Sandeep Kumar vs State Of Himachal Pradesh And Another

Sandeep Sharma, J

Precisely, the grouse of the petitioner as has been highlighted in the petition and further canvassed by Mr. Onkar Jairath, learned counsel representing the petitioner, is that petitioner herein, who was initially appointed as Patwari in the year, 2011 on contract basis, ought to have been regularized after his having completed five years service on contract basis in the year, 2016 in terms of policy of regularization framed by the Government of Himachal Pradesh. However, such benefit has been illegally denied to him on account of pendency of criminal case registered against him at the time of consideration of his case alongwith other similarly situate persons for regularization.

Precisely, the facts of the case as emerge from the record are that petitioner herein was appointed as Patwari on contract basis on 10.06.2011. In the year 2015, a criminal case came to be registered against the petitioner, as a result thereof, his services were terminated, but subsequently pursuant to order passed by the erstwhile H.P. Administrative Tribunal, he was reinstated w.e.f. 01.01.2016. In the year 2016, case of the petitioner alongwith other similarly situate persons came to be considered for regularization in terms of policy of regularization framed by the Government of Himachal Pradesh, whereby it came to be decided that persons, who have worked regularly for five years on contract basis as Patwari shall be regularized from the date of such period, however at that stage Screening Committee refused to regularize the services of the petitioner on account of pendency of criminal case against him. Screening Committee constituted by the then Deputy Commissioner, Una vide order dated 22.09.2016 though considered the case of the petitioner for regularization, but did not recommend his name for the reason, as detailed hereinabove (Annexure R-3). Vide application dated 22.06.2023, petitioner herein informed respondent No.2-Deputy Commissioner, Una that he has been honourably acquitted by the Court of learned Special Judge, Una vide judgment dated 09.06.2023 (Annexure P-5) in the criminal case registered against him under Sections 7,13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 and as such, he be regularized w.e.f.1.10.2016 alongwith all consequential benefits (Annexure R-IV). However, afore prayer of him again came to be rejected by Screening Committee constituted by respondent No.2 vide order dated 28.03.2024. Screening Committee vide its proceedings/report dated 7.6.2024 while placing reliance upon letter No.Rev-A-B015/6/2023, dated 06.03.2024 though considered the case of the petitioner for regularization but not w.e.f. 2016, rather from the year 2024. Since petitioner was not considered for regularization w.e.f. 2016 when other similarly situate persons were regularized, he is compelled to approach this Court in the instant proceedings, praying therein for following main relief:-

“ That this Hon’ble Court may be pleaded to issue the writ in the nature mandamus or any other appropriate writ order or direction directing the respondents, whereby the regularization of the petitioners has been delayed unnecessarily and further denying him the financial benefits w.e.f.01.10.2016 i.e. the date on which he should have been regularized at par with the similarly situated persons, which has been wrongly denied to him. Such action of the respondent Department is patently illegal, arbitrary and unconstitutional besides the same being in violation to settled law of the land be granted him.”

Reply filed by the respondents, if perused in its entirety, nowhere disputes facts, as have been noted hereinabove, rather stand admitted. Attempt has been made to defeat the rightful claim of the petitioner on the ground that in terms of Department letter No. No.Rev-A-B015/6/2023, dated 06.03.2024, issued by respondent No.2, there is no provision of considering regularization from retrospective date. After having perused aforesaid communication, which has been otherwise reproduced in the reply filed by the respondents, this Court is persuaded to agree with learned counsel for the petitioner that the respondents have misconstrued/ misinterpreted the afore communication. It would be apt to take note of aforesaid communication herein below:-

“ Examined. It is clarified that as per instructions issued on the subject by the State Government from time to time, regularization shall be subject to verification of character and antecedents of the candidate being considered for regularization as provided in the H.P. Financial Rules. These instructions nowhere provided that the candidate against whom a criminal case is pending shall be regarded as disqualified for regularization. It is a settled principle that no person is presumed to be guilty of an offence unless convicted by a competent court after trial. It is pertinent to mention here that as per the regularization policy of contractual appointees issued by the State Govt. from time to time, regularization will be with prospective effect i.e. from the date of issue of regularization order. There is no provision of considering regularization from retrospective date. Therefore, the Department is advised to examine the matter accordingly.” The copy of department letter No.No.Rev-A-B015/6/2023, dated 06.03.2024 is annexed as Annexure R-VI.”

As per aforesaid communication, the candidate against whom a criminal case is pending shall not be regarded as disqualified for regularization because it is settled principle that no person is presumed to be guilty of an offence unless convicted by the competent Court after trial. Though, in afore communication, no specific mandate ever came to be made at the behest of Department of Personnel that petitioner herein should not be given regularization from due date, rather it came to be clarified that regularization should be from prospective date in terms of policy of regularization framed by Government of Himachal Pradesh.

True, it is that in terms of policy of regularization framed by Government of Himachal Pradesh, regularization, if any, shall be from the prospective date, but in the case at hand, petitioner herein is entitled to be given regularization w.e.f.1.10.2016, on which date, he had become eligible for regularization in terms of policy of 2016 formulated by the Government of Himachal Pradesh. Regularization Policy of 2016 framed by the Government of Himachal Pradesh clearly provides that an employee on his/her having completed five years contract service shall be regularized on the same post with prospective effect. Since in the instant case, it is not in dispute that petitioner was appointed as Patwari on contract basis on 10.06.2011 and he had completed five years service on 9th June, 2016, he ought to have been granted regularization w.e.f. 1.10.2016. As per the reply of the respondents, it is quite apparent that though case of the petitioner for regularization was considered by Screening Committee constituted by the Department for regularization in terms of policy decision taken by the Government of Himachal Pradesh in the year 2016 itself, but at that juncture, his case was not recommended by the Screening Committee on account of pendency of criminal case. Since subsequently, petitioner came to be honourably acquitted by the competent Court of law and such, fact was brought to the notice of the Department, there was otherwise no occasion, if any, to deny him regularization from the date, he had actually become eligible for regularization in terms of policy framed by the Government of Himachal Pradesh in the year, 2016. Instructions issued by the Department of Personnel dated 6.3.2024, if perused in their entirety, nowhere suggest that period during which criminal case remained pending against an employee shall not be considered for counting the required number of years for regularization in terms of regularization policy, rather it itself suggests that candidate against whom, criminal case is pending shall not be regarded as disqualified for regularization. Though, on account of pendency of criminal case, case of the petitioner ought not have been ignored for regularization at first instance, but even if it was done, his services should have been regularized from due date after his acquittal in criminal case by the competent court of law. In the instant case, as per the reply filed by the respondents, petitioner was acquitted vide judgment dated 9.6.2023 passed by learned Special Judge, Una, but yet his services were not regularized from due date, rather from the date when juniors of the petitioner had become eligible for regularization in the year 2020, 2022 and 2024.

Since it is not in dispute that in the year 2016 petitioner had completed his five years service on contract basis and there was provision in the policy framed by the Government of Himachal Pradesh for regularization to regularize the services of such contract appointees, prayer made on behalf of the petitioner to issue direction to the respondents to regularize his services from due date i.e. w.e.f.1.10.2016, deserves to be allowed.

Consequently, in view of the above, this Court finds merit in the present petition and accordingly same is allowed. The respondents are directed to regularize the petitioner from due date i.e.

10.2016 with all consequential benefits. Since petitioner has been fighting for his rightful claim for quite long, this Court hopes and trusts that needful shall be done expeditiously, preferably within a period of six weeks. Pending applications, if any, also stands disposed of.