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Himachal Pradesh High Court · body

2009 DIGILAW 264 (HP)

SAVITRI DEVI v. STATE OF H. P.

2009-04-01

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, J:-The present petition has been filed by Smt. Savitri Devi widow of Shri Shyam Singh Pal. Shri Shyam Singh Pal was employed on daily wages with the respondent-Department since 10.9.1972. He worked initially as Supervisor on daily wages basis with effect from 10.9.1972 and from 1985 he started discharging the duties of Pump Operator. He worked in this capacity upto 29.5.1991. He had rendered 18 years service as Supervisor, Fitter Attendant and Pump Operator. He received injury in the year 1984 in the left foot. His leg was amputated in the year 1985. He became physically handicapped. He made representation vide Annexure P-1 for regularizing his services. However, the services of the petitioner’s husband were not regularized by the respondent Department. Smt. Savitri Devi approached the learned H.P. Administrative Tribunal by way of Original Application No. 1086 of 1991. She inter-alia pleaded that taking into consideration 18 years’ service rendered by her husband, he should have been regularized. The stand of the respondent-State was that her husband though had been working for number of years, however, he had not undergone three months’ training as directed on 18.7.1984 and 1.7.1989. The Original Application filed by the present petitioner was allowed by the learned Tribunal on 15.9.2000. The respondent-State assailed the judgment dated 15.9.2000 by filing Civil Writ Petition No. 140 of 2001. The judgment dated 15.9.2000 was set aside by the Division Bench of this Court on 20.12.2001. The judgment dated 20.12.2001 reads thus: 2. In view of the order passed by us in C.W.P. No. 371 of 1999 titled H.P. Agro Industries Corporation Ltd. And others Vs. Raj Kumar and another, on 18th December, 2001, the order passed by the Administrative Tribunal deserves to be quashed and set aside. The Tribunal will now consider as to whether it has invoked the provisions of Administrative Tribunal Act, 1985 only since as held by us, the Administrative Tribunal had no jurisdiction to invoke the provisions of the Industrial Disputes Act, 1947 or any other law for the time being in force. The petition is accordingly allowed. The order passed by the Tribunal is set aside. 3. The parties through their counsel are directed to appear before the Tribunal on 7th January, 2002. 4. It is further certified that the Tribunal shall make all endeavour to dispose of the matter at an early date, preferably within six months. The petition is accordingly allowed. The order passed by the Tribunal is set aside. 3. The parties through their counsel are directed to appear before the Tribunal on 7th January, 2002. 4. It is further certified that the Tribunal shall make all endeavour to dispose of the matter at an early date, preferably within six months. Interim order granted o n 21st March, 2001 and confirmed o n 5th July, 2001 stands vacated.” 5. Mr. Lokinder Thakur has strenuously argued that the petitioner’s husband had put in 18 years of service and was liable to be regularized. He then contended that his client had not invoked provisions of the Industrial Disputes Act, 1947. According to him the Tribunal had the necessary jurisdiction to decide the question of regularization. 6. The learned Senior Additional Advocate General has vehemently argued that since the petitioner’s husband had not undergone the training for three months, his services could not be regularized. 7. I have heard the parties and have perused the record carefully. 8. A bare perusal of the pleadings contained in the Original Application reveals that the petitioner had not invoked the provisions of Industrial Disputes Act, 1947. Her simple case is that her husband had put in 18 years of service and was required to be regularized. It is evident from the mandays’ chart annexed with the reply that the petitioner’s husband had continuously worked for 314 days in 1976, 336 days in 1977 and thereafter, he has continuously worked from 1979 onwards till 1990 and had completed 240 days in each 12 calendar months. 9. The learned Senior Additional Advocate General has drawn the attention of the Court to communication dated 18.7.1976 and 29.6.1989 whereby the petitioner’s husband was deputed for training course at Industrial Training Institute. Shri Shyam Singh Pal had made representation on 2.8.1986. He has stated in his representation that he has received injuries in the year 1984 and his leg was amputated in 1985. He had prayed for exemption from training course in these circumstances. The representation made by the petitioner’s husband was not decided by the respondents. It is in these circumstances that the petitioner’s husband could not undergo training for three months. A bare perusal of the mandays’ chart, as noticed above, establishes that the petitioner’s husband had been working as Pump Operator continuously for more than 10 years. The representation made by the petitioner’s husband was not decided by the respondents. It is in these circumstances that the petitioner’s husband could not undergo training for three months. A bare perusal of the mandays’ chart, as noticed above, establishes that the petitioner’s husband had been working as Pump Operator continuously for more than 10 years. He had gained sufficient experience while working as Pump Operator. In these circumstances, it was not necessary for him to undergo three months’ training. His experience while working as Pump Operator could be taken into consideration as qualification without insisting for undergoing three months’ training. Their Lordships’ of the Hon’ble Supreme Court have held in B.N. Saxena Vs. New Delhi Municipal Committee and others, AIR 1990 Supreme Court 2021 that the person having no diploma qualification but having experience of service for six years as Senior and Junior Draftsman was entitled to be considered for promotion to the post of Head Draftsman. Their Lordships of the Hon’ble Supreme Court have held as under: “The question is whether the petitioner possesses the prescribed qualification. The revised rules provide alternate qualification for the post of Head Draftsman. The first part of the rule prescribes a diploma with a minimum of three years service as Senior Draftsman in the scale of Rs. 250-400. The second limb of the revised rule refers to the service rendered by the candidate. It provides for six years of service as Senior and Junior Draftsman. The first part of the rule is almost similar to the qualification prescribed prior to the amended rules. The old rule provided: “Matric with Diploma/ certificate in Draftsmanship from a recognised institution with three years experience in preparation of Engineering/Drawing in an Electric supply undertaking or an engineering manufacturing organisation.” 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. v. J.P. Chaurasia, 1989 (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. Experience gained for a considerable length of time is itself a qualification (See the observation in State of U.P. v. J.P. Chaurasia, 1989 (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.” In a recent judgment, the Hon’ble Apex Court in Chief Executive Officer, NSSO and others Vs. Biswa Bhusan Nandi, (2008) 10 Supreme Court Cases 161 has held as under: “It is not a case where work experience of technical or professional nature was essential. Even in a case where experience in non-technical professional work was experience (sic) although prescribed as essential yet in a case where the appointing authority is satisfied that the ex-serviceman is expected to perform his duties in the post by undergoing “onjob training” for a short duration in terms of sub rule (4) of Rule 6, as amended, such appointment could have been made.” 10. In the present case also for regularization, training of three months from I.T.I. (Industrial Training Institute)/Polytechnic Institute was not necessary qualification. He had been performing the duties of pump operator for more than a decade and had gained “on-job training” experience. 11. Accordingly, in view of the observations made hereinabove, the writ petition is allowed. The respondents are directed to regularize the services of the petitioner’s husband ex-post-facto from the date he had completed ten years’ service. The respondents are further directed to grant the retiral benefits to the petitioner within a period of eight weeks from today. No costs.