IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP-T-No. 2780 of 2008. Reserved on : 29.04.2011. Decided on 05.05.2011. _____________________________________________________ Om Parkash Dhania. …Petitioner. -Versus- State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. Hamender Chandel, Advocate. For the respondents. : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Petitioner was appointed as Office Helper on daily wage basis in Agro Industrial Packaging India Limited on 01.08.1994. The services of 61 daily wagers were declared surplus including that of petitioner and they were placed in the surplus pool. State Government took a conscious decision to re- deploy the 61 surplus employees with various departments of the Government. The Secretary (Revenue), Government of Himachal Pradesh conveyed to the Divisional Commissioner, Shimla, Division Shimla the decision of the State Government to accord sanction for filling up 15 vacant posts of Peons (Class-IV) in the establishment of Deputy Commissioner, Shimla and 15 vacant posts of Peons (Class-IV) in the establishment of Deputy 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - Commissioner, Solan from the surplus pool on secondment basis vide Annexure A-3, dated 29th March, 2007. Petitioner’s name figured at Sr. No. 1 of Annexure A-3, dated 29th March, 2007. He was relieved of his duties on 11.04.2007 to enable him to join his duties in the office of Deputy Commissioner, Shimla on 11.04.2007. He was appointed on secondment basis as daily waged Peon (Class-IV) vide office order dated 13th April, 2007. Petitioner and similarly situate persons made representations to the respondent-State to consider their case for regularization as per policy framed by the respondent-State. The Deputy Commissioner also took up the matter with F.C.-Cum-Secretary (Revenue), Government of Himachal Pradesh vide letter dated 24th September, 2007 (Annexure A-7). State Government again took a conscious decision to regularize the services of petitioner and similarly situate persons. Petitioner was regularized vide office order dated 7th January, 2008 as Chowkidar. He submitted his joining on 7th January, 2008 itself vide Annexure A-9. 2. Mr. Hamender Chandel, learned counsel for the petitioner has strenuously argued that the case of petitioner was required to be considered for regularization as Peon and not Chowkidar. He also argued that the persons who were appointed as Chowkidars in the Corporation and the persons who were engaged as casual labourers in Agro Industrial Packaging India Limited, have been regularized as Peon on 7th January, 2008. He also argued that as per seniority list Annexure RJ/A, Smt. Rekha Verma was junior to the petitioner, however, she has also been regularized as Peon on 7th January, 2008. - 3 - 3. Mr. Vikas Rathore, learned Deputy Advocate General has argued that the case of petitioner has been considered for regularization as Chowkidar in accordance with law after taking into consideration the qualification, length of service and age etc.. He also argued that it was not incumbent upon the State to regularize the petitioner as Peon. He was required to be regularized as Class-IV employee. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner was appointed as Office Helper. It is apparent from Annexure A-3, dated 29th March, 2007 that the Government has given sanction to fill up 15 posts of Peons (Class-IV) in the establishment of Deputy Commissioner, Shimla. Petitioner’s name figured at Sr. No. 1 of the seniority list. He was offered appointment vide office order dated 13th April, 2007 as daily waged Peon. It is also apparent from the material placed on record, i.e., letters dated 4th July, 2007 and 19th July, 2007 that the petitioner had been working as Peon in the office of respondent No. 3. According to Annexure RJ/A, list of Daily Wages Office Helper (Surplus Staff) as on 01.01.2007, the name of petitioner figures at Sr. No. 2, whereas name of Smt. Rekha Verma figures at Sr. No. 4. However, Smt. Rekha Verma has been appointed as Peon as per Annexure A-10, but the petitioner has been appointed as Chowkidar vide Annexure A-1. Petitioner was better placed vis-à-vis Smt. Rekha Verma, who was admittedly junior to the petitioner. Petitioner has specifically averred in the petition that Shri Divesh Chand and Shri Hari Ram, though working as Chowkidars in the Forest - 4 - Corporation, but they had been regularized as Peons vide Annexure A-10. Similarly, casual labourers, whose names have been mentioned in the petition, namely, Rama Nand, Liauut Ali, Rakesh Temta, Parkash Chand and Shri Krishan Lal have also been appointed as Peons on 7th January, 2008. Petitioner was appointed on daily wage basis and he had a better claim to be regularized as Peon vis-à-vis those persons, who have been working as Casual Labourers in Agro Industrial Packaging India Limited, Nigam Vihar Shimla. Similarly, Shri Divesh Chand and Shri Hari Ram were working on daily wage basis as Chowkidars, but they have been regularized as Peons. The respondent-State has not denied these averments contained specifically in Para- 6.15 ( c) of the petition. Thus, in these circumstances, there is no merit in the contention of the respondent-State that while regularizing the services of the petitioner and similarly situate persons, the criteria of age, qualification and length of service was taken into consideration. Rather, the respondent-State has indulged in the practice of pick and choose, which is violative of Articles 14 and 16 of the Constitution of India. Since the petitioner had been working as Peon in the Agro Industrial Packaging India Limited, Nigam Vihar, Shimla and thereafter in the office of respondent No. 3, his services even as per the seniority list maintained by the respondent-State, i.e., Annexure RJ/A, were to be regularized as Peon and not as Chowkidar. Petitioner has also been discriminated against, as noticed above, vis-à-vis Smt. Rekha Verma. 6. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure - 5 - A-1, whereby the petitioner has been regularized as Chowkidar instead of Peon on 7th January, 2008 is quashed and set aside. The respondents are directed to consider the case of petitioner for regularization against the post of Peon from the date his juniors were considered, within a period of eight weeks from the date of production of a certified copy of this judgment by the petitioner. He shall also be entitled to all the consequential benefits. No costs. (Rajiv Sharma) Judge May 05, 2011. (bhupender) - 6 - `