Himachal Pradesh High Court
State Of Hp & Another vs Tulpi Devi And Others on 10 January, 2023
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No. 786 of 2017 a/w CWP No. 2563 of 2018, CWPOA Nos. 2584 of 2019, 7748 of 2019, CWP No. 4771 of 2020, CWPOA No. 6776 of 2020, CWP Nos. 99 of 2021, 4526 of 2021, 5724 of 2021, 8061 of 2021 and 3815 of 2022.
Reserved on. 5.1.2023.
1. CWP No. 786 of 2017 State of HP & another Date of Decision :10.01.2023 ....Petitioners.
Versus Tulpi Devi and others ....Respondents.
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2. CWP No. 2563 of 2018 State of HP & others ....Petitioners.
Versus
Twarsu Ram ....Respondent.
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3. CWPOA No. 2584 of 2019 Swarna Devi ....Petitioner.
Versus
State of Himachal Pradesh & another ....Respondent. .................................................................................
4. CWPOA No. 7748 of 2019 Ram Lal & another ....Petitioners.
Versus
State of HP and another ....Respondents.
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5. CWP No. 4771 of 2020State of HP & others ....Petitioners.
.
Versus
Bhagwan Dutt ....Respondent.
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6. CWPOA No. 6776 of 2020 Gian Singh ....Petitioner.
Versus
7.
State of HP and others
CWP No. 99 of 2021
Kashmir Singh
r to
....Respondents.
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....Petitioner.
Versus State of HP and others ....Respondents.
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8. CWP No. 4526 of 2021 Dila Ram ....Petitioner.
Versus
State of HP and others ....Respondents. .................................................................................
9. CWP No. 5724 of 2021 Ram Lal ....Petitioner.
Versus
State of HP and others ....Respondents. .................................................................................
10. CWP No. 8061 of 2021 Hans Raj ....Petitioner.
Versus
State of HP and others ....Respondents.
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11. CWP No. 3815 of 2022 Surendra ....Petitioner.
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Versus
State of HP and others ....Respondents.
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Coram THE HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN, JUDGE THE HON'BLE MR. JUSTICE VIRENDER SINGH, JUDGE Whether approved for reporting? Yes.
________________________________________________________ For the petitioners: Mr. Y.P.S. Dhaulta, Additional Advocate General with Mr. J.S. Guleria, Deputy Advocate General in CWP No. 786 of 2017, CWP No. 2563 of 2018 & CWP No. 4771 of 2020.
For the respondent(s): Mr. P.D. Nanda, Advocate, in CWPOA Nos.
7748 of 2019, 6776 of 2020, CWP Nos. 99, 4526, 5724, 8061 of 2021 and 3815 of 2022.
Mr. Arsh Rattan, Mr. Arun Kaushal, Mr. Devinder K. Sharma, Mr. Rakesh K. Dogra and Mr. Raj Kumar Kalsi, Advocates, for the respective respondent(s).
Per Justice Tarlok Singh Chauhan Since, common questions of law and facts are involved in these writ petitions, therefore, they are taken up together for disposal. For convenience, facts of CWP No. 786 of 2017 are being considered hereinafter.
::: Downloaded on - 10/01/2023 20:34:36 :::CIS 42. The State Government created 58 posts of Class-IV in the Department of Social Justice & Empowerment for the newly .
sanctioned ICDS Projects. Hence, keeping in view the longer experience of part time workers working in the departments, the departments with the approval of State Government decided to fill up these posts from amongst the part time workers by adopting following one time criteria on 23.11.1996 i.e. as under :-
"(i) The part time workers who have completed 5 years, sponsored by the Employment Exchange and were within the admissible age limit at the time of appointment and have at least passed 7th class should be regularized at the first instance;
(ii) Out of the remaining part time workers who do not fall under the above categories are required to be regularized in a phased manner according to their seniority amongst part time workers who have at least put in 5 years of service and have at least passed 7th class;
(iii) Those part time workers whose date of birth is available irrespective of their educational qualification may also regularized according to seniority in a phased manner as they have rendered many years of service in the department; and
(iv) In the case of daily wages the minimum service is also five years and educational qualification has been relaxed upto 5th standard."
3. On the basis of aforesaid criteria, 58 persons came to be regularized and other respondents could not be regularized, as their names were falling either in Category-III against which 17 persons were regularized due to limited vacancies and the last regularized part time worker in this category was the appointee of the year 1986, whereas some of the respondents were the ::: Downloaded on - 10/01/2023 20:34:36 :::CIS 5 appointees of the year of 1987. However, later on many of the respondents were conferred with daily-wage status in the year 2004.
.
4. Subsequently, the State Government notified Policy for Regularization in the year 2012, according to which, the respondents were due for regularization from 1.4.2012 but due to limited vacancies in the department and in their place many workers could not be regularized.
5. Accordingly, the department took up the matter with the State Government for creation of supernumerary posts, which were not acceded to and now a decision has been taken to regularize eligible daily-wagers in their department where vacancies of Class-
IV employees were available. In this list, there were 41 daily-
wagers, who were below 8th pass, while 29 daily-wagers was 8 th pass or above, as such their services were not regularized. 41 persons were below 8th pass and therefore, cannot be considered for regularization.
6. As a matter of fact, it was the respondent-department itself, which requested the Health and Family Welfare Department to regularize the services of the daily-wagers irrespective of their educational qualification on the basis of the judgment rendered by the Hon'ble Supreme Court in Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, 1990 (1) SCC, 361.
::: Downloaded on - 10/01/2023 20:34:36 :::CIS 67. Further, the department also sent a list of 30 part time workers, who were below 8th pass to the department of Information .
of Public Relation and to the Department of Language, Art and Culture against the available vacancies of Class-IV. However, in the meantime, vacancies of Class-IV arose in the department itself and the services of the respondents have now been regularized, vide order dated 30.7.2014. The employees including the respondents herein, approached the erstwhile HP State Tribunal for regularization of their services in the year 1996, when services of their juniors had been regularized.
8. As observed above, the claims of these employees for their regularization were being contested only on the ground that either they did not possess the requisite qualification and in some of the cases, names of these employees had not been sponsored by the Employment Exchange.
9. As regards the first contention, Hon'ble Supreme Court has repeatedly held that practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability, especially when it relates to Class-IV posts.
We now refer certain judgments binding precedents on this issue.
10. In case titled Bhagwati Prasad versus Delhi State Mineral Development Corporation, reported in (1990) 1 SCC 361, it was held by the Hon'ble Supreme as under:-
::: Downloaded on - 10/01/2023 20:34:36 :::CIS 7"6. The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to .
entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 eversince, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years' experience, ignoring artificial break in service for short period/periods created by the respondent, in the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re-appointment that period may be excluded in the computation of the three years period. Since the petitioners before us satisfy the requirement of three years' service as calculated above, we direct that 40 of the senior most workmen should be regularised with immediate effect and the remaining 118 petitioners should be regularised in a phased manner, before April 1, 1991 and promoted to the next higher post according to the standing orders. All the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts. We further direct that 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately. Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts. The respondent is directed to deposit a sum of Rs. 10,000 in the Registry of this Court within four weeks to meet the remuneration of the Industrial Tribunal. The writ petitions are accordingly allowed, but without costs."::: Downloaded on - 10/01/2023 20:34:36 :::CIS 8
11. In case titled B.N. Saxena versus New Delhi Municipal Committee and others, reported in (1990) 4 SCC 205, it was held by .
the Hon'ble Supreme as under:-
"7. The second limb of the rule was evidently to benefit all those persons who have gained sufficient experience as Senior and Junior Draftsmen without possessing any qualification. Experience gained for a considerable length of time is itself a qualification (See the observation in State of U.P. and Ors. V. J.P. Chaurasia, (1989) 1 SCC 121). It would be unreasonable to hold that in addition to this considerable experience, one must also have the diploma qualification prescribed under the first part. It could not have been the intention of the rule making authority that persons who were designated r as Senior Draftsmen without any Diploma qualification should acquire such diploma qualification for further promotion. Such a view would not be consistent and coherent with the revised rule and its object. We have no doubt that the second limb of the revised rule is independent of the first. The High Court seems to have erred in this aspect of the matter."
12. In case titled Gujarat Agricultural University versus Rathod Labhu Bechar and others, reported in (2001) 3 SCC 574, it was held by the Hon'ble Supreme as under:-
"28. We feel that daily-rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts is a ground by itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption, hence Clause 1(a) needs modification to this effect.
29. xxx... xxx... xxx...
30. Thus in view of their long experience on the fact of this case and for the posts concerned the prescribed qualification, if any, should not come in the way of their regularisation. Clause 1(b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post."::: Downloaded on - 10/01/2023 20:34:36 :::CIS 9
13. Admittedly, in the instant case the employees have .
worked for number of years and have gained experience so as to enable them to discharge their duties as a Class-IV, more particularly, when nothing is on record to suggest that there is no complaint in this regard on the working of these employees. In such of those cases where the respondents had approached the erstwhile Tribunal, the erstwhile Tribunal by placing reliance on the aforesaid judgments held the employees (respondents) to be entitled for regularization of their services from the date when their junior stood regularized.
14. Adverting to the second contention that the names of the employees had not been sponsored by the Employment Exchange, learned Single Judge of this Court in CWP No. 8404 of 2011, titled Vinod Kumar Vs. State of Himachal Pradesh and others, decided on 15.3.2012 has clearly held that the public employment cannot be restricted only for those candidates whose names are registered in the employment exchange and it is the duty of the employer to ensure that besides sending requisition to the employment exchange, names should also be called for by publication in newspapers, having wide circulation and display on office notice boards or announcement on radio, television and employment news bulletins. It would be apt to reproduce the ::: Downloaded on - 10/01/2023 20:34:36 :::CIS 10 relevant observations as contained in para-6 to 9 of the judgment, which read as under:
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"6. According to instruction No.7 of the advertisement Annexure P-2 issued on 1.11.2010, the candidate's name should be borne on the live register of any of the Employment Exchanges in Himachal Pradesh. Mr. Tarlok Chauhan has also argued that Class-III and IV posts are to be filled up by respondent No.2. According to him, only those candidates could be considered for appointment to the post in question whose names were borne on the live register of any of the Employment Exchanges in Himachal Pradesh. In other words, his submission is that since respondent No.3 does not belong to State of Himachal Pradesh, his candidature could not be considered. He has also drawn the attention of the Court to Annexure P-5 issued by the Himachal Pradesh Public Service Commission dated 22.9.2011 whereby the applications have been invited for filling up the posts of Clerk and Junior Scale Stenographer from the candidates whose names were borne on the live register of any of the Employment Exchanges, Himachal Pradesh on prescribed proforma.
7. Their Lordships of the Hon'ble Supreme Court in Excise Superintendent Malkapatnam, Krishna District A.P. versus K.B.N. Visweshwara Rao and others, (1996) 6 SCC 216 have held that restricting the selection only to the candidates sponsored by employment exchange is not proper. Their Lordships have further held that in addition to requisitioning the names from employment exchange, names should also be called for by publication in newspapers, having wide circulation, and display on office notice boards or announcement on radio, television and employment news bulletins etc. Their Lordships have held as under:
"6. Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment ::: Downloaded on - 10/01/2023 20:34:36 :::CIS 11 exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the .
appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates."
8. Their Lordships of the Hon'ble Supreme Court in Union of India and others versus Pritilata Nanda, (2010) 11 SCC 674 have held that requirement of sponsoring by employment exchange is not mandatory. Their Lordships have further held that Employment Exchanges Act, 1959 does not obligate employer to appoint only those who are sponsored by employment exchange. Their Lordships have held as under:-
"16. In our opinion, there is no merit in the arguments of the learned Additional Solicitor General. In the first place, we consider it necessary to observe that the condition embodied in the advertisement that the candidate should get his/her name sponsored by any special employment exchange or any ordinary employment exchange cannot be equated with a mandatory provision incorporated in a statute, the violation of which may visit the concerned person with penal consequence. The requirement of notifying the vacancies to the employment exchange is embodied in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (for short, `the 1959 Act'), but there is nothing in the Act which obligates the employer to appoint only those who are sponsored by the employment exchange. Section 4 of the 1959 Act, which provides for notification of vacancies to employment exchanges reads as under:
"4(1) After the commencement of this Act in any State or area thereof, the employer in every establishment in public sector in that State or area shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed.::: Downloaded on - 10/01/2023 20:34:36 :::CIS 12
(2) The appropriate government may, by notification in the Official Gazette, require that from such date as may be specified in the notification, the employer in every establishment in private sector .
or every establishment pertaining to any class or category of establishments in private sector shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed, and the employer shall thereupon comply with such requisition.
(3) The manner in which the vacancies referred to in sub-section (1) or sub-section (2) shall be notified of the employment exchanges and the particulars of employments in which such vacancies have occurred or are about to occur shall be such as may be prescribed.
(4) Nothing in sub-sections (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the employment exchanges to fill any vacancy merely because that vacancy has been notified under any of those subsections."
17. A reading of the plain language of Section 4 makes it clear that even though the employer is required to notify the vacancies to the employment exchanges, it is not obliged to recruit only those who are sponsored by the employment exchanges.
In Union of India v. N. Hargopal (1987) 3 SCC 308, this Court examined the scheme of the 1959 Act and observed:
"It is evident that there is no provision in the Act which obliges an employer to make appointments through the agency of the Employment Exchanges. Far from it, Section 4(4) of the Act, on the other hand, makes it explicitly clear that the employer is under no obligation to recruit any person through the Employment Exchanges to fill in a vacancy merely because that vacancy has been notified under Section 4(1) or Section 4(2). In the face of Section 4(4), we consider it utterly futile for the learned Additional Solicitor General to argue that the Act imposes any obligation on the employers apart from notifying the vacancies to the Employment Exchanges."
xxx xxx xxx xxx ::: Downloaded on - 10/01/2023 20:34:36 :::CIS 13 "It is, therefore, clear that the object of the Act is not to restrict, but to enlarge the field of choice so that the employer may choose the best and the most efficient and to provide an opportunity to the .
worker to have his claim for appointment considered without the worker having to knock at every door for employment. We are, therefore, firmly of the view that the Act does not oblige any employer to employ those persons only who have been sponsored by the Employment Exchanges."
(Emphasis Supplied)
18. In K.B.N. Visweshwara Rao's case, a three-Judge Bench of this Court considered a similar question, referred to an earlier judgment in Union of India v. N. Hargopal (supra) and observed:-
"It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be r registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/ establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates."
19. By applying the ratio of the above noted judgments to the case in hand, we hold that the concerned authorities of the South Eastern Railway committed grave illegality by denying appointment to the respondent only on the ground that she did not get her name sponsored by an employment exchange.
::: Downloaded on - 10/01/2023 20:34:36 :::CIS 1420. The issue deserves to be considered from another angle. It was neither the pleaded case of the appellants before the Tribunal and the High Court nor any evidence was produced by them to .
prove that notification/advertisement dated 31.1.1987 was sent to all the employment exchanges including the special employment exchanges in the State of Orissa. Before this Court also, no document has been produced to show that the advertisement was circulated to the employment exchanges in the State. In this backdrop, it is not possible to approve the stance of the appellants that the respondent was not appointed because she did not get her candidature sponsored by an employment exchange."
r to
9. The pubic employment cannot be restricted only for those candidates whose names are registered in the employment exchange. It is the duty of the employer to ensure that besides sending requisition to the employment exchange, names should also be called for by publication in newspapers, having wide circulation and display on office notice boards or announcement on radio, television and employment news bulletins. The suitability of respondent No.3 has also been duly determined by the Selection Committee. 10. The matter is required to be considered from another angle. In case the contention of Mr. Tarlok Chauhan is accepted, in that eventuality, the public employment will be restricted only to the persons belonging to the State of Himachal Pradesh. This would be violative of Articles 14 and 16 of the Constitution of India. Every citizen has a right to seek employment in any part of the country. The public employment on the basis of the residence can only be provided as per the procedure laid down under Article 16 of the Constitution of India by enactment of law by the Parliament. The public employment cannot be restricted only to those candidates whose names are registered with the employment exchange. The endeavour of the State and other employer should be to ensure that the best candidates are appointed."
15. Apart from above, this Bench very recently had the opportunity of deciding an identical issue and thereafter reach the same conclusion as reached by the learned Single Judge was ::: Downloaded on - 10/01/2023 20:34:36 :::CIS 15 arrived at by this Court as is evident from paragraph, as was reached was learned Single Judge, as is evident from paragraphs .
24 to 28 of the judgment rendered by this Division Bench in CWP No. 8046 of 2021 and connected matters, titled Manoj Kumar Vs State of H.P. and others, relevant paragraphs read as under:
"24. As regards contention of the State that the names of the individual petitioners and the original applicant were not registered with the Employment Exchange and, therefore, they were not appointed on regular basis, the Hon'ble Supreme Court in Union of India vs. N. Hargopal (1987) 3 SCC 308, while interpreting the provisions of the Employment Exchanges (Compulsory Notification of Vacancies ) Act, 1959 held that there is no provision in the Act which obliges an employer to employ those persons only, who have been sponsored by the employment exchanges. It was held in para 4 of the said judgment that Section 4(4) of the Act makes it explicitly clear that the employer is under no obligation to recruit any person through the employment exchanges to fill in a vacancy merely because that vacancy has been notified.
25 Again in para 6 of the judgment, it was made clear that the object of the Act is not to restrict, but to enlarge the field of choice so that the employer may choose the best and the most efficient and to provide an opportunity to the worker to have his claim for appointment considered without the worker having to knock at every door for employment. The Act does not oblige any employer to employ those persons only who have been sponsored by the employment exchanges. However it needs to be clarified that in the second half of the judgment, the Hon'ble Supreme Court did observe as under:-
"In the absence of a better method of recruitment, we think that any restriction that employment in Government Departments should be through the medium of employment exchanges does not offend Articles 14 and 16 of the Constitution."
26 After about a decade, the issue was again considered by the Hon'ble Supreme Court in Excise Superintendent Malkapatnam vs. K.B.N. Visweshwar Rao (1996) 6 SCC 216, wherein in para 6 thereof, it was observed as under:-
6. Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be consistent with ::: Downloaded on - 10/01/2023 20:34:36 :::CIS 16 the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidates are unable to have the manes sponsored, though their names are either .
registered or are waiting to be registered in the employment exchange with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate are deprived of the right to be considered for appointment to a post under the state. Better view appears to be that it should be mandatory for the requisitioning Departments for selection strictly according to seniority and reservation as per requisition. In addition the appropriate Department or undertaking or establishment should call for the manes by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and r employment news-bulletins: and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates."
27 Later, about two decades after the decision in N. Hargopal's case supra, the issue yet again came up for consideration before the Hon'ble Supreme Court in Arun Kumar Nayak vs. Union of India (2006) 8 SCC 111, wherein ratio laid down in N. Hargopal's case supra was held to be still occupying the field in last portion of para 10 of the judgment.
28 Thus, the law, as it stands today, is that in order to attract the best talent, consideration of names of only those, who have registered with the Employment Exchange/sponsored by the employment exchange, cannot be restricted, rather the appropriate department or undertaking or establishment is required to call for all names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins and; then consider the case of all the candidates who have applied. This would ensure fair play and meet test of equality of opportunity in the matter of employment to all eligible candidates."
16. From the records, we find that it was probably out of compulsion that the State filed CWP No. 786 of 2017, because at ::: Downloaded on - 10/01/2023 20:34:36 :::CIS 17 the relevant time, the State had assailed the judgment rendered by learned Single Judge granting the same and similar relief in LPA No. .
53 of 2015, titled State of HP Versus Kanta Devi and others and LPA No. 103 of 2015, titled State of HP and Suresh Kumar and others, which have now been decided by a common judgment dated 20.3.2019. It shall be apt to reproduce the relevant observations, which read as under:-
"Respondent-State is appellant in these appeals. The complaint is that learned Single Judge vide Judgment dated 21.5.2014 has wrongly directed the respondent-appellant to regularize the services of the petitioner from the date when private respondents No.4 to 9 stood regularized with all consequential benefits including monitory together with interest @7% per annum.
2. What we could gather from the record, the respondents- writ petitioners in these appeals were working on daily wage basis with the appellant in the Department of Social Justice and Empowerment, to the Government of Himachal Pradesh. They were deployed in the office of District Welfare Office, Kangra at Dharamshala. Their services were not regularized perhaps for want of educational qualification i.e. atleast 7th standard, though the decision was taken by the appellant/respondent-State to regularize the services of those workmen on daily wage basis/part time basis having atleast 7th standard as their educational qualification.
3. Respondent-petitioner Kanta was not having requisite educational qualification and as regard Suresh Kumar his qualification in the writ petition finds mention as 8th standard. Anyhow, in view of the judgment of this Court in Laxmi Devi versus State of H.P., the appellant-respondent were directed to regularize her services also, in view of her long experience on daily wage basis. Therefore that part of the judgment, which direct the respondent-State to regularize the services of both petitioners from the date when private respondents No.4 to 9 were regularized, calls for no interference being legally and factually sustainable. However, in view of the judgment of the apex Court in Jai Dev Gupta versus State of Himachal Pradesh & Another, AIR 1998 Supreme Court, 2819, the monitory benefits would have not been ordered to be paid from the date of regularization and rather restricted only to three years preceding the institution of the writ petition by the respondent-writ ::: Downloaded on - 10/01/2023 20:34:36 :::CIS 18 petitioners. The relevant portion of this judgment reads as follows:
Learned counsel appearing for the appellant .
submitted that before approaching the Tribunal the appellant was making number of representations to the appropriate authorities claiming the relief and that was the reason for not approaching the Tribunal earlier than May, 1989. We do not think that such an excuse can be advanced to claim the difference in backwages from the year 1971. In Administrator of Union Territory of Daman and Diu & Ors. Vs. R.D. Valand 1995 Supp(4) SCC 593 this court while setting aside an order of Central Administrative Tribunal has observed that the Tribunal was not justified in putting the clock back by more than 15 years and the Tribunal fell into patent error in brushing aside the question of limitation by observing that the respondent has been making representations from time to time and r as such the limitation would not come in his way.
In the light of the above decision, we cannot entertain the arguments of the learned counsel for the appellant that the difference in backwages should be paid right from the year 1971. At the same time we do not think that the Tribunal was right in invoking Section 21 of the Administrative Tribunals Act for restricting the difference by backwages by one year."
4. The ratio of the judgment in Jai Dev Gupta's case reproduced hereinabove is complete answer to the submissions made on behalf of the respondent-writ petitioner as they have delayed the filing of the writ petition, which have been filed by both Kanta Devi and Suresh Kumar, the respondents-writ petitioners on 21.6.2010 in the Registry of this Court. In Jai Devi Gupta's case supra also the difference in salary was claimed from the year 1971 when he was appointed as Lecturer in commercial arts. The Original Application with CAT was, however, filed by him in the month of May, 1989. The apex Court has held him entitled to the backwages from May, 1986 i.e. three years preceding the institution of the Original Application. This part of the controversy, therefore, is squarely covered in favour of the respondent/appellant-State by the judgment of the apex Court in Jai Dev Gupta's case cited supra.
5. In view of what has been said hereinabove, the judgment under challenge in these appeals needs modification to the extent that both the respondents-writ petitioners shall be entitled to all consequential benefits from the date of their regularization, however, arrears on account of salary shall be payable to them from the month of June, 2007, paid in July, 2007. The respondent-State/appellant shall calculate ::: Downloaded on - 10/01/2023 20:34:36 :::CIS 19 the arrears accordingly and make payment thereof to the respondents-writ petitioners within two months from today failing which together with interest @ 6% per annum, from July, 2007 onwards till the payment is made. The .
respondent-department shall recover this amount from the salary of erring officer/official. Both the appeals are accordingly disposed of. Pending application(s), if any, shall also stand disposed of."
17. Yet another reason or rather compulsion of the State to file CWP No. 786 of 2017 is that the State application for review of the judgment in CWP No. 7003 of 2011 titled Hari Devi and another vs. State of Himachal Pradesh and another, had been allowed but later on the same analogy and for the reason, as stated above, the petition filed by the petitioner was subsequently allowed by the learned Single Judge.
18. The case of the petitioner therein pertained to regularization and despite repeated representation his case was not being considered only on the ground that he did not possess essential qualification, as provided under the Recruitment and Promotion Rules. The said contention was rejected after placing reliance on the judgment of Hon'ble Supreme Court in B.N. Saxena Vs. New Delhi Municipal Committee and other (1990) 4 SCC, 205 and Gujarat Agriculture University Vs. Rathod Labhu Bechar and other (2001) 3 SCC 574, which have already been relied upon by this Court in the earlier part of the judgment and accordingly9 directions were issued for regularization of the services of the petitioner therein.
::: Downloaded on - 10/01/2023 20:34:36 :::CIS 2019. We see no reason to depart from the aforesaid view taken by learned Division Bench of this Court and, therefore, direct .
that the employees both petitioners and respondents as the case may be shall be entitled to regularization along with all consequential benefits. While dismissing the petitions of the State and allowing the petitions filed by the employees, the services of the employees including the respondents herein, would be regularized from the date their juniors stood regularized.
20. The arrears on account of salary shall, however, be payable to them only from three years prior to filing of their respective petitions. The State shall calculate the arrears accordingly and make payment thereof to these employees within a period of two months from today, failing which they will be liable to pay interest @ 6% per annum from the due date till the payment is actually made. However, if at all the department is burdened with the payment of interest, the same at the first instance shall be paid by the department but thereafter recovered from the erring Officers/Officials.
21. Pending miscellaneous applications, if any, also stands disposed of.
::: Downloaded on - 10/01/2023 20:34:36 :::CIS 2122. For compliance, to come up on 9.3.2023.
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(Tarlok Singh Chauhan) Judge (Virender Singh) Judge 10th January, 2023 (Guleria) ::: Downloaded on - 10/01/2023 20:34:36 :::CIS