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[Cites 4, Cited by 47]

Himachal Pradesh High Court

Mohinder Singh vs State Of Himachal Pradesh & Others on 15 July, 2020

Author: Ajay Mohan Goel

Bench: Ajay Mohan Goel

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA




                                                                          .

                                             CWPOA No.659 of 2019
                                            Decided on: 15.07.2020





    Mohinder Singh                                                    ....Petitioner.
                   Versus
    State of Himachal Pradesh & others                                ...Respondents.




    Coram
    The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
    Whether approved for reporting?1 Yes

    For the petitioner : Mr. Varun Rana, Advocate.

    For the respondents : Mr. Sumesh Raj, Mr. Dinesh Thakur,
                          Mr. Sanjeev Sood, Additional Advocate
                          Generals, with Ms. Divya Sood,
                          Deputy Advocate General, for the



                          respondents­State.
    Ajay Mohan Goel, Judge (Oral)

By way of this petition, the petitioner has prayed for the following reliefs:­ "i) Call for the records regarding the service carrier of the petitioner.

ii) Quash/amend the regularization order dated 28/01/10 and direct the respondents to regularize the petitioner on the post of Fitter IInd Class from the due date of his regularization along with all consequential benefits such 1 Whether reporters of the local papers may be allowed to see the judgment?

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as pay scale for the post of Fitter IInd Class, arrears of .

pay along with interest @ of 18% p.a., seniority etc."

2. Brief facts necessary for the adjudication of the present petition are as under:­ Petitioner was engaged as a daily wage beldar by the respondent­department in the year 1995. He was engaged as such in IPHr Section Makhiri, District Mandi, H.P. He continued to serve as such till the year 2000, when after serving for a period of 247 days as a beldar, he was engaged as a Fitter Grade­II by the respondent­department for 90 days in the said calendar year. Thereafter, he continued to serve as Fitter Grade­II in the subsequent years by completing more than 240 days as such in each calendar year, till vide Office Order dated 28.01.2010 (Annexure P1), services of the petitioner were ordered to be regularized as a beldar in the said cadre in Class­IV category of the temporary establishment of the IPH Department.

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3. Petitioner, feeling aggrieved by his regularization .

as a beldar, filed this petition inter alia on the grounds that as he had completed more than eight years of service as a Fitter Grade­II, therefore, he had a right to be regularized as Fitter Grade­II and not as a beldar.

4. Learned counsel for the petitioner has argued that the act of the respondent of regularizing the petitioner against the post of beldar and not against the post of Fitter Grade­II, i.e. the actual work which was being performed by the petitioner at the time of his regularization and that too since the year 2000, is arbitrary and he has thus, prayed that order of regularization of the petitioner as a beldar be set aside and respondents be directed to regularize the services of the petitioner as a Fitter Grade­II from the due date, with all consequential benefits.

5. Respondents/State, while opposing the case of the petitioner, have taken the stand that services of the petitioner ::: Downloaded on - 18/07/2020 20:20:51 :::HCHP 4 were regularized as a beldar vide Annexure P­1, in terms of .

the policy of the Government, as the petitioner as on 31.03.2008, which was the cutoff date in terms of the policy of regularization of Government in vogue, had not completed eight years of service as a beldar. Respondents have relied upon Clause­VIII of the policy of regularization of the Government, which was in vogue at the relevant time, dated 09.09.2008, appended with the reply as Annexure R­2. Relying upon the said Clause, learned Additional Advocate General has argued that there was no infirmity in the act of the respondents of regularizing the services of the petitioner as a beldar, because in terms of the policy, the petitioner had a right to be regularized only against the post of a beldar as he had not completed eight years of service by put in more than 240 days in each calendar year against the higher post.

Learned Additional Advocate General has thus submitted that ::: Downloaded on - 18/07/2020 20:20:51 :::HCHP 5 the prayer made in the petition is not sustainable in law and .

the petition is, therefore, liable to be dismissed.

6. I have heard learned counsel for the parties and have also gone through the documents appended with the pleadings.

7. Alongwith reply filed by respondents No.1 to 4, the man­days chart of the petitioner has been appended, perusal of which demonstrates that petitioner was engaged as a beldar in the year 1995. He worked as such till 30.09.2000 and thereafter, he was engaged as a Fitter Grade­II. In this capacity, he put in 90 days in the year 2000 and thereafter more than 240 days in each calendar year till his services were ordered to be regularized as a beldar. In other words, as on the date when the order was passed by the respondents of regularizing the services of the petitioner as a beldar, the petitioner had to his credit service of more than 240 days as a ::: Downloaded on - 18/07/2020 20:20:51 :::HCHP 6 Fitter Grade­II consecutively from the year 2001 upto the year .

2009.

8. It is not in dispute that where a daily wager has worked on two different posts, then at the time of regularization, option has to be sought from the daily wager that he wants to be regularized against which particular post.

If at the relevant time, the incumbent has a right to be regularized in terms of the policy, against the post carrying the lower pay scale and yet the incumbent wants to be regularized against the post which carries the higher pay scale, then in the event of the incumbent opting for the post to the higher pay scale, the respondents­department has to defer the regularization of the incumbent till he becomes eligible for being regularized against the post carrying the higher pay scale as per the policy of regularization of the State, which may be in vogue at the relevant time when he gains eligibility ::: Downloaded on - 18/07/2020 20:20:51 :::HCHP 7 for being regularized against the post carrying the higher pay .

scale.

9. In the preliminary submissions, which have been made in the reply filed to the writ petition by respondents No.1 to 4, the respondents admit this legal position as it stands declared by this Court in CWP No.778 of 2006, titled as State Versus Gouri Dutt. Yet in the present case, respondents did not sought any option from the petitioner, as to whether he intended to be regularized as a beldar or Fitter Grade­II. This Court in case titled as Diwan Chand Versus The State of H.P. & ors., latest HLJ 2012 (HP) 905, while dealing with similar situation, has held as under:­ " 6. A Division Bench of this Court in Gauri Dutt & others v. State of H.P. latest HLJ(HP) 366, while discussing the law laid down by the Hon'ble apex Court in Mool Raj Upadhyaya's case cited supra has observed as under:­ "the Scheme does not deal with future contingencies. We cannot read into the judgment of the Supreme Court or in the scheme as approved by the Supreme Court anything more than what is state in it. As per our reading of the scheme the same only applies to employees who had either completed 10 years of continuous service ::: Downloaded on - 18/07/2020 20:20:51 :::HCHP 8 as on 31.12.1993 or the employees who had rendered one .

or more years' of service, but had not completed 10 years of service as on 31.12.1993. This scheme does not apply to those employees who had not completed even one year of service as on 31.12.1993 or who were employed thereafter. The first question is answered accordingly. Under para 4 of the Scheme the State was under an obligation to regularize all daily waged/muster roll workers whether they had joined prior to 31.12.1993 or thereafter. The State has framed a scheme in this behalf on 6th May, 2000. In our opinion those employees who are not governed by the direction given in Mool Raj Upadhaya's case as set out by use above, shall be governed by the scheme of 2000. The second question is answered accordingly".

7. The above legal position clearly indicates that the cases of those daily waged/muster roll workers, engaged as such after 31.12.1993, are to be considered for regularization in a phased manner on the basis of seniority­cum­suitability, including physical fitness, obviously on completion of 8 years of service.

8. Now, coming to the question of regularization of the petitioner and against what post? He was to complete 8 years continuous service, with minimum 240 days in each calendar year as cleaner, in February, 2002.

However, well before that he was engaged as driver on daily wage basis on and w.e.f. 17.12.12.2001. the maximum period up to February, 2002 pertains to his engagement on daily waged basis as Cleaner and it is only for a period over 2 months that he worked as driver. Any how, the present was a case where the Driver carrying lower and higher pay scale. Such a situation came to be considered by a Division Bench of this court in Gauri Dutt's case, cited supra, wherein after taking into consideration all pros and cons, it is held as under:

" The last question raises some interesting points. There have been instances where some employee has worked as beldar for some time and thereafter he has been engaged in a higher scale as mate or supervisor etc. The Tribunal in most of ::: Downloaded on - 18/07/2020 20:20:51 :::HCHP 9 these cases has directed that the employee should .
be granted work charge status in the higher post on completion of 10 years of service after combining the service rendered in the lower scale and the higher scale. The State is aggrieved by these directions. According to the learned Advocate General the State has offered work charge status to these employees on completion of 10 years of combined service in the lower of the two scales and the State cannot be directed to grant work charge status in the higher scale. On the other hand, it is contended on behalf of the employees that since the employees are already working in the higher scale, it would not be fair and equitable to grant them work charge status in the lower scale. We have considered the arguments from all angles. We are of the view that the employee cannot be given the benefit of combining service rendered in both the scales and be granted work charge status in the higher scale. We do, however, feel that at times it may be inequitable to grant the employee work charge status in the lower scale without giving him an option in this regard. We are giving two examples to illustrate two extreme positions. In example (i) we will deal an employee (A) who joined service on 1.1.1990. He works 7 in the lower scale of beldar from 1.1.1991 to 31.12.1999. He is thereafter posted as Supervisor in the higher scale. Should he be granted work charge status as beldar or as Supervisor w.e.f. 1.1.2001? The other example is converse. Supposing employee (B) has worked as beldar w.e.f. 1.1.1991 to 31.12.1991 and from 1.1.1992 he has worked as Supervisor. From which date should we grant him work charge status and in what scale? It is obvious that in the first case the employee would not mind being granted work charge status even in the lower scale after 10 years w.e.f. 1.1.2000 since grant of work charge status would mean that he would get regular scale of pay. But should the employee be granted work charge status in the higher scale? We cannot agree with this preposition. After considering all the pros and cons and keeping in view the fact that various anomalous situations may arise we are of the ::: Downloaded on - 18/07/2020 20:20:51 :::HCHP 10 considered view that when an employee completes .
10 years of continuous service combined in two scales, an option should be given to the employee to either accept work charge status in the lower scale or he may continue to work on daily rated basis in the higher scale and claim work charge status in the higher scale on completion of 10 years of continuous service in the said scale. In the examples given above, employee (A) may prefer to accept work charge status w.e.f. 1.1.2001 even in the lower scale of beldar because otherwise he may have to wait for 9 years before he is granted work charge status. On the other hand, employee (B) in the second example may prefer to delay the grant of work charge status by one year so that he can get work charge 8 status in the higher scale. We feel that in each case the choice should be left to the employee. However, if the employee on being given a chance to exercise his option does not convey his option within 30 days, he shall be granted work charge status in the lower scale by combining the service rendered in both the scales. This answers the fourth question."

9.The case of the petitioner was thus required to be considered for regularization in accordance with the above legal position and also the policy(ies) framed by the Government from time to time. In the event of the option given to him, he would have opted either to be regularized as cleaner by combining his service rendered in lower and higher pay scales or continued as driver on daily waged basis till he completed 8 years of service as such i.e. December, 2009. He has, however, not been given any such option and to the contrary, has been regularized against the post of Cleaner, carrying lesser pay scale, which in my considered opinion, has resulted in miscarriage of justice to the petitioner".

10. At this stage, this Court would like to deal with another objection, which has been taken in the reply filed by ::: Downloaded on - 18/07/2020 20:20:51 :::HCHP 11 the respondents with regard to the regularization of the .

petitioner. As per the respondents, the petitioner was otherwise not eligible to be regularized as Fitter Grade­II, as he was not possessing the requisite qualification necessary as per the Recruitment and Promotion Rules, to be appointed against the said post.

11. During the course of arguments, this fact could not be disputed by the State that in similar circumstances, in numerous cases, the competent authority had granted relaxation in the matter of minimum qualification for the purposes of regularization of daily wager.

12. Coming to the facts of the present case, when the respondents­department was itself extracting the work of Fitter Grade­II from the petitioner since the year 2000, it cannot be permitted to take the plea of the petitioner not possessing requisite qualification for being regularized as Fitter Grade­II.

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13. It is relevant to refer to a judgment of this Court .

rendered in CWP(T) No.3214 of 2008, titled as Sita Ram Versus Himachal Pradesh State Electricity Board and another (Latest HLJ 2010 (HP) 807), wherein while dealing with a similar situation, it has been held as under:­ "5. A bare perusal of Recruitment and Promotion Rules placed on record by the petitioner and the respondent­ Board makes it abundantly clear that the post in question is to be filled up 25% by direct recruitment and 75% by promotion and in case of direct recruitment essential qualification is matriculation with ITI certificate in fitter trade. However, as far As 75% quota, which is required to be filled up by way of promotion, is concerned, a person with ITI certificate having two years service, matriculation having four years service and others having six years regular service are entitled for promotion. The petitioner admittedly had been working as Fitter with effect from 1.12.1985 and has worked for more than six years. He was required to be considered for regularization as Fitter and not Helper. There is nothing wrong with the action of the petitioner whereby he has not accepted the post of Helper. He had been making representations, as per the pleadings noticed above, for the redressal of his grievance, including relaxation in educational qualifications. The respondent­Board is a State within the meaning of Article 12 of the Constitution of India. Whether the petitioner possessed essential qualification, as per the Recruitment and Promotion rules, or not was to be looked into by the employer when the petitioner was engaged as Fitter with effect from 1.12.1985 and not at the time when his turn came to be considered for regularization, as per the norms prescribed by the respondent­Board. The ::: Downloaded on - 18/07/2020 20:20:51 :::HCHP 13 experience gained by the petitioner itself is qualification.

.

When a person is permitted to work for more than a decade, it presupposes that he knows his job.

6. Their Lordship of the Hon'ble Supreme Court in Bhagwati Prasad versus Delhi State Mineral Development Corporation, (1990) 1 SCC 361 have held that practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. Their Lordship have further held that the initial minimum education 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 and once the appointments are made as daily rated workers and they are 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 qualification. Their Lordships have held as under:

"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 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 the 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 initial­entry into the service. Once the appointments were made as 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 periods ::: Downloaded on - 18/07/2020 20:20:51 :::HCHP 14 created by the respondent. In the circumstances, would .
be sufficient for confirmation. If there is a gap of more than thre months between the period of termination and re­appointment that period may be excluded in the computation of the three years period. Since the petitioners before us satisfy the recruitment of three years, service as calculated above, we direct that 40 of the senior­most 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 Rupees 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."

7. The same principle is reiterated by their Lordships of the Hon'ble Supreme Court in B.N. Sexana versus New Delhi Municipal Committee and others, (1990) 4 SCC

205. Their Lordships have held that a Senior Draftsman not possessing any diploma but having six years experience, qualified under the second alternative of the revised rules. Their Lordships have further held that the experience gained is itself a qualification. Their Lordships have held 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 H.P. v. J.P. Chaurasia, 1989 ::: Downloaded on - 18/07/2020 20:20:51 :::HCHP 15 (1) SCC 121: (AIR 1989 SC 19). 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 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."

8. In Gujarat Agriculture University verses Rathod Labhu Bechar and others, (2001) 3 SCC 574, their Lordships of the Hon'ble Supreme Court have held that the daily rated workers who had been working on the posts for a long number of years, without complaint is a ground by itself for the relaxation of the eligibility condition. Their Lordships have held as under:

"28. We feel that daily rate workers who havee 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) need modification to this effect. 30. Thus in view of their long experience on the fact of this case and for the concerned posts 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".

9. The petitioner was again offered the post of Helper vide Annexure M­1 dated 5.3.2003. He has accepted the same. Teh Court is of the considered view that the action of the petitioner accepting this post will not come in his way seeking regularization from anterior date in accordance with law.

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Their Lordships of the Hon'ble Supreme Court in .

State of Himachal Pradesh and others versus Gehar Singh, (2007) 12 SCC 43 have held as under:

"19. Notwithstanding the fact that the services of the respondents have been regularised with effect from 1st January, 2003 and they have joined their posts from that date without protest, they cannot, in our view, be denied the benefits as directed to be given to them by the Tribunal and affirmed by the High Court which had already accrued to them under the Scheme which was approved in Mool Raj Upadhyaya's case".

10. The petitioner has not been dealt with in a just and fair manner by the respondent­Board. He has been made to work as a Electrical Fitter with effect from 1.12.1985. There is no break in his service. His case should have been considered for regularisation as a Electrical Fitter instead of Helper. Petitioner has rightly refused to accept the post of Helper in the year 1993. Respondent­Board has waited for another ten years even to regularize the petitioner against the post of Helper.

11. In view of the observations made hereinabove, it is evident that even the rigours of qualification stood diluted as far as the post of Electrical Fitter to be filled up by way of promotion, is concerned form the category of Helpers. A person having six years experience in the lower post, i.e. Helper is eligible to be considered for promotion to the post of Electrical Fitter without possessing ITI qualification. The petitioner had been working as Electrical Fitter with effect from 1.12.1985 and the experience gained by him is to be treated as qualification as per the law laid down by their Lordships of the Hon'ble Supreme Court, cited hereinabove. The action of the respondent­Board of initially offering the post of Helper to the petitioner on 23.2.1993 and thereafter with effect from 5.3.2003 is declared null and void.

12. Accordingly, the petition is allowed. The respondents are directed to consider the case of the petitioner for regularization as Electrical Fitter immediately after the completion of five years by taking into consideration his ::: Downloaded on - 18/07/2020 20:20:51 :::HCHP 17 initial date of engagement i.e. 1.12.1985 with all the .

consequential benefits. Needful be done within a period of ten weeks from today. There shall, however, be no order as to costs".

14. Accordingly, in view of the discussion held hereinabove, as well as the law cited, this writ petition is allowed. Office Order dated 28.01.2010 (Annexure P­1), vide which the services of the petitioner were ordered to be regularized as a beldar, is quashed and set aside and the respondents are directed to regularize the services of the petitioner as Fitter Grade­II post completion of eight years of service as such, in terms of the policy of regularization of the State in vogue at the relevant time with all consequential benefits. Petition stands disposed of in above terms. No order as to costs. Pending miscellaneous applications, if any, stand disposed of.

(Ajay Mohan Goel) Judge July 15, 2020 (Rishi) ::: Downloaded on - 18/07/2020 20:20:51 :::HCHP