IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2346 of 2009 Date of decision: 01.08.2011 Ram Dhan …Petitioner Versus State of H.P. and another …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 no For the Petitioners : Mr.Ajay Sharma, Advocate. For the Respondents : Mr.Vivek Thakur, Addl.A.G. Deepak Gupta, J.(oral) 1. By means of this petition, the petitioner has prayed that the respondents be directed to regularize his services on completion of 8 years of service in accordance with the policy Annexure P-2. 2. The undisputed facts are that the petitioner joined service as daily-waged employee in August, 1997. From the year 1998 onwards he has completed more than 240 days of service in every year except in the year 1999 when there was a shortfall of 58 days. Whether reporters of the local papers may be allowed to see the judgment? Yes 2 3. It would be pertinent to mention that the petitioner had filed an O.A. No.1996/1999 against his dis-engagement in September, 1998 and on 30.4.2001 the following order was recorded in his O.A. by a Member of the Administrative Tribunal: “The learned counsel for the applicant does not want to file any rejoinder. The learned counsel for the applicant pleads that the applicant has been re-engaged by the respondents and further pleads that in view of the re-engagement the period between dis- engagement and re-engagement be counted for seniority. The learned Addl. Advocate General has no objection to this preposition. In view of this the period of dis-engagement and re- engagement will be counted for seniority and the services of the applicant will not be terminated except in accordance with law. The applicant will not be entitled for any back-wages. With these observations and directions the original application stands disposed of.” 4. It is thus obvious that the period from 1st October, 1998 to 23rd June, 1999 when the 3 petitioner was re-engaged in service was taken into consideration for working out his seniority. As such the petitioner had completed 8 years of service on 31.12.2005 and was due to be considered for regularization in the year 2006. In fact, it is admitted by the State that the petitioner was required to be considered in the year 2006. The explanation of the State is that by inadvertence the order of the Tribunal passed in O.A., referred to above, was not taken into consideration and only the service of the petitioner rendered after 23rd June, 1999 was taken into consideration while counting his seniority. It was also averred that the petitioner could only be regularized against a vacant post and therefore the case has been sent for his regularization. 5. On 27.6.2011, the respondents were directed to file an affidavit stating as to what has happened pursuant to the aforesaid letter dated 5.9.2009. Now, it has been informed that the services of the petitioner 4 have been regularized vide office order dated 7.12.2009 and has joined duties on 17.12.2009. 6. The only question is whether the services of the petitioner were/are to be regularized in the year 2006 or 2009. There can be no manner of doubt, as admitted by the State itself, that the petitioner was required to be considered for regularization in the year 2006. The contention of the State is that since no post was available therefore the petitioner was not considered. It is clear from the reply filed by the State that the mistake appears to have been that the State while calculating the seniority of the petitioner did not take into consideration the order passed by the Tribunal. 7. Therefore, the State is directed to reconsider the case of the petitioner in the year 2006 and if any person junior to the petitioner has been appointed either in the years 2006, 2007 or 2008 the petitioner shall be regularized from the date his junior has been 5 so appointed. With these observations, the petition is allowed. Needful be done within three months from today. In case, the petitioner is granted regularization from a previous date he shall be granted difference in back-wages on or before 31st December, 2011 failing which the respondents shall be liable to pay the interest @ 9% p.a. from the date of filing of the Petition till payment is made. August 1, 2011 ( Deepak Gupta ), PV Judge