CWPOA/7411/2008 on 29 December 2011

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWP (T) No. 7411 of 2008.

Date of Decision : December 29, 2010

Dilbag Singh

Petitioner

Versus

State of H.P through Secretary and others

Respondents

Coram:

The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No

For the petitioner : Mr. Ranjan Sharma, Advocate, for the petitioner.

For the respondents : Mr. Ram Murti Bisht, Deputy Advocate General.

Sanjay Karol, J. (Oral)

According to Mr. Ranjan Sharma, learned counsel for the petitioner, matter in issue is squarely covered by the decisions rendered by this Court in CWP (T) No.7400 of 2008 titled as Krishan Singh versus State of H.P & Ors, decided on 19.6.2009; CWP (T) No.3214 of 2008 titled as Sita Ram Versus Himachal Pradesh State Electricity Board and another, decided on 23.4.2010; CWP No.3842 of 2010 titled as Daljeet Singh Versus State of H.P and others, decided on 02.11.2010 and CWP (T) No.7016 of 2008 titled as Sh. Mehar Singh Versus State of H.P and others, decided on 19.10.2010, copies of which are placed on record.

Whether reports of Local Papers may be allowed to see the judgment?

2. In Mehar Singh (supra), this Court has held as under :

“The scheme as formulated clearly lays down that the daily wage/muster roll employees, whether skilled or unskilled, shall be appointed as work charged employees on the date they complete 10 years of continuous service and shall be placed in the time scale of pay applicable to the corresponding lowest grade in the Government. The scheme as formulated does not lay down that an employee should have to pass a departmental examination even if prescribed. Obviously, the scheme as approved in Mool Raj Upadhyaya’s case was an exception to the normal rule that the employment should be made strictly as per the Recruitment and Promotion Rules. If the Recruitment and Promotion Rules were to be followed then obviously no person could have been appointed as Patwari unless he had already passed the ‘Patwar examination’. Passing of the said examination is a pre-requisite to employment.”

3. It has further been held in the case of Krishan Singh (supra) that :-

“The petitioner was engaged on daily wage basis in the year 1987. Admittedly at that time, there was no requirement of having qualified the Patwari Training Examination from the Revenue Department. This requirement was incorporated by the Rules which were enforced in the year 1996. The petitioner even now continuous to work as daily waged Patwari. This Court can take judicial notice of the fact that Patwari Training Certificate is issued by the Revenue Department to the candidates after they undergo a training course. The obvious purpose of imparting instruction in this training course is to ensure that these persons can function properly and do their work as Patwaris. Here we are considering the cases of a person who had actually worked in the field as a Patwari prior to his regularization for more than 10 years. Even after 1998 the petitioner till date has functioned as Patwari. Therefore, in fact he has worked as a Patwari for 20 years. There is no complaint in respect of his work. His practical experience in the field is much more valuable than any training course. In my considered opinion, such condition should have been waived in cases where regularization has been done in terms of judgment passed by the Hon’ble Apex Court in Mool Raj Upadhyaya Vs. State of H.P and Others, 1994, Supplementary (2) Supreme Court Cases 316.

Even if the aforesaid condition is not waived, the petitioner is even otherwise entitled to be regularized since he has been discriminated against and there is violation of Article 14 of the Constitution of India. The State has given no explanation whatsoever as to why certain persons who had not obtained Patwari Training Certificate were regularized and their joining reports were accepted but similar treatment was denied to the petitioner. On this ground also, the petitioner is entitled to be regularized.”

4. I have perused the file. In the present case also, undisputed facts are that petitioner was appointed as a ‘Patwari’ on daily wage basis sometime in April, 1987. At that time, no qualification was prescribed by the respondents for clearing the examination of Patwari. Rules containing such a condition came into existence only in the year 1996. As per the Rules only those persons who had cleared the examination of Patwari conducted by the department could be regularized. Petitioner was otherwise eligible for regularization/according work charge status after completion of ten years continuous service. In the instant case, such status ought to have been accorded to the petitioner in the year 1998. This was to be done in consonance with the directions issued by the Apex Court in Mool Raj Upadhyaya vs. State of H.P. and others, 1994 Supp.

(2) SCC 316. No condition of clearing the examination prior to regularization could have been imposed. The action is totally illegal and not sustainable in law.

5. Further Hon’ble Apex Court has dealt with an identical issue in State of U.P. And Others Versus Putti Lal (2006) 9 Supreme Court Cases 337. The Apex Court has held as under :- “6. So far as the State of Uttaranchal is concerned, a scheme for regularisation of daily workers has been produced before us which prima facie does not appear to be objectionable excepting the provision regarding qualification for regularisation. Be it stated that the qualification essential for being regularised would be the qualification as was relevant on the date a particular employee was taken in as a daily-wager and not the qualification which is being fixed under the scheme. The fact that the employees have been allowed to continue for so many years indicates the existence or the necessity for having such posts. But still it would not be open for the Court to indicate as to how many posts would be created for the absorption of these daily-wage workers. Needless to mention that the appropriate authority will consider the case of these daily-wagers sympathetically who have discharged the duties for all these years to the satisfaction of their authority concerned. So far as the salary is concerned, as we have stated in the case of the State of Uttar Pradesh, a daily-wager in the State of Uttaranchal would be also entitled to the minimum of the pay scale as is available to his counterpart in the Government until his services are regularised and he is given regular scale of pay.”

6. Consequently, the present petition needs to be allowed. Directions issued in Sh. Mehar Singh (supra) and Krishan Singh (supra), shall mutatis mutandis apply to the instant case also. Respondents are directed to grant work charge status to the petitioner on completion of his ten years of service with 240 days in each calendar year. This shall be done within a period of three months from the receipt of certified copy of the order. Consequential benefits, including monetary benefits, due and admissible, if any, shall also be released within the aforesaid period, failing which, thereafter petitioner shall be entitled to interest at the rate of 9 % per annum.

7. With the aforesaid observations, the present petition stands disposed of.

(Sanjay Karol),

Judge December 29, 2010 cs