Kartar Singh vs State of H.P. and Others

Rajiv Sharma, J.—Petitioner was engaged as daily wage Beldar in the year 1978. He was issued muster roll on daily wage basis of Mate/Supervisor in the year 1979.

The Court has gone through mandays'' chart Annexure R-1. Petitioner has worked continuously from 1979 to 1982 as Mate and has completed 240 days each year. He has worked for 155 days in the year 1983, for 214 days in the year 1984 and for 75 days in the year 1985 as a Mate. Thereafter, he has worked continuously from 1986 to 1994 as Mate except in the year 1989. He has worked for 142 days in the year 1989 as a Mate.

Fact of the matter is that petitioner has been made work charged Beldar on temporary post instead of regularizing him against the temporary post of Mate. Petitioner has made several representations for conferring him work charge status of temporary post of Mate instead of Beldar.

Mr. Parmod Thakur, learned Additional Advocate General, has vehemently argued that petitioner has not continuously worked for ten years and has also not completed 240 days in the years 1983 to 1985 and 1989. He has also contended that the petitioner does not fulfill minimum educational qualification of Middle, as prescribed under the Recruitment and Promotion Rules for the post of Mate.

I have heard the learned counsel for the parties and have gone through the pleadings carefully.

Petitioner has worked for more than 240 days each year between 1979 to 1982 as Mate, as noticed hereinabove. He has worked uninterruptedly from the years 1986 to 1994 except 1989. He has not been permitted to complete 240 days from the years 1983 to 1985 and 1989 to deprive him the status of regular employee. The action of respondents not permitting the petitioner to complete 240 days in these years amounts to unfair labour practice. There is a pattern not to permit the petitioner to complete 240 days against the post of Mate by not issuing him the muster roll of Mate.

As far as the issue of minimum educational qualification is concerned, it was to be seen at the time of initial engagement of the petitioner. It cannot be permitted to be seen at the stage when the petitioner is to be regularized as Mate.

Their Lordships of the Hon''ble Supreme Court in Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, 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. Since the petitioners before us satisfy the requirement of three years, service as calculated above, we direct that 4 0 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." 9. The same principle is reiterated by their Lordships of the Hon''ble Supreme Court in B.N. Saxena Vs. New Delhi Municipal Committee and others, . Their Lordships have held that a Senior 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 Lordships 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. and Others Vs. J.P. Chaurasia and Others, . 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." 10. In Gujarat Agricultural University Vs. Rathod Labhu Bechar and Others, , 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.

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."

Accordingly, in view of the analysis and discussion made hereinabove, the writ petition is allowed. The petitioner would be deemed to have been regularized as Mate with effect from 8.3.1995. He shall not be entitled to monetary benefits, but this period shall be counted for the purpose of seniority and pensionary benefits. Pending application(s), if any, also stands disposed of. No costs.