Dr. Kesang Youdon vs State Of Himachal Pradesh And Others

By way of this writ petition, the petitioner has inter alia prayed for the following reliefs:-

The case of the petitioner is that vide Annexure P-2, an advertisement was issued by the University, inviting applications for appointment against the post of Project Associate on a salary of ₹14,000/- per month plus HRA in the Centre for Australian and New Zealand Studies in respondent Himachal Pradesh University for a period of six months, which was extendable as per UGC Guidelines. The petitioner, being eligible to apply for the post in issue, participated in the selection process. In terms of Annexure P-1, the Vice-Chancellor of the respondent-University had constituted a Selection Committee, which comprised of a Subject Specialist, a Nominee of the Vice-Chancellor, Chairman of the English department and a Coordinator. The petitioner was recommended for appointment along with one Ms. Vandana Kaundal, in order of merit, and her name was reflected at No. 1 in the merit list. This is evident from Annexure P-4, the minutes of the meeting of the Selection Committee held on 10.10.2015. Thereafter, the petitioner was engaged as a Project Associate and he continued to serve as such till issuance of Annexure P-5, office order dated 18^th October 2019, in pursuance to the decision of the Finance Committee, which was approved by the Executive Council of the respondent-University, in terms whereof, the Vice-Chancellor of the University, on the recommendation of the Screening Committee of the University, merged the services of the petitioner under Centre for Australian and New Zealand Studies into the mainstream of the HP University in the pay scale of ₹10,300–34,800 + 5,000 Grade Pay. This was followed by the joining of the petitioner as such in terms of Annexure P-6 dated 13.11.2019. Thereafter, vide Annexure P-7, the services of the petitioner were regularised by the Vice-Chancellor of the University on the recommendation of the screening committee with immediate effect in the pay scale of ₹10,300–34,800 + 5,000 Grade Pay.

The grievance of the petitioner is that despite conversion of the services of the petitioner into the mainstream of the Himachal Pradesh University vide Annexure P-5, dated 18^th October 2019 and thereafter, the regularisation of the services in the mainstream of the University in terms of office order dated 11^th December 2019 in the pay band mentioned therein with immediate effect, the pay band on which the services of the petitioner were regularised is not being paid to her and she is being continued on the wages which were being paid to her when she was initially engaged.

Learned Senior Counsel for the petitioner has referred to Annexure P-1 and submitted that a perusal of the Selection Committee constituted by the Vice-Chancellor would demonstrate that the same was in terms of Selection Committee envisaged by the University Grants Commission. Relevant extract relating to the mode of Selection is appended with the petition as Annexure P-3. Learned Senior Counsel thereafter referred to Annexures P-5 to P-7 and submitted that after the regularisation of the petitioner, in the meeting of the Executive Council held on 30^th March 2021, the matter regarding treating the period of service rendered by the petitioner as a Project Associate on contingent basis to that on contractual basis, was approved. He submitted that the necessity for the same arose as after the regularisation of the petitioner, the State Audit Department raised an objection that the services of the petitioner could not have been regularised as a contingent paid worker and for that, it was necessary to convert the services of the petitioner on contract basis. He submitted that despite this, till date, the petitioner is being denied the regular pay scale, though she is serving as a regular employee of the respondent University as from the date of regularisation of her services. Learned Senior Counsel also submitted that the case of the petitioner was not an isolated case and there were many other incumbents like the petitioner who were initially engaged on contingent basis in various Projects, whose services were subsequently regularised in the mainstream of the University and who are now being paid the regular pay scale after their regularisation in the mainstream of the University.

Learned Counsel for the University, while drawing the attention of the Court to the reply filed by the University, submitted that the facts, as are averred in the writ petition, are not in dispute, but after the services of the petitioner were regularised vide order dated 11.122019, the pay fixation proposal was sent on 27.10.2020 to the State Audit Department. However, the same was not vetted by the State Audit Department on the ground that the petitioner was neither appointed on contract basis nor on daily wage basis in terms of the policy of the State Government of regularisation of contract/ daily wage workers and therefore, the policy of regularisation of the State did not cover the petitioner. Learned Counsel further submitted that after attending the observations of the State Audit Department, the pay fixation proposal was re-submitted on 14.122020 to the State Audit Department, whereafter the department again raised same objections on 12.012021. To meet said objections, the matter was placed before the Executive Council in its meeting held on 30.03.2021 vide Item No. 9 for treating the period of service of the petitioner as contingent paid in the Centre for Australian and New Zealand Studies to that of contractual basis for consideration, which was approved by the Executive Council. Thereafter, the matter was again referred to the State Audit on 03.052021 for releasing/vetting the salary bill, but State Audit Department again raised observations on 03.072021 that as the issue had financial implications, the same was required to be placed before the Finance Committee. Thereafter, the matter was placed before the Finance Committee in its meeting held on 21.08.2024, wherein the Finance Committee approved notification dated 21.02.2019 by observing that the same was applicable in toto to contingent paid workers also and approved the matter for treating the period of service of the petitioner as contingent paid in the Centre for Australian and New Zealand Studies. The file was re-submitted again on 26.11.2024 to State Audit Department and on 04.01.2025, the State Audit Department again raised objections with regard to the decision of the Finance Committee and the applicability of notification dated 21.02.2019. Thereafter, the matter was again placed before the Executive Council in its meeting held on 13.12. 2024 vide spot Item No. 1, wherein the Executive Council ordered to examine the matter and release the salary of the petitioner as per Rules. The matter was again sent to State Audit Department on 24.01.2025, wherein the State Audit Department, vide Note dated 13.02.2025, again raised objections with regard to extension of UGC Project from 01.04.2019 to 18.10.2019 and with the observation that the decision of Executive Council and Finance Committee was not clear with regard to the exact date of regularisation of the petitioner and as such, as per the University, the matter was under consideration of the University authorities in terms of the issues raised by the Audit Department.

Learned Additional Advocate General, by referring to the reply filed by respondent No. 3, submitted that the Project, in which, the petitioner was engaged as a contingent paid worker came to an end on 31.03.2019 and as such, the services of the petitioner also ended on 31.03.2019. The petitioner was neither appointed on contract basis nor on daily wage basis as per record made available, hence the regularisation of the incumbent was not found in accordance with the instructions/policy of the State Government for regularisation of contract staff or daily wage workers. Learned Additional Advocate General also submitted that as per the decision of the Finance Committee/Executive Council of the University, the services of the petitioner were ordered to be merged in the mainstream of the University with certain conditions, by taking a lenient view to accommodate the petitioner. He stated that as per respondent No. 3, no funds were being granted by UGC after the completion of the aforesaid Project on 31.03.2019. He further submitted that the Finance Committee and the Executive Council of the respondent University had decided/approved notification dated 10.01.2025 to regularise the services of the petitioner, as per the Policy of regularisation applicable to daily wage/contingent paid workers and when the decisions of the Finance Committee and Executive Council were examined, it was noticed that the petitioner was not fulfilling the criteria of completing 5 years of continuous service, with a minimum of 240 days in a calendar year, as required in terms of the policy of regularisation of daily wage workers. He also submitted that the policy of regularisation was applicable to Class-IV employees and the mode could not be adopted for the regularisation of officials to the post equivalent to Class-I. Accordingly, he submitted that as there was no merit in the petition, the same was liable to be dismissed.

I have heard learned Senior Counsel appearing for the petitioner as also learned Additional Advocate General and learned Counsel for the respondent-University and have carefully gone through the pleadings as well as documents appended therewith.

The grievance of the petitioner is that after her merger and regularisation in the mainstream of the respondent University vide Annexure P-7, the pay band on which she has been regularised is not being released to her.

The stand of the respondent-University is that they have forwarded the proposal for the release of the said pay band to the State Audit Department, but as the approval has not yet come from the State Audit Department, therefore, the pay band is not being released to the petitioner.

The stand of the State is that the petitioner was initially engaged as a contingent-paid worker and her regularization in terms of a policy of the State Government for regularization of daily-wage Class IV employees, is not good in law.

The fact of the matter is that the petitioner was initially engaged as a contingent worker pursuant to her selection by a Selection Committee on 10.10.2015 and she is continuing to work as such till date, though her status, vide office order dated 18^th October 2019, was changed to an employee merged in the mainstream of the Himachal Pradesh University and thereafter, in terms of Annexure P-7, office order dated 11^th December 2019, to a regular employee of the mainstream of the respondent University.

Now, incidentally, the order of appointment of the petitioner on a contingent basis, her merger in the mainstream of the University and thereafter, her regularization as an employee of the mainstream of the University, still hold good and they have not been objected to by the State Audit Committee. That is to say, the respondent University has not been questioned as to how the services of the petitioner have been regularized nor the respondent University till date has been called upon to recall the order of the regularization of the petitioner.

The services of the petitioner were regularized by the University on the recommendations of the Screening Committee, which was constituted for the purpose, as is evident from the order of regularization dated 11^th December 2019.

The contention of the respondent-State that as far as the State of Himachal Pradesh is concerned, the policies of regularization, which have been issued by the State Government from time to time, only relate to the regularization of Class-IV employees, deserves forthwith rejection, as this Court can take judicial notice of the fact that the respondent State has been regularizing the services of other classes of officials/officers also, who have been appointed on contract basis etc. The regularization of Doctors, who are Class-I officers and teachers etc, could not be disputed by the learned Additional Advocate General. Therefore, the contention of the State that the policy of regularization is only qua Class-IV employees, does not hold water in the considered view of this Court.

One thing which is evident from Annexure P-7 is that the decision to regularize the services of the petitioner was not taken in isolation by the University. Before this, a decision was taken to merge the services of the petitioner into the mainstream of the respondent University vide Annexure P-5, office order dated 18^th October 2019. In terms of this office order, the decision to merge the services of the petitioner into the mainstream of Himachal Pradesh University was taken pursuant to the decision of the Finance Committee, as approved by the Executive Council of the respondent University. Therefore, it is not as if benefits were conferred upon the petitioner on the whims and fancies of some officer(s) of the University. It was a collective decision, which was being taken by the Statutory Bodies of the respondent University, i.e., the Finance Committee and the Executive Council.

In this view of the matter, as the University was duly empowered to issue the order of merger and also regularization, this Court has no hesitation in holding that there is no illegality or irregularity in the act of the respondent University of firstly merging the services of the petitioner into the mainstream of the respondent University and thereafter regularizing the same.

This Court has also perused the First Statute of Himachal Pradesh University, 1970, which has been framed in exercise of the powers conferred under Sections 38 and 39 of the Himachal Pradesh University Act ,1970.

This Court has also perused Section 28 of the Himachal Pradesh University Act, which reads as under:

From the bare reading of the provisions of the Himachal Pradesh University Act, as also the First Statute of the Himachal Pradesh University, this Court could not lay its hands over any provision which stipulates that an act of regularization by the respondent University on the advice of the Finance Committee and Executive Council has to be ratified by any State Audit Department.

Be that as it may, as learned counsel for the respondent-University submitted that because regularization involves financial implications and as the respondent University otherwise is a University of the State of Himachal Pradesh, therefore, the matter is referred to the State Audit Committee, this Court is of the considered view that in the peculiar facts of this case, the State Audit Department should have taken a pragmatic view rather than taking a hyper-technical view in denying the release of regular wages in favour of the petitioner on one pretext or the other. The initial appointment of the petitioner, be it on a contingent basis, was not through backdoor, but by way of an open selection process. Thereafter, her merger and regularization in the mainstream of the University was done by following the process and there is no challenge to the said act of the University till date from any quarter. In fact, to overcome the objection raised by the State Audit Committee that only those employees, who are engaged on a contractual basis can be regularized, the Executive Committee also approved the conversion of the contingent service of the petitioner to contract service. When all these objections raised by the State Audit Department were met with, now, as is borne out from the reply filed by respondent-University, thereafter, when the matter was again sent to the State Audit Department on 24.1.2025, the State Audit Department, vide a note dated 13.02.2025, raised another objection with regard to the extension of UGC Project with effect from 01.04.2019 to 18.10.2019 and the decision of Executive Council and Finance Committee by observing that it was not clear with regard to the exact date of regularization of the petitioner.

This so-called ambiguity with regard to the exact date of regularization of the petitioner, as is being pointed out by the State Audit Department in terms of Note dated 13.02.2025, which has been mentioned in its reply by the respondent-University also defies logic for the simple reason that the services of the petitioner have not been regularized in air by the University, but the regularization is by way of an office order dated 11^th December 2019, copy whereof is appended with the petition as Annexure P-7, in which ,it is categorically mentioned that the regularization of the petitioner is with immediate effect, meaning thereby that the services of the petitioner have been regularized with effect from 11^th December 2019.

Therefore, in the light of the above discussions, as this Court is of the considered view that the objections which are being raised by the State Audit Department for the grant of regular pay scale to the petitioner after regularization, are totally arbitrary and whimsical, in the light of the fact that right from the initial engagement of the petitioner on contingent basis till the regularization of her services in the mainstream of the respondent University, the act of the University in this regard has been above board and has been in consonance with provisions, which binds the University in this regard, there is no justification in the act of the State Audit Department in not granting approval to the respondent University to release the pay scale to the petitioner, on which, she was appointed as from the date of her regularization.

Accordingly, in the light of the above observations, this writ petition is allowed. The act of the respondent No. 3-State Audit Department of not granting permission to the University to release the pay band to the petitioner, on which, her services were regularized, is held to be bad in law and the respondents are directed to release to the petitioner the regular pay scale on which she was appointed as from the date of her regularization, i.e.11.12.2019, along with the arrears and revision of pay scale, if any. It is ordered that in case the arrears are released in favour of the petitioner within a period of three months from today, then the same shall not entail any interest. However, if the arrears are not paid to the petitioner within three months from today, the same shall entail interest at the rate of 6% per annum from the date of filing of the petition. Pending miscellaneous applications, if any, also stand disposed of.