Jagdish Sharma vs State of Himachal Pradesh

Tarlok Singh Chauhan, J.—This Letters Patent Appeal is directed against the orders passed by the learned writ Court in CWP (T) No. 10735 of 2008 decided on 09.04.2012 whereby the claim of the appellant for regularization of his services was dismissed.

The appellant had, initially, approached the erstwhile State Administrative Tribunal by filing Original Application which on closure of the Tribunal came to be transferred to this Court and was registered CWP(T) No. 10735 of 2008. In the Original Application, it was contended that the appellant had been appointed as a driver in the Home Guards on 7th April, 1997 and after having worked continuously and uninterruptedly for the last more than 7 years, his services ought to have been regularized. The appellant had further stated that he had been appointed pursuant to letter dated 21.02.1997 whereby he was called for interview and driving test which he qualified and consequently came to be appointed vide letter dated 7th April, 1997. It was further alleged that the respondents had appointed three persons namely Anil Kumar, Raj Kumar and Kuldip Kumar on regular basis while the appellant had been discriminated against by not appointing him on regular basis.

The respondents in their reply stated that for filling-up four posts of drivers in the department, requisitions were sent to the Employment Exchange. Consequent whereupon, 182 candidates came to be sponsored by various Employment Exchanges, who were called for interview. Out of these, only 88 candidates reported for interview and amongst them the appellant also appeared. The appellant was put to driving test and oral interview and he like many other candidates failed to qualify the test and only three candidates named above were selected for appointments. It was thereafter that the appellant applied for enrollment as Home Guards Volunteer in Home Guards, 3rd Battalion, Shimla and was enrolled as such in Technical Platoon and was allotted H.G. No. 3/T-20.

The appellant filed rejoinder wherein he conceded that he had not been appointed in terms of the Act and Rules and at no point of time had served as a member of the Home Guards, but has served as a driver on daily wage basis. It was alleged that the appellant was neither required to serve the respondents organization for a period of three years or any extended period nor in the reserved force. It is apt to reproduce Para-5 of the rejoinder which reads thus:-

"Contents of para 6(v) to 6(viii) it is submitted that the applicant''s appointment is not in terms of the Act and Rules ibid and he at no point of time served as a member of the home guards but as a driver on daily wage basis. The applicant was neither required to serve the respondents organizations for a period of three years or any extended period nor in the reserve force. The applicant was given charge of the vehicle Truck No. HPS 5268 and Bus HP 07-3213 only and like other daily wager appointees he was never sent for any training whether basic or refresher; which is meant for a Home Guard/member. It is pertinent to mention here that the basic/1st training is of a period of 45 days and thereafter refresher training of 22 days in each following year of employment. It is most respectfully submitted that the respondent has failed to produce and bring on records any such material in support of their reply and adverse inference is liable to be drawn against them as the whole record is lying with them."

The learned writ Court dismissed the claim of the appellant by according the following reasons:-

"5. Petitioner has not been selected pursuant to interview held on 4/5th March, 1997. He has been enrolled as Home Guard Volunteer under the provisions of Home Guards Act, 1968 (hereinafter referred to as "the Act" for brevity sake) and the Rules framed thereunder, i.e. Home Guards Rules, 1971. He has been assigned H.G. No. 3/T-20. He was appointed in Central Training Institution, Junga with effect from 7th April, 1997. There is a detailed procedure provided under the Act and Rules for enrollment and the Home Guard Volunteer have to be called out under Rule 7 of the Home Guard Rules, 1971. The petitioner has failed to point out under what provision of the Act and Rules framed thereunder, he is liable to be regularised. The nature of appointment of the petitioner and similarly situate persons is voluntary. They are paid honorarium as notified by the State Government from time to time. The enrollment of Home Guards cannot be treated at par with regular employee of the State Government. He cannot also be equated with regular employees appointed in the Police Department. They can also engage themselves in any other profession when they are not on active duty. They are not even given regular scales. They cannot be equated with workmen."

We have heard the learned counsel for the parties and gone through the records.

Shri Navlesh Verma, learned counsel for the appellant vehemently argued that the learned writ Court had not taken into consideration that the post of driver was a technical post and it was different from that of a Volunteer Home Guards and in case he had not been called for the interview and had not qualified the test of driving, then how he had been given charge of a heavy vehicle.

At this stage, it may be mentioned that this appeal was heard for a considerable time on 05.03.2014 whereafter the appellant was granted three days'' time to produce his appointment order. When the case was listed on 10.03.2014, the appellant sought two weeks'' further time to produce the appointment order and thereafter repeatedly the appellant had been seeking time, but has failed to produce the appointment order till date. Therefore, in this background, we are constrained to draw an adverse inference against the appellant.

Even on the merits of the case, we find that the appellant has not been able to carve out a case for interference. It is apparent from the records that the appellant though had appeared in the interview and driving test held on 04/05.03.1997 after his name had been sponsored by the Employment Exchange, but he failed to qualify. In the said selection, three persons S/Sh.Anil Kumar, Yog Raj and Tara Chand had qualified and had been selected and it is thereafter that the appellant applied for enrollment as Home Guards Volunteer in Home Guards, 3rd Battalion, Shimla and was enrolled as such in the Technical Platoon and was allotted H.G. No. 3/T-20. There is nothing on record to suggest that the appellant was ever regularly appointed. Moreover, the appellant has raised contradicted pleas, as would be clear not only from Para-5 of the rejoinder (supra), but would be further clear from paragraph-f) of the ground taken in this appeal which reads thus:-

"f) The impugned judgment suffers from illegality and perversity since the appellant had never applied for enrolment as Home guard volunteer in any of the Home Guard Battalion of the respondents. The appellant was neither enrolled as the Home Guard Volunteer nor was allotted Home Guard number under the provisions of the Home Guard Act, 1968 and the Rules 1971. It is further submitted that the ld. Judge failed to assimilate from the material already placed before it that the applicant was neither employed as Home Guard volunteer/member nor his appointment was made by the respondents as a ''member of the home guards''. The applicant was thus liable to be regularized as a driver as he was not a member of the Home Guard. It is most respectfully submitted that the judgment of Hon''ble Apex Court Annexure R-4 and the judgments Annexure R-IV and R-V were applicable to those persons/appointees whose appointment are made as per section 5 of the HP Home Guard Act, 1968 and as a member of Home Guard as defined in Rule 2 sub rules 5 of the 1971 Rules, which course was neither adopted for the appointment of the appellant, nor de facto. The applicant was neither required to serve the respondents'' organization for a period of three years or any extended period nor in the reserve force. The applicant was given charge of the vehicle Truck No. HPS 5268 and Bus HP 07-3213 only and like other daily wager appointees he was never sent for any training whether basic or refresher; which is meant for a Home Guard/member. It is pertinent to mention here that the basic/1st training is of a period of 45 days and thereafter refresher training of 22 days in each following year of employment."

The appellant himself is not clear as to what plea he wants to take, but nonetheless the appellant cannot seek to raise claims as per his convenience and is required to establish a consistent claim that too in accordance with law.

The upshot of the aforesaid discussion is that there is no merit in the appeal and the same is accordingly dismissed along with pending application(s), if any, leaving the parties to bear their own costs.