Miss Beena Chauhan vs State of Himachal Pradesh and Others

V.K. Sharma, J.—The petition has been filed on the following prayers vide para 7(i) to (vi):

(i) That the complete records of the case of the applicant may kindly be summoned by this Hon''ble Court to gather the circumstances which have led to regularization of the applicant at the lowest post of Beldar and not the post, the applicant had possessed at the time of regularization of her services i.e. complaint-attendant/diary-dispatch clerk and on which she has worked for the longest period.

(ii) That the Respondents be directed to appoint/regularize the applicant as complaint-attendant, the post which she was holding at the time of the regularization of her services, as per the judgment of the Hon''ble Supreme Court of India in Mool Chand Upadhaya''s case, with effect from November, 1996 instead of December, 2002.

(iii) That the Respondents be further directed to pay the arrears of salary etc., alongwith interest at the rate of 18% p.a. on the applicant''s having been appointed as complaint-attendant by the Respondents.

(iv) The Respondents be directed to prepare the seniority list of the applicant with all consequential benefits, on her having been regularized to the post complaint attendant with effect from November, 1996.

(v) That the letter dated 10.12.2002 (Annexure A-1) is not sustainable in the eyes of law in view of the detailed submissions made above and is liable to be declared as such and the Respondents be directed to regularize the services of the applicant as Complaint Attendant from November, 1996 as mentioned above.

(vi) That the Respondents be directed to not to debar the applicant from regularization after having attained the age of 45 years pending disposal of this original application.

In reply, the Respondents have taken the following stand vide preliminary submissions and para 6(3) on merits:

That the present original application is not maintainable as the applicant is claiming her regularisati9on on the basis of judgment of Hon''ble Supreme Court of India in Mool Raj Upadhayaya''s case on the completion of 10 years of continuous daily wages service as Complaint Attendant, whereas the fact is that though the applicant had been working with the department w.e.f 6/1988, yet, she worked continuously with a minimum of 240 days in a calendar year w.e.f. 1989 to 1999. Therefore, the case of the applicant though was consider for regularization on the completion of 9 years on daily wages service as on 31-3-98, yet she declined to accept the offer of Beldar as per the judgment of Hon''ble Supreme Court of India and policy framed therein. It was categorically laid down that the service of workmen is to be regularized on the lowest grade. Therefore, since the applicant had worked as Beldar w.e.f. 1988 to 1994, which is the lowest grade, she was rightly considered for regularization as Beldar, but did not accept this offer and requested for her regularization as Complaint Attendant. Now the Govt. has again relaxed this policy by ordering the regularization of daily rated workmen with prospective date, who had completed more than 8 years of daily wages services as on 31-03-2000. The case of the applicant was again considered in terms of this policy of the Govt. circulated vide letter dated 21-11-2002, yet it was found that she had not completed 8 years continuous service as Complaint Attendant as on 31-03-2000. Hence, she was not considered for regularization as Complaint Attendant, whereas she had completed 8 years of service including Beldar, therefore she was again offered Beldar vide order dated 10-12-2002, which post she did not accept and hence, filed the present original application. The mandays qua of the applicant annexed with the reply as Annexure R-I would show that she had worked as Beldar w.e.f. 1989 to 1999 with minimum of 240 days in each calendar year and Complaint Attendant from 1995 till date, as such she was entitled to be regularized as Beldar & not as Complaint Attendant being lowest post/grade, she can not be considered for regularization as Complaint Attendant at this stage as she had not completed 8 years of continuous service as on 31-03-2000 as laid down in the policy of Govt. It is further stated that the services rendered by her as Beldar can not be assigned as considered as Complaint Attendant. It is admitted that though the department has regularized the services of Shri Karam Singth being similar situated to the applicant Complaint Attendant by mistake and error in the mandays as such the case was reconsidered and has been ordered to reverted to the post of daily wages Complaint Attendant. However, he has challenged his reversion in the Hon''ble H.P. Administrative and obtained the stay against his reversion from the Hon''ble Tribunal, yet the department has contested the case therein.

In view of the above, the applicant is only entitled to be regularized as Beldar, which post stood already offered to her as per the latest policy of the Govt. and the judgment of Hon''ble Supreme Court of India in Mool Raj Upadhayays''s Case. Hence, she has no case at all before this Hon''ble Tribunal.

As such she has not joined as Beldar till date and working as daily waged Complaint Attendant, therefore, she shall be considered for regularization as Complaint Attendant in terms of the policy framed by the Govt. in future, on the completion of specific period therein.

6(3) That the contents of this sub para are vehemently denied. The fact remain that the applicant was initially engaged as daily wage Beldar with the Respondent department and worked as such as is evident from the bare perusal of the copies of the mandays chart and paid vouchers appended as Annexure R-I and R-II respectively. The averments of this para are nothing but a concocted one and are therefore absurd, vague and misleading. The applicant worked and paid her daily wages as Beldar till 30-11-94 and from 1-12-94 the applicant was engaged on daily wage basis as Complaint Attendant. Thus the averments contrary to what is stated above in the corresponding para under reply are wrong and therefore denied.

Rejoinder refuting the stand on behalf of the Respondents and reiterating the averments set up in the petition, has been filed.

It is manifest from the mandays chart Annexure R-I, filed on behalf of the Respondents that the Petitioner, who had initially joined the employment of the Respondent-department as Beldar on 1.6.1988, continued as such upto 30.11.1994. Thereafter, she started working as Complaint Attendant w.e.f. 1.12.1994. Though, in the year 1994, she had put in only 31 mandays as Complaint Attendant, thereafter right from the year 1995 upto 2001, she worked for more than 240 days in each calendar year. The records of the case have been produced in terms of orders dated 8.12.2010, 28.3.2011 and 20.4.2011. A perusal of the same would go to show that in 2002 as well, the Petitioner had put in more than 240 days as Complaint Attendant. Thus, from 1995 to 2002, she had completed 8 years continuous service as Complaint Attendant with more than 240 days in each calendar year and was thus entitled to be regularized as such on and with effect from 1.1.2003. However, she has been regularized as Complaint Attendant only with effect from 9.1.2007.

In view of the above, the petition is allowed with a direction to the Respondents/competent authority to consider the case of the Petitioner for regularization as Complaint Attendant retrospectively with effect from 1.1.2003, within three months from the date of production of copy of this judgment by the Petitioner and to pay to her difference of wages between that of Beldar and Complaint Attendant within the same time, failing which, interest @ 9% per annum shall also be payable. Needless to say that the Petitioner shall also be entitled to seniority in terms of this judgment. Records returned.

The petition as also pending CMP(s), if any, stand disposed of in the above terms.