Sunny Kumar Vs State of Hp and Another

2024:HHC:11434

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.2765 of 2024 Decided on: 13.11.2024 Sh. Sunny Kumar … Petitioner Versus State of Himachal Pradesh & another … Respondents Coram

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Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?¹

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_____________________________________________________ For the petitioner : Mr. B. Nandan Vasishta, Advocate. For the respondents : Mr. Sumit Sharma, Deputy Advocate General, for respondent No.1. Mr. Ramesh Sharma, Advocate, for respondent No.2.

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Ajay Mohan Goel, Judge (Oral)

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By way of This petition the petitioner has, inter alia, prayed for the following reliefs:-

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“ (i) That this Hon’ble Court may be pleased to issue the Writ in the nature of Certiorari or any other appropriate writ, order or direction thereby quashing and setting aside the Impugned order dated 19.02.2024 i.e. Annexure P-5, whereby the petitioner have been denied the benefit of services rendered by them on Contract basis for the purpose of seniority with all the consequential benefits, being patently illegal and arbitrary besides the same being in violation to the settled law of the land.

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(ii) That this Hon'ble Court may be pleased to issue the Writ in the nature of Mandamus or any other appropriate writ, order or direction, to the respondent university, to count the services rendered by the petitioner on contract basis for the purpose of seniority, increments and pension and release all consequential benefits flowing therefrom, thereby grant seniority, increments and all the

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Whether reporters of the local papers may be allowed to see the judgment?

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2024:HHC:11434

consequential benefits from the initial date of appointment i.e. 25.10.2018. ”

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The case of the petitioner is that he was appointed as Junior Office Assistant (Information Technology) on the basis of a process that was undertaken by the respondent-University, on contract basis. Though, the appointment was on contract basis, yet recruitment was done strictly by following the procedure prescribed in the Recruitment and Promotion Rules. The petitioner was offered appointment vide Office Order dated 25.10.2018 (Annexure P-2) and immediately thereafter he joined the duty. Thereafter, the services of the petitioner have been regularised vide Annexure P-3, dated 04.01.2022. By way of this Writ Petition, the petitioner has assailed the order, which has been passed by the Authority concerned, in terms whereof, the prayer of the petitioner to count contractual service rendered by him for the purpose of seniority, has been rejected.

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I have heard learned counsel for the parties and have carefully gone through the Writ Petition as well as the response filed by respondent No.2 and documents appended therewith.

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It is not in dispute that appointment of the petitioner initially on contract basis was by following the procedure prescribed in the Recruitment and Promotion Rules. After his appointment as such, he continues to serve without any break and said appointment of culminated into his regularisation. In other words, as from the

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2024:HHC:11434

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date when the petitioner was appointed on contract basis as per the Recruitment and Promotion Rules, there was no break in service. It could also not be demonstrated that the quality of work that was being performed by the petitioner while serving on contract basis was different or distinct as from the work which now he is performing after his services have been regularised.

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That being the case, the petitioner indeed is entitled to have the contractual service rendered by him counted for the purposes of seniority in terms of the law declared by Hon’ble Supreme Court of India in Direct Recruit Class II Engineering Officers’ Association Versus State of Maharashtra and Others, (1990) 2 Supreme Court Cases 715 . The rejection of the case of the petitioner in terms of Annexure P-5 is, therefore, not sustainable in the eyes of law. Even, Hon’ble Division Bench of this court in in CWP No. 2004 of 2017 alongwith connected matters, titled Taj Mohammad and others vs. State of H.P. and others, decided on 03.08.2023, in terms of the judgment of Hon’ble Supreme Court referred to therein, has held as under:-

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“ The above judgment of Hon’ble Supreme Court makes it amply clear 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 the 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 same will be the position if the initial

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appointment itself is made in accordance with the Rules applicable to substantive appointments. ”

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In light of above discussion, this Writ Petition is allowed. Annexure P-5 is quashed and set aside and the respondents are directed to consider the service rendered by the petitioner on contract basis followed by regular service for the purposes of seniority and other consequential benefits.

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The petition stands disposed of. Pending miscellaneous applications, if any, stand disposed of.

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(Ajay Mohan Goel) Judge

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November 13, 2024 (Rishi)

Sunny Kumar v. State of Hp and Another

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Sunny Kumar v. State of Hp and Another

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