IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 12548 of 2008 Date of Decision : February 26, 2011 Devinder Kumar Petitioner Versus State of Himachal Pradesh and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Anup Rattan, Advocate, for the petitioner. For the respondents : Mr. Ram Murti Bisht, Deputy Advocate General with Mr. Vinod Thakur, Dy. A.G. for the respondents/State. Sanjay Karol, J. (Oral) It is not in dispute that petitioner was engaged as a part time Sweeper with respondent No. 3 w.e.f. March, 1999. It is also not in dispute that he continuously worked as such till 30.4.2003 when his services were terminated and w.e.f. 1.5.2003 he was given appointment as a Sweeper on contract basis. It is this action which has been assailed in the present petition. The action is supported on the ground that petitioner’s engagement was not in consonance with circular dated 11.7.1995 (Annexure R-1) operative portion of which reads as under:- Whether reports of Local Papers may be allowed to see the judgment? 2 “No fresh recruitment of Daily Waged/Muster Roll Workers shall be made in any Department/Board/ Corporation/University, etc. and if need be, this will not be done without obtaining the approval of the Government through the Finance Department.” 2. It is not in dispute that petitioner otherwise fulfilled the eligibility criteria for appointment as a Sweeper. It is also not in dispute that petitioner performed his duties satisfactorily since the very inception of his engagement. It is also not in dispute that petitioner has continued to discharge his duties as Sweeper since March, 1999 in one capacity or the other. The stand taken by the State that petitioner’s initial appointment was not against the sanctioned post is untenable. Obviously there was a post on which petitioner was performing his duty in one capacity or the other since March, 1999. Even today he is performing such duties. Circular dated 11.7.1995 does not lay down a complete bar in fresh recruitment on daily wages. It only says that no appointment shall be made without obtaining the approval of the Government from the Finance Department. Undisputedly petitioner is receiving his wages since March, 1999 in one capacity or the other. Consequently it cannot be said that Government has not accorded approval for the said post of a Sweeper. In fact the Government itself took a decision on 27.2.2004 to accord the status of a daily wager to all part time Class-IV employees who had completed ten years of service as on 31.12.2003. Petitioner may not be entitled to the benefit of the 3 same but none the less petitioner’s services could not have been unilaterally terminated by way of an oral order and his status changed to that of a contract employee. 3. Accordingly the impugned action of the respondents cannot be said to be legally tenable in law. Petitioner is thus entitled to all consequential benefits. Petitioner has to be treated as part time employee with effect from the date of his initial engagement. All consequences shall follow. 4. With the aforesaid observations the present petition stands disposed of. (Sanjay Karol), Judge. February 26, 2011 (PK)