WRIT PETITION 7982 of 2012 on 31 December 2012

1. State of Himachal Pradesh through Secretary (Urban Development) to the Government of Himachal Pradesh, Shimla-171002. Development) to the Government of Himachal Pradesh, Shimla-171002.

2. The Director of Urban Development, Himachal Pradesh, Talland, Shimla-171002. Pradesh, Talland, Shimla-171002.

3. Nagar Panchayat, Gagret, Tehsil Amb, District Una, H.P. through its Secretary. H.P. through its Secretary.

…Respondents.

Civil writ petition under Article 226 of the Constitution of India.

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Coram:

Hon’ble Mr. Justice Rajiv Sharma, Judge.

For the Petitioner : Mr. Ajay Sharma, Advocate.

For the Respondent : Mr. J.S. Guleria, Asstt. A.G. for respondents No.1 and 2.

None for respondent No.3.

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Justice Rajiv Sharma, Judge (oral).

Petitioner joined as a Driver with respondent No.3 after the approval was accorded by respondent No.2 on 14.8.2002. Respondent No.3 passed a resolution on 5.6.2012 to the effect that the services of the petitioner be regularized and respondent No.3 was in a position to meet out the additional expenditure of the post of Driver. In sequel thereto, respondent No.3 recommended the case of petitioner to respondent No.2 on 6.6.2012. However, the fact of the matter is that according to the reply filed by respondent No.2, case of the petitioner was considered under the policy framed on 31.3.2011 but the petitioner could not be regularized due to non-availability of vacancy. Case of the petitioner was also taken up for regularization by respondent No.2 with the State Government on 26.3.2012. However, the same was rejected by the State Government on 20.9.2012 stating therein that no new post of any category will be created and the regularization will be strictly on the basis of seniority subject to fitness and fulfillment of minimum eligibility prescribed in the concerned Recruitment and Promotion Rules.

2. According to the policy framed and notified on 20.7.2011, the persons, who have been appointed on contract basis and have completed 8 years service as on 31.3.2011, were to be regularized against the available vacancy. Respondent-State has issued another notification dated 31.8.2012 whereby the period of qualifying service has been reduced from 8 to 6 years as on 31.3.2012 against the available vacancies. Respondent-State has also stated in the reply that the post could not be created due to lack of funds. In the instant case, respondent No.3 has already passed a resolution that it was ready and willing to bear the expenses of regularization in case the post is created. Petitioner has been working on contract basis since 14.8.2002. He has already completed requisite number of years as per the policy framed and notified on 31.3.2011 and 31.8.2012. His case was required to be considered for regularization by creating a post after taking into consideration the resolution passed by respondent No.3 on 5.6.2012. It is also stated in the reply filed by respondent No.3 that the case has already been taken up by it with respondent No.2. In those cases where the principal employer is ready and willing to bear the expenditure of the salary, there should not be any difficult in creating or sanctioning the post. Respondent-State is a welfare State. It must be alive to a situation that a person cannot be permitted to work on contractual basis for more than a decade without taking steps for regularizing him.

3. Accordingly, the writ petition is disposed of with a direction to respondent No.1 to take a decision as per the discussions made hereinabove for creation of the post of Driver within a period of 8 weeks from today. Respondent No.1 will take into consideration the resolution passed by respondent No.3 on 5.6.2012 that it is in a position to meet out the expenditure of the post of Driver. Pending application(s), if any, also stands disposed of. No costs.

31.12.2012

*awasthi *

(Justice Rajiv Sharma), Judge.