfare State in exploitative tactics cannot be countenanced as such action smears of arbitrariness and thus antithetical to the Constitutional guarantee ensured by Articles 14 and 16 of the Constitution of India. 16. The objection of respondents as to petition being time barred also required to rejected for the reasons firstly that the instant petition is being decided as a writ petition where the law of limitation does not strictly apply secondly, the petitioner was made to suffer recurring financial loss by denial of his right and thus, he had recurring cause of action and lastly strict application of law of limitation in the case of class IV employee will not be equitable more particularly in light of observation made in para 15 supra. 17. In result, the petition is allowed. Respondents are directed to confer the status of regular employee on the petitioner immediately on competition of eight years continuous daily wage service with 3rd respondent and to grant him all consequential benefits including monetary benefits, seniority and promotion etc. It is, however, clarified that the arrears on account of financial benefits will be restricted to a period of three years immediately preceding the date of filing of this petition. 18. The petition is accordingly disposed of, so also pending miscellaneous application(s), if any.