Rakesh Kumar vs State Of H.P. Through Secretary And Others

Jyotsna Rewal Dua, J

A post of Cook became available in Government Senior Secondary School Matiana (Sports Hostel), District Shimla. After inviting applications from

the Local Employment Exchange, petitioner was selected and offered appointment against the said post vide offer letter dated 31.07.2007. Petitioner

joined the institution on 01.08.2007 as a Cook on daily wages. On 07.05.2015, the respondents circulated a Policy for regularization of daily

waged/contingent paid workers in all the departments, who had completed 7 years of continuous service with a minimum of 240 days in a calendar

year as on 31.03.2015. The petitioner filed Original Application No.328/2018 before the erstwhile H.P. State Administrative Tribunal regarding his

regularization in terms of 2015 Policy. Vide judgment dated 19.01.2018, the said original application was disposed of with a direction to the

respondent/competent authority to consider and decide the case of the petitioner. In compliance to the direction, the respondent/competent authority

considered petitioner’s case and vide order dated 19.06.2018 rejected it on following reasons:-

 “And whereas the relevant record of the GSSS Matiana (Sports Hostel) received on 20.4.2018 has been perused and it revealed that the

Principal concerned has appointed the applicant as cook on daily wage basis after observing the codal formalities i.e inviting applications from the

Local Employment Exchange and thereafter the applicant has been offered appointment vide offer order No. EDN-MCo/SSS/221/2007-109 -111

dated 1.8.2007, accordingly he joined in the institution on 1.8.2007. The applicant is being paid wages from the Govt. exchequer. Therefore in

compliance of the directions passed by the Hon'ble HPAT in OA No. 328/2018 decided on 19.1.2018 directing the respondent/competent authority to

consider the case and decide in accordance with the policy dated 7.5.2015. The policy notified on 7.5.2015 cannot be made applicable as the policy is

only applicable to the PWD. It is pertinent to mention that the Department of Education has a separate policy with regard to the regularization of part

time, whole time contingent paid and daily wagers notified as per the judgment passed by the Hon'ble High Court of H.P. in CWP 3310/2010 titled as

Leela Devi Versus State of H.P. The Policy was notified in the year 2012 initial when the total length of services for regularization was 17 years

which was subsequently modified to that of 14 years ccontinuance service. In the instant case, the applicant has to complete 14 years of continuance

service on daily wage basis to become eligible for regularization subject to availability of post in the cadre of Class-IV. The applicant has been

appointed on daily wage 1.8.2007 and will complete 14 years in the year 2021 as per the policy which is applicable to all daily wage employee working

in the Education Department, the case of the applicant can be considered for regularization only upon the completion of 14 years of continuous service

on daily basis as required under the provisions of policy.â€​

In the aforesaid backdrop, the instant petition has been preferred by the petitioner praying for quashing of the order dated 19.06.2018 (extracted

above) with a further direction to the respondents to regularize his services on completion of 7 years of continuous service on daily wage basis i.e.

w.e.f. 01.04.2015 with all consequential benefits.

Learned counsel for the petitioner contended that the petitioner was appointed as Cook on daily wage basis vide order dated 31.07.2007. In terms

of Policy dated 07.05.2015 (Annexure A-2), petitioner was entitled for regularization of his services w.e.f. 01.04.2015 as he had completed 7 years of

continuous daily wage service with the respondents as on 31. 03.2015.

Learned Additional Advocate General argued that the regularization Policy dated 07.05.2015 is not applicable to the case of the petitioner as the

Education Department has a separate Policy with regard to the regularization of Part-Time, Whole Time Paid and Daily Wager. This separate Policy

was framed in August 2012 in the Education Department in compliance to the judgment passed in CWP No.3310/2011, titled Leela Devi Vs. State of

H.P. & other connected matters. As per 2012 Policy, the total length of service required for regularization was 17 years, which was subsequently

modified to that of 14 years. The petitioner in order to become eligible for regularization subject to availability of post in Class-IV cadre has to first

satisfy the condition of rendering 14 years of continuous service on daily wage basis. The case of the petitioner can be considered for regularization

only thereafter.

The submissions made on behalf of the State are based upon the reply filed by the respondents. The same stand was taken by the respondents

while rejecting the representation of the petitioner vide order dated 19.06.2018. During hearing of the case, on 07.01.2022, learned counsel for the

petitioner placed on record the Policy dated 22.08.2012 framed by the respondents for conversion of ‘Part time Water Carriers in Daily Wages in

Education Department’. Admittedly this Policy has been framed pursuant to the judgment dated 12.12.2011 rendered in CWP No.3310/2011, titled

Leela Devi Vs. State of H.P. & other connected matters. Relevant portion of the Policy dated 22.08.2012 is extracted hereinafter:-

“Subject:- Regarding Policy for conversion of Part Time Water Carriers in Daily Wages in Education Department.

Sir,

I am directed to refer to the subject cited above and to say that the matter regarding policy for conversion of Part Time Water Carriers on daily

wages in Education Department was under consideration of the Government for some time. Now, it has been decided by the Government to regulate

the services of Part Time Water Carriers of the Department of Education in the following manners:

The Part Time Water Carrier of the Department will be converted as Water Carrier-cum-Peon on daily waged basis after completion of 10 years

of continuous service as per policy/guidelines of Department of Personnel issued from time to time for all other State Govt. departments. This will be

revised to the period of 9 years as and when the same is issued by the DOP

983 numbers of Whole Time Contingent Paid posts of the department will be converted/upgraded as the regular Class-IV employees.

The services of PTWCs converted as Water Carrier-cum-Peon on daily waged basis will be regularized as regular Class-IV after completion of 8

years as per DOP policy issued from time to time for all other state Government department.

At a later stage when post of regular Class-IV is vacated by way of promotion, retirement etc. the same will be filled up as PTWCs.

The PTWCs were earlier appointed as per policy on hourly basis, which has since been discontinued. The existing policy of initial appointment as

PTWC on contract basis would continue.

There are many vacancies of Clerks/LAs to be promoted from Class-IV, of Class IV to be promoted from WTCP and of WTCP to be promoted

from PTWCs. All the vacancies as above existing till 31.08.2012 will be filled up within next 15 days as per the existing rules and thereafter the

aforesaid new policy be implemented.

The aforesaid instructions be brought to the notice of all concerned for strict compliance and the receipt of the same be acknowledged.

Yours faithfully

Sd/

Under Secretary (Hr. Edu.)

to the Government of Himachal Pradesh.â€​

I have heard learned counsel for the parties and gone through the records.

It is not in dispute that the petitioner was engaged as a Cook on daily wage basis in Government Senior Secondary School Matiana (Sports Hostel),

District Shimla on 01.08.2007. The office order dated 31.07.2007 offering appointment to petitioner as Cook on daily wages has been placed on record

as Annexure A-1. It is also not in dispute that by 31.03.2015 the petitioner had completed 7 years of continuous service as a daily waged cook.

Petitioner is statedly serving as such till date. The respondents did not consider the case of the petitioner for regularization of his services only on the

ground that the total length of service required for regularization in his case was 14 years. For determining the required length of service for the

purpose of regularization, the respondents have relied upon August 2012 Policy for regularization of ‘Part-Time, Whole Time Paid and Daily

Wager’. The said Policy issued on 22.08.2012 was for ‘conversion of Part-Time Water Carriers in Daily Wages in Education Department’.

This policy was placed on record during the hearing of the case. As per this Policy (extracted earlier), Part-Time Water Carriers of the department

are to be converted as Water Carrier-cum-Peon on daily wage basis after completion of 10 years of continuous service in accordance with applicable

instructions. As per submissions made by learned counsels for the parties, this Policy was framed in compliance to the judgment dated 12.12.2011

delivered in CWP No.3310/2011 titled Leela Devi Vs. State of H.P. and other connected matters. However, this Policy has no bearing upon the case

of the petitioner. Petitioner was neither engaged on Part time basis nor he was engaged as Part Time Water Carrier i.e. the category to which the

Policy was made applicable. It is the pleaded case of the respondents that the petitioner was engaged as Cook on daily wage basis and not as a part

time water carrier. It is not denied by the respondents that the petitioner had been continuously working as Cook on daily wage basis ever since his

appointment as such on 01.08.2007. The case of the petitioner was, therefore, to be considered in terms of regularization Policy dated 07.05.2015.

No other point was urged.

For all the foregoing observations, I find merit in the petition. Consequently, present petition is allowed. Order dated 19.06.2018 rejecting the case of

regularization of the petitioner on the basis of August 2012 Policy is quashed and set aside. Respondents are directed to consider the case of the

petitioner for his regularization in terms of the Policy dated 07.05.2015 (Annexure A-2) within a period of six weeks from today and pass an

appropriate order in this regard, in accordance with law. Pending miscellaneous application(s), if any, shall also stand disposed of.