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Himachal Pradesh High Court · body

2010 DIGILAW 815 (HP)

Nirmala Devi v. State of Himachal Pradesh

2010-05-13

RAJIV SHARMA

body2010
JUDGMENT Rajiv Sharma, Judge: Material facts necessary for adjudication of this petition are that the petitioner was engaged on daily wages basis as Beldar in the respondent-department with effect from 2.11.1987. 2. The case of the petitioner, in a nutshell, is that though she has been appointed as Beldar on daily wages basis, however, she has been performing the duties of Typist/Clerk. She has placed on record two certificates issued on 23.6.1989 and 28.2.1991 vide Annexures A-2 and A-3. She approached this Court by way of CWP No.1002 of 1992 claiming the wages of the post of Clerk. The writ petition was disposed of by this Court on 21st March, 1996. The operative portion of the judgment reads thus:- “For the reasons stated above, we hold that the writ petitioner is entitled to get daily wages of a Typist with effect from 28.2.1991 as per the rates notified by the State Government from time to time. The arrears shall be paid within a period of three months from today and the current shall be paid regularly so long the writ petitioner continues to work as a Typist.” 3. Petitioner was legitimately expecting that taking into consideration the duties discharged by her of the post of Clerk, she will be regularized against the post of Clerk. However, the petitioner was regularized as Peon vide order dated 3.1.1998. She made a representation to the Principal Chief Conservator of Forests for considering her claim for the post of Clerk. The case of the respondent-State, in a nutshell, is that since the petitioner has worked as a daily wage worker for 3 years, 3 months and 25 days and for 6 years, 10 months and 5 days as Typist, she could only be regularized as Peon on the basis of instructions issued on 11.12.1997, 12.12.1997 and 16.12.1997. 4. Mr. H.K. Paul, learned counsel for the petitioner has argued that the petitioner’s services were required to be regularized as Clerk and not as a Peon. Mr. Anil Jaswal, learned Deputy Advocate General has supported the decision of the State Government whereby the petitioner has been regularized as Peon. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. The petitioner was engaged as Beldar on 2.11.1987. Mr. Anil Jaswal, learned Deputy Advocate General has supported the decision of the State Government whereby the petitioner has been regularized as Peon. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. The petitioner was engaged as Beldar on 2.11.1987. A bare perusal of Annexure A-2, dated 23.6.1989 reveals that she has picked up sufficient knowledge of office working, accounts, Diary and Despatch, typing (both Hindi/English) etc. This certificate has been issued by the Technical Assistant, Project Formulation and Plantation Circle, Talland, Shimla. Similarly, the Conservator of Forests, Project Formulation and Plantation Circles, Shimla has issued office order dated 28.2.1991 stating therein that the petitioner working/attached with Statistical Cell was ordered to work as Hindi typist in addition to her own duties. It is evident from the combined reading of Annexures A-2 and A-3 that the petitioner was working as typist both Hindi and English with effect from her initial engagement, i.e. 2.11.1987 upto 28.2.1991. A Division Bench of this Court has up-held the contention of the petitioner and she has been ordered to be paid the daily wages of Typist with effect from 28.2.1991 vide judgment dated 21st March, 1996. The respondents have also admitted in their reply that the petitioner has worked as typist with effect from 28.2.1991 to 3.1.1998. It appears from the record that the Principal Conservator of Forests has sought information vide letter dated 27.11.1997 from the Chief Conservator (Projects) about the nature of duties the petitioner and one Smt. Vimla Devi were performing. The Chief Conservator (Projects) supplied the information as desired on 29.11.1997 vide Annexure P-8/T. It is mentioned in the proforma that the petitioner has the knowledge of English/Hindi typewriting. In these circumstances, the services of the petitioner were required to be regularized as Clerk/Typist and not as a Peon. Petitioner has also made specific averment in the petition that even though she has been regularized as Peon vide letter dated 3rd January, 1998, however, she is still discharging the duties of Typist/Clerk. This averment has not been rebutted by the respondents in their reply. The main ground for denying the regularization of the petitioner against the post of Clerk are instructions issued on 11.12.1997, 12.12.1997 and 16.12.1997. These instructions will not apply in the instant case. This averment has not been rebutted by the respondents in their reply. The main ground for denying the regularization of the petitioner against the post of Clerk are instructions issued on 11.12.1997, 12.12.1997 and 16.12.1997. These instructions will not apply in the instant case. These instructions shall only apply if a person works in two different capacities, i.e. as Beldar for 5/6 years and thereafter as Clerk or Typist. It is in these circumstances that a person has to be considered for a lower post for regularization since the period of 10 years for regularization is necessary for a higher post. In the case in hand, the petitioner as per Annexure A-2 has only worked as typist with effect from 2.11.1987 till 3.1.1998. In these circumstances, the case of the petitioner was required to be considered for regularization as Typist/Clerk and not as a Peon. The action of the respondents of regularizing the petitioner as a Peon and not as a Clerk is declared arbitrary, thus violative of Articles 14 and 16 of the Constitution of India. It is true that the petitioner has accepted the post of Peon. However, this will not come in the way of the petitioner to seek her regularization on a higher post of Clerk. 7. The petitioner has no bargaining power vis-a-vis the State. In a similar situation, their Lordships of Hon’ble Supreme Court in Sushil Kumar Yadunath Jha vesus Union of India and another (1986) 3 SCC 325 have held as under (para 5):- “……It is true that the terms on which he was appointed afresh expressly stated that he would not be entitled to continuity of service, but we must have regard to the circumstances in which he accepted those terms. He was in no position to bargain for a better deal and in the straightened circumstances in which he found himself he was compelled to accept whatever was dictated to him. ….” 8. No other point was urged. 10. Accordingly, in view of the observations made hereinabove, the writ petition is allowed. The respondents are directed to consider the case of the petitioner for regularization against the post of Clerk/Typist immediately after the completion of 10 years to be counted with effect from 2.11.1987 with all consequential benefits. Needful be done within a period of ten weeks from today. There shall, however, be no order as to costs.