Revashankar Gaitri vs State Of Himachal Pradesh And Others

Jyotsna Rewal Dua, J

The petitioner seeks regularization of his services from the date his juniors were regularized.

2(i) The petitioner was initially engaged on 24.07.1995 as daily waged Peon. Respondent No.2 converted his status to that of daily waged Clerk on 16.10.1995. The petitioner worked as Clerk at Agricultural Produce Market Committee, Shimla and Kinnaur under the control of the respondents.

2(ii) It is the case of the petitioner that in terms of the bye laws of the respondent-Department, a person with matriculation was eligible for appointment as Clerk at the time of appointment of the petitioner. The petitioner was matriculate with second division and, therefore, was eligible for appointment as well as regularization on the post of Clerk.

2(iii) Even though the petitioner had completed eight years’ continuous daily waged service as Clerk till 31.03.2004, respondents were not considering his case for regularization in accordance with law and applicable policy. This compelled the petitioner to institute Civil Writ Petition No.2769 of 2010. The writ petition was decided on 31.05.2010. Respondent No.2 was directed to decide it by treating it as representation.

2(iv) In compliance to the directions passed in CWP No.2769 of 2010, respondent No.2 decided petitioner’s representation and passed consideration order on 22.01.2011. In this order, respondent No.2 held that the petitioner possessed essential educational qualifications required for being appointed as Clerk on regular basis. Respondent No.2 also observed in this order that similarly situated persons, junior to the petitioner, had already been regularized on 16.06.2010 as Clerks against the available vacancies. Respondent No.2 concluded that the petitioner was also entitled for the benefit given to his juniors. However, respondent No.2 withheld the benefit of regularization to the petitioner from the due date i.e. from the date his juniors were regularized. Relevant portion of the office order dated 22.01.2011 is as under: -

“WHEREAS undersigned is of the considered view that petitioner is entitled for regularization with immediate effect in the light of aforesaid stipulations and taking into consideration, pleadings and material on record. Official record was also perused.

AND WHEREAS 6 similar situated junior persons have been regularized as Clerks against available vacancy on 16.06.2010 because they were fulfilling the requisite eligibility criteria as per existing R&P Rules provided for the post of Clerk. Hence, petitioner is also entitled for same benefit.

NOW THEREFORE, keeping in view of the facts and circumstances, daily waged services of the petitioner is ordered to be regularized as Clerk with immediate effect by giving him consequential benefits on notional basis from the due date when his juniors were regularized, i.e. with effect from 16.06.2010 in accordance with seniority positon of daily waged workers, as per law.”

Despite admitting the petitioner’s claim, respondent No.2 did not order for regularizing his services from the due date and denied him actual benefits w.e.f. the date when his juniors were regularized. This has compelled the petitioner to institute the present writ petition.

Learned counsel for the petitioner argued that the respondent No.2 cannot without any legal backing deny the benefit of regularization to the petitioner from the date it was given to his juniors. During hearing of the case, learned counsel for the petitioner confined his prayer for regularizing the services of the petitioner from the date his juniors were regularized i.e. 16.06.2010.

Learned counsel for respondent No.2 did not dispute the fact that the petitioner possessed the education qualification required for the post of Clerk and that persons junior to him stood regularized as Clerk on 16.06.20210, whereas the petitioner was regularized as Clerk w.e.f. 10. 02.2011 i.e. the order passed in compliance to the consideration order dated 22.01.2011.

I have heard learned counsel for the parties and have gone through the record of the case with utmost care.

The factual position is not in dispute that the status of the petitioner was converted to daily waged Clerk w.e.f. 26.10.1995. That petitioner possessed educational qualification of matriculation with second division. That in terms of this qualification, the petitioner was eligible for being appointed and regularized on the post of Clerk. The fact that the petitioner was entitled for regularization of his services is also not in dispute. It has also come in the consideration order dated 22.01.2011 that similarly situated persons, who were juniors to the petitioner, were regularized as Clerks against the available vacancies on 16.06.2010. Once that is so, there arises no question as to why the services of the petitioner should not be regularized at least w.e.f. 16.06.2010, more so, when the petitioner had approached this Court by filing CWP No.2769 in the year 2010. This writ petition was decided on

05.2010. The regularization orders in case of his juniors were passed on 16.06.2010. Just because respondent No.2 decided the representation of the petitioner on 22.01.2011, and implementation order was passed on 10.02.2011 will not mean that petitioner is to be denied regularization w.e.f. the date his juniors were regularized.

Therefore, for the aforesaid reasons, this writ petition is allowed. The respondents are directed to regularize the services of the petitioner as Clerk w.e.f. 16.06.2010 i.e. from the date his juniors were regularized alongwith all consequential benefits. This exercise be completed within a period of three months from today. Pending miscellaneous application(s), if any, also stand disposed of.