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Himachal Pradesh High Court · body

2009 DIGILAW 537 (HP)

NAROTAM SINGH v. STATE OF H. P.

2009-06-03

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, J.-The petitioner served Indian Army with effect from 23.12.1962 to 1.7.1979. He was appointed as Helper on daily waged basis in the respondent-department on 21.11.1981. He was shown at serial No. 3 of the seniority list of Helpers of the respondent-department. His date of appointment in the seniority list is shown as 21.11.1981. He was regularized with effect from 20.4.1998 as Chowkidar. 2. Mr. Shivang Panta has vehemently argued that his client was required to be regularized as Helper or equal status post either with effect from 1.1.1994 or 1.4.1995. He then contended that the qualification of the petitioner was to be seen at the time he was appointed on regular basis and not at the time when he was to be regularized in the year 1995. He lastly contended that the respondent-State has relaxed the educational qualification vide Annexure R-2 dated 16.12.1997 and the case of the petitioner was required to be considered by applying this notification with effect from 11.7.1995. 3. The learned Senior Additional Advocate General has supported the action of the respondents whereby the petitioner has been regularized with effect from 20.4.1998. 4. I have heard the parties and gone through the record carefully. 5. The petitioner has been appointed as Helper in the respondent-department on 21.11.1981. He had completed ten years uninterrupted service as on 1.4.1995. His case was considered by the screening committee which met on 31.8.1995. His case was not recommended for regularization due to lack of requisite educational qualification as contained in Annexure R-1 dated 11.7.1995. The State Government in its own wisdom had relaxed the educational qualification as per Annexure R-2 dated 16.12.1997. His case was required to be considered in view of relaxed norms with effect from the date he had completed ten years as on 1.4.1995. However, the selection committee recommended the case of the petitioner for regularization which met on 4.4.1998 after taking into consideration Annexure R-2 dated 16.12.1997 with effect from 20.4.1998. 6. It is not in dispute that the petitioner had completed ten years of continuous uninterrupted service as on 1.4.1995. The minimum essential educational qualification was required to be seen when the petitioner was appointed initially on daily waged basis and not at the time when he was to be regularized. 6. It is not in dispute that the petitioner had completed ten years of continuous uninterrupted service as on 1.4.1995. The minimum essential educational qualification was required to be seen when the petitioner was appointed initially on daily waged basis and not at the time when he was to be regularized. This question has been gone into by their Lordships of the Hon’ble Supreme Court in Bhagwati Prasad versus Delhi State Mineral Development Corporation (1990) 1 Supreme Court Cases 361. Their Lordships of the Hon’ble Supreme court have held as under: “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 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.” 7. The matter is required to be seen from another angle. The petitioner though has been considered on 31.8.1995 but was not recommended for regularization. The reason assigned in the reply is that he was not in possession of minimum essential educational qualification of Middle Standard. The State Government has decided to relax the qualification as per Annexure R-2 dated 16.12.1997. This decision has been taken to mitigate the hardship of those daily waged persons who had worked for more than a decade but were not in possession of minimum essential educational qualification prescribed as per instructions dated 11.7.1995. The State Government has decided to relax the qualification as per Annexure R-2 dated 16.12.1997. This decision has been taken to mitigate the hardship of those daily waged persons who had worked for more than a decade but were not in possession of minimum essential educational qualification prescribed as per instructions dated 11.7.1995. The decision dated 16.12.1997 was to be applied with effect from 11.7.1995 and the case of the petitioner was to be considered in light of relaxed norms. The committee was required to recommend the case of the petitioner after invoking the relaxation clause from the date the petitioner had completed ten years. The petitioner had completed ten years as on 1.4.1995. In these circumstances, he was to be regularized with effect from 1.4.1995. 8. Consequently, in view of the observations made above, it is held that the petitioner’s qualification was to be seen at the stage when he was appointed as Helper on 21.11.1981 and not at the stage when his case was considered for regularization. The instructions dated 16.12.1997 shall relate back to 11.7.1995. The cases of the petitioner and similarly situate persons were to be considered immediately after completion of ten years by invoking relaxation clause from due date. By doing so, the uniformity shall be maintained. 9. Accordingly, the writ petition is allowed. The respondents are directed to consider the case of the petitioner for regularization from the date he had completed ten years i.e. 1.4.1995 instead of 20.4.1998 with all consequential benefits. No costs.