State Of H.P. & Anr vs Neena Sharma

Ajay Mohan Goel, J

By way of this Letters Patent Appeal, the appellants have challenged judgment dated 12.12.2022, passed by learned Single Judge in CWPOA No.998 of 2019, titled as Neena Sharma vs. State of H.P. & Anr., in terms whereof, the petition filed by the respondent stands allowed in the following terms:-

“Consequently, in view of above, the instant petition is allowed and Annexures A-1, A-4 and A-12 are quashed and set aside. The respondents-State is directed to regularize the services of the petitioner as Clerk w.e.f 01.01.2001. Since, the petitioner had been fighting for her rightful claim from day one, there is no force in the submission of learned Additional Advocate General that petitioner is not entitled for consequential benefits and as such, petitioner are being regularized against the post of Clerk be granted all the consequential benefits.”

Brief facts necessary for the adjudication of the appeal are that the respondent/petitioner (hereinafter referred to as ‘the petitioner’) filed an Original Application No.3807 of 2017, titled as Neena Sharma vs. State of H.P. & Anr., before the erstwhile Himachal Pradesh Administrative Tribunal, inter alia, seeking a direction to the appellants to regularize her services as a Clerk i.e. the post, duties of which were being performed by her since April, 1990, w.e.f. 01.01.2001. Upon the abolition of the Tribunal, the Original Application was transferred to this Court and re-registered as CWPOA No. 998 of 2019.

The case of the petitioner was that she was engaged as a Beldar in the office of Assistant Engineer, HP PWD Sub Division, Matiana, District Shimla, in the month of April, 1990, but was assigned the work, which was clerical in nature i.e. typing official letters; making entries in the receipt and dispatch registers etc. This was done keeping in view her educational qualification as well as her typing speed. Her services were regularized as a Beldar on 30.11.2005.

She filed a writ petition i.e., CWP No. 11249 of 2011, seeking regularization of her services against the post of Clerk from the due date.

Said petition was disposed of by this Court vide order dated 21.11.2014, directing the Competent Authority to decide the pending representation of the petitioner dated 12.09.2011, in accordance with law, by following the principles of natural justice.

The representation of the petitioner was dismissed by the authority vide order dated 21.01.2015 and feeling aggrieved, she filed Original Application No. 3807 of 2017.

Learned Single Judge, allowed the petition, by inter-alia, holding that in the course of hearing, learned Additional Advocate General had fairly admitted that the petitioner had been performing clerical job in the office of HP PWD, but stated that there was no specific order of appointment ever passed by the authority concerned, calling upon the petitioner to perform the clerical job, rather she of her own volition, performed the job of Clerk in the Department. Learned Single Judge also noted that the submission of the learned Additional Advocate General was that as at the time of the regularization of the services of the petitioner as a Beldar, she actually was working as a Daily Wage Beldar, therefore, no illegality was committed by the Department. Learned Single Judge held that on the basis of material on record, it was evident that though the petitioner was initially appointed as a Daily Wage Beldar in the year 1990, but from day one, she was performing the duties of a Clerk. Learned Single Judge took note of the fact that the appellants had admitted in their reply that the petitioner was appointed as a Daily Wage Beldar in the year 1990 and she worked in various categories. i.e. Beldar w.e.f. 1990 to 25.03.1994, Assistant Ledger w.e.f. 26.04.1994 to 25.11.1994, Assistant Store Attendant w.e.f. 26.11.1994 to 25.09.1995, Store Munshi w.e.f. 26.10.1995 to 25.10.1996, Store Clerk w.e.f. 26.10.1996 to 25.04.1997 and again as Daily Wage Beldar w.e.f. 26.05.1997 onwards. On the basis of the stand of the appellants before the learned Single Judge, the said Court held that it was quite apparent from the reply of the appellants that the petitioner was appointed as a Beldar, but from her initial engagement, she was called upon to perform the duties of a Clerk in the office of HP PWD and since at the time of regularization, the petitioner was rendering clerical duties, hence, State ought to have considered her case against the post of Clerk for regularization and not as a Beldar. Learned Single Judge also held that the appellants could not be permitted to take benefit of the fact that her regularization as a Belder, was accepted by the petitioner, without any protest, because the Court could not lose sight of the fact that the petitioner was having no choice, except to have had accepted regularization as a Beldar because, had she disputed the offer, her services would not have been regularized even as a Beldar at that juncture. Thereafter, by placing reliance upon the judgment of a Co-ordinate Bench in CWPOA No.3776 of 2019, learned Single Judge allowed the petition in terms already mentioned hereinabove.

Having heard learned Additional Advocate General and learned counsel for the respondent herein, we do not find any reason to interfere with the judgment passed by the learned Single Judge.

We may state that the contention of the learned Additional Advocate General that the respondent was accommodated in the office on the count of her being a lady is without any merit because there are scores of ladies who stand engaged on daily wage basis as Beldar by the appellants and who are performing their duties in the field.

Besides this, the findings returned by the learned Single Judge are based on the material on record before him as well as the stand taken by the appellants in the reply and the admission made by the learned Additional Advocate General before the learned Single Judge that the petitioner indeed was performing the duties of Clerk since her initial engagement.

During the course of the arguments learned Additional Advocate General could not demonstrate that the findings so returned by the learned Single Judge were either not based on record or were perverse being contrary to the record.

While concurring with the findings returned by the learned Single Judge, we also hold that the regularization of the petitioner ought to have been against the post, duties of which were being performed by her, and not against the post against which she otherwise was engaged.

We have also gone through the record of the writ file and it is clearly borne out therefrom, that the appellants were extracting the duties of a Clerk from the petitioner from her initial date of engagement. Therefore, the direction issued by the learned Single Judge ordering her regularization as a Clerk w.e.f. 01.01.2001, calls for no interference.

Accordingly, in view of the above findings, this appeal being devoid of any merit is dismissed. Pending miscellaneous application(s), if any, also stand disposed of.