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Himachal Pradesh High Court · body

2021 DIGILAW 416 (HP)

Rajesh Thakur v. State of Himachal Pradesh

2021-07-16

SANDEEP SHARMA

body2021
ORDER : Sandeep Sharma, J. 1. Petitioner was initially engaged on 31 March, 2001 on contract basis in the respondent-Corporation, as is evident from the appointment letter (Annexure P-4). Pursuant to aforesaid appointment, petitioner gave his joining as Clerk on 31.3.2001, as is evident from joining report (Annexure P-5). Pleadings adduced on record by the parties to the lis clearly reveals that aforesaid contract of the petitioner came to be renewed periodically. The copies of the renewal of contract are attached collectively as Annexure P-6 with the petition. While petitioner was rendering his services as Clerk on contract basis, respondent-State repeatedly promulgated policy for regularization of contract employees in the Government Department. Though, petitioner, who had been rendering services of Clerk continuously since his appointment on 31.3.2001 had become eligible for regularization in terms of the policy dated 29.8.2009 framed by the State Government, but fact remains that his case was not considered for regularization. Again in the year 2009 and 2021 Government of Himachal Pradesh took policy decision (Annexures P-7 and P-8) for regularization of contract employees working in various departments of the Government, but yet respondent No. 3 failed to regularize the services of the petitioner and as such, he was compelled to approach this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein following reliefs:- "1. Writ of mandamus may kindly be issued be direct the respondents to regularize the services of the petitioner as clerks in terms of the policy of the State Government conveyed through on his completing six years of service on contract basis i.e. with effect from 31.3.2001 along with all consequential benefits, viz, fixation of pay, seniority etc. 2. Respondent may further be directed the respondents to grant all consequential benefits to the petitioner from the date petitioner completed six years of service including the pay scales of regular clerks from 19.2.2008 and 21.2.2010, respectively along with interest at the rate of 12% per annum." 2. 2. Respondent may further be directed the respondents to grant all consequential benefits to the petitioner from the date petitioner completed six years of service including the pay scales of regular clerks from 19.2.2008 and 21.2.2010, respectively along with interest at the rate of 12% per annum." 2. Aforesaid claim of the petitioner for regularization from due date has been rejected by the respondents, especially respondent No. 3 on the ground that since petitioner was initially engaged on 31.3.2001 without fulfilling the essential qualifications and also without following due process of selection and procedure prescribed, he could not be considered for regularization in terms of the policy framed by State of Himachal Pradesh for regularization of contract employees. It has been further averred in the reply filed by respondent No. 2 that now since petitioner has acquired essential qualification, he has been appointed as Clerk on 23.6.2012 and pursuant to his fresh appointment he has joined the services without registering any protest and as such, present petition deserves dismissal without any merit. 3. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that there is no dispute inter se parties that respondent No. 2, H.P. Ex-Servicemen Corporation, which is Government of Himachal Pradesh undertaking and is covered by the Government instructions issued from time to time, especially Annexures P-7 and P-8, is bound to follow the instructions and policies framed by the Government from time to time and as such, should have regularized the services of the petitioner as Clerk on 31.3.2001. It is not in dispute that there are eighteen posts of Clerks on regular basis and 18 posts of Clerks on contract basis with the H.P. Ex-servicemen Corporation. Out of the aforesaid 18 posts of clerks, only seven posts have been filled up on regular basis in terms of policy of regularization framed by the State of Himachal Pradesh from time to time. As per the instructions issued by the F.C-cum- Secretary (Finance) to the Government of Himachal Pradesh on 19.4.2002 and 20.01.2003 (Annexures R-2/A and R-2/B) annexed with the reply filed by respondent No. 2, all proposals pertaining to sanction of staff and revision of pay scales etc. As per the instructions issued by the F.C-cum- Secretary (Finance) to the Government of Himachal Pradesh on 19.4.2002 and 20.01.2003 (Annexures R-2/A and R-2/B) annexed with the reply filed by respondent No. 2, all proposals pertaining to sanction of staff and revision of pay scales etc. of the Public Sector Undertaking are to be examined by the Committee consisting of Secretary (Finance), Administrative Secretary, Commissioner-cum- Secretary (DIF) and Managing Director of the Corporation concerned, before placement of such proposal before the Board of Directors. Board of Directors in its meeting held on 27.4.2011 vide item No. 102/2012 (Annexure R-2/C), decided that the Committee be constituted to conduct the typing test of the petitioner and accordingly, on his passing the typing test on 23.11.2011, matter was referred to the Government for conversion of posts from the Ex. Servicemen Cell, Hamirpur. In response to aforesaid proposal, Government informed to take the action as per the decision of the Service Committee. Meeting of Service Committee was held on 8.2.20212(sic), wherein it approved six posts of Clerks, which were earlier permitted to be filled up through Ex. Servicemen Cell, subject to their fulfilling the essential qualifications as per R and P Rules. The Matter was again placed before the Board of Directors on 13.6.2021 (Annexure R-2/E), wherein decision was taken to appoint the petitioner on regular basis vide letter dated 23.06.2012. 4. If the reply filed by the respondent, especially respondent No. 2 is perused in its entirety, ground raised for not regularizing the services of the petitioner from the date he was initially appointed i.e. on 31.3.2001 is that at the time of his initial appointment petitioner did not possess the essential qualification prescribed in the R and P Rules. By now it is settled law that education qualification is to be seen at the time of engagement of workman and not at the time of regularization. The experience gained by the petitioner while working as a Clerk is a substitute for the qualification. 5. Their Lordships of the Hon'ble Supreme Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation (1990) 1 SCC 361 : ( AIR 1990 SC 371 ) have held that practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. 5. Their Lordships of the Hon'ble Supreme Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation (1990) 1 SCC 361 : ( AIR 1990 SC 371 ) 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 40 of the senior-most 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." 6. The same principle is reiterated by their Lordships of the Hon'ble Supreme Court in B.N. Saxena v. New Delhi Municipal Committee and others, (1990) 4 SCC 205 : ( AIR 1990 SC 2021 ). 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 . 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. 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." 7. In Gujarat Agriculture University v. Rathod Labhu Bechar and others (2001) 3 SCC 574 : ( AIR 2001 SC 706 ), 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 itself 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 1(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 1(b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post." 8. Consequently, in view of the above, the present petition is allowed. Respondents are directed to regularize the service of the petitioner as Clerk in terms of the policy of regularization framed by the Government of Himachal Pradesh on 29.8.2009 with all consequential benefits, within four weeks from today. Consequently, in view of the above, the present petition is allowed. Respondents are directed to regularize the service of the petitioner as Clerk in terms of the policy of regularization framed by the Government of Himachal Pradesh on 29.8.2009 with all consequential benefits, within four weeks from today. Pending applications, if any, also stand disposed of.