Himachal Pradesh High Court
Himachal Pradesh General Industries vs Jagdish Kumar on 25 July, 2019
Bench: V .Ramasubramanian, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 880 of 2018 .
Reserved on: 08.07.2019 Decided on: 25.07.2019 Himachal Pradesh General Industries ...Petitioner Corporation Limited Versus Jagdish Kumar Coram r to ...Respondent The Hon'ble Mr. Justice V. Ramasubramanian, Chief Justice. The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 For the petitioner: Ms. Sunita Sharma, Senior Advocate, with Ms. Saraswati, Advocate.
For the respondent: Mr. Mohit Thakur, Advocate.
V. Ramasubramanian, Chief Justice.
Challenging an order of the Himachal Pradesh Administrative Tribunal (hereinafter referred to as 'the Tribunal') directing the regularization of the services of the respondent as a Supervisor on completion of eight years of service with all consequential benefits, but with the actual monetary benefits being restricted to a period of three years, 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 01:15:55 :::HCHP 2the Himachal Pradesh General Industries Corporation has come up with the above writ petition.
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2. Heard Ms. Sunita Sharma, learned Senior Counsel for the petitioner and Mr. Mohit Thakur, learned counsel for the respondent.
3. Claiming that he was appointed as Driller at the designated as r to Mining Project Kogi Delag in the year 1992 and that he was BlastmancumSupervisor in 2004, the respondent filed an Original Application in O.A. No. 519 of 2015 on the file of the Tribunal seeking regularization of his services as a Supervisor. The said Application was disposed of by the Tribunal by an order dated 16th March, 2016, permitting the respondent to file a representation furnishing all factual details within a week and directing the Managing Director of the petitionerCorporation to examine the case of the respondent in the light of the observations made in a batch of cases.
4. Pursuant to the said order, the respondent made a representation on 10th April, 2016. He was given an ::: Downloaded on - 29/09/2019 01:15:55 :::HCHP 3 opportunity of personal hearing also on 28 th May, 2016.
Thereafter, the Managing Director of the petitioner .
Corporation passed an order rejecting the representation, on the ground that the case of the respondent was not comparable to the cases of the petitioners in the batch of cases.
5. Aggrieved by the said order of the Managing Director dated 30th May, 2016, the respondent filed a fresh Application in O.A. No. 578 of 2017 on the file of the Tribunal. The said Application has now been allowed by the Tribunal by an order dated 10th January, 2018, on the ground that the status of the respondent was that of Driller cumSupervisor as on the date of regularization and that therefore, he should not have been regularized in the post of Peon but should have been regularized in the post of Supervisor. The Tribunal granted the benefit of regularization to the respondent, in the post of Supervisor upon completion of eight years of service with all consequential benefits. However, the actual monetary ::: Downloaded on - 29/09/2019 01:15:55 :::HCHP 4 benefits were restricted to a period of three years immediately preceding the date of filing of the Original .
Application. It is against this order that the Management has come up with the above writ petition.
6. The case of the respondent right from the beginning was that he was appointed as Driller ClassIV in the year 1992 at the Mining Project. According to the respondent, he was designated as BlastmancumSupervisor in the year 2004 and that he was performing the duties of Supervisor ever since then. However, he was granted regularization in the year 2014, in the post of Peon. The post of Peon is a ClassIV post while the post of Supervisor is a ClassIII post.
7. The respondent actually pitched his claim on the basis of the decisions of this Court in (i) Sita Ram versus State of Himachal Pradesh Electricity Board, CWP (T) No. 3214 of 2010, dated 23rd April, 2010; (ii) Ramesh Chander Thakur versus Municipal Corporation, CWP (T) No. 8810 of 2008, dated 9th August, 2011; (iii) Mathu Ram versus ::: Downloaded on - 29/09/2019 01:15:55 :::HCHP 5 Municipal Corporation, CWP No. 2415 of 2012, dated 31st July, 2014; and (iv) Municipal Corporation of Shimla versus .
Mathu Ram, LPA No. 44 of 2015, dated 13th October, 2015.
8. All the aforesaid decisions on the basis of which the respondent staked a claim for regularization in the category of Supervisor, were distinguished by the grounds:
r to Management of the petitionerCorporation on the following
(i) The decision in Sita Ram was distinguished on the ground that the petitioner in that case did not accept the offer for regularization in a ClassIV post, while the respondent herein accepted the offer.
(ii) The decision in Ramesh Chander Thakur was distinguished on the ground that the petitioner in that case was made to work as Supervisor, despite his appointment as majdoor, while the respondent herein was originally appointed as a Driller, which post was not available in the office.
::: Downloaded on - 29/09/2019 01:15:55 :::HCHP 6(iii) The decisions in Mathu Ram were distinguished on the ground that the .
petitioner in those cases was regularized as per the Policy framed by the State Government.
9. Apart from distinguishing the judgments relied upon by the respondent for seeking regularization in a r to higher post, the Managing Director of the petitioner Corporation also took note of the fact that the post of Driller is a feeder category to the post of Operator and that the post of Operator is a feeder category to the post of Supervisor. In other words, the regularization of the respondent in the post of Supervisor would have resulted in his taking two jumps.
Since a daily rated worker employed in the category of Driller, cannot be permitted to have two jumps and regularized in the category of Supervisor, the Management rejected the request of the respondent.
10. What the Tribunal did was, to be carried away by two letters, one dated 7th August, 2004 filed as Annexure R1/2 and another dated 11th February, 2014 filed as ::: Downloaded on - 29/09/2019 01:15:55 :::HCHP 7 Annexure R1/5. In these two letters, the respondent was either addressed as BlastmancumSupervisor or addressed .
as DrillercumSupervisor. Therefore, the mere designation indicated in two letters weighed so heavily with the Tribunal that the Tribunal thought fit to grant the benefit of regularization in a higher category of post.
11. When confronted with the letter of consent dated 6th June, 2014 (Annexure R1/6), wherein the respondent has consented to be regularized in the post of Peon, the Tribunal held that as a daily wager, he had no option but to accept whatever came his way.
12. Thus, the Tribunal allowed the Application and granted relief to the respondent primarily on the basis of two things, namely (i) the designation given to the respondent in two letters; and (ii) the logic that a worker had no alternative except to give a letter of consent to be regularized in a lower category of post when he was at the mercy of the Management.
::: Downloaded on - 29/09/2019 01:15:55 :::HCHP 813. The order of the Tribunal is assailed by the Management in this writ petition on the grounds, inter alia, .
(i) that the mere designation indicated in the two letters did not and was not intended to change the status of the respondent; (ii) that the respondent was continued to be paid a daily wage of ₹ 82/, even after the issue of those two letters; (iii) that the designation indicated in the two letters was only for the purpose of functional convenience of the Mining Project; (iv) that the post of Driller in which the respondent was originally appointed, is a feeder category to the post of Operator and the post of Operator is a feeder category to the post of Supervisor; (v) that after the closure of the Mining Project in December 2012, there is no post available in the same cadre strength; (vi) that the letter of consent given by the respondent alongwith all other employees, was in the context of the closure of Mining Project and the likelihood of all employees getting retrenched; (vii) that at the time of grant of regularization in the category of Peon, the respondent gave an undertaking;
::: Downloaded on - 29/09/2019 01:15:55 :::HCHP 9and (viii) that the R&P Rules prescribed the qualification of a pass in 10+2 with a one year Diploma in Computer Science .
for appointment to a ClassIII post and that therefore, the respondent cannot be regularized in the higher category of Supervisor.
14. The writ petition is opposed by the respondent on the grounds (i) that the Management cannot set up a plea of estoppel against the respondent on the basis of his letter of consent, as there can be no estoppel against law; (ii) that the Management cannot put the educational qualifications prescribed in the R&P Rules against the respondent, as he has been working in the post of Supervisor for a number of years and that as per the law laid down by the Supreme Court, the experience gained by an employee is itself a substitute for eligibility; (iii) that there are number of Class III posts which are now lying vacant and that therefore, the Tribunal was right in allowing the Original Application.
15. We have carefully considered the pleadings and the rival contentions.
::: Downloaded on - 29/09/2019 01:15:55 :::HCHP 1016. As we have pointed out earlier, the Tribunal granted relief to the respondent for regularization in a .
higher category of post namely Supervisor, only on two grounds, namely (i) that he had been designated as BlastmancumSupervisor in two letters; and (ii) that the letter of consent given by an employee in the given
17. to circumstances cannot be put against him.
But we do not think that both the above grounds are sustainable in law. In the letter dated 26 th July, 2004 sent by the General Manager seeking change of designation of the respondent from the post of Driller to the post of BlastmancumSupervisor, it was stated that the respondent was being paid only a sum of ₹ 82/ per day as a daily wage Driller and that the mere change of designation will not bring any financial implication to the Management. It was stated therein that the daily wage of a Supervisor was also ₹ 82/ per day.
18. It is on this persuasion, that a letter was issued on 7th August, 2004 allowing the redesignation of the ::: Downloaded on - 29/09/2019 01:15:55 :::HCHP 11 respondent. But it was made clear that the redesignation was "for functional convenience without any change in his .
wages".
19. There was no denial by the respondent either before the Tribunal or before this Court that under the R&P Rules, the post of Driller is a feeder category post to the post of Operator and that the post of Operator is a feeder category to the post of Supervisor. There is also no denial about the educational qualifications prescribed. Therefore, merely on the basis of the redesignation made, the respondent cannot claim regularization in a higher category of post, which if granted would enable him to jump by two levels. This is especially so when the educational qualifications prescribed for the post of Supervisor are also higher.
20. In fact, the letter of consent given by the respondent cannot also be easily washed away. By a letter dated 11th February, 2014, four employees including the respondent were directed to give their consent in writing, on ::: Downloaded on - 29/09/2019 01:15:55 :::HCHP 12 a proforma given therein. The respondent filled up the proforma and gave his consent on 6th June, 2014. If the .
respondent had refused to give consent, he would not have been regularized even in a ClassIV post.
21. In fact, the regularization of the respondent and three other employees who were working on daily wages, was taken up by the Board of Directors of the petitioner Corporation, on the basis of a Policy framed by the State Government on 8th July, 2013. While taking up the issue of regularization of daily wage and contract employees, the Board considered the number of vacancies available in the Corporation for the grant of regularization to the daily rated employees. It is seen from agenda item No. 192 for the Board meeting held on 30th June, 2014 that there was one vacancy in the post of Driver, four vacancies in the post of Peon and twenty vacancies in the post of Workers. The minutes of the meeting of the Board of Directors dated 30 th June, 2014 shows that the qualifications held by the daily rated employees were taken into account, along with the ::: Downloaded on - 29/09/2019 01:15:55 :::HCHP 13 vacancy position in three categories of posts, before their regularization was accepted. The respondent had the .
qualification of only a Matriculation. Therefore, the only post available was that of Peon and he was recommended for regularization in that post. Accordingly, an order of regularization was also issued on 24/3072014 to the respondent in the category of Peon. In the said order of regularization, it was made clear that if the terms and conditions stipulated therein were acceptable to the employees, they may report for duty to the Controlling Officer within fifteen days.
22. Accepting the terms and conditions contained in the order of regularization dated 24/3072014, the respondent submitted a joining report on 1 st August, 2014.
Thereafter, he approached the Tribunal in the year 2015 seeking the relief of regularization in a higher post.
23. The sequence of events narrated above goes to show that the respondent was not under any undue influence, which would entitle him to get over the consent ::: Downloaded on - 29/09/2019 01:15:55 :::HCHP 14 given by him in no uncertain terms. It must be remembered that regularization of services of a daily rated employee, is .
actually an exception to the R&P Rules. Therefore, such exceptions cannot get enlarged to a greater magnitude. The Tribunal ought to have appreciated the rule position and rejected the claim, without being carried away by the
24. to designation given in certain circumstances.
Therefore, we are of the considered view that the order of the Tribunal calls for interference. Accordingly, the writ petition is allowed, the impugned order of the Tribunal is set aside and the Original Application filed by the respondent before the Tribunal is dismissed. Pending applications, if any, are also disposed of accordingly. There will be no order as to costs.
(V. Ramasubramanian) Chief Justice (Anoop Chitkara) Judge July 25, 2019 ( rajni ) ::: Downloaded on - 29/09/2019 01:15:55 :::HCHP