Meenakshi Rana And Others vs State Of H.P. And Another

Jiya Lal Bhardwaj, J

By way of present petition, the petitioners have prayed for the following substantive reliefs:-

"i. That a writ in the nature of certiorari may kindly be issued in favour of the petitioners and against the respondents for quashing the rejection order dt. 04.12.2024 Annexure P-10.

ii. That a writ in the nature of mandamus may be issued against the respondents and in favour of the petitioners to the following effects:

a. That the respondents may kindly be directed to allow notional benefit of service to the petitioners as instructors in their respective trades from the date when the persons junior to them have been allowed the said benefit by taking into account their date of entry into service on Institute Management Committee basis as the relevant date for the determination of all service benefits.

b. That the respondent may kindly be directed to bring the salary and allowances of the petitioners at par with their juniors from the date of initial joining on Institute Management Committee basis by way of grant of notional increments."

The facts which emerge from the pleadings are that the petitioners were earlier working as trainers in different subjects under Institute Management Committees of different Industrial Training Institutes of the State Government w.e.f. 30.09.2005 to 08.09.2010. Respondents-State took a conscious policy decision to take over the services of all the teaching and non-teaching employees who were engaged on contract basis through Student Welfare Fund, Institute Management Committee(s) and under other schemes up to 31.07.2015 in Government Engineering Colleges, Polytechnics and Industrial Training Institutes of the Department of Technical Education Vocational & Industrial Training, on contract basis who had completed 7 years or 9600 hours, whichever is earlier as one time measure, in the public interest, with immediate effect, subject to the condition that no litigation is subsisting and an undertaking to this effect shall be taken from all the concerned and issued a Notification on 03.10.2015 (Annexure P-3).

In pursuance of the policy decision notified on 03.10.2015, the respondents initiated the process of taking over the services and issued office orders in the years 2016 and 2017, whereby the services of the contract employees, who were working under Students Welfare Fund/Institution Management Committee, like the petitioners, were taken over on contract basis against the budgetary head in the Department of Technical Education, Vocational and Industrial Training, Himachal Pradesh, subject to the final outcome of SLP (C) No.20353/2016, titled, Raj Kumar and another vs. State of H.P. and Ors.

Though the petitioners were fulfilling the criteria as stipulated in the Notification dated 03.10.2015, but their services were not taken on contract basis when the office orders were issued in the years 2016 and 2017. They had approached this Court by way of CWP No.2615 of 2017, titled, Meenakshi Rana and others vs. State of H.P. and others a/w connected matters. However, during the pendency of the petitions, their services were taken over as per office orders dated 22.09.2018 and 26.09.2018 (Annexure P-6 colly), though they were senior to the persons, who were earlier offered appointments on contract basis. As per policy decision of the State Government, the services of the incumbents who had completed three years' service on contract basis, were thereafter regularized.

Though the petitioners were senior when they were initially engaged as trainers, but their services were not regularized prior to their juniors. The aforementioned petitions and connected matters were disposed of on 10.01.2020 by this Court, observing that the petitioners could not substantiate the allegations that juniors have superseded seniors. However, the respondents-State were directed to continue its earnest efforts for taking over the services of left out petitioners on Government contract, strictly in accordance with the policy dated 03.10.2015.

The petitioners again approached this Court by way of CWP No.3039 of 2022, titled, Meenakshi Rana and Anr. vs. State of H.P. and Ors. claiming therein that they may be assigned seniority as Instructors in their respective trades taking into account their date of entry into service on Institute Management Committee basis, as the relevant date for determination of their seniority and other service benefits of taking over on contract basis and regularization and further bring their salary and allowances at par with their juniors from the date of initial joining in Institute Management Committee basis by way of grant of notional increments. It was contended by the counsel before the Court that a similar issue has already been adjudicated by this Court in CWP No.4254 of 2022, titled, Pradeep Kumar versus State of H.P. and another and this Court had disposed of the petition on 12.11.2024 directing the respondents to consider and decide the case of the petitioners for grant of reliefs stated above in accordance with law, in light of aforesaid decision in Pradeep Kumar's case.

In sequel to the said direction given by this Court, respondent No.2 had considered the claim of the petitioners and rejected the same vide order dated 04.12.2024 (Annexure P-10), stating therein that no post in the trade, on which the petitioners have been offered the appointment, on contract basis, was available and thus, the case of the petitioners is not similar to the case of Pradeep Kumar, Instructor. In the case of Pradeep Kumar, the functional post was available from 04.10.2015 whereas, in case of the petitioners, functional posts were not available on 04.10.2015. In fact, the posts were only available from 22.09.2018 and 26.09.2018, therefore, the relief sought by the petitioners cannot be granted to them. Thereafter, the petitioners had got served legal notice dated 15.01.2025 (Annexure P-11), which came to be rejected on 10.03.2025 (Annexure P-12).

The petitioners feeling aggrieved by the impugned order dated 04.12.2024 has filed the present petition on the plea that the action on the part of the respondents in not taking over the services of the petitioners earlier to their junior persons is illegal, arbitrary and unjustified. Further, once the petitioners were working with the respondents and had completed the requisite years and hours as per the Notification dated 03.10.2015, the relief could not have been denied to them. The inaction on the part of the respondents in not granting the benefit to the petitioners has affected their right of consideration to the post of Group Instructor.

The respondents filed reply to the petition and supported their decision. It has been averred that since no posts of petitioners' trade were vacant, their services could not be taken over on contract basis, when the services of other persons were taken over. Further, once the petitioners have failed to assail the office order dated 22.09.2018, 26.09.2018 and the Notification dated 03.10.2015 to the extent that the services of all such employees shall be taken over on contract basis against available vacancies, failing which, against resultant vacancies, the petition is not maintainable. Since the petitioners did not meet the terms and conditions prescribed for the applicability of the Notification dated 03.10.2015, their services have rightly been taken over after the posts became available.

The petitioners filed rejoinder to the reply and have placed on record the office orders dated 25.06.2022 and 17.12.2022, in respect of Sh. Ajay Kumar, Instructor and Smt. Kavindra Kumari, Trainer, respectively, who were though taken on Government contract w.e.f. 07.09.2018 and 08.10.2020, respectively, but subsequently their services have been taken over from earlier dates i.e. 29.09.2017 and 25.02.2020, respectively, when juniors to them were taken over on contract basis.

I have heard the learned counsel for the parties and also perused the record carefully.

As per Notification dated 03.10.2015, the services of all the employees, who were engaged on contract basis, through Students Welfare Fund, Institute Management Committee(s) and under other scheme upto 31.07.2015, were on contract basis and had completed 7 years service or 9600 hours service whichever is earlier, were to be taken over. However, the services were to be taken over on contract basis against available vacancies failing which against resultant vacancies and existing mal-engagement shall be discontinued immediately. The petitioners have not laid challenge to this condition that their services were to be taken on contract basis only against available vacancies. In the earlier round of litigation, when their petitions were disposed of by common judgment on 10.01.2020, this Court had held that the allegations of juniors having superseded seniors have not been substantiated and the petitioners have not laid challenge to the said decision. Once the vacancies were not available, the services of the petitioners were not taken over on contract basis and after creation of the posts, their services have been taken over on contract basis and thus, no illegality have been committed by the respondents-State while rejecting their claim to grant the appointment on contract basis earlier from taking over their services.

The plea taken by the petitioners that they were similar situate to Pradeep Kumar is concerned, in his case, the post of Instructor Mechanic was available on 04.10.2015, however, in the cases of the petitioners, posts were available only when their services were taken on contract basis and thus, the case of the petitioners is not similar as that of Pradeep Kumar.

So far as the cases of two other persons namely Ajay Kumar and Kavindra Kumari, who were brought on contract basis are concerned, in the case of Ajay Kumar, his services were not taken on contract basis due to non-receipt of the record and in case of Kavindra Kumari, it was found that the post of SOT(Emb.) was available on 04.12.2019, and therefore, their services have been taken over form the earlier dates when they were fulfilling the eligibility, as per Notification dated 03.10.2015. In the cases of the petitioners, since the posts were not available, which was sine qua non for bringing them on contract basis in terms of the conditions in the Notification dated 03.10.2015, the order passed by respondent No.2 to deny them the benefit from the anterior date cannot be faulted.

No doubt, the petitioners were working with the respondents and discharging the duties on the posts and they were senior to the other persons, whose services were brought on contract basis earlier to them, but once the posts were not available, the respondents did not bring their services on contract basis earlier to their juniors. As already noticed above, in the earlier round of the litigation, the Division Bench of this Court has already held that the allegation of the petitioners that juniors superseding seniors in respect of implementation of the policy dated 03.10.2015 has not been substantiated and thus, the same very issue can again not be raised by the petitioners in another petition, once the judgment dated 10.01.2020 has attained finality.

No other point has been raised.

Resultantly, I do not find any merit in the petition and the same is accordingly dismissed. However, no orders as to cost. Pending application(s), if any, shall also stand disposed of.