Man Bahadur vs State of H.P. and Others

Surinder Singh, J.—Heard and gone through the record.

Petitioner herein is a Nepali National.

Admittedly he was engaged as a daily-waged beldar in HPPWD National High Way Division, Pandoh in Sub Division Katrain w.e.f. 1.5.1995. He claimed work-charge status on the strength of the judgment of Supreme Court in Mool Raj Upadhaya''s case (1994) 2 SLR 377, on the completion of 10 years service.

As per Division Bench Judgment of this Court in Gauri Dutt v. State of H.P. and Ors. and Ors. connected matters CWP No. 778/2006 decided on 29.12.2007, Mool Raj Upadhaya''s case (supra) is not applicable to the daily-waged workers who have not completed 240 days up to 31.12.1993.

According to the Respondents, the Petitioner was also not accorded status claimed because as per Rule 14 of Himachal Pradesh Public Works Department Recruitment and Promotion (First Amendment) Rules, 2004 as amended in the year 2004 a candidate for appointment to any service or post must be a citizen of India.

On the consideration of the matter, I find that Rule 14 in R and P Rules aforesaid is not applicable to the case of the Petitioner, as it is not a case of fresh appointment to the service or post, but he has already been a daily-wager in the said department. The Petitioner being a Nepali National, therefore, eligibility certificate is required from the competent authority, for his regularization.

As a matter of fact, earlier the Govt. of India had modified the standard rule for recruitment in the year 1977 which inter alia provided that a candidate belonging to such category shall be a person in whose favour a certificate of eligibility has been issued by Govt. of India which was sine quo non. The copy of this resolution was communicated to all the States. Later Ministry of Home Affairs issued letter dated 10.5.1978 operative portion of which reads as under:

The question whether certificate of eligibility in terms of Resolution referred to above should continue to be issued by this Department or whether any delegation can be made in this regard has been examined in the context of the present policy to maximize delegation and to reduce delay in appointments. It has now been decided that the certificate of eligibility should, in future, be issued by the Ministry/Department itself which is administratively concerned with the post where the candidate is likely to be appointed on the basis of the information referred to in para 2 above, being received from the authorities concerned.

In Man Singh''s case CWP No. 1594 of 2008 decided on 27.7.2009 along with other connected matters, the coordinate Bench of this Court took into consideration the above letter vis-�-vis Rule 14 supra as it stood after amendment and observed that the State Government while issuing these rules have not taken into consideration the resolution passed by the Central Government on 1.3.1977 and the office memorandum dated 10.5.1978 aforesaid and the Court held that as a matter of fact in case of Nepalis. Thus, eligibility certificates are required to be issued by the Head of Department. Therefore, on the strength of the aforesaid judgment, same procedure is also required to be followed in the present case.

Against the aforesaid background, Mool Raj Upadhaya''s case is not applicable and Petitioner cannot be granted the relief as prayed for but his case may be considered for regularization, therefore, the Respondents are directed to consider the case of the Petitioner for issuance of the eligibility certificate by Head of Department, as per the judgment rendered in Man Singh''s case supra, and in case eligibility certificate is issued in favour of the Petitioner, his case may be considered for regularization, as per policy applicable in this case. The Respondents shall finalize the matter in 8 (eight) weeks from the date of receipt of the copy of this judgment.

Petition stands disposed of. Copy Dasti.