Dismissed

Asha Devi v. State of Hp

Himachal Pradesh HC22 Apr 2024CWPOA/6263/2020

Case brief

AI extract

What is this about?

The court dismissed a petition seeking regularization of services for a temporary kitchen helper. Relying on the Uma Devi precedent, the High Court held that regularization was impermissible as the post wasn't sanctioned and due process wasn't followed. The petitioner was granted a right of first refusal for future appointments if fit.

What did the court decide?

Petition dismissed. Petitioner granted right of first appointment on availability of work if fit and under age of superannuation.

Asha Devi Vs State of Hp — Pension and Retirement Benefits | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CWPOA No. 6263 of 2020 Date of decision: 22.04.2024

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Smt. Asha Devi State of H. P. & Anr	Versus	…Petitioner …Respondents
Co_ram_

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon’ble Mr. Justice Sushil Kukreja, Judge.

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Whether approved for reporting? No. For the Petitioner:

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Ms. Shikha Chauhan, Advocate.

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For the Respondents: Mr. Anup Rattan, A. G. with Mr. Ramakant Sharma, Ms. Sharmila Patial, Addl. A.Gs. and Mr. Raj Negi, Dy. A.Gs.

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Tarlok Singh Chauhan, Judge (Oral)

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The instant petition has been filed for grant of the following substantive reliefs:-

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“(a) That the respondents be directed to regularize he services of the applicant with immediate effect and release all consequential benefits as is being given to he counterparts working in the same capacity and in the same respondent school.

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(b) That the respondents be directed to release the salary/wages to the applicant in compliance to the policy of 'Equal pay for Equal work' settled by the Hon'ble Supreme Court of India and as per government notified rules.

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(c) That the working hours of the applicant be specified and notified and overtime charges be released to the applicant as per the work performed by her.

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The petitioner was engaged on temporary basis as a kitchen helper by hostel management committee of Government Girls Senior Secondary School, Portmore, Shimla out of local fund collected from the students residing in the hostel.

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3 Admittedly, neither the petitioner was engaged against any sanctioned post nor was he paid from the State exchequer but was outsourced by the hostel management committee.

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Thus, what can be observed without contradiction is that the petitioner has been employed without following any regular procedure and in fact is a back door entry that too on a post that has not been sanctioned by the government.

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In such circumstances, clearly the petitioner cannot claim regularization of her services, as this would be contrary to the judgment rendered by a Constitution Bench of the Hon'ble Supreme Court in Secretary, State of Karnataka & Ors. vs. Uma Devi (3) & Ors (2006) 4 SCC 1 .

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Even the plea of the petitioner that she has been discriminated vis-a-vis her counterparts, namely, Savitri and Nirmla Devi, cannot be countenanced as it has come on record that Savitri had been appointed as a regular peon by the Deputy Director of Higher Education, Shimla, vide order dated 21.07.2009 and joined as such on 22.07.2009. For the smooth

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functioning of the hostel, she was deputed in the hostel mess being a regular appointee, thus, obviously the petitioner can have no claim against her.

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As regards Smt. Nirmla Devi, she was engaged as a caretaker of special students those reside in hostel (i.e. disabled girls students) on temporary basis by the Integrated Education for Disable at Secondary stage in the year, 2011 on fix honorarium. Thereafter, the State Project Director, RMSA/SSA, Himachal Pradesh ordered the engagement of her services through School Management Committee and her remuneration per month is being borne by SSA/RMSA. Thus, there is no parity in the engagement of the petitioner vis-a-vis Smt. Savitri and Smt. Nirmla Devi.

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As a last ditch effort, learned counsel for the petitioner would contend that since the petitioner was working under the orders of the erstwhile Tribunal dated 06.08.2019, therefore, her services need to be regularized. Even this contention is without merit, more particularly, in view of the judgment rendered in Uma Devi's case (supra), wherein it has been categorically held that merely because an employee had continued under cover of an order of the Court, “litigious employment”, or has been continued beyond the terms of his employment by the State or its instrumentalities, he would not

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be entitled to any right to be absorbed or made permanent in the service, merely on the strength of such continuance, if the original appointment was not made by following the due process of selection as envisaged by the relevant rules. It was further held that it is not open to the Court to prevent regular recruitment at the instance of such employee.

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In view of the aforesaid discussion and for the reasons stated above, we find no merit in this petition and the same is accordingly dismissed. However, the dismissal of the petition would not mean that the services of the petitioner are necessarily required to be dis-engaged. Therefore, it is clarified that in case the work is still available with the respondents and the petitioner is otherwise willing to work then subject to availability of work, the services of the petitioner would not be dispensed with and, in case, the services are required to be dispensed with for any reasons whatsoever, then the petitioner shall have the first right on appointment provided she has not attained the age of superannuation and is otherwise found to be fit and suitable.

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(Tarlok Singh Chauhan) Judge

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22^nd April, 2024 (sanjeev)

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(Sushil Kukreja) Judge

Asha Devi v. State of Hp

Case brief

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Asha Devi v. State of Hp

Case brief

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