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Himachal Pradesh High Court · body

2015 DIGILAW 19 (HP)

Tara Chand v. State of H. P.

2015-01-05

SURESHWAR THAKUR

body2015
Judgment Sureshwar Thakur, J. The learned counsel appearing for the petitioner canvassed before this Court that despite the petitioner having fulfilled the requisite eligibility criteria for his being conferred upon the status of regularization against the post of a peon, the respondents are omitting to do so. The constraint which is besetting the respondents to not confer or bestow the status of a regular workman upon the petitioner is anvilled upon his extantly not fulfilling the requisite prescribed qualification of matriculation. The enjoined necessity of the petitioner possessing the minimum educational qualification of matriculation to hence fasten a liability upon the respondents on his having completed the enjoined length of service as a daily rated workman for him, hence, to claim regularization, is prescribed in the relevant R & P Rules. The Learned Deputy Advocate General concedes to the factum that dehors the R&P Rules with the prescription therein for a daily wager claiming the status of a regular workman being enjoined to complete the requisite period of service as a daily waged workman and being also enjoined to possess the minimum qualification of matriculation, there also exist policy/guidelines issued by the State Government for regularization of daily wagers after completion of the requisite period of service. In the face of the prescription in the existing policy or guidelines issued by the State Government, a daily waged workman is entitled to regularization in service after completion of the requisite period. Further more, the present lis is covered by the judgment of this Court rendered on 24.12.2014 in CWP No.5098 of 2014, titled as Kamal Chand versus State of H.P. & Others, the relevant portion whereof reads as under:- “4. Their Lordships of the Hon’ble Supreme Court in Bhagwati Prasad versus Delhi State Mineral Development Corporation, (1990) 1 SCC 361 have held that practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. Their Lordships of the Hon’ble Supreme Court in Bhagwati Prasad versus Delhi State Mineral Development Corporation, (1990) 1 SCC 361 have held that practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. Their Lordships have further held that 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 the initial entry into the service and once the appointments are made as daily rated workers and they are 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 educational qualification. Their Lordships have held as under: “6. The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 and ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. 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 the 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 educational qualifications. In our view, three years' experience, ignoring artificial break in service for short 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 re-appointment that period may be excluded in the computation of the three years period. In our view, three years' experience, ignoring artificial break in service for short 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 re-appointment that period may be excluded in the computation of the three years period. Since the petitioners before us satisfy the requirement of three years, service as calculated above, we direct that 4 0 of the seniormost workmen should be regularised with immediate effect and the remaining 118 petitioners should be regularised in a phased manner, before April 1, 1991 and promoted to the next higher post according to the standing orders. All the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts. We further direct that 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately. Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts. The respondent is directed to deposit a sum of Rupees 10,000/- in the Registry of this Court within four weeks to meet the remuneration of the Industrial Tribunal. The writ petitions are accordingly allowed, but without costs.” 5. The same principle is reiterated by their Lordships of the Hon’ble Supreme Court in B.N. Saxena versus New Delhi Municipal Committee and others, (1990) 4 SCC 205 . Their Lordships have held that a Seni or Draftsman not possessing any diploma but having six years experience, qualified under the second alternative of the revised rules. Their Lordships have further held that the experience gained is itself a qualification. Their Lords hips have held as under: “7. The second limb of the rule was evidently, to benefit all those persons who have gained sufficient experience as Senior and Junior Draftsmen without possessing any qualification. Experience gained for a considerable length of time is itself a qualification (See the observation in State of U.P. v. J. P. Chaurasia, 1989 (1) SCC 121 : (AIR 1989 SC 19. It would be unreasonable to hold that in addition to this considerable experience, one must also have the diploma qualification prescribed under the first part. Experience gained for a considerable length of time is itself a qualification (See the observation in State of U.P. v. J. P. Chaurasia, 1989 (1) SCC 121 : (AIR 1989 SC 19. It would be unreasonable to hold that in addition to this considerable experience, one must also have the diploma qualification prescribed under the first part. It could not have been the intention of the rule making authority that persons who were designated as Senior Draftsmen without any Diploma qualification should acquire such diploma qualification for further promotion. Such a view would not be consistent and coherent with the revised rule and its object. We have no doubt that the second limb of the revised rule is independent of the first. The High Court seems to have erred in this aspect of the matter.” 6. In Gujarat Agriculture University versus Rathod Labhu Bechar and others, (2001) 3 SCC 574 , their Lordships of the Hon’ble Supreme Court have held that the daily rated workers who had been working on the posts for a long number of years without complaint is a ground by it self for the relaxation of the eligibility condition. Their Lordships have held as under: “28. We feel that daily rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts is a ground by itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption, hence Clause l(a) need modification to this effect. 30. Thus in view of their long experience on the fact of this case and for the concerned posts the prescribed qualification, if any, should not come in the way of their regularisation. Clause l(b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post.” 7. Accordingly, the present petition is allowed. Respondents are directed to regularise the services of the petitioner from the date, his junior was regularized with all consequential benefits, within four weeks from today.” 2. Clause l(b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post.” 7. Accordingly, the present petition is allowed. Respondents are directed to regularise the services of the petitioner from the date, his junior was regularized with all consequential benefits, within four weeks from today.” 2. With the prescription in the citation referred to herein above of insistence by an employer for possession of minimum educational qualification by a claimant, claiming regularization in service being both a tenable and a reckonable factor, yet fulfillment of the minimum prescribed educational criteria by an aspirant/claimant for eligiblizing his claim for regularization ought to be insisted upon, only at the time of his initial entry into the service and when an aspirant/claimant, claiming regularization is permitted to work for a considerable length of time, it would be hard and oppressive to deny him the benefit of regularization against the post wherein he had rendered the requisite length of service in a daily rated capacity merely on account of his not possessing the prescribed educational qualification. Consequently, when the petitioner herein at the time of his initial entry into service under the respondents as a daily wager did not possess the minimum qualification or when at the germane and relevant time of his initial entry into service under the respondents, the respondents omitted to press into service the R&P Rules against the petitioner, hence, now given the requisite length of service rendered by the petitioner under the respondents and concomitant experience having been gained by him, it would be insagacious and oppressive at this belated stage for the respondents to insist upon its possession by the petitioner more especially with its having not been reckoned at the time of his initial entry into service, it is to be construed to be waived off. Consequently, taking into consideration the requisite length of service rendered by the petitioner under the respondents, hence, entitling him to claim regularization in service, the denial of his claim to regularization by the respondents merely upon his not possessing the minimum educational qualification is untenable as well as unworkable, rather would perpetuate hardship to the petitioner. 3. Consequently, taking into consideration the requisite length of service rendered by the petitioner under the respondents, hence, entitling him to claim regularization in service, the denial of his claim to regularization by the respondents merely upon his not possessing the minimum educational qualification is untenable as well as unworkable, rather would perpetuate hardship to the petitioner. 3. For the foregoing reasons the present petition is allowed and the respondents are directed to regularise the services of the petitioner from the date when his junior was regularised with all consequential benefits within six weeks from today. All pending applications also stand disposed of. No costs.