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Himachal Pradesh High Court · body

2014 DIGILAW 1523 (HP)

Ramesh son of Sh Dil Bahadur v. State of HP

2014-10-28

P.S.RANA

body2014
JUDGMENT : P.S.Rana, J. Present Civil Writ Petition is filed under Article 226 of the Constitution of India. It is pleaded that Sh Ramesh petitioner is the Nepali citizen and is employed in HP State Forest Development Corporation on daily wages as mason on dated 1.4.1994. It is pleaded that on 31.3.2002 petitioner completed eight years of daily wage service and is legally entitled for regularization of his service. It is further pleaded that petitioner is legally entitled for work charge status in view of the order passed by High Court of HP in CWP No. 4866 of 2010 titled Kharak Singh Vs. State of HP decided on 6.10.2010. It is further pleaded that eligibility certificate was issued on 10.06.2011 but till date petitioner is not regularized. It is further pleaded that respondents be directed to consider the case of the petitioner to regularize the services of the petitioner. It is further pleaded that even option given by the petitioner for regularization of his service as un-skilled worker but till date petitioner is not regularized. Prayer for regularization of service as mason sought from 01.04.1994 with all consequential benefits. In alternative regularization of services of petitioner as mason sought like other 1030 daily wagers in various government departments. 2. Per contra reply filed on behalf of respondents pleaded therein that present petitioner is Nepali citizen and is employed as daily wager in the HP State Forest Development Corporation. It is pleaded that dispute is covered under Industrial Disputes Act. It is further pleaded that as per Recruitment and Promotion Rules of the Government of HP as amended and conveyed vide memorandum No. PER AP-11 0 A (3) 2/80 dated 11.7.2000 only Indian citizen are entitled for employment under the Government of Himachal Pradesh. It is further pleaded that petitioner is a Nepali citizen and is not Indian and he is not legally entitled for regularization of his service. It is further pleaded that eligibility certificate was issued from the competent authority as per Recruitment and Promotion Rules. It is further pleaded that earlier Nepalese were entitled to government service on production of eligibility certificate. It is further pleaded that according to amended rules only Indian citizens are entitled for regularization of service. It is further pleaded that merely issuance of eligibility certificate did not entitle the petitioner for regularization of his service. It is further pleaded that earlier Nepalese were entitled to government service on production of eligibility certificate. It is further pleaded that according to amended rules only Indian citizens are entitled for regularization of service. It is further pleaded that merely issuance of eligibility certificate did not entitle the petitioner for regularization of his service. It is further pleaded that regularization of service in public post is based upon as per terms and conditions of Recruitment and Promotion Rules and as per availability of vacancy. It is further pleaded that as of today there is no regular post of mason in the HP State Forest Development Corporation. It is further pleaded that HP State Forest Development Corporation is making efforts to adjust the petitioner as unskilled worker against the vacancy and matter has been taken with the State Government. It is further pleaded that petitioner has given offer for regularization of his service as unskilled worker. It is further pleaded that petitioner will be appointed on the post of unskilled worker after the approval received from the Government. It is further pleaded that as of today there is no regular post of mason available with the HP State Forest Development Corporation. It is further pleaded that although respondent Corporation has initiated a process of offering alternate regularization as a unskilled worker in its Rosin & Turpentine Factories at Bilaspur/Nahan against vacancy and petitioner has also opted for such regularization but petitioner did not fulfill requisite qualification for the post of unskilled worker as per Recruitment and Promotion Rules being illiterate. It is admitted that petitioner is working as mason with the respondent- Corporation w.e.f. 1.8.1998. It is denied that petitioner is working on daily wages since 01.04.1994. It is well settled law that as per ruling of the Apex Court of India regularization of the service of daily wager is possible only when regular vacancy is available. Prayer for dismissal of writ petition sought. Petitioner also filed rejoinder and re-asserted the allegation pleaded in the civil writ petition. 3. Court heard learned Advocate appearing on behalf of the petitioner and learned Additional Advocate General appearing on behalf of the State and learned Advocate appearing on behalf of respondent- Corporation and also perused entire records carefully. 4. Following points arise for determination in the present writ petition: (1) Whether petitioner is entitled for regularization of his service as mason as alleged? 4. Following points arise for determination in the present writ petition: (1) Whether petitioner is entitled for regularization of his service as mason as alleged? (2) Whether in alternative respondents are liable to regularize the service of petitioner as mason like other 1030 daily wagers in various government departments subject to availability of regular vacancy of mason as alleged? (3) Final Order. Finding upon Point No.1. 5. Submission of learned Advocate appearing on behalf of the petitioner that petitioner be regularized as mason on completion of eight years of service with all consequential benefits is rejected being devoid of any force for the reason hereinafter mentioned. It is well settled law that regularization of employee is depend upon the vacancy. Respondents have specifically pleaded in the reply that no vacancy of mason is available in the HP State Forrest Development Corporation Limited as of today. It is well settled law that regularization of employee is based upon recommendation of selection committee appointed by the appointing authority. It is proved on record that petitioner is a Nepali citizen. It is also proved on record that petitioner has obtained eligibility certificate from competent authority of law. However at this stage due to non-availability of post of mason respondents could not be directed to regularize the service of petitioner upon the regular post of mason which is not available in the HP State Forest Development Corporation. Point No.1 is decided against the petitioner. Finding upon Point No.2 6. Submission of learned Advocate appearing on behalf of the petitioner that in the alternative respondents be directed to regularize the service of the petitioner as mason like other 1030 daily wagers in various government departments subject to availability of regular vacancy is accepted for the reason hereinafter mentioned. Respondents have admitted in their reply that some of the daily wagers of respondent- Corporation have been regularized in government department in equivalent post against the vacancies. It is held that on the concept of equality under Article 14 of the Constitution of India petitioner is legally entitled to be regularized in government department in equivalent post subject to availability of regular vacancy of mason because petitioner has obtained eligibility certificate from the competent authority of law as of today and in view of ruling reported in 1994 Supp (2) SCC 316 titled Mool Raj Upadhyaya Vs. State of HP and others and in view of ruling reported in 2007 (12) SCC 43 titled State of HP and others Vs. Gehar Singh and in view of ruling given by Hon’ble High Court of HP in CWP No. 4866 of 2010 titled Kharak Singh Vs. State of HP and others decided on 6.10.2010. 7. Submission of learned Advocate appearing on behalf of the respondents that petitioner has himself opted for unskilled post and on this ground petitioner is not legally entitled to be adjusted as mason in the government department is rejected for the reason hereinafter mentioned. Petitioner has specifically mentioned in rejoinder that consent of the petitioner regarding adjustment upon unskilled post was obtained with coercion. It is held that any consent obtained under coercion is void ab initio. Point No.2 is decided accordingly. Final Order 8. In view of the above stated facts it is held (1) That petitioner cannot be regularized as a mason in the HP State Forest Development Corporation due to non availability of regular post of mason as of today. (2) It is held that in alternative case of the petitioner will be considered for regularization upon the post of mason in other government department subject to availability of regular post of mason in other department similar to other 1030 daily wagers adjusted in various departments strictly in accordance with law after obtaining recommendation of the selection committee appointed by the appointing authority. It is clarified that if the vacancy of mason is available in the HP State Forest Development Corporation as of today then the case of the petitioner for regularization of his service as mason in the HP State Forest Development Corporation will be considered strictly in accordance with law. Writ petition is accordingly disposed of with no order as to costs. All miscellaneous application(s) are also disposed of.