Kuldeep Kumar Vs State of Hp and Another

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.2750 of 2024

Decided on: 5^th December, 2024

------------------------------------------------------------------------------------- Kuldeep Kumar …..Petitioner

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Versus State of H.P. and another .....Respondents ------------------------------------------------------------------------------------Coram

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Ms. Justice Jyotsna Rewal Dua

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Whether approved for reporting?¹

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For the Petitioner: Mr. B. Nandan Vasishta, Advocate. For the Respondents: Ms. Leena Guleria, Deputy Advocate General, for respondent No.1. Mr. Rajat Kumar, Advocate vice Mr. Ramesh Sharma, Advocate, for respondent No.2.

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Jyotsna Rewal Dua, Judge

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The petitioner preferred a representation to

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respondent No.2 on 05.01.2024 with a request to count the contractual services rendered by him for the purpose of seniority and other benefits. Prayer was made in light of the

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law laid down in Sh. Taj Mohammad and others Versus

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The State of Himachal Pradesh and others² . Respondent No.2 rejected the representation on

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1 Whether reporters of print and electronic media may be allowed to see the order? Yes.

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2 CWP No.2004 of 2017, decided alongwith connected matter on 03.08.2023

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2

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19.02.2024, giving occasion to the petitioner to institute this writ petition seeking (i) Quashing of order dated 19.02.2024; and (ii) For directing the respondents to count the services rendered by the petitioner on contract basis for the purpose of seniority, increments and pension etc.

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2. In Taj Mohammad’s² case, it was held that if the initial appointment is made after considering the claims of all eligible candidates and the appointees continued on the post uninterruptedly till regularization of their service in accordance with the Rules made for regular substantive appointments, there is no reason to exclude the officiating service for the purpose of seniority and the same will be the position if the initial appointment itself is made in accordance with the Rules applicable to substantive appointments.

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3. Respondent No.2-University, in its reply filed to the writ petition, has admitted that petitioner’s appointment to the post in question was in accordance with law. According to the respondent-University, 20 posts of Junior Office Assistant (Information Technology) [in short ‘JOA(IT)’] to be filled up on contract basis were advertised on 11.07.2018. The posts were filled-up after completing and adhering to all codal formalities prescribed under the

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3

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applicable Recruitment & Promotion Rules. Petitioner was accordingly appointed as JOA (IT) on 25.10.2018 on contract basis. His services were regularized on 04.01.2022. 4. In view of the facts given out in the reply filed by respondent No.2, the case of the petitioner for counting of his contractual service towards seniority, increments and pension etc. is covered in light of the decision rendered in Taj Mohammad’s² case. Notwithstanding this, respondent No.2 rejected the representation of the petitioner on 19.02.2024 by merely stating that “judgment delivered by the Hon’ble Court in any case depends upon the factual position and circumstances of that particular case vis-à-vis its governance with rules/regulations. Thus, the judgments varies case to case and the same cannot be construed as base to give a common relief to the persons other than the petitioners. Besides, as of now, no common policy/ instructions regarding granting of such relief to all similar situated employees have been issued yet by the State Government. Accordingly, no relief as sought for in your representation can be granted and as such the same is rejected.”

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Respondent No.2 was not to pass a mechanical order. He was to decide the representation of the petitioner

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4

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in accordance with law on the basis of facts involved, which he failed to do. Merely stating that application of judgment will depend upon factual position of the case, but not examining the factual position of the case of the petitioner vis-à-vis law laid down in the judgment, yet rejecting the representation, cannot be justified.

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5. In view of the above discussion, this writ petition is allowed. Impugned order dated 19.02.2024 (Annexure P-5) is quashed and set aside. Respondents are directed to grant the benefit of the decision rendered in Taj Mohammad’s² case to the petitioner or in other words, the contractual service rendered by the petitioner followed by regularization be counted towards seniority, increments and pensionary benefits. Respondent No.2-University is also directed to pay costs of Rs.5000/- to the petitioner for mechanically rejecting his case without even applying any mind to the facts of the case. The costs be paid to the petitioner within two weeks from today.

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The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.

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Jyotsna Rewal Dua December 05, 2024 Judge Mukesh

Kuldeep Kumar v. State of Hp and Another

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Kuldeep Kumar v. State of Hp and Another

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