IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 9490 of 2008 Date of decision: 26.05.2011 ________________________________________________________________ Sunita Thakur. .....Petitioner. Versus The State of H.P. & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ________________________________________________________________ For the petitioners: Mr. D.P. Gupta, Advocate, vice Mr. K.D. Shreedhar, Advocate. For the respondents: Mr. Vikas Rathore, Dy. AG. V.K. Sharma, J. (Oral). The petition has been filed on the following prayers vide para 7(i), (ii), (iii) and (iv): “7 (i) That the respondents may be directed to release the salary of the applicant with effect from April 01, 2001 onwards till date, after the college was taken over by the orders of the Government. The respondents may also be directed to make payment of the salary to the applicant regularly in future. (ii) That the respondents may be directed to regularise the services of the applicant as Library Restorer in the pay scale of Rs. 3120 – 5160. (iii) That the respondents may be directed to pay interest on the delayed payments of salary, which has been withheld by them without any reasonable ground. (iv) That the respondent No. 3 may be directed to relieve the applicant in compliance with the orders dated August 14, 2002 (Annexure A-10) to enable her to join the Government Degree College, Hamirpur.” 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ...2... 2. In reply, the respondents have taken the following stand vide para 3, 6(iv) and (ix): “3. That the present original application filed by the applicant is not at all maintainable. The post of Library Restorer does not exist at Govt. College Sujanpur Tihra. The applicant has been ordered to join her duties at Dharmashala where post of Library Restorer is lying vacant vide office order dated 06.07.2002 as shown in Annexure A-9 of the O.A. and thereafter the period of extension of joining time was further granted upto 18.08.2002 as shown in Annexure A-10 of the O.A. but the applicant failed to resume her duties over there as such she was not entitled to get her pay released during the said period. It is further submitted that the transfer orders were again issued by the respondents and the applicant had been adjusted in Govt. Degree College, Hamirpur vice Sh. Rattan Chand, Library Restorer regularly but this order could not materlise because it was found that the applicant was serving on daily wages basis whereas her transfer orders had been made against the person who was holding a regular post which was against the rules, hence the orders of transfer for Hamirpur stand cancelled. Lateron the applicant was ordered to resume her duties at Dharmashala and these orders are still in existence. It is further submitted that in pursuance to the directions of the Hon'ble Court the orders were issued to the Dy. Director of Education, Kangra at Dharamashala for release the salary of the applicant vide Directorate office letter No. EDN- H(1)B(2)-4/93-5-Vol-III dated 19.07.2003 and it has been ordered that the salary of the applicant be released against the vacant post of Library Restorer at Dharamshala, hence the original application of the applicant may be dismissed. (iv) That in reply to this para it is submitted that the services of Smt. Sunita Thakur was taken over as Library Restorer on daily wages but the post of Library Restorer was not created in Thakur Jagdev Chand Memorial Degree College, Sujanpur Tihra as yet. Her pay could not be drawn due to non availability of post in the College, hence she was posted/adjusted in District Library Dharamshala (Kangra) where the post of Library Restorer was lying vacant and from where her salary could be drawn regularly. Because the applicant had not joined over there, hence her salary could not be released to her, hewever, in compliance of the Court order, Dy. Director of Education, Kangra at ...3... Dharamshala has been directed to release the salary of the applicant. (ix) That the contents given in this para are wrong, hence denied. The applicant is not entitled to get her service to be regularised because her services have been taken over by the government on daily wages basis and till she does not fulfill the requirement as formulated in the policy for regularisation of services till then the applicant is not entitled any regular post. It is further submitted that the applicant should join her duties at Dharamshala and thereafter her pay can be drawn and released to her. However, she is not entitled for any damage because she has not complied with the transfer orders as passed by the Government, hence she is not entitled to get her pay till she comply with the Government directions.“ 3. Rejoinder, refuting the above stand on behalf of the respondents and reiterating the averments set up in the petition, has been filed. 4. Insofar as the claim at serial No. 2 is concerned, the learned counsel for the petitioner submits at the very outset that the case of the petitioner is covered under judgment dated 23.02.2011 rendered by this Court in CWP No. 19 of 2009, Neelam Kumari vs. The State of H.P. & another. Text whereof is as under: “Reply on behalf of the respondents filed, which is taken on record. 2. The erstwhile DAV College, Sujanpur Tihra, District Hamirpur, Himachal Pradesh, was taken over by the government vide Notification dated 28th August, 2001, Annexure P-2. Alongwith the College, teaching as well as non-teaching staff was also taken over, subject to certain terms and conditions, such as services of those non- teaching staff members who were working for a period of over one year at the time of taking over of the college were to be taken over on regular basis and those who had not completed service of one year were to be absorbed on daily wages. As regards services of the teaching staff, the condition was that those who had completed one year's service at that time were to be absorbed ...4... on regular basis and those whose services were less than one year were to be absorbed on contract. 3. Though the petitioner was also working in the aforesaid college at the time of take over and admittedly was having less than one year's service at that time, yet her services were not taken over even on daily wages. Being aggrieved, she agitated the matter before the erstwhile H.P. State Administrative Tribunal successfully and consequently her services were also taken over on daily wages vide Office Order dated 08.09.2003, Annexure P-3. 4. It is the case of the petitioner that later on in pursuance of a Cabinet decision dated 27th December, 2002, it was decided by the State Government to grant the status of regular employees to both teaching and non-teaching staff of the said college w.e.f. 27.12.2002, i.e., the date of Cabinet decision irrespective of the fact that whether at the time of taking over of the college they had rendered services of more than one year or less than that. In pursuance to such decision, services of one Smt. (Dr.) Meena Sharma, a member of the teaching staff, were regularized w.e.f. 27.12.2002, vide Notification dated 16th April, 2008, Annexure P-5. 5. Against the above backdrop, the petitioner is also seeking similar treatment under the aforesaid Cabinet decision dated 27.12.2002. 6. The respondents, while admitting that the petitioner has not been paid for the period 07.03.2001 to 08.09.2003, have taken the stand that her services would be regularized as per rules made by the government in this regard. 7. In view of the above, if on facts, the petitioner is also covered under the aforesaid Cabinet decision dated 27.12.2002 and is a similarly situate person, she shall also be treated similarly without any discrimination and a final decision with regard to regularization of her services as Library Attendant in pursuance of the said Cabinet decision dated 27.12.2002 shall be taken within three months from the date of production of copy of this judgment by the petitioner and the consequential benefits, if any, shall also be paid to her within the same time, failing which interest @ 9% per annum shall also be payable. ...5... 8. Needless to say that wages/salary for the period 07.03.2001 to 08.09.2003 shall also be paid to the petitioner within the same time, as above. 9. In view of the above, the petition stands disposed of, so also pending CMP(s), if any.” 5. In view of the above, if on facts, the case of the petitioner is covered under the judgment referred to hereinabove, in CWP(T) No. 19 of 2008, and she is similarly situate, she shall also be treated similarly without any discrimination and the benefit of the said judgment shall be extended to her within three months from the date of production of copy of this judgment and the judgment referred to hereinabove by the petitioner, after affording an opportunity of being heard, if so desired. 6. Insofar as the claim at serial No. 1 is concerned, the due and admissible salary, if any, shall be payable to the petitioner within the same time, as above, after verifying the facts in this regard, failing which interest @ 6% per annum shall be payable. 7. The petition stands disposed of, so also pending CMP(s), if any. (V.K. Sharma) Judge 26th May, 2011 (virender)