Research › Search › Judgment

Himachal Pradesh High Court · body

2001 DIGILAW 129 (HP)

MEGH SINGH v. STATE OF HP

2001-07-02

V.K.BHATNAGAR

body2001
JUDGMENT Honble Mr. V.K. Bhatnagar Member (Adm.):-The facts in brief are that the applicant had passed matriculation examination from H.P. Board of School Education in the year 1980 as per Annexure-A/I. He was engaged as Beldar on September 1,1983 under Rohroo Sub Division with the respondent department till November 1984, in the capacity. Subsequently in the month of December 1984 the applicant was engaged as a Tracer / Draughtsman and a muster roll for this position was issued in favour of the applicant in December 1984. Since Then the applicant has been working as a Tracer / Draughtsman on daily wages against muster roll without break. The applicant has also claimed that he has completed 240 days of regular engagement in each calander year since the year 1985. Despite the fact that the applicant had completed more than 10 years of service continuously as Tracer / Draughtsman from the year 1985 he was not regularised on the ground that the applicant did not possess requisite qualifications. As per Recruitment & Promotion Rules notified on January 18,1961, copy placed as Annexure-RA/II, the qualification prescribed for Tracer are matriculation with Draughtsman course from a recognized Institution. The applicant has not passed the Draughtsman course as required. However, the applicant has passed 10+2. examination in the year 1995 as per Annexure-A/2. The case of the applicant is that having worked as a Tracer / Draughtsman for more than 10 years, he was gained long experience in that capacity and has served the department satisfactorily. That invew of the law laid down by the Honble Apex Court, the applicant is required to be regularised on the post on which he had been working i.e. Tracer/ Draughtsman, on completion of 10 years of service on daily wages. That the respondents are competent to relax the educational qualifications and the same should be relaxed in order to give regular appointment to the applicant. It has also been represented that the respondents as per Annexures-A/3 dated May 9, 1995, A/4 dated nil but the respondents have not taken any action. It has also been alleged that the applicant is being paid at the rate of Rs. 45.75 per day whereas the daily wage for Tracer / Draughtsman are Rs. 73.20 per day. 2. It has also been represented that the respondents as per Annexures-A/3 dated May 9, 1995, A/4 dated nil but the respondents have not taken any action. It has also been alleged that the applicant is being paid at the rate of Rs. 45.75 per day whereas the daily wage for Tracer / Draughtsman are Rs. 73.20 per day. 2. The present original application has been filed with the following prayer:- (i) That the respondents be directed to regularise the services of the applicant as Tracer/ Junior Draughtsman w.e.f. January 1, 1994 alongwith all consequential benefits; (ii) That the respondents may be directed to calculate and pay to the applicant the difference of wages payable to him at the rates fixed for Tracer / Draughtsman; (iii) The respondents be directed to relax the requirement of qualification in view of long experience of the applicant or the respondents be directed to regularise the applicant as Road Inspector or Clerk or against any Class-III post by counting his entire service towards that category in daily wage capacity. 3. The respondents have opposed the original application and have filed a reply affidavit. It has been admitted in the reply affidavit that the applicant was issued muster roll of Tracer / Draughtsman w.e.f. December 1984. However, it has been stated that he "continued to give assistance to the Tracer Draughtsman till day." The stand taken by the respondents is that a muster roll of Tracer / Draughtsman had been issued to the applicant but he was not working as such. Instead the applicant was only assisting the Tracer Draughtsman. The second stand taken by the respondents is that the necessary qualification for the post of Tracer is matriculate and passing of Draughtsman course from recognised Institution or as a plan printing Machine Operator with four years experience. The applicant does not fulfil these qualifications. Further, recruitment to all Class-III posts is made through H.P Public Service Commission and Tracer / Draughtsman is a post which falls in Class-Ill category. The applicant does not fulfil these qualifications. Further, recruitment to all Class-III posts is made through H.P Public Service Commission and Tracer / Draughtsman is a post which falls in Class-Ill category. Referring to the guidelines approved by the Honble Apex Court for regularisation of daily waged workers, the respondents have filed Annexure-R/IA which inter alia, states that daily waged workers whether skilled or unskilled, who have completed 10 years or more of continuous service with a minimum of 240 days in a calander year on December 31,1993 shall be appointed as Work-charged employee w.e.f. January 1,1994 and shall be put in the time scale as pay applicable to the corresponding lowest grade in the Government. Further such workers shall be regularised in a phased manner on the basis of seniority-cum-suitability including physical fitness. It has been pleaded that the applicant does not fulfil the qualifications prescribed for the post and as such he is not suitable and is not entitled to the benefit of the judgment of the Honble Supreme Court given in Mool Raj Upadhayas case. On these grounds it has been pleaded that the original application may be rejected. 4. The learned counsel for the parties have been heard and pleadings alongwith annexures have been insured. 5. The admitted case of the parties is that the applicant was engaged on daily wages and a muster roll of Tracer / Draughtsman had been issued to him in December 1984. However, while the applicant claims that he has been discharging the duties of the said post, the respondent allege that he was only assisting the Tracer Draughtsman. It would be necessary to refer to Annexure-A/5 at this stage. This annexure is a statement showing seniority of daily waged workers of Rohroo Sub Division who have completed 10 years of service with 240 days in a calender year on December 31,1995. This annexure further shows that the name of the applicant has been listed in the category of "tracer" and on December 31, 1995, the applicant had rendered 12 years of service. This annexure further shows that the name of the applicant has been listed in the category of "tracer" and on December 31, 1995, the applicant had rendered 12 years of service. As argued by the learned counsel for the applicant, in view of the documentary evidence of this statement showing the applicant in the category of Tracer and not as Helper to the Tracer Draughtsman and the admission in reply affidavit that a muster roll of Tracer/ Draughtsman had been issued in favour of the applicant w.e.f. December 1984, the statement that the applicant was only assisting the Tracer Draughtsman, cannot be relied upon. There is lot of force in the arguments of the learned counsel for the applicant, i.e. respondents have not produced any document or evidence in support of their statement that then applicant was not discharging the duties of Tracer but he was only assisting the Tracer Draughtsman. 6. During the course of arguments the learned counsel for the applicant also produced an experience certificate issued in favour of the applicant by the Head Draughtsman (B&R) Division H.P. Public Works Department Rohroo. A copy of this experience certificate has been retained on the file. This certificate reads as follows:- "Certified that Sh. Megh Singh S/O Lt. Sh. Jagat Ram has been working as a Tracer Draughts Man in B&R Division, HP, PWD., Rohru since last 16 years i.e. 12.1.1984 to date. Sd/- Head Draughts Man B&R Division, HP, PWD., Rohru. Dated: 13.3.2000." 7. The above discussion shows that despite the fact that the applicant was not having the qualification required, he had been engaged as a Tracer Draughtsman &nd was discharging the duties as such even on March 13, 2000 when this original application was being contested on the ground that the applicant was not having the required qualification. His case for regularisation is thus clearly covered by the judgment of the Honble Supreme Court in case of Mool Raj Upadhaya. However, as also realised by the applicant and the learned counsel for the applicant, he was not possessing the required qualification and therefore, it was prayed in the alternative, that the applicant be regularised as a Road Inspector or Clerk or against any Class-Ill post by counting his entire service towards that category. However, as also realised by the applicant and the learned counsel for the applicant, he was not possessing the required qualification and therefore, it was prayed in the alternative, that the applicant be regularised as a Road Inspector or Clerk or against any Class-Ill post by counting his entire service towards that category. The respondents in their reply affidavit have not contested this request although they have stated that the applicant can be considered for the post of work-charged Beldar as a unskilled labourer. Such Regularisation on the post of Beldar obviously, in the facts and circumstances of the case, would not be proper. 8. The learned counsel for the applicant has placed reliance on judgments of the Honble Apex Court in (1988) I SCC 122,1987 (Supp) SCC 658, (1998) 9 SCC 595 and (2001) 3 SCC 574 in support of his arguments. The latest case is Gujarat Agricultural University Versus Rathod Labhu Bechar and Others. The learned counsel for the applicant relying on this case has argued that the applicant ought to have been absorbed in the existing vacant post in accordance with Rules and if necessary by relaxing the qualification and creating necessary number of posts. However, the facts of the case cited are slightly different. In this case the applicants were working on daily wages were plumbers, Carpenters, Sweepers, Pump Operators, Helpers and Mason etc. These all jobs at best fall in the category of semi skilled workers. The post of Tracer against with the applicant has prayed for appointment as a Tracer Draughtsman, is not a semi skilled post. It is a skilled post and it would not be proper to relax the qualification. v further, as argued by the learned Addl. Advocate General, the Recruitment & Promotion Rules placed as Annexure-RA/II do not contain relaxation clause. Therefore, the request of the applicant for relaxation of qualification and therefore regularisation as a Tracer, cannot be ordered. However, the alternative prayer for engagement and regularisation against the post of Road Inspector or a Clerk or any other Class-Ill post for which the applicant is qualified, is allowed. 9. Another prayer of the applicant is to direct the respondents to pay the difference of wages for having worked as a Tracer/ Draughtsman. He was being given wages of a Mate whereas he was working as a Tracer / Draughtsman. 9. Another prayer of the applicant is to direct the respondents to pay the difference of wages for having worked as a Tracer/ Draughtsman. He was being given wages of a Mate whereas he was working as a Tracer / Draughtsman. In the above discussion it has also been held that the record supports the contention of the applicant that he has been working as a Tracer. That being so, he is entitled to the wages for the post of Tracer at the rate of Rs. 73.20 per day. This original application has been filed on October 1, 1996 on the principles of equal pay for equal work. The respondents have stated that muster roll for Tracer Draughtsman was issued w.e.f. December 1984 which period is beyond limitation. The arrears therefore, would be restricted only to three years prior to filing of this original application. The original application has been filed on October 1, 1996 and the arrears are payable from October 1, 1993. 10. In view of above discussion the original application is partly allowed. The respondents are directed to consider the applicant for the post of Road Inspector or Clerk or any other Class-III posts for which the applicant is qualified. The respondents are further directed to pay the difference in wages for the post of Tracer Draughtsman (for which he was worked) w.e.f. October 1, 1993. These orders would be implemented within a period of three months from today. No order as to costs.