Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DIGILAW 79 (HP)

Satish Kumar v. Municipal Corporation Shimla

2025-01-07

RANJAN SHARMA

body2025
JUDGMENT : Ranjan Sharma, J. 1. Learned counsel for the petitioner submits that CWP No. 6609 of 2020, titled as Deep Ram vs. Municipal Corporation Shimla and another and others connected cases may be taken up together as the prayers made in Lead Case and connected cases is identical. Prayer appears to be genuine is granted and accordingly all the cases are taken up together and are being disposed of by this common judgment. FACTUAL MATRIX IN LEAD CASE - CWPOA NO. 6609 OF 2021: 2. Petitioner, Deep Ram, has come up before this Court, seeking the following reliefs: “(a) That the respondent-corporation may kindly be directed to grant the pay scale of MeterReader/clerk to the applicant w.e.f. due date i.e. 05.04.2014 (Annexure A-2), on the analogy of equal pay for equal work with all consequential benefits, in the interest of justice. (b) That the applicant may kindly be held entitled for regularization as Meter Reader instead of Mazdoor by modifying the regularization order at Annexure A-1 only to the extent of designation, with all consequential benefits, in the interest of justice.” (i) The grievance of the petitioner is that petitioner was engaged as Meter Reader/Clerk on daily wage basis in April, 2000 by the respondent No.1 Municipal Corporation, Shimla and Respondent-Corporation has extracted the work of Meter Reader/Clerk since his initial engagement but the respondent-Corporation issued an order on 09.11.2016 [Annexure A-1] regularizing the petitioner as Mazdoor (Class-IV) w.e.f. 1.4.2009 instead of Meter Reader (Class-III) on completion of eight years of continuous service on higher post of Meter Reader (Class-III). It is averred that as per order dated 05.04.2014 [Annexure A-2] Respondent Corporation has extracted the work of Meter Reader/Clerk from the petitioner. (ii) In this background, the claim of the petitioner is that once the petitioner has been made to work as Reader/Clerk (Class-III) since his initial engagement on daily wage basis from April, 2000 then the petitioner deserves to be regularized as Meter Reader/Clerk from the date of completion of eight years instead of regularizing him on lower post of Mazdoor [Class-IV) on 09.11.2016 [Annexure A-1] w.e.f. 01.04.2009 and in these circumstances petitioner has prayed for retrospective regularization with all service benefits including pay in applicable pay scale of Meter Reader/Clerk with pay fixation and other service benefits. STAND OF RESPONDENTS-CORPORATION IN CWPOA NO. 6609 OF 2021: 3. STAND OF RESPONDENTS-CORPORATION IN CWPOA NO. 6609 OF 2021: 3. Upon issuance of notice, the Respondent- Municipal Corporation has filed a Reply-Affidavit dated 28.09.2021 of Commissioner, Municipal Corporation, Shimla: (i) In Para 3 and 6(i) of reply-affidavit respondent-Corporation has taken a specific stand that the petitioner was initially engaged as Mazdoor on daily wage basis in Road and Building Department of respondent Corporation w.e.f. 01.04.2000. It is further averred in reply that in terms of the orders dated 30.05.2016 the petitioner was regularized as Mazdoor w.e.f. 01.04.2009 on completion of eight years of continuous daily wage basis. Reply-affidavit further indicates that Respondent-Corporation has never engaged the petitioner on daily wage basis. Reply affidavit specifically denies that the respondent- Corporation has extracted the work of Meter Reader by petitioner since his initial engagement. Para 6(iv) of reply further indicates that so far as the communication dated 05.04.2014 is concerned, the same is of no assistance to the petitioner in view of the fact that the petitioner was neither engaged nor was he ever made to work as Meter Reader/Clerk (Class-III) but the petitioner was deployed for assisting the Meter Reading Staff for specific purpose of verification of water meters and that too for a short period from 28.06.2014 to 26.07.2014 [24 working days], as is borne out from Annexure A-2. Reply affidavit specifically denies that petitioner had worked as Meter Reader/Clerk in Respondent-Corporation.Operative part of the reply reads as under:- 6(i) That the contents of Para 6(i) of the petition are wrong and hence denied. It is denied that the petitioner was engaged as Meter Reader on daily wage w.e.f. 01.04.2000. It is also denied that the respondent Corporation has always extracted the work of Meter Reader/Clerk from the petitioner since his initial engagement as alleged. It is submitted that petitioner was engaged as Mazdoor on daily wages in Road and Building Department of the respondent Corporation on 01.04.2000 and as such after completion of 8 years of daily wage service with 240 in a calendar year his service was regularized from retrospective effect i.e. w.e.f. 01.04.2009 vide order dated 30.05.2016. Moreover, it is submitted that the order dated 09.11.2016 is a pay fixation order of the petitioner and not a regularization order from retrospective effect. 6(iv) That the contents of Para 6(iv) of the petition are wrong and hence denied. Moreover, it is submitted that the order dated 09.11.2016 is a pay fixation order of the petitioner and not a regularization order from retrospective effect. 6(iv) That the contents of Para 6(iv) of the petition are wrong and hence denied. As already submitted in Para 6(i) & (iii) of the petition that the petitioner was engaged as Mazdoor on daily wages basis in Road and Building Department of respondent Corporation w.e.f. 01.04.2000 and his services were regularized as Mazdoor on completion of 8 years daily wage services with 240 days in a calendar year from retrospective effect i.e. w.e.f. 01.04.2009. Hence, the question of working continuously and uninterruptedly as Meter Reader does not arise. So far as order dated 05.04.2014 is concerned, it is submitted that the petitioner was attached to the Meter Reader in order to assist him in meter reading work vide order dated 04.06.2011 and as such the petitioner cannot claim that he is successfully working as Meter Reader. Further, the petitioner can also not claim that he is discharging the duties of Meter Reader on the strength of Annexure A-3.” APPLICATION BY RESPONDENT-CORPOARTION FOR PLACING ON RECORD ADDITIONAL DOCUMENTS: 4. Respondent-Corporation has filed an application [CMP-T No. 933/2024] on the affidavit dated 10.09.2024 of Municipal Corporation, Shimla for placing on record additional documents. Respondent- Corporation has placed on record a copy of Original Application No. 1501 of 2015 filed before State Administrative Tribunal in June, 2015 [Annexure R- 1/1] by taking a specific stand in Para 6(i) and 6(ii) of the application and affidavit in above OA that the petitioner continued in service of Respondent- Corporation as daily waged Mazdoor w.e.f. 24.04.2000 for the last 13 years and deserves to be granted benefit of regularization as Mazdoor (Class-IV) on completion of 8 years continuous service w.e.f. 31.03.2009, in terms of judgement passed by Division Bench of this Court in Rakesh Kumar versus State of Himachal Pradesh and others i.e. CWP No. 2735 of 2010. The operative part of the stand of petitioner taken in O.A.1501 of 2015 [Annexure R-1/1] admitting to have been engaged as daily waged Mazdoor and also worked as such and regularized as Mazdoor, reads as under: “6(I) That the applicant was initially engaged as daily wager mazdoor w.e.f. 24.04.2000 in the respondent department and continued to work till the date of his regularization as daily wager. Thereafter the applicant was regularized w.e.f. 01.04.2010. Copy of office order dated 01.04.2010 is annexed herewith as Annexure A-1 and still the applicant is continuing to work under the Road and Building Department MC Shimla. The applicant was regularized by the respondent department on the ground that applicant have completed his 8 years service with 240 days in each calendar year. It is further submitted that the mason w.e.f. 24.04.2010 and he is entitled for regularization w.e.f. 31.03.2009. 6(III) That after having served for more than13 years as Mazdoor on daily waged basis, the respondent department has given regularization to the applicant on temporary basis for two years, whereas on completion of 8 years of service with 240 days, the applicant was entitled to get the regularization straightway as per the ratio in judgement passed by the Hon’ble Court in case titled as Rakesh Kumar vs. State of H.P. and Som Nath versus State of H.P. passed by the Hon’ble Court and in the present case, the applicant was given 10 years of service as daily wager Mazdoor, hence, w.e.f. 31.03.2009 till the date of his regularization, he is entitled to all the eligible benefits but the action of the respondent department are illegal, unconstitutional and bad in the eyes of law.” (i) Likewise, the Corporation has also placed on record, copy of Contempt Petition No. 65 of 2015 [Annexure R-1/3] orders dated 22.04.2016 [Annexure R-1/4] filed by State Administrative Tribunal whereby, petitioner himself admitted to be working as Mazdoor in the memo of parties and based on the directions passed by State Administrative Tribunal in O.A. No. 1501 of 2015, claiming regularization as Mazdoor in the respondent-Corporation. In this background Respondent-Corporation has prayed for dismissal of the writ petition in Lead Case. FACTUAL MATRIX IN CONNECTED CASES [CWPOA No. 6552, 6555, 6608 and 6612 of2020] 5. Based on the factual matrix in connected matters, a Tabular Chart showing the details of petitioners in connected cases reads as under: S. No. Case No. & Name of Parties Date of Initial Engagement on daily-muster roll Date of regularization as Mazdoor [Class-IV] Date of regularization as Mazdoor [Class-IV] on completion of 8 years continuous service vide order dated 1.12.2017 1. CWPOA No. 6552 of 2020 Satish Kumar vs. M.C. Shimla Daily wage Mazdoor (Class-IV) March, 1997 Mazdoor (Class-IV) 01.01.2008 Mazdoor (Class-IV) 01.04.2005 2. CWPOA No. 6552 of 2020 Satish Kumar vs. M.C. Shimla Daily wage Mazdoor (Class-IV) March, 1997 Mazdoor (Class-IV) 01.01.2008 Mazdoor (Class-IV) 01.04.2005 2. CWPOA No. 6555 of 2020 Tara Chand vs. M.C. Shimla Daily wage Mazdoor (Class- IV) September, 1989 Mazdoor (Class-IV) 01.01.2000 Mazdoor (Class-IV) N Change 3. CWPOA No. 6608 of 2020 Dutt Bharti vs. M.C. Shimla Daily wage Mazdoor (Class-IV) September, 1999 Mazdoor (Class-IV) 01.04.2010 Mazdoor (Class-IV) 01.01.2008 4. CWPOA No. 6612 of 2020 Prem Lal Sharma vs. M.C. Shimla Daily wage Mazdoor (Class- IV) March, 1997 Mazdoor (Class-IV) 01.01.2008 Mazdoor (Class-IV) 01.04.2005 Facts borne out from the chart in connected cases are corroborated from the reply-affidavit. Even the reply-affidavit indicates that the petitioners in above connected cases were engaged as Mazdoor (Class-IV), on daily wage basis and have in fact worked as daily wage Mazdoor and not as Meter Reader/Clerk and were regularized as Mazdoor (Class-IV) in Respondent-Corporation. Thus, the Reply-affidavit states that the petitioners have neither been employed nor worked as Meter Reader/Clerk and therefore, they cannot be regularized as Meter Reader [Class-III] but have been rightly regularized as Mazdoor [Class-IV] by Respondents. With these submissions prayer has been made for dismissing the connected cases also. NO REBUTTAL BY PETITIONER: 6. Averments made in reply-affidavit filed by the Respondent-Corporation and the contents of the application have not been rebutted by the petitioner by filing a rejoinder thereto. In absence of any rebuttal the stand of respondent-Corporation remains unrebutted. 7. Heard Mr. Jai Ram Sharma, Learned Counsel for petitioner, Mr. Mukul Sood, Learned Counsel for respondent No.1 and Mr. Tejasvi Dogra, Advocate, for respondent No.2. ANALYSIS: 8. Taking into account the entirety of the facts and the material on record, this Court is of the considered view that the claim of the petitioner for regularization as Meter Reader/Clerk [Class-III] from the date of completion of eight years of continuous service w.e.f. 01.04.2009 instead of regularizing him as Mazdoor on 9.11.2016 is not tenable for the following reasons:- (i) Reply affidavit filed by Respondent No.1- Corporation on 28.09.2021, as referred to above, specifically states that petitioner was neither engaged nor has ever worked or work of Meter Reader/Clerk Class-III was extracted from the petitioner by the respondent-Corporation. Moreover, the petitioner, has not placed on record any material to assert his claim in these proceedings that the petitioner was made to work as Meter Reader/Clerk (Class-III) despite being a Mazdoor (Class-IV) in Respondent-Corporation. In absence of any material on record, this Court is unable to accede to the claim of the petitioner in the instant case. (ii) Even a perusal of documents placed on record by respondent-Corporation i.e. copy of the Original Application No. 1501 of 2015 i.e. Annexure R-1/1 and orders passed by the State Administrative Tribunal on 19.06.2015 [Annexure R-1/2] negates the assertion of the petitioner that the petitioner despite being a Mazdoor (Class-IV) was employed to perform the work of Meter Reader/Clerk (Class-III) by the Respondent-Corporation, for the reason, that the petitioner filed an Original Application admitting therein that the petitioner was engaged as a daily waged Mazdoor and has worked as such for the last 13 years i.e. till the filing of Original Application in June, 2015 and therefore, he may be granted regularization as Mazdoor. In this background, once the petitioner has himself sworn an affidavit stating him to be a Mazdoor since April, 2000 then, the petitioner cannot be permitted to resile from the affidavit in present proceedings by stating that he has in fact worked as Meter Reader/Clerk (Class-III) from April 2000 till June 2015 and thereafter. In these circumstances, the documentary evidence, borne out from the Original Application and the orders therein including the COPC and the orders vide Annexure R-1/1 to R-1/4 [supra] refrain this Court, from acceding to the prayer of the petitioner in the instant case. Moreover, once the petitioner has accepted that he was Mazdoor [Class-IV] and was regularized as Mazdoor [Class-IV] and has claimed and was accorded retrospective regularization as Mazdoor (Class-IV) in earlier proceedings [OA No. 1501 of 2015 and COPC No. 65 of 2015 vide Annexure R-1/1 and R-1/4] then, the petitioner cannot claim a different status altogether as Meter Reader/Clerk (Class-III) in these proceedings in view of the principle of acquiescence and approbation and reprobation. In these circumstances, the claim of petitioner does not stand the test of judicial scrutiny and is rejected. CONTENTION OF THE PETITIONER: 9. In these circumstances, the claim of petitioner does not stand the test of judicial scrutiny and is rejected. CONTENTION OF THE PETITIONER: 9. Contention of the Learned Counsel for petitioner that even as per the communication dated 5.4.2014 [Annexure A-2] Respondent-Corporation had extracted the work of Meter Reader/Clerk from the petitioner.This plea of the petitioner does not stand to rational or logic in view of reply-affidavit which specifically states that the petitioner was never asked to work as Meter Reader/Clerk but he was merely a party to Inspecting Team for verification of meters and that too for a short duration of 24 working days from 28.06.2014 to 26.07.2014, as mentioned in communication dated 05.04.2014 [Annexure A-2] and in these circumstances, the communication cannot come to the rescue of the petitioner for establishing his case and therefore, the prayer is not made out, in instant case: (i) Even a perusal of office order dated 12.10.2018, placed on record, by the newly added respondent No.2 Shimla Jal Prabandhan Nigam Limited also negates the claim of the petitioner for the reason that the State Government took a decision on 23.04.2018 transferring the Water Supply and Sewerage Services from Municipal Corporation to Shimla Jal Prabandhan Nigam Limited alongwith its employees on secondment basis w.e.f. 01.10.2018. This Office Order dated 12.10.2018 contains a list of 187 employees of different categories [ministerial-non ministerial, supporting staff and others] and in the said list petitioner has been shown at Sr. No. 169 with nomenclature as Mazdoor w.e.f. 1.4.2009. In these circumstances, the plea of the petitioner that the petitioner had worked as a Meter Reader/Clerk (Class-III) stands negated, when, there is no challenge to the order dated 12.10.2018 by the petitioner, in these proceedings. Now, challenge to the orders dated 12.10.2018 certainly frowns against the claim of the petitioner and therefore, the plea for regularization as Class-III is not made out, in instant proceedings. (ii) Claim of the petitioner for regularizing as Meter Reader/Clerk (Class-III) instead of regularizing him as Mazdoor on the assertion that respondents have engaged the petitioner as Mazdoor but have extracted the work of Meter Reader/Clerk i.e. higher post from the petitioner cannot be acceded to in instant case, for the reason, that the assertion of petitioner in writ petition has been specifically rebutted by respondent-Corporation in the reply-affidavit. In these circumstances, once the assertion of the petitioner has been negated in Reply-Affidavit giving rise to disputed questions of facts, therefore, this Court refrains from entertaining and adjudicating the plea of petitioner which originates from disputed questions of facts in the instant case, when, the disputed questions of facts are required to be proved by leading evidence in appropriate proceedings and not by this Court in present proceedings. (iii) While dealing with a similar facts situation, this Court has negated the claim in CWPOA No. 6617 of 2020 titled as Sunder Lal versus Municipal Corporation, decided on 6.11.2024 wherein a Class-IV employee, who was seeking regularization as Mason (Class-III) on the basis of the averments that the work of Mason was extracted from him by respondent, keeping in view the factual extracts and the disputed questions of facts in following terms:- 8. After taking into account the entirety of the facts and circumstances as borne out from the pleadings herein, this Court is of the considered view, that the claim of the petitioner for regularization as Mason [Class-III category-post], instead of regularizing him as a Mazdoor [Class-IV category post], is not tenable, for the following reasons:- (i) Petitioner has made a bald statement in the petition that though he was initially engaged as Mazdoor [Class-IV category- post], but had actually worked as Mason [Class-III category-post] and therefore, the petitioner ought to have been considered and granted regularization as Mason [Class-III category-post], is without force, when, the petitioner has not placed on record any material to prove that the petitioner, had in fact, worked as a Mason from September 1995 onwards. In absence of any material having been placed on record, the plea of the petitioner appears to be untrustworthy and not worthy of credence and such a claim in absence of material on record, cannot be examined in these proceedings. (ii) Petitioner has contended that though he was engaged as a Mazdoor [Class-IV, category-post] in September 1995, but had worked as a Mason [Class-III, category-post] but on the other hand, the Respondent has specifically denied that the petitioner had ever worked as Mason and/or the work of Mason was extracted from the petitioner. Thus once the claim and counter stand of the parties disputed question of fact, the disputed facts cannot be examined in these proceedings are involved, and therefore, the instant petition fails and is accordingly ordered. Thus once the claim and counter stand of the parties disputed question of fact, the disputed facts cannot be examined in these proceedings are involved, and therefore, the instant petition fails and is accordingly ordered. (iii) Though the petitioner was initially regularized as Mazdoor [Class-IV category- post] on 20.04.2007, but in terms of the judgment passed by this Court in Mathu Ram’s case and other judgments, the petitioner, was granted retrospective regularized as Mazdoor [Class-IV, category-post] from the date of completion of 8 years of continuous service w.e.f. 01.01.2004 [Annexure A-1] and this benefit of retrospective regularization as Mazdoor [Class-IV, category-post] w.e.f. 01.01.2004 was accepted; then, based on the principle of estoppel and acquiescence, the petitioner has neither any locus standi nor any right to claim regularization on the higher post of Mason [Class-III, category-post] in these proceedings; and in these circumstances, the present petition is without merit and the same is disallowed. 9. In view of above discussion and for the reasons recorded hereinabove, the instant petition is devoid of any merit and the same is accordingly dismissed.” CONCLUSION AND DIRECTIONS IN LEAD CASE [CWPOA No. 6609 of 2020]: 10. In view of above discussion and for the reasons recorded hereinabove, Lead Case [CWPOA No.6609 of 2020] is dismissed, in the following terms: (i) Claim of petitioner [a Mazdoor, Class-IV] for regularization as Meter Reader/Clerk [Class-III], for having worked as Meter Reader/Clerk [Class-III] in Respondent-Municipal Corporation, Shimla, [in absence of any material on record and stand in reply] is without merit; (ii) In view of disputed facts, petitioners may seek assertion of claim, in case, any such right and remedy exists in accordance with law, if so desires; (iii) Parties shall bear respective costs. CONCLUSION AND DIRECTIONS IN CONNECTED CASES [CWPOA No. 6552, 6555, 6608 and 6612 of 2020]: 11. In view of the above discussion and taking into account the fact that the claim and contentions of petitioners in connected cases are pari-materia to the Lead Case and even the Respondent-Corporation have taken a similar stand in Reply-affidavit(s), therefore, the directions passed in Lead Case CWPOA No. 6609 of 2021 shall mutatis mutandis apply to the connected cases and claim of petitioners [Mazdoor Class-IV] for regularization as Meter Reader/Clerk [Class-III], in facts of instant cases, is without merit and therefore, all connected cases are also dismissed. 12. 12. Before parting with the case, this Court observes that since disputed questions of fact have been raised regarding the claim of petitioners for regularization as Meter Reader/Clerk [Class-III] despite having been engaged and regularized as Mazdoor [Class-IV] [which plea has been denied by Respondent-Corporation in reply-affidavit(s)], therefore, as prayed for by Learned Counsel for petitioners and in order to secure the ends of justice, this Court grants liberty, to the petitioner(s) to assert their respective claim(s), by availing appropriate remedy before an appropriate forum, in case any such rights as well as remedy exits, in accordance with law, if so desired. 13. In aforesaid terms, all the writ petitions are dismissed and all pending applications, shall also stand disposed of accordingly.