Himachal Pradesh High Court
(It) Palampur Depot vs Held As Under on 11 November, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 11TH DAY OF NOVEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION NO.2092 of 2021
.
Between:-
SH. YASH PAUL SINGH
KATOCH, SON OF SH. HARNAM
SINGH KATOCH, R/O VPO
SAKNI, TEHSIL BAIJNATH,
DISTRICT KANGRA, H.P.,
PRESENTLY POSTED AS
JUNIOR OFFICE ASSISTANT
(IT) PALAMPUR DEPOT, HRTC,
DISTRICT KANGRA, H.P.
r .....PETITIONER
(BY MR. PEEYUSH VERMA AND
AJAY KUMAR, ADVOCATES)
AND
1. HIMACHAL ROAD
TRANSPORT
CORPORATION, SHIMLA-
171 002, H.P. THROUGH ITS
MANAGING DIRECTOR.
2. THE DIVISIONAL MANAGER,
HRTC, DHARAMSHALA,
DISTRICT KANGRA, H.P.
......RESPONDENTS
(BY MS. SHUBH MAHAJAN,
ADVOCATE)
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court
passed the following:
ORDER
By way of instant petition filed under Articles 226 & 227 of the Constitution of India, petitioner has prayed for following substantive ::: Downloaded on - 31/01/2022 23:16:29 :::CIS 2 reliefs:-
i) "This Court may be pleased to quash and set-
aside the orders dated 18.03.2021, Annexure P-1, of respondent No.2, whereby the contractual services of the petitioner have .
been cancelled.
ii) This Court may be pleased to direct the respondent-HRTC to regularize the services of the petitioner on completion of three years of contractual service with all consequential benefits of pay and seniority."
2. Vide Advertisement dated 23.07.2016, Annexure P-3, respondent- Himachal Road Transport Corporation, r invited on-line applications from the desirous bonfide Himachali candidates for recruitment against 134 posts of Junior Office Assistants (IT), on contract basis, on monthly consolidated salary of Rs.7,860/-.
Petitioner in terms of aforesaid Advertisement, applied for the post in question and on the basis of his performance in the written examination (Typing Test) was offered appointment against the post of Junior Office Assistant (IT) on contract basis, on 28.12.2016, Annexure P-7.
Subsequently, vide communication dated 19.06.2020, Managing Director/respondent-Corporation, on the recommendation of Screening Committee and in-consonance with the instructions of the Government of H.P., Department of Personnel, ordered regularization of number of Jr. Office Assistants (IT), working in the HRTC after their having completed three years continued service on contract basis as on 31.03.2020, but, fact remains that the case of the petitioner was not considered for regularization on the ground that he doesn't possess ::: Downloaded on - 31/01/2022 23:16:29 :::CIS 3 computer diploma certificate in accordance with the diploma qualification, mentioned in the (R & P), Rules for the post of Jr. Office Assistant (IT). On 19.11.2020, respondent-Corporation issued Show .
Cause Notice to the petitioner, stating therein that on proper verification of education certificate, it has been found that computer diploma certificate is not in accordance with the requisite qualification in (R& P), Rules, as required for the post of Jr. Office Assistant (IT) and as such, why disciplinary action be not taken against him. Petitioner vide communication dated 24.11.2020, filed reply to the aforesaid Show Cause Notice, specifically stating therein that he possesses requisite qualification, as per (R & P), Rules and as such, his case deserves to be considered for regularization like other similar situate persons.
However, fact remains that vide order dated 18.03.2021, Annexure P-1, respondent-Corporation cancelled the contract of petitioner and in this background, he has approached this Court in the instant proceedings, praying therein reliefs, as reproduced hereinabove.
3. Having heard learned counsel representing the parties and perused the pleadings adduced on record by respective parties, especially, reply filed on behalf of respondents-Corporation, this Court finds that there is no dispute inter se parties that pursuant to Advertisement dated 23.7.2016, Annexure P-3, petitioner was offered appointment against the post of Jr. Office Assistant (IT) on contract basis and at that time, he besides having possessed 10+2 Certificate from a recognized Board of School Education, also possessed "O" or "A" level Diploma from National Institute of Electronics and Information ::: Downloaded on - 31/01/2022 23:16:29 :::CIS 4 Technology (NIELIT). It is not in dispute that essential qualification, as prescribed in (R & P) Rules for the post of Jr. Office Assistant (IT), stood duly incorporated in Advertisement dated 23.7.2016, Annexure .
P-3, which reads as under:-
" (a) Essential Qualification:
(i) 10+2 from a recognized Board of School
Education/University.
(ii) One year diploma in Computer
Science/Computer Application/Information Technology from a recognized University/Institution OR "O" of "A" level Diploma from National Institute of Electronics & Information Technology r (NIELIT) OR Diploma in Information Technology (IT) from a recognized ITI/Institution.
(iii) Computer typing speed of 30 words per minute in English or 25 words per minute in Hindi."
4. As per aforesaid clause of essential qualification, candidate apart from having possessed 10+2 Certificate from a recognized Board of School Education, is/was required to possess either one year Diploma in Computer Science/Computer Application/ Information Technology from a recognized University/Institution OR "O"
or "A" level Diploma from National Institute of Electronics and Information Technology (NIELIT) or Diploma in Information Technology (IT) from a recognized ITI/Institution. It is not in dispute that petitioner besides his having possessed 10+2 Certificate from a recognized Board of School Education, also possessed "O" or "A" level Diploma ::: Downloaded on - 31/01/2022 23:16:29 :::CIS 5 from National Institute of Electronics and Information Technology (NIELIT), meaning thereby that he was duly qualified to be considered against the post of Jr. Office Assistant (IT), as far as educational .
qualification is concerned.
5. Ms. Shubh Mahajan, learned counsel, representing the respondents while making this Court to peruse the reply filed on behalf of the respondents-Corporation, vehemently argued that since petitioner only undertook Diploma from 25 days, same could not be equated with one year Diploma in Computer Science/Computer Application and as such, no illegality and infirmity can be said to have been committed by respondents-Corporation while cancelling the contract of the petitioner. However, this Court is not convinced with the aforesaid submission made on behalf of the respondents-
Corporation by Ms. Shubh Mahajan. Once, it stands duly mentioned/provided in the essential qualification, as provided under (R&P), Rules that candidate desirous of being appointed as Jr. Office Assistant (IT) apart from his having possessed 10+2 Certificate from a recognized Board of School Education should possess one year Diploma in Computer Science/Computer Application or "O" or "A" level Diploma from National Institute of Electronics and Information Technology (NIELIT), "O" or "A" level Diploma from National Institute of Electronics and Information Technology (NIELIT) cannot be ignored on the ground that same is imparted merely from 25 days. Bare perusal of Diploma as well as Certificate adduced on record by the petitioner, which was otherwise, submitted by him at the time of his initial ::: Downloaded on - 31/01/2022 23:16:29 :::CIS 6 appointment on contract basis, clearly reveals that petitioner did "O" or "A" level Diploma from Future Soft Technology/Institution, which Institution was duly accredited from National Institute of Electronics and .
Information Technology (NIELIT), Government of India. It stands duly mentioned in the aforesaid Certificate that same was awarded for "O"
or "A" level courses. Petitioner has been awarded Grade 'O' after his having successfully completed the course on computer concepts.
Once, essential qualification, as provided in (R & P), Rules for the post of Junior Office Assistant itself enables the person having possessed "O" or "A" level Diploma from National Institute of Electronics and Information Technology (NIELIT) apart from his having possessed 10+2 Certificate from a recognized Board of School Education to apply for the post of Jr. Office Assistant (IT), the candidature/contract of the petitioner, could not be cancelled on the ground that "O" or "A" level Diploma from National Institute of Electronics and Information Technology (NIELIT) is not equivalent to one year Diploma in Computer Science/Computer Application/Information Technology. As per (R & P), Rules, candidate desirous of being appointed against the post of Jr. Office Assistant (IT) should possess one of the qualifications amongst following:-
"1. One year Diploma in Computer Science/Computer Application/ Information Technology from a recognized University;
2. "O" or "A" level Diploma from National Institute of Electronics and Information Technology (NIELIT);::: Downloaded on - 31/01/2022 23:16:29 :::CIS 7
Or
3. Diploma in Information Technology (IT) from a recognized ITI/Institution."
.
6. Since, as per aforesaid (R & P), Rules, candidates having qualification of three different courses are entitled to apply for the post in question, period spent by them for doing such courses is not relevant, rather it is Certificate/Diploma which is required to be taken into consideration while considering the candidature of the person concerned. Since, it stand duly established on record that petitioner besides having qualification of 10+2 from a recognized Board of Education, also possesses "O" or "A" level Courses from Institutions accredited from National Institute of Electronics and Information Technology (NIELIT), his contract could not have been cancelled by the respondent-Corporation on the ground that he is not qualified, in terms of essential qualification, as provided in (R & P), Rules.
7. Leaving everything aside, once respondent-Corporation itself on the basis of qualification possessed by petitioner, proceeded to give him contractual appointment against the post of Jr. Office Assistant (IT) and thereafter, permitted him to continue in the service for three years, it is not permissible, at this stage, to cancel his contract and deny him regularization on the ground of his having not possessed requisite qualification. At this stage, it would be apt to take note of judgment passed by Hon'ble Apex Court in Bhagwati Prasad and Ors.
Vs, Delhi State Mineral Development, wherein Hon'ble Apex Court has held as under:-
::: Downloaded on - 31/01/2022 23:16:29 :::CIS 8"The main controversy centres round the question whether some petitioners are possessed of the requisite qualification to hold the posts as a to entitle them to confirmed in the respective posts held by them. The indisputable facts are that the .
petitioners were appointed between the period 1983 and 1986 and ever-since, 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 regularized with immediate effect and the remaining 118 petitioners should be regularized in a phased manner, before April 1, 1991 and promoted 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 allowance revised from time to time for the said posts. We further direct that 16 of the petitioners who are ::: Downloaded on - 31/01/2022 23:16:29 :::CIS 9 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."
8. In the aforesaid judgment, Hon'ble Apex Court has ruled that though initial minimum educational qualification prescribed for the post in question is undoubtedly a factor to be reckoned with, but it is so at the time of initial engagement/entry in the service. Regularization cannot be denied on the ground of essential qualifications.
9. Consequently, in view of detailed discussion made hereinabove as well as law taken note of, this Court finds merit in the present petition and accordingly, same is allowed. Order dated 18.03.2021, Annexure P-1, is quashed and set aside and respondent-
Corporation is directed to regularize the petitioner from the date, as has been done in the cases of other similar situate persons.
Pending application(s), if any, also stands disposed of.
(Sandeep Sharma) Judge 11th November, 2021 (reena) ::: Downloaded on - 31/01/2022 23:16:29 :::CIS