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Himachal Pradesh High Court · body

2014 DIGILAW 1597 (HP)

Mohan Lal v. State of H. P.

2014-11-05

TARLOK SINGH CHAUHAN

body2014
JUDGMENT : Tarlok Singh Chauhan, J. 1. The petitioner has approached this court for grant of following substantive relief:- a) That a writ in the nature of mandamus may kindly be issued directing the respondents to regularize the services of the petitioner as Fitter instead of helper on which post the petitioner has been working since 1983 and granted work charge status in the year 1996 and further they may kindly be directed to pay the arrears with interest on the revised pay scales of Fitter from 1996 onwards with all consequential benefits. 2. The uncontroverted facts are that petitioner was engaged as a daily waged Beldar on 1.6.1983 and worked as such up to 30.4.1985. Thereafter he worked as an Assistant Fitter w.e.f. 1.5.1985 to 24.7.1987 and thereafter he worked as daily-waged Fitter w.e.f. 25.7.1987 up to 18.1.1995. Now the grievance of the petitioner is that when it got down to regularization of his services, instead of being regularized as a Fitter, the respondents regularized his services as Beldar, that too from the years 2004, while the private respondents who had been appointed much after the petitioner in the year 1990, had been regularized prior to the petitioner. 3. The respondents have not denied these averments and contended that private respondents had in fact been appointed subsequently, but they had forfeited their seniority of the period when they worked as Beldar and were thereafter appointed as Fitters on their completion of eight years of service on the said post. 4. The stand of the respondents to say the least is absolutely unfair not only qua the petitioner but even as against the private respondents themselves. The respondent is a model employer and what has been expected from model employer has been succinctly dealt with by this court in LPA No. 386 of 2012 titled H.P. State Industrial Corporation Ltd. vs. Shri Rajesh Kumar Kashyap, decided on 7.4.2014, wherein it has been held as follows:- ?17. The Central Government, State Governments and likewise all Public Sector Undertakings are expected to function like model employers . A model employer is under an obligation to conduct itself with high probity and expected candour. An employer who is duty bound to act as a model employer has social obligation to treat an employee in an appropriate manner so that an employee is not condemned to feel totally subservient to the situation. A model employer is under an obligation to conduct itself with high probity and expected candour. An employer who is duty bound to act as a model employer has social obligation to treat an employee in an appropriate manner so that an employee is not condemned to feel totally subservient to the situation. A model employer should not exploit the employees and take advantage of their helplessness and misery.? 5. The official respondents have exploited not only the petitioner, but even the private respondents. The petitioner was granted work-charge status for the first time in the year 1996 and was regularized only in the year 2006, that too, on the post of Beldar. While in the case of private respondents, they were made to forfeit their seniority for the period they worked as Beldar and it is only thereafter that on completion of eight years of service as daily-waged Fitters, their services came to be regularized. It is also absolutely clear that official respondents have not conducted themselves with high probity and expected candour. They have not treated their employees in an appropriate manner and have rather exploited them taking advantage of their helplessness and misery. The conduct of the official respondents is reprehensible and falls short of expectation of a model employer. 6. The petitioner, even as per reply of the respondents had worked as a Fitter from 25.7.1987 to 18.1.1995, while on the other hand the private respondent No. 4 Fakerjeet had been engaged as a daily-waged Beldar on 19.2.1988 and had worked as such till 31.7.1995 and it is only thereafter that he had worked as a Fitter from 1.8.1995 to 19.3.2004. While on the other hand the respondent No. 5 had been engaged as Beldar on 25.8.1991 and had worked as such up to 30.11.1994 and it is thereafter that he worked as a Fitter w.e.f. 1.12.1994 to 19.3.2004. The comparative particulars of the petitioner and private respondents clearly demonstrate that petitioner had been engaged much prior to the private respondents not only as a Beldar, but had been assigned the duties of Fitter prior to the private respondents. 7. It cannot be disputed that in such like cases where a person has rendered service in two or three capacities, an option was required to be obtained from him in terms of learned Division Bench judgement in case titled Gauri Dutt & ors. Vs. 7. It cannot be disputed that in such like cases where a person has rendered service in two or three capacities, an option was required to be obtained from him in terms of learned Division Bench judgement in case titled Gauri Dutt & ors. Vs. State of H.P Latest HLJ 2008 (HP) 366, wherein this court held as follows:- ?18. The last question raises some interesting points. There have been instances where some employee has worked as beldar for some time and thereafter he has been engaged in a higher scale as mate or supervisor etc. The Tribunal in most of these cases has directed that the employee should be granted work charge status in the higher post of completion of 10 years of service after combining the service rendered in the lower scale and the higher scale. The State is aggrieved by these directions. According to the learned Advocate General the State has offered work charge status to these employees on completion of 10 years of combined service in the lower of the two scales and the State cannot be directed to grant work charge status in the higher scale. On the other hand, it is contended on behalf of the employees that since the employees are already working in the higher scale, it would not be fair and equitable to grant them work charge status in the lower scale. 19. We have considered the arguments from all angles. We are of the view that the employee cannot be given the benefit of combining service rendered in both the scales and be granted work charge status in the higher scale. We do, however, feel that at times it may be inequitable to grant the employee work charge status in the lower scale without giving him an option in this regard. We are giving two examples to illustrate two extreme positions. In example (i) we will deal an employee (A) who joined service on 1.1.1990. He works in the lower scale of Beldar from 1.1.1991 to 31.12.1999. He is thereafter posted as Supervisor in the higher scale. Should he be granted work charge status as beldar or as Supervisor w.e.f. 1.1.2001? The clear other example is converse. Supporting employee (B) has worked as beldar w.e.f. 1.1.1991 to 31.12.1991 and from 1.1.1992 he was worked as Supervisor. From which date should we grant him work charge status and in what scale? Should he be granted work charge status as beldar or as Supervisor w.e.f. 1.1.2001? The clear other example is converse. Supporting employee (B) has worked as beldar w.e.f. 1.1.1991 to 31.12.1991 and from 1.1.1992 he was worked as Supervisor. From which date should we grant him work charge status and in what scale? It is obvious that in the first case the employee would not mind being granted work charge status even in the lower scale after 10 years w.e.f. 1.1.2000 since granted of work charge status would mean that he would get regular scale of pay. But should the employee be granted work charge status in the higher scale? We cannot agree with the preposition. 20. After considering all the pros and cons and keeping in view the fact that various anomalous situations may arise we are of the considered view that when an employee completes 10 years of continuous service combined in two scales, an option should be given to the employee to either accept work charge status in the lower scale or he may continue to work on daily rated basis in the higher scale and claim work charge status in the higher scale of completion of 10 years of continuous service in the said scale. In the examples given above employee (A) may prefer to accept work charge status w.e.f. 1.1.2001 even in the lower scale of beldar because otherwise he may have to wait for 9 years before he is granted work charge status. On the other hand, employee (B) in the second example may prefer to delay of 3 grant of work charge status by one year so that he can get work charge status in the higher scale. We feel that in each case the choice should be left to the employee. However, if the employee on being given a change to exercise his option does not convey his option within 30 days, he shall be granted work charge status in the lower scale by combining the service rendered in both the scales. This answers the fourth question.? 8. The case of the petitioner is squarely covered by the aforesaid judgement and consequently directions issued in Gauri Dutt's case (supra) shall mutatis mutandis apply to the present case also. 9. This answers the fourth question.? 8. The case of the petitioner is squarely covered by the aforesaid judgement and consequently directions issued in Gauri Dutt's case (supra) shall mutatis mutandis apply to the present case also. 9. Resultantly, the petition succeeds and the respondents are directed to take appropriate action in accordance with law laid down by this court in Gauri Dutt's case (supra) within a period of three months from the date of receipt of certified copy of this judgement, failing which the petitioner shall be entitled to interest at the rate of 9% per annum. Needless to add that petitioner shall be granted all consequential benefits including and not restricted to pay, arrears, seniority etc. from the due date. Costs easy.