Himachal Pradesh High Court: Mere Mentioning That Salary Of Employed Persons Shall Be Paid From MGNREGA Funds Not Ground To Deny Regularization

The Himachal Pradesh High Court held that mere mentioning that salary or remuneration of employed persons shall be paid from MGNREGA (Mahatma Gandhi National Rural Employment Guarantee Act, 2005) funds, cannot be a ground to deny regularization.

The Court held thus in a batch of Civil Writ Petitions filed by the employees who were aggrieved by their non-regularization, despite having completed requisite period as provided for regularization by the State Government.

A Single Bench of Justice Sandeep Sharma observed, “… careful perusal of Annexure P-1 clearly suggests that 93 posts were created by the Government in various Development Blocks of Computer Operators. Mere mention of the fact that salary/remuneration, if any, of persons employed against afore posts shall be paid from MGNREGA funds, may not be a ground to deny regularization, especially when petitioners have been working without any interruption for more than 18 years, coupled with the fact that many similar situated persons have been already regularized.”

The Bench said that under the MGNREGA, there is no provision, if any, for engaging skilled persons, rather only unskilled manual work, who can do physical work, can be granted appointment that too for a limited period of 100 days, however in this case, Petitioners are not only skilled computer operators, but they have been rendering services for more than 18 years and being paid regular pay scale.

Advocate Onkar Jairath appeared on behalf of the Petitioners while Advocate General Anup Rattan appeared on behalf of the Respondents.

Brief Facts

Vide notification in the year 2007, the State Government conveyed approval to fill up 77 posts of Computer Operators in Development Blocks (one in each Block), 12 in District Rural Development Agencies (one in each DRDA) and 3 at the Rural Development Department Headquarters with the prior concurrence of the Finance Department. The said notification laid down the procedure for inviting applications as well as criteria for selection of incumbents as Computer Operators. Pursuantly, Department of Rural Development issued an advertisement inviting applications for the post of Computer Operators. The Petitioners being fully eligible, applied for the same and subsequently, they were offered appointment letters on contract basis with fixed remuneration of Rs. 6,000/- per month.

Though initially, there were no Recruitment and Promotions Rules (R&P Rules) for the post of Computer Operator, but thereafter, the State Government in the year 2012, notified common R&P Rules for the said post named as Himachal Pradesh Department of Personnel Computer Operator Class-III, Non- Gazetted Common Director Recruitment & Promotion Rules, 2012. The Government circulated a regularization policy to regularize the services of contractual appointees on completion of six years’ service. The Petitioners though had completed six years’ service in 2014, they were not given benefit of the said policy of regularization. They repeatedly requested the Department to regularize their services but all in vain. Hence, they approached the High Court.

Reasoning

The High Court in view of the above facts, noted, “Since, in the case at hand, it is apparent that many similar situated persons have been granted the benefit of regularization in terms of regularization policy framed by the Government of Himachal Pradesh, respondents cannot be permitted to deny the rightful claim of the petitioners on the pretext that their engagement was under the MGNREGA scheme, formulated in terms of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005.”

The Court reiterated that the State must act as a model employer and cannot take undue advantage of the need of the employee, who does not have any choice in the matter of employment due to the economic compulsions.

“… the main concern of the Court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16”, it added.

The Court further remarked that it is none of the case of the Respondents that at the time of their appointment, may be on contract basis, Petitioners were not in possession of the requite qualifications for the post of Computer Operators, which has been otherwise provided under the Common Recruitment & Promotion Rules, 2012.

“If it is so, this Court sees no justification to accept the stand of the respondents that initial appointment of the petitioners against the post of Computer Operators was not made through Himachal Pradesh Public Service Commission or by the Himachal Pradesh Rajya Chayan Aayog”, it also said.

Conclusion

The Court was of the view that once Respondents themselves decided to engage Petitioners and other similar situated persons of their own by creating 93 posts, they cannot be permitted at this stage to contend that Petitioners were not appointed against the sanctioned posts.

“… long-term extraction of regular labour under temporary labels cannot be permitted as it corrodes public confidence. Though, Hon'ble Apex Court in afore judgment held that Financial stringency certainly has a place in public policy, but it is not a talisman that overrides fairness, reason, and the duty to organize work on lawful lines”, it concluded.

Accordingly, the High Court allowed the Petitions and directed the Respondents to regularize the services of the Petitioners with effect from the date they were granted regular pay scale.

Cause Title- Subhash Kumar & Others v. State of Himachal Pradesh & Anr. (Case Number: CWP No.10354 of 2023)

Appearance:

Petitioners: Advocates Onkar Jairath and Piyush Mehta.

Respondents: Advocate General Anup Rattan, Additional Advocate Generals (AAGs) Rajan Kahol, Vishal Panwar, B.C. Verma, and Deputy Advocate General (DAG) Ravi Chauhan.

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