Allowed

Narender Singh and Anr. v. Hrtc and Anr.

Himachal Pradesh HC1 Dec 2023CWP/5279/2022

Case brief

AI extract

What is this about?

The court allowed the petition, holding that drivers appointed in 2004 under regulations mandating regular appointment were entitled to be treated as deemed regular drivers from their initial appointment date. The court directed the corporation to grant all consequential benefits, including seniority and regularization dates, from November/December 2004.

What did the court decide?

Directing respondents to treat petitioners as deemed regular drivers from November/December 2004 with all consequential benefits, seniority, and regularization modified retrospectively.

Narender Singh and Anr. Vs Hrtc and… — Pension and Retirement Benefits | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CWP No.5279 of 2022 Decided on: 1^st December, 2023

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Narender Singh & Anr.

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....Petitioners

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Versus

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Himachal Pradesh Transport Corporation Through its Managing Director & Anr.

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……Respondents

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Coram

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Hon’ble Mr. Justice Ranjan Sharma, Judge

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1 Whether approved for reporting? Yes

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For the petitioner: Ms. Aanchal Sharma, Advocate vice Mr. Balwant Singh Thakur, Advocate. For the respondent: Mrs. Reeta Thakur, Advocate with Ms. Aanchal Singh, Advocate.

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Ranjan Sharma, Judge (Oral)

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The petitioners being Drivers in the RespondentCorporation, initially on contract and subsequently

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regularized, have came up before this Court, seeking the following relief(s):-

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“(i) That a writ in the nature of mandamus may kindly be issued and respondent Corporation may kindly be directed to consider the case of the petitioners for regularization w.e.f 2005

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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i.e. due date with all consequential benefits in the interest of justice.

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(ii) That impugned order 29.12.2021 Annexure P-9 may kindly be quashed and set aside being contrary to existing policy and law, in the interest of justice.”

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2. Case of the petitioners, as submitted by Ms. Aanchal Sharma, learned vice counsel, is that the RespondentCorporation issued an advertisement in December 2003 for recruitment of Drivers in the Corporation. Being eligible in terms of the advertisement as well as the Himachal Road Transport Corporation (Class I, II, III and IV) Service (Recruitment, Promotion and Certain Conditions of Service) Regulations 1996, which were framed under Section 45 of the Road Transport Corporation Act, 1950. The petitioners faced the selection process. Thereafter the petitioners were given appointment as Driver, on contract basis, for a period of one year on 24^th December, 2004, Annexure P-1, and in case of Petitioner No.2, he was appointed as such on 4.11.2004 Annexure P-1 (Colly).

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3. Though the petitioners were appointed as Drivers, on contractual basis, as per Annexure P-1 (Colly) in

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November/December, 2004, initially for one year, but the respondents made the petitioners to continue as Drivers continuously and uninterruptedly till a decision was taken by the Corporation on 26.12.2012 that the contractual employees (including Drivers) who has completed six years of contractual service as on 31.3.2012, were to be considered for regularization. Consequently, the respondents regularized the petitioners as Drivers in pay band of Rs 5910-20200+2400 GP, with immediate effect on 28.12.2012, [Annexure P-2] in the year 2012, Annexure P-2.

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4. The case in brief, is that the Himachal Road Transport Corporation, in exercise of powers under Section 45 of the Road Transport Corporation Act, 1950, framed the Himachal Road Transport Corporation (Class-I, II, III and IV) Service (Recruitment, Promotion and Conditions of Service) Regulations, 1996 whereby, the selection/appointment to the post of Class-III categories, including the category of the petitioners-Drivers was to be made on regular basis only. Ms. Aanchal Sharma, learned vice counsel for the petitioners submits that based on the Government decision and the Instructions dated 12.12.2003 introducing the contractual

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mode of appointments, the Respondent-Corporation

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concerned amended the existing HRTC Regulations dated 3.3.1996 [Taken on Record] [referred to as the Regulations of 1996] only virtue of 5^th amendment on 3.8.2006 [referred to as Amended Regulations of 2006] [Taken on record] whereby, the contractual mode of recruitment/appointment in case of Drivers-petitioners was incorporated in the Service Regulations only on 3.8.2006.

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5. In this background, the case of the petitioners is that once as per the Recruitment Regulations of 1996, the mode of appointment for the post of Drivers was only regular appointments and the contractual mode of appointment was only introduced in the Corporation for Class-III/IV Categories including the category of the petitioners i.e. Drivers by virtue of the Amended Regulations dated 3.8.2006; then, the action of the respondents in appointing the petitioners as Drivers on contractual basis on 4.12.2004 and 4.11.2004, Annexure P-1 [Colly] dehors the Service Regulations of 1996 was just an attempt towards exploitation by denying the regular appointment in 2004; and by regularizing the petitioners as Drivers; as per policy in the

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year 2012 prospectively [Annexure P-2]. In these circumstances, the petitioners are entitled to be treated as regular Drivers from the date of their initial appointment i.e. in November/December 2004, ( Annexure P-1) with all service benefits.

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6. Per contra, the Respondent-Corporation has filed a reply, stating that the contractual mode of appointment was introduced by the State Government by Instructions dated 12.12.2003 and, therefore, the appointment so given was on contractual basis. The respondents in the reply, have raised another objection, with respect to the estoppel on the ground that once the petitioners were appointed on contract basis, in the year 2004 and continued to work, as such till regularization in the year 2012, therefore, the petitioners after having accepted the contractual appointment (in 2004) and regular appointment (in 2012) cannot claim a different status [deemed regular appointment for 2004] by filing the writ petition in the year 2022.

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7 . The petitioner has filed a rejoinder, controverting the stand taken by the respondents in the reply and

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by reiterating their claim for regular appointment as Drivers from the date of their initial appointment on contract basis [w.e.f. November/December, 2004] for all intends and purposes in accordance with the Service Regulations of 1996, which were in force on the date of commencement of selection process in November-December, 2003 and were operative on date of appointment in November-December 2004(Annexure P-1) only provided for appointment to the post of Driver(s) on regular basis. It was averred that the Amended Regulations of 3.8.2006 cannot be applied retrospectively so as to curtail or take away the right of regular appointment which accrued under Service Regulations of 1996. .

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So far as the claim for estoppel is concerned, it was submitted that once the applicable Service Regulations of 1996 only provided for regular mode of appointment and estoppel cannot operate against the statute, therefore, the stand of the respondents was untenable.

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8. Heard Ms. Aanchal Sharma, Advocate, vice Mr. Balwant Thakur, Advocate and Ms. Reeta Thakur with Ms. Aanchal Singh, Advocate, for the respondent and have perused the case records.

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9. In order to appreciate the contention of the

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parties, it is necessary to have a recap of Section 45 of State Road Transport Corporation Act; and the relevant extract of Service Regulations of 1996, (dated 23.3.1996) and the Service Regulations of 2006 (dated 3.8.2006) which read as under:-

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10. At this stage, it would be expedient to refer to Section 45, which relates to the power to make regulations which read as under:-

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45. Power to make regulations .—

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(1) A Corporation may, with the previous sanction of the State Government, make regulations , not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Corporation.

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(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters , namely:—

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(a) the manner in which, and the purposes for which, persons may be associated with the [Board] under section 10;

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(b) the time and place of meetings of the [Board] and the procedure to be followed in regard to transaction of business at such meetings;

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(c) the conditions of appointment and service and the scales of pay of officers and [other employees of the Corporation other than the Managing Director, the Chief Accounts Officer and the Financial Adviser or, as the case may be, the Chief Accounts Officer- cum-Financial Adviser;

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[(d) the issue of passes to the employees of the Corporation and other persons under section 19;

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(e) the grant of refund in respect of unused tickets and concessional passes under Section 19.

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11(i) It would be appropriate to refer to the Himachal Road

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Transport Corporation (Class I, II, III and IV) Service Regulations of notified on 23.3.1996 [referred to as Service Regulation of 1996], as under:-

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HIMACHAL ROAD TRANSPORT CORPORATION SHIMLA171003

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No. HO:9E-22/95 (A) Dated. Shimla-171003, 23.3.1996

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" ORDER"

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In exercise of the powers conferred by Section 45 of the Road Transport Corporation Act, 1950, the Board of Himachal Road Transport Corporation with the prior concurrence of the Government of Himachal Pradesh (in the Transport Department) is pleased to make the following regulations in regard to the following matters, namely:-

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(i) The method of recruitment of the Himachal Road Transport Corporation (Class-III II and IV Services,

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(ii) The qualifications and experience necessary for appointment to such service and posts:

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(iii) Certain conditions of service of persons appointed to such service and posts for the purpose, inter-alia of promotion; appointment, probation, confirmation and seniority respectively.

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PART-I GENERAL:

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Short Title and Commencements ;

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(a) These regulations may be called the Himachal Road Transport Corporation (Class-I, II, III and IV) Services (Recruitment, Promotion and Certain conditions of service

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Regulations) 1996

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(b) These shall come into force with immediate effect. Provided, however, that nothing in these regulations shall apply in so far as the posts of Managing Director, I.A.S. Executive Director, LA.S., Financial Advisor and Chief Accounts Officers are concerned, as appointments to these three categories of posts are made by the State Government Under Section 14 and are governed under a separate set of regulations framed and enforced Under Section 44 of the Road Transport Corporation Act, 1950 as amended from time to time.

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DEFINITIONS:

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In these regulations, unless there is anything repugnant in the subject or context.

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(a) "Act" means the Road Transport Corporation Act, 1950 as amended from time to time.

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(b) “Corporation" means the Himachal Road Transport Corporation, Himachal Pradesh.

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(d) "Appointing Authority" in relation to the posts means the Authority competent to make appointment to the posts.

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(e) "State Government" means the Government of Himachal Pradesh.

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(f) Chief Executive Officer or Managing Director or Head of the Organization" means the Chief Executive Officer or the Managing Director, appointed by the State Government Under Section 14 of the Road Transport Corporation Act, 1950 as amended from time to time.

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(g) "Annexure" means the annexures appended to these regulations:

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(h) “Direct appointment" means the appointment made otherwise than by promotion from amongst the members of the service, but includes transfer on deputation of a person already in the service of the State Government or of other Corporate bodies or appointment of Stipendaries:

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(i) "Member" means a member of the Himachal Road Transport Corporation (Class- I,II,III and IV)Service.

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AUTHORITY COMPETENT TO MAKE APPOINTMENTS:

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All appointments to the posts in the service shall be made by such authorities of the Corporation as are listed in Annexure "A" to these regulations and on the recommendations of the requisite Departmental Promotion Committee or Selection Committee provided for in Annexure "B". Provided that nothing in these regulations shall affect in any manner the authority of the Corporation to modify Annexure "A" and "B" at its discretion or as may be considered expedient from time to time.

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PART-11

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CERTAIN CONDITIONS OF SERVICE PROBATION PERIOD OF MEMBERS OF THE SERVICE

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4.(i) Members of the service who are appointed/promoted against permanent vacancies shall on appointment/promotion to any post in the service shall remain on probation for a period of two years in the first instance.

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(ii) If the work and conduct of any member during the period of probation, in the opinion of appointing authority, be not satisfactory, the said authority may dispense with the service or revert him to his former post if he has been appointed to that post otherwise than direct recruitment

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(iii) On the completion of the period of probation of any member the appointing authority prescribed in regulation 3 may confirm such member to his appointment or if his work and conduct has, in the opinion of the appointing authority not been satisfactory, may dispense with his services, or revert him to his former post, if he has been appointed otherwise than by direct recruitment or may extend the period of probation, and thereafter pass such orders on the expiry of first period of probation.

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17. INTERPRETATION:

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If any question arises as to the interpretation of these regulations, the same shall be decided by the Corporation, in consultation with the State Government where necessary and the

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decisions so arrived at shall be final and binding on all concerned.

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By order and in the Name of Board of Directors (H.R.T.C.)

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Sd/-

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YOGESH KHANNA (IAS) Managing Director,Himachal Road Transport Corporation, Shimla-171003.

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11(ii) In the background of the Himachal Road

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Transport Corporation Service Regulations of 1996, Annexure-41 pertaining to the Drivers [Heavy Vehicles/Light Vehicles] read as under:-

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RECRUITMENT AND PROMOTION RULES FOR THE POST OF DRIVERS IN HIMACHAL ROAD TRANSPORT CORPORATION .

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Annexure -41

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1	Name ofthe post	(i) Drivers (Heavyvehicles
2	No. of posts	(ii) Drivers (Light Vehicles/Staff Cars) @ 1.65Persons perbus
3	Classification	CLASS-III
4	Scale of pay	Rs.5910-20200+2400 G.Pay for Heavy vehicles
5	Whether selection post or nonselectionpost	Non-Selection Post
6.	Age for direct recruitment (See proviso for age relaxation in Annexure"D"on page 109)	18 to 45 years
7.	Minimum educational qualification for direct recruitment	Drivers Heavy Vehicles On the basis of trade test and Interview from persons (i) Valid Driving Licence for a Heavy Transport (ii) Atleast 5 years Experience of driving of heavy Vehicles (iii) should be atleast Middle pass. However, Preference will be given to Matriculate (iv) Minimum height 160 Cms or above. The post of Lightvehicle drivers

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		shall be a dying cadre. Only heavy vehicle drivers shall be recruited.
8.	Whether age and educational qualifications prescribed for direct No recruitment will apply in the case of the promotees	No
9.	Period ofprobation(if any)	As per Regulation-4
10.	Method of recruitment, whether by direct recruitment or by promotion, deputation/transfer an the percentage of vacancies to be filled in by the various methods.	90% by direct recruitment 10% by promotion
11.	In case of recruitment by promotion, deputation, transfer, grades from which promotion/deputation/transfer is to be made	By promotion from amongst Light vehicles Drivers having Minimum 10 years service as such and possessing Heavy Duty Driving Licence for five Years subject to qualifying Driving test.

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12. So far as the claim of the petitioners that they deserve to be treated as regular Drivers in the RespondentCorporation from the date of their initial contractual appointment in the month of November/December, 2004, (Annexure P-1), carries force, for the reason, that once in exercise of the powers vested in the State Road Transport Corporation Act, 1950, the Respondent-Corporation had framed the Himachal Road Transport Corporation (Class-I, II, III and IV) Service [Recruitment, Promotion and Certain Conditions of Service Regulations, 1996 [referred to as Service

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Regulations of 1996] whereby, the only permissible mode of appointment to Class I, II, III and IV posts, including the post of Drivers was only on regular basis in regular pay scale then, the Respondent-Corporation could not have acted in violation of their Service Regulations by giving appointment to the petitioners on contractual basis. Accordingly, the petitioners have a right to be treated as “deemed regular drivers” from the date of initial appointment (on contract) in accordance with Service Regulations of 1996.

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13. Once the Service Regulations of 1996 as referred to above, were in force till 2.8.2006 i.e. prior to the issuance of Amended Regulation of 2006; then, the applicability, scope and benefits accruing under the Service Regulations of 1996 could not have been tinkered with by a mere executive decision taken by the State Government on dated 12.12.2003, introducing contractual mode/nomenclature of appointment in posts under the State Government.

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14. Moreover, once the Respondent-Corporation was the creation of a statute i.e. Road Transport Corporation Act 1950 and the Respondent-Corporation in exercise of Section 45 of the Act issued the Service Regulations of 1996

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introducing regular mode/nomenclature of appointment to various posts [including the posts of the petitioners i.e. Drivers in terms of the Service Regulations of 1996 then also, even if the State Government had taken a decision on 12.12.2023],to introduce the contractual mode/nomenclature of appointments, then also, the decision of the State Government could neither apply nor be enforced in the Respondent-Corporation unless and until the same was adopted and made applicable by the Board of Directors notifying amendment to the existing Service Regulations of 1996, which was only notified on 3.8.2006. Further the Amendment of 2006 could not apply retrospectively to the disadvantage of petitioners who were appointed in 2004.

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15. The Amended Regulations dated 3.8.2006 were to apply prospectively and the same could not have been applied retrospectively, to the prejudice of the petitioners, who were appointed in the month November/December, 2004 in the Corporation.

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16. So far as the contention of the Corporation in the reply that once the petitioners were appointed as Drivers in November/December, 2004, on contractual basis, and

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the petitioners accepted their contractual appointments and continued to work till their regularization in the year 2012 then, the petitioners were estopped to claim a different status by filing the writ petition in the year 2022.

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This plea of the Respondent-Corporation, is without any substance, for the reason, that once a right had accrued to the petitioner, on the basis of Service Regulations of 1996, whereby the regular mode of appointment existed and these regulations, 1996 for appointment on regular basis in regular pay scale then, the issuance of Amended Regulations on 3.8.2006 [introducing contractual mode/nomenclature regular appointment can neither take away nor curtail the right of the petitioners for regular appointment under Service Regulations of 1996. Further, the plea of estoppel cannot operate against the statute i.e. Service Regulations of 1996 which permitted regular appointment, the regular pay scale for the petitioners. Moreover, the right of regular appointment flowing from stature i.e. Service Regulations of 1996 cannot be tinkered with on the plea of estoppel, when no estoppel can be invoked or applied against the statute.

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17. A similar issue was discussed above has also been

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decided by the Coordinate Bench of this Court in CWPOA No. 2343 of 2020 alongwith connected matters, titled as Vikram Singh versus Himachal Road Transport

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Corporation, decided on 9.11.2023. The operative part of the judgment, dealing all the aspects as discussed above, read as under:-

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“17. At this juncture, it would be appropriate to refer to Section 45, which relates to the power to make regulations and reads as under:-

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“45. Power to make regulations.—

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(1) A Corporation may, with the previous sanction of the State Government, make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Corporation.

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(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:—

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(a) the manner in which, and the purposes for which, persons may be associated with the [Board] under section 10;

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(b) the time and place of meetings of the [Board] and the procedure to be followed in regard to transaction of business at such meetings;

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(c) the conditions of appointment and service and the scales of pay of officers and [other employees of the Corporation other than the Managing Director, the Chief Accounts Officer and the Financial Adviser or,as the case may be, the Chief Accounts Officer-cum-Financial Adviser];

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[(d) the issue of passes to the employees of the Corporation and other persons under section 19; (e) the grant of refund in respect of unused tickets and concessional passes under section 19]”

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Undoubtedly, Section 45 of the Act empowers the Corporation to make regulations, but that is subject to the previous sanction of the State Government. This necessarily requires three steps:-

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(i) The Corporation “frames or “proposes” regulations by its resolution. These have to be sent to the State Government for according sanction. (ii) The State Government then accords its sanction. In this power of the Government it is implicit that it may reject or suggest amendment or modification in the proposed regulations and eventually accord its sanction.

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(iii) After the State Government accords its sanction, the Corporation “makes” regulations.”

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The power conferred on the Corporation to make regulations is a power which, under Section 5(1), vests in and is exercised by the Board of Directors of the Corporation. Whereas, the power to make regulations relating to the conditions of service of officers and other employees of the corporation, under Section 45(2)(c) is vested in the Board of Directors of the Corporation and such a power to make regulations (commonly termed as Rules by the Corporation) can only be exercised with the previous sanction of the State Government.

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In so far as the plea of alternate remedy is concerned, since the petitioners are claiming a right to be considered for regularization on completion of one year of service and discrimination is writ large on account of the fact that similarly situate employees like the petitioners have been treated differently, therefore, there is an infraction of fundamental rights of the petitioners guaranteed under

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Article 14 of the Constitution of India. Hence, in view of law laid down by the Hon’ble Supreme Court in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others, reported in 1998 (8) SCC 1, we find no force in the contention of the respondent-Corporation in this regard. More so, when the facts are admitted and the remedy to which the petitioners are being sought to be relegated would not be efficacious, at this stage, as the same would unnecessarily defer adjudication of the present petitions. Besides the aforesaid plea of existence of an alternate remedy is an exercise on account of judicial restraint which we are of the considered opinion would not be appropriate to be exercised in the facts and circumstances of the cases at hand.

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The plea that the petitioners had accepted their appointment without any protest is also liable to be rejected on account of existence of un-equal bargaining power inter se parties. The petitioners were in no position to dictate terms of appointment. The petitioners had accepted a paltry salary of Rs.5,000/-, which is admittedly lesser than what would have been given to incumbents appointed regularly for doing the same job. The same reflects an exploitative tendency on the part of the respondent-Corporation and does not behove of the Corporation as a model employer. In this regard, it would be appropriate to refer to the decision of the Hon’ble Supreme Cout in Central Inland Water Transport Corporation Ltd. and another vs. Brojo Nath Ganguly and another, 1986 (3) SCC 156.

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In this respect, reliance placed by the respondentCorporation on the decision of the Co-ordinate Bench of this Court in CWP No.211 of 2018, titled as Himachal Pradesh State Electricity Board Limited and Others vs. Jagat Singh, decided on 27.08.2019, is of no avail as the same is clearly distinguishable. Therein, it has been laid

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that all identically placed persons need to be treated alike by extending the benefit is subject to certain exceptions of delay and laches and acquiescence. With respect to the aforesaid principle, the learned Division Bench therein had placed reliance upon the decision of the Hon’ble Supreme Court in State of Uttar Pradesh vs. Arvind Kumar Srivastava (2015) 1 SCC 347. However, a perusal of the aforesaid authoritative pronouncement of the Apex Court reflects that the aforesaid two exceptions would not apply when the matter pertains to a Policy matter like a Scheme of regularization as is in the cases at hand.

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In so far as the plea of limitation/delay and laches is concerned, the same is also liable to be rejected. As has already been stated supra, the plea of petitioners is based on discrimination which is violative of Article 14 of the Constitution of India. In this regard, it would be appropriate to refer to the decision of the Hon’ble Supreme Court in K. Thimmappa and others vs. Chairman, Central Board of Directors, State Bank of India and another, 2001 (2) SCC 259, wherein, it has been categorically laid down that if there is an infraction of Article 14 of the Constitution of India then petition cannot be dismissed on the ground of delay and laches.

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A plea of negative parity has been raised by the respondent-Corporation. The same is rejected as the same does not arise for consideration in the facts and circumstances of the cases at hand.

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For delayed regularization, petitioners cannot be blamed as the same was to be done by the respondentCorporation. In this regard, reliance is placed on the decision of a Co-ordinate Bench of this Court in CWP No.2735 of 2010, titled as Rakesh Kumar vs. State of HP and others alongwith connected matters, decided on 28.07.2010.

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The stand of the respondent-Corporation that

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instructions dated 12.12.2003, “in principle” was being followed by the respondent-Corporation till its adoption in the year, 2006 is also liable to be rejected. A perusal of the memorandum for consideration of the meeting of the Board of Directors of the respondent-Corporation, held on 18.09.2012, specially Item No.120.12 categorically reflects that the instructions of the State Government are not applicable to the employees of the HRTC ipso facto, as such, the same are required to be placed before the Board of Directors for consideration and approval. A perusal of the said Item placed before the Board clearly reflects that therein a proposal was mooted by the respondentCorporation to adopt the Contractual Employees Regulation Policy of the State Government. In view of the aforesaid, it is evident that the stand now being sought to be taken in the reply that the instructions of the State Government ipso facto apply, is contrary to the stated position hereinabove . The now taken seems to be based on the convenience and suitability of the respondent-Corporation. Moreover, in our considered view Section 45 of the Road Transport Corporation Act, as stated supra, prescribes the mandatory procedure required to be followed. The same is being referred by way of an abundant caution. In the cases at hand, we have not gone into the question, as to whether the respondent-Corporation has followed the procedure prescribed for amending the Rules in 2006 for the reason that adjudication there upon will be of no consequence in the cases at hand.

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The recruitments in question, as has already been stated supra, had been initiated in furtherance of approval accorded in this regard in the 95th Board meeting held on 02.08.2003 prior to issuance of instructions dated 12.12.2003 and its adoption by the Board on 03.08.2006. Therefore, the petitions filed by the petitioners, being similarly situate as their counterparts

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who had been appointed earlier with respect to whom parity was being sought, deserves to be allowed on this account also.

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Even otherwise prior to 2010, there is no Regularization Policy of the State which has been adopted by the respondent-Corporation. Hence, on this account

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also the respondent-Corporation will have to uniformly regularize contractual appointees after one year .

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In view of above discussion, we are of the considered opinion that there is merit in the claim of petitioners and same is accepted, whereas plea of the respondentsCorporation is rejected being not sustainable. Petitioners are held entitled for regularization from the date of completion of one year contractual service after initial

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appointment, with all consequential benefits from the

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due date. However, we are not awarding any interest thereon, at this stage. The consequential benefits shall be extended to the petitioners within one month from today, arrears whereof shall be paid to the petitioners on or before 30.04.2024, failing which the respondentsCorporation shall also be liable to pay interest thereon at the rate of 6% per annum.”

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18. A similar issue come up before the Division

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Bench of this Court in LPA No.21 of 2013 alongwith

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connected matters, tilted as State of Himachal Pradesh

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versus Ravinder Kumar , mandating that once the Rules only

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provided for regular appointment then, the action of resorting to contractual appointment was held to be bad in law, with directions to treat them as “deemed regular

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appointees from date of initial contractual appointees”. The

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operative part of the judgment reads as under:-

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4. Observations:

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4(i) It is not in dispute that even though the State Government on 12.12.2003 had requested all the Heads of Departments to amend Clause-10 of R&P Rules, for including contractual appointment as one of the mode of recruitment in accordance with the decision taken by the State, yet, Recruitment & Promotion Rules for lecturers (school cadre) were not amended in tune with 12.12.2003 decision of the State Government. The mode of recruitment under the Recruitment & Promotion Rules for appointment lecture (School cadre) continued to be only on regular basis. It was only on 20.9.2010, that Clause10 of the R&P Rules for the posts in question was amended and notified, incorporating contractual appointments, as one of the mode of recruitment .

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4(ii) The college in question was taken over by the State on 6.2.2007. In terms of notification dated 25.8.1994, services of the eligible staff were also required to be taken over w.e.f. 6.2.2007. State though had taken over the services of the staff of the Kanwar Durga Chand Memorial College, Jaisinghpur only on 21.6.2010. Fact remains that services of writ petitioners were taken over prior to amendment of R&P Rules.

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The services of the petitioners were required to be taken over in terms of Recruitment & Promotion Rules, which were in existence on the date of taking over the college i.e. 6.2.2007. The R&P Rules as they existed on 6.2.2007 did not provide for contractual appointments. The Rules only provided for regular recruitments. Service of petitioners were taken over w.e.f. 6.2.2007. College itself was taken over on 6.2.2007. Therefore, clause providing appointment on contractual basis inserted in

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the R&P Rules by way of amendment of Rules on 20.09.2010, could not be retrospectively applied to the petitioners.

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It is apt to refer the judgment passed by this Court, in CWP No.1811 of 2008, titled Dev Raj Vs. State of H.P & others, relevant segment reproduced hereinafter:-

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“25………………….Government appointments are made in accordance with the Rules framed under Article 309 of the Constitution of India. When such Rules are framed the Government is expected to act and make appointments in accordance with the Rules. If the Rules do not permit the Government to make appointment on contract basis they must be made on regular basis.

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4(iii) The notification dated 25.8.1994, under which State Government took over the privately managed colleges as well as services of staff working there, provides for granting them Government scales as admissible to their respective corresponding categories. Clause-9 of this notification reads as under:-

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“9. Provided that services of only those employees will be taken over who furnish a written acceptance on non-judicial paper duly attested by the competent authority to the effect that they are willing to be absorbed in Government services on the terms and conditions laid down in these rules.” There is no provision in the above notification for taking over services of staff of privately managed colleges on contract basis, more so, in the facts of instant case, in view of Recruitment and Promotion Rules of Lecturer (School cadre) as they existed on 6.2.2007 i.e. the date of take over, whereunder no provision for appointment on contract basis was there, regular recruitment was the only prescribed mode.

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Thus, services of the petitioners’ were thus required to be taken over w.e.f. 6.2.2007 on regular basis. There is no infirmity in the judgment passed by learned Single Judge. All these appeals are therefore dismissed alongwith pending application(s), if any.

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19. In the entirety of the facts and circumstances, referred to above and the factum of the right of regular appointment in as regular pay scale, as Driver(s), which had accrued under the Statute, Service Regulations of 1996 which were in force on the date of commencement of selection process [in December 2003] and its completion and was also operative on date of appointment of petitioners in November-December, 2004, (Annexure P-1) i.e. prior to the coming into force of the Amended Service Regulations of dated 3.8.2006; coupled with the fact that the Coordinate Bench of this Court, in case of Vikram Singh and Ravinder Kumar (supra) ,therefore, this Court is of the view that the present petition needs to be allowed, by directing the Respondent(s) to treat the petitioners, as regular Drivers, in regular pay scale with all service benefits as admissible to regular appointees from the date of initial contractual appointments as Drivers, with all service benefits.

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20. Given as above, the present petition is allowed and the Respondent-Corporation/Respondents are directed to treat the petitioners as “deemed regular Drivers” in the Respondent-Corporation from the date of their initial contractual appointment was November/December, 2004, in applicable regular pay scale of Driver(s), and also by modifying their regularization conferred as per the policy of 2012, (Annexure P-2), with all service benefits from date of initial appointment(s).

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21. The Respondent-Corporation/respondents shall extend all service benefits like seniority, eligibility towards Assured Career Progression Scheme, increments, pay fixation and other attending service benefits to the petitioner notionally w.e.f. November/December, 2004 onwards.

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22 . It is clarified that once the instant petition was filed on 5^th May, 2022; then, all monetary benefits shall flow notionally and the petitioners shall be entitled to the actual monetary benefits for a period of three years prior to the filing of the writ petition in terms of the mandate of law in case of Union of India versus Tarsem Singh (2008)

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8 SCC 648; Shiv Dass versus Union of India and Others ;

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(2007) 9 SCC 274; State of Madhya Pradesh and Others

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versus Yogendra Shrivastava (2010) 12 SCC 538 and Asger Ibrahim Amin Versus Life Insurance Corporation of India (2016) 13 SCC 797, followed in Rushibhai Jagdishchandra Pathak versus Bhavnagar Municipal

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Corporation, CA No.4134 of 2022 [2022 SCC Online S C 641] decided on 18.5.2022.

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In aforesaid terms, the instant petition is allowed and all the pending miscellaneous application(s),if any, also stand disposed of.

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(Ranjan Sharma) Judge

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December 01, 2023 (himani)

Narender Singh and Anr. v. Hrtc and Anr.

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Narender Singh and Anr. v. Hrtc and Anr.

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