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2010 DIGILAW 505 (HP)

HIMENDER KUMAR v. STATE OF HIMACHAL PRADESH

2010-03-16

RAJIV SHARMA

body2010
JUDGMENT Rajiv Sharma, J.-Material facts necessary for adjudication of this petition are that the petitioner was engaged as daily waged Draughtsman in the year 1989. The case of the petitioner, in a nutshell, is that though his designation was changed as mason or Ferro Printer, but he had been working as Junior Draughtsman. He has however been regularised as Beldar on 11.7.2005. 2. Ms. Ranjana Parmar, learned counsel for the petitioner has vehemently argued that her client had been working as Junior Draughtsman from 1.12.1989 and his services should have been regularised as Junior Draughtsman instead of Beldar. She has relied upon the experience certificate issued by Executive Engineer and annexures whereby his case was favourably recommended for the post of Junior Draughtsman. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the decision of the State Government whereby the petitioner was regularised as Beldar. 3. I have heard the learned counsel for the parties and gone through the pleadings carefully. 4. It is evident from Annexure A-1, dated 20th May, 1997 that the petitioner had been working as Junior Draughtsman in H.P., P.W.D. Karsog Division (B&R) with effect from 1.12.1989 to 19.5.1997. He was informed by the Superintending Engineer that his case for regularization to the post of Ferro Printer has been taken up with the Chief Engineer, H.P., PWD, Shimla and as soon as the sanction for the said post is received, he will be posted against the said post. Petitioner had informed the Superintending Engineer, Karsog Division on 9.10.2003 that he had been working as Junior Draughtsman even though he had been issued the muster rolls of mason or Ferro Printer with effect from December, 1989. The Chief Engineer had sought certain clarifications from the Superintending Engineer on 2.12.2003 with regard to revised pay-scales of Junior Draughtsman and Ferro Printer. Petitioner also brought to the notice of Superintending Engineer vide letter dated 11.10.2004 that since the post of Ferro Printer has been abolished, his case be considered for regularization to the post of Works Inspector. The Executive Engineer has informed the Superintending Engineer on 14.10.2004 that his case for regularization as Junior Draughtsman was sent to the Government, but received back for re-examination as per Government policy. The Executive Engineer has informed the Superintending Engineer on 14.10.2004 that his case for regularization as Junior Draughtsman was sent to the Government, but received back for re-examination as per Government policy. A bare perusal of this letter reveals that the case of the petitioner was recommended for regularization as Junior Draughtsman, but the same was not considered favourably by the State Government. The fact of the matter is that the petitioner was granted the work charge status on 11.7.2005 as Beldar instead of Junior Draughtsman. 5. Mr. R.K. Sharma, learned Senior Additional Advocate General has vehemently argued that since the petitioner has accepted the post of Beldar, he is estopped from seeking regularization as Junior Draughtsman. There is no merit in this plea. There cannot be any estoppal against the Fundamental Rights (See Nar Singh Pal versus Union of India and others (2000) 3 SCC 588). Petitioner has a right to be considered for regularization in accordance with law on the basis of total length of service. 6. Petitioner has placed sufficient material on record to substantiate that he has been working as Junior Draughtsman with effect from 1.12.1989 till the conferment of work charge status as Beldar. The Executive Engineer has certified that the petitioner had worked as Junior Draughtsman in Karsog Division with effect fro 1.12.1989 to 19.5.1997. He has been assured by the Superintending Engineer that his case will be considered for the post of Ferro Printer as per Annexure A-3. Petitioner has prayed for regularizing him as Junior Draughtsman as per Annexure A-4. Annexure A-7, dated 14.10.2004 reveals that petitioner’s case for regularization as Junior Draughtsman was sent to the Government. It pre-supposes that the petitioner had been working as Junior Draughtsman. Petitioner has amply proved on record that he had been working as Junior Draughtsman, though he was issued the muster roll of mason or Ferro Printer. The action of the respondents to give him the work charge status of Beldar on 11.7.2005 is declared illegal and arbitrary. Petitioner should have been regularised as Junior Draughtsman since he had completed more than ten years with effect from December, 1989 as Junior Draughtsman. It is not denied by the respondents that he had completed 240 days in each calendar year. 7. Accordingly, in view of the observations made hereinabove, the petition is allowed. Petitioner should have been regularised as Junior Draughtsman since he had completed more than ten years with effect from December, 1989 as Junior Draughtsman. It is not denied by the respondents that he had completed 240 days in each calendar year. 7. Accordingly, in view of the observations made hereinabove, the petition is allowed. Respondents are directed to consider the case of the petitioner for regularization to the post of Junior Draughtsman within a period of ten weeks from today with all consequential benefits. There shall, however, be no order as to costs.