IMPORTANT POINT
The rejection of a case for regularization on the same ground previously rejected by the court is not legally sustainable.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioner has, inter alia, prayed for the following relief:­

“(i) That the impugned order dated 03.07.2021 (Annexure P­15) may kindly be quashed and set aside and further respondents may kindly be directed to regularize the petitioner immediately after completion of 7 years as per the policy of dated 28.06.2014 (Annexure P­11) with all consequential benefits.”

2. The case of the petitioner is that he was engaged as a daily wage Class­IV employee in the Government Post Graduate College, Nahan, w.e.f. 23.06.2006. Since then he has been performing the duties of a Daftri/Peon/Chowkidar in Arts Block of the said College continuously without any break. The petitioner upon completion of requisite number of years made a representation for his regularization. Despite extensive communications in this regard having been exchanged between the concerned Authorities, as nothing was done to regularize the services of the petitioner, he filed O.A. No.5830 of 2017 before the erstwhile Himachal Pradesh Administrative Tribunal. This petition was later on transferred to this Court and disposed of by Hon’ble Division Bench of this Court in terms of judgment dated 16.10.2020, passed in CWPOA No.3135 of 2020, titled Balbir Singh vs. State of H.P. and others. The relevant portion of the judgment passed by Hon’ble Division Bench is quoted hereinbelow:­

“In aftermath, the espousal of the petitioner, is, merit worthy, and, if within the ambit of the apposite policy, the petitioner has completed the requisite period of service, under the respondents, thereupon, the respondents are directed, to, forthwith make an order of regularization in service, of, the petitioner, against the apposite substantive post, along with all incidental thereto benefits. The writ petition is allowed, and, all the pending applications also stand disposed of.”

3. Pursuant thereto, Director Higher Education, to the Government of Himachal Pradesh, in terms of Annexure P­15, has again rejected the case of the petitioner for regularization only on the ground that as the petitioner was engaged as a Class­IV employee by the Principal of Government Post Graduate College, Nahan at this own level without any approval/ permission from the concerned Authority and against a non­created/ non­sanctioned post, therefore he was not covered under the Policy of regularization because only those incumbents are entitled for regularization who were appointed as per Government approved Policy and against sanctioned/ created post.

4. Feeling aggrieved, the petitioner has filed this Writ Petition.

5. Having heard learned counsel for the parties as also learned Deputy Advocate General, this Court is of the considered view that impugned order dated 03.07.2021 (Annexure P­15), in terms whereof, the case of the petitioner has been rejected for the purpose of regularization is not sustainable in the eyes of law. The reason that has been given in this Office Order as to why the services of the petitioner cannot be regularized is that the petitioner was engaged by the Principal of the concerned College at his own level against a non­created/non­sanctioned post and therefore, as per the Regularization Policy of the State, such an incumbent cannot be regularized. Now incidently, when the petitioner had earlier preferred an Original Application with the prayer of regularization of his services, which Original Application was transferred to this Court and decided as an Original Application, a perusal of the judgment passed therein by this Court, copy whereof is appended with this petition as Annexure P­12 demonstrates that this was exactly the stand which was taken by the Department before this Court. But, this Court negated the said stand as is evident from the judgment passed by Hon’ble Division Bench and thereafter, directed the respondents to consider the case of the petitioner for regularization if it was within the ambit of the Policy of regularization.

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