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Himachal Pradesh High Court · body

2012 DIGILAW 565 (HP)

Dropta Devi v. State of Himachal Pradesh

2012-09-17

DHARAM CHAND CHAUDHARY

body2012
Judgment Dharam Chand Chaudhary, J 1. By means of the present petition, following reliefs have been claimed:-“(i) Respondents may kindly be directed to pay the applicant the wages of Typist Hindi and English. (ii)Respondents may kindly be directed to pay the applicant the wages of typist Hindi and English w.e.f. 26.4.1992 onwards and clear the arrears within a fixed time schedule. (iii)Respondents may kindly be directed to regularize the services of the applicant as a typist as per the policy of the State Govt.” 2. In this petition, which initially was filed before the erstwhile Administrative Tribunal and on its abolition transferred to this Court, it has been claimed that the petitioner no doubt was engaged as Beldar on daily wage basis, however, assigned duties of typist in the office of the 2nd respondent ever since her engagement. She was not paid the wages of a typist on the analogy of equal pay for equal work whereas persons similarly situate and junior to her are being paid the wages of a typist. In support of her claim she has placed reliance on the certificates Annexures A-2 and A-3 allegedly issued by her superiors qua the nature of work she has been performing. She, however, has been denied the benefit of equal pay for equal work despite having made the representations Annexure A-4 (Colly.). 3. Respondents, when put to notice, have contested the petition. While denying the issuance of certificates Annexures A-2 and A-3, it has been submitted that the same seems to have been forged and fabricated by the petitioner because as per Annexures R-1 and R-2, the then Executive Engineer, HPPWD, Division Theog and Assistant Engineer, HPPWD Theog Sub Division, the same does not bear their signatures. It is denied that the petitioner is working as Typist. According to the respondent the post of Clerk-cum-Typist is Class-III post and the H.P. Subordinate Services Selection Board, is the recognized agency to make recruitment against the post of Clerk/Typist, as per R & P Rules. It is, however, submitted that the petitioner being a qualified lady was offered to work in the office on her own request as Class-IV instead of deploying her to do manual work with axes and spade. It is, however, submitted that the petitioner being a qualified lady was offered to work in the office on her own request as Class-IV instead of deploying her to do manual work with axes and spade. While raising the plea of delay and latches, it has been submitted that the petitioner ever since her engagement as Beldar on daily wage basis has accepted the wages of a Beldar without any protest and as such cannot claim the wages of a typist at this belated stage. 4. In rejoinder, the petitioner while denying the contentions to the contrary in the reply being wrong has annexed the documents Annexure A-5 (Colly.) typed out by the petitioner during the period 1993 to 2002 and the requisitions for supply of typing papers, carbon, typing ribbon and fluid etc., she given from time to time to the office Superintendent/ Supply Assistant in the office of the 1st respondent during this period. 5. In sur-rejoinder, the stand taken by the respondents reads as follows: “6. That the contents of para 3 of rejoinder are not admitted and objection raised in reply are also reaffirmed. As also stated in para supra that applicant was initially engaged as daily wages Beldar in 5/1992 in Theog Sub-Division under Theog Division. She is continuously performing her duties in the cadre of Beldar till date. As also stated above. Rest of the contents of para is denied as no such work of clerical nature was entrusted to her by the replying respondents Deptt in any manner or at any stage. She in order to improve her knowledge and experience may have performed voluntary without the knowledge of Respondents any typing work. It does not mean that she has acquired merit for performing the work of higher responsibility or was engaged as typist. There is a prescribed procedure for recruitment of clerks/typist in the Respondent Deptt. through Subordinate Services Selection Commission at Hamirpur being a class-III post as per R&P Rules. In this regard it is further stated that services of Applicant was regularized as Beldar as w.e.f. 13.9.2006 on the recommendation of screening committee and Applicant submitted her joining without any protest which is also annexed for the kind perusal of this Hon’ble Court. through Subordinate Services Selection Commission at Hamirpur being a class-III post as per R&P Rules. In this regard it is further stated that services of Applicant was regularized as Beldar as w.e.f. 13.9.2006 on the recommendation of screening committee and Applicant submitted her joining without any protest which is also annexed for the kind perusal of this Hon’ble Court. Thereafter the Applicant was considered in the light of judgment of Hon’ble Apex Court w.e.f. 1.1.2002 retrospectively which she was paid arrear to the tune of Rs.1,88,951=00 Thereafter the present application has no cause of action and the same deserves dismissal.” 6. On going through the record of this case and also the submissions made on both sides, the only point in issue is as to whether the petitioner is entitled to the payment of wages at such rates applicable to the clerk-cum-typist from time to time ever since her engagement on daily wage basis in the office of the 2nd respondent, no doubt as Beldar and also entitled to regularization as Clerk/Typist as per the Policy of the State Government. 7. As noticed supra, the petitioner admittedly was engaged as Beldar on daily wage basis w.e.f. 1.5.1992 as is apparent from perusal of the Man-days Chart Annexure R-3 and the Muster Rolls Annexures R-4 and R-5. Though the stand of the respondent is that the petitioner being a lady and qualified, on her own request was allowed to work as Class-IV employee in the office of the 2nd respondent instead of deploying her on the field job and making her to work with axes and spade there, however, the documents Annexure A-5 (Colly.) to the rejoinder leave no manner of doubt that she had been working as Clerk/Typist in the office of the 2nd respondent ever since her engagement on daily wage basis as Beldar. The stand of the respondents that the petitioner may have performed the typing work to improve her knowledge and experience voluntarily and without their knowledge taken in sur-rejoinder is highly imaginary and farfetched for the reasons that she has not only produced several documents typed out during the discharge of her duties in the office of 2nd respondent, but also brought on record several requisitions made by her in writing to the office Superintendent/Supply Assistant to provide her typing paper and other material required by a typist. Not only this, but such requisitions contain the endorsement ‘may issue’ under the signature of the Superintendent/Supply Assistant. In case she was not discharging the duties of a Clerk-cum-typist, where was the occasion to the respondent to have issued such material to her on her requisition? Such stand in my considered opinion has been taken merely to defeat the just and legitimate claim of the petitioner. Although an effort has been made to discard the evidentiary value of the experience certificates Annexures A-2 and A-3, while submitting that the same do not bear the signatures of the officers purportedly to have signed the same and that it is the petitioner, who seems to have forged and fabricated these documents, yet unsuccessfully, because the case to this effect seems to have been set out in reply to the writ petition to deprive the petitioner from claiming the just and reasonable relief in this writ petition. It is, however, established from the record that right from her initial engagement till the year 2002, the petitioner received the wages of daily waged Beldar without any protest because the representations Annexure A-4 (Colly.), she made are of the year 2002 as one of the representations at page 9 is dated 27.9.2002 and one at Page 14 seems to have been made in May 2002. She is thus not justified in claiming the wages of typist right from her initial engagement as Beldar at a belated stage. Otherwise also, this Court is not persuaded from pleadings on record and also the arguments addressed by learned counsel representing her to take any other and further view of this aspect of the matter except the one that the petitioner is not justified to claim the wages of a typist right from her initial engagement as Beldar hereinabove. 8. The facts, however, remain that the petitioner throughout remained working as Clerk/typist in the office of the respondents. Not only this, but as per the submissions made by learned counsel representing her at the Bar that even at present also she is discharging the duties of a clerk in the office of the 2nd respondent. In such a situation, it would not be improper to conclude that there exists post(s) of Clerk-cum-Typist in the office of the 2nd respondent. In such a situation, it would not be improper to conclude that there exists post(s) of Clerk-cum-Typist in the office of the 2nd respondent. No doubt the recognized agency to make recruitment is the H.P. Subordinate Services Selection Board, however, at present and not in the year 1992, when the petitioner was engaged and deployed in the office of the 2nd respondent. Not only this, but as per the Rules named ‘H.P. Class-III Services (Clerks/Steno-typists/Statistical Assistant) Recruitment and Promotion Rules (1st amendment), 1991’, applicable at the time of the initial engagement of the petitioner, essential qualification for the post in question was matriculation with nd Division or 10+2 examination or its equivalent from a recognized Board/University with capacity to type at a minimum speed of 30 words per minutes in English Typewriting and 25 words per minutes in Hindi Typewriting. The matriculation certificate Annexure A-1 reveals that the petitioner is matric pass in 2nd Division. True it is that she being engaged on daily wage basis as Beldar was not subjected to any type test, however, the fact remains that she has been discharging the duties of a Clerk-cum-typist throughout. The requirement of Rules qua selection to the post in question through a recognized agency in a case of this nature where the petitioner is working in the office of the 2nd respondent for the last 20 years can be dispensed with. Otherwise also, it has been held by the Hon’ble Supreme Court in Bhagwati Prasad versus Delhi State Mineral Development Corporation (1990) 1 SCC 361 that 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 education qualifications. Relevant portion of this judgment is reproduced as under:- “6. …..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 initial entry into the service. …..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 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 education 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. If there is a gap of more than three months between the period of termination and reappointment that period may be excluded in the computation of the three years period. …..” 9. In view of the above discussion, the petitioner who is working as a Clerk/Typist in the office of the 2nd respondent for the last 20 years, in all probabilities against a post and being duly qualified in the year 1992, when deployed to perform the duties of a clerk/typist, is entitled to be regularized as Clerk-cum-Typist. She, as per the own case of the respondents pleaded in sur-rejoinder, has been regularized as Beldar vide office order dated 13.9.2006, retrospectively w.e.f. 1.1.2002 to 12.9.2006. The difference of wages/salary of a daily wage worker and a Beldar on regular basis has been paid to her. She, however, is entitled to be regularized as Clerk w.e.f. 1.1.2002 i.e. after completion of 10 years service with 240 days in each calendar year as per man-days chart Annexure R-3. 10. In view of all the reasons hereinabove, this petition succeeds and the same is accordingly allowed. Consequently, the respondents are directed to regularize the petitioner as Clerk w.e.f. 1.1.2002, with all consequential benefits, however, the arrears are restricted to three years prior to the date of institution of the writ petition i.e. 18.11.2003. 11. With these observations, the petition stands finally disposed of, so also the pending application(s), if any.