Disputed questions of fact on service breaks for regularization claims cannot be resolved in writ proceedings; must be raised as industrial dispute; delay and acquiescence after 12 years bar relief.

JUDGMENT :

Ranjan Sharma, J.

Petitioner, Vijay Kumar, had initially filed Original Application No.1729 of 2016 before State Administrative Tribunal and upon abolition of Tribunal, the matter stood re-transferred to this Court, as CWPOA No.7399 of 2019, seeking the following reliefs :-

“i) That the break in service in each year from 1996 to 2004 be condoned for the
(ii). purpose of counting the seniority.
That the applicant be granted seniority for the break period with effect from 1996 to 2004.
(iii). That the applicant be granted seniority with all consequential benefits.”

FACTUAL MATRIX:
2. Grievance of the petitioner is that he was engaged as Daily Waged Chowkidar w.e.f. 17.03.1996 in Irrigation and Public Health Division, Dehra, District Kangra, (HP) and his services was regularized w.e.f. 23.09.2012 against the post of Chowkidar, under Irrigation and Public Health Division, Dehra, District Kangra, H.P. It is further averred that the petitioner had rendered continuous service with 240 days from 2005 to 2011 onwards as per Mandays Chart [Annexure R-II]. It is averred that though the petitioner stands regularized as Chowkidar on 22.09.2012 [Annexure R-I] prospectively, but in case the period of break given during the years from 1996 till the year 2004, during which he could not complete 240 days is condoned and counted towards actual service, then the petitioner shall be entitled for regularization/ work charge status from an earlier date and accordingly, he may be given the rescheduled consequential benefits.

STAND OF RESPONDENT-STATE IN THE REPLY- AFFIDAVIT:
3. Upon issuance of notice on 07.05.2016, State Authorities-Respondents have filed Reply-Affidavit dated 18.06.2016 of Superintending Engineer, I.P.H. Circle, Dharamshala, stating therein that the claim relating to the year 1996 to 2004 has been agitated by way of instant petition after 12 years, which suffers from delay and laches.
3(i). Reply-Affidavit further indicates that even as per the Industrial Disputes Act, 1947 the fact as to whether the claimed assertion that the petitioner was given breaks during 1996 to 2004 as in the Mandays Chart [Annexure R-II] is a matter which cannot be gone into in writ proceedings.
3(ii). Reply-Affidavit further indicates that the petitioner was regularized in terms of the policy on 22.09.2012 [Annexure R-I] from a prospective date. It is further averred that once the petitioner had accepted his regularization on 22.09.2012 [Annexure A-1], therefore, the petitioner have neither any right nor locus standi to seek condoning of the alleged break period by counting and adding same towards actual service rendered from 1996 to 2004. It is averred that the petitioner having accepted the regularization on the basis of continuous service cannot turn around and seek a different status and that too after about 12 years. Even, the plea of estoppel has been taken in the Reply-Affidavit by the State Authorities. In this background, a prayer is made for dismissal of the writ petition.

NO REBUTTAL-REJOINDER:
4. Petitioner has chosen not to file rejoinder, so as to rebut contentions in the Reply-Affidavit.

5. Heard, Mr. Bhim Raj Sharma, Learned Counsel for the petitioner and Mr. Sumit Sharma, Learned Deputy Advocate General for the Respondents- State.

ANALYSIS:
6. Taking into account the entirety of the facts and circumstances and the material on record, this Court is of the considered view, that prayer made by the petitioner for counting the break period rendered from 1996 to 2004 as in the Mandays Chart [Annexure R-II] towards actual service rendered during this period for reckoning it as 240 days of service and then to reschedule regularization/work charge status retrospectively from date of completion of 8 years of service cannot be acceded to, for the following reasons:
6(i) Perusal of the Mandays Chart [Annexure R-II] indicates that the petitioner has in fact rendered service rang