Ravinder Kumar Dhawaj vs The Himachal Pradesh State Civil Supplies Corporation Ltd.

Justice Sanjay Karol, J.—Petitioner has prayed for the following reliefs:-

i) That the rejection orders dated 19.7.2010 vide Annexure P-5 may kindly be quashed and set-aside forthwith.

ii) That the action of the Respondent Corporation in denying regularization to the petitioner on the higher post of a Driver but in regularizing him on the lower post of a Cleaner may kindly be quashed and set-aside forthwith.

iii) That the Respondent Corporation may be directed to consider and regularize the petitioner as Driver w.e.f. date of completion of 8 years of service as a Driver w.e.f. 25.10.2007 or w.e.f. 31.3.2008 as per 8 years Policy or w.e.f. the date the juniors were regularized as Drivers on 10.2.2010; 28.4.2010 and on 21.5.2010 vide Annexure P-6 to Annexure P-8 (whichever is beneficial) with all consequential benefits forthwith.

Facts are not in dispute. Petitioner worked as a Cleaner on daily wage basis for a period of 3 years 7 months and 27 days between 26.3.1996 and 24.10.1999. Thereafter, he worked as a Driver on daily wage basis for a period of 7 years 6 months and 22 days between 25.10.1999 and 16.5.2007. His services were regularized as a Cleaner on 17.5.2007.

Feeling aggrieved that respondents had not regularized his services as a Driver, petitioner approached this Court by way of CWP(T) No. 16398 of 2008 titled as Ravinder Kumar Vs. H.P. State Civil Supply Corpn., which was disposed of by this Court vide judgment dated 26.3.2010 in the following terms:-

Writ petition has been filed with the following prayer:-

(i) That the orders dated 16.5.2007 vide Annexure A-1 regularizing the applicant on the lower post of a cleaner may kindly be quashed and set aside.

(ii) That the respondent corporation may be directed to consider and regularize/give work charged status to the applicant on the higher post of a driver in the pay scale of Rs. 3121-5160 w.e.f. the date of regularizing him as cleaner as per the orders dated 16.5.207 (A-1) with all consequential benefits forthwith. It is submitted that the matter is covered by the decision of this Court in Gauri Dutt & Others versus State of H.P., reported in Latest HLJ 2008 (1) 366.

It is submitted that the petitioner has submitted Annexures A-2 and A-3, representations, before the respondent. There will be a direction to the respondent to look into Annexures A-2 and A3 and take appropriate action in the light of the decisions referred to above, without discriminating the petitioner, within a period of one month from the date of production of the copy of this judgment along with copy of the judgment, referred to above, it will be open to the petitioner to file supplementary representation bringing into the notice of the respondent that in fact he has actually been discharging the duties of a higher post of driver, even after regularization as Cleaner.

(Emphasis supplied)

The respondents have now decided petitioner''s representation holding that since petitioner had not completed ten years of service, as stipulated in the Policy, which was under consideration in Gauri Dutt (supra), his services could not be regularized as a Driver.

In my considered view, respondents have taken a totally myopic view of the entire factual position. No doubt, in Gauri Dutt (supra), the Court was considering the Policy where employees sought to be regularized were after completion of ten years of service, but then subsequently this Policy itself was substituted by the State and period of ten years was reduced to eight years. The direction of the Court was clear. Petitioner''s request was to be considered in accordance with law and decided without any discrimination.

Undoubtedly, petitioner worked as a Driver for a period of 7 years 6 months and 22 days. With regard to the remaining period of 1 year and 5 months which he has served, according to the petitioner even though he was regularized as a Cleaner but nonetheless he continued to discharge his duties as a Driver.

Be that as it may be, there is yet another factor in favour of the petitioner. Persons junior to him who were working as Drivers stand regularized as Drivers and not Cleaners. This fact is evident from order dated 1.12.2009 (annexure P-5/2) which reveals that one Shri Pawan Kumar who was engaged as a Driver on 1.7.2000 was regularized on 10.2.2010. The position is similar with respect to other two employees i.e. Shri Nirmal Singh whose reference is made in order dated 28.4.2010 (Annexure P-7) and Shri Dhiyan Singh whose reference is made in order dated 21.5.2010 (Annexures P-5/1 & P-8). Now respondents cannot be permitted to adopt this Policy of discrimination and pick and choose. This action is totally arbitrary and whimsical. Respondent being an instrumentality of the State, has to take action in accordance with law, by adopting a uniform Policy with respect to each of its similarly situated employees. Equals cannot be treated as un-equals. Shockingly, despite the directions issued by this Court to consider petitioner''s case, in accordance with law, respondents have taken a stand in Court that since petitioner did not complete ten years of service, his case for regularization as a Driver cannot be considered. This is perverse interpretation of the judgment of the Court and also incorrect application and construction of latest Policy of the State.

According to the petitioner, he has already exercised his option vide communication dated 3.6.2010 (Annexure P-4).

Hence, present petition is allowed. The impugned order dated 19.7.2010 (Annexure P-5) is quashed. Respondents are directed to consider the petitioner''s case for regularization, in accordance with law, from the date when persons junior to him stand regularized. If however respondents decide to review their decision of regularizing services of such persons then his services shall be counted for regularization after completion of period of eight years of service as a Driver. Such decision is to be taken in accordance with law.

All consequential actions shall positively be taken within a period of three months from the date of receipt of certified copy of this judgment. Monetary benefits, if any, due and admissible, shall also be released to the petitioner within the aforesaid period, failing which, then thereafter, petitioner shall be entitled to interest @ 9% per annum, which shall be personally recovered from the erring official(s). For all the aforesaid reasons, present petition needs to be allowed. Ordered accordingly.

Pending application(s) if any, also stand disposed of.