IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 14505 of 2008. Date of Decision : June 28, 2011 Himal Singh Pathania … Petitioner Versus State of H.P. and another … Respondents. Coram: The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner: Mr. Ranjan Sharma, Advocate. For the respondents: Mr. R. K. Bawa, Advocate General with Mr. Ankush Dass Sood, Addl. A.G. and Mr. J. K. Verma, Dy. A.G. Justice Sanjay Karol, J. (Oral) Petitioner has prayed for the following reliefs:- (i) That the respondents may be directed to treat the training period w.e.f. 1.8.2003 to 31.7.2004 as duty period with full pay and allowances, forthwith. (ii) That the respondents may be directed to release the arrears of pay and allowances/salary and to regularize the pay fixation (without postponing the increment due to grant of EOL) after 1.8.2003 and the annual increments due till June, 2006 and thereafter, forthwith. (iii) That the condition of treating the duty period as EOL, in the orders, dated 6.8.2003, vide A-5 and in the Whether reports of Local Papers may be allowed to see the judgment? 2 service book entered in Feb 2005, may be quashed and set aside. 2. Petitioner was appointed as a Wireman Instructor w.e.f. 31.1.1986 by respondent No. 2. There is some background with regard to his termination and re-engagement detailed reference thereof is not necessary save and except that he was re-engaged as Wireman/Instructor on ad hoc basis w.e.f. 3.11.1995 and has continued to work as such. Later on he was regularized w.e.f. 17.12.2002 which order (Annexure A-4) stipulated a condition that he must pass C.T.I. training within one year. Petitioner was agitated against imposition of this condition for the reason that unconditional benefit of regularization stood accorded to other similarly situated Instructors. It is not in dispute that vide order dated 6.8.2003 (Annexure A-5) petitioner was sent for C.T.I. training at Hyderabad which he successfully completed. However training period i.e. 1.8.2003 – 31.3.2004 was treated as earned leave which according to the petitioner is illegal. 3. The condition of undergoing training was not there at the time of his original appointment or re-engagement. The same was introduced subsequently. Benefit of regularization, unconditionally has also been accorded to other employees. 4. Our attention has been invited to a decision rendered by this Court in CWP(T) No. 7411 of 2008, titled as Dilbag Singh versus 3 State of H.P. through Secretary and others, decided on 29.12.2010, copy of which is taken on record, wherein in some what similar circumstances precondition of clearance of examination has been held to be not in accordance with law. It is held that:- “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 4 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”.” 5. In these circumstances Annexure A-5 is quashed with a direction that the period between 1.8.2003 to 31.7.2004 shall be treated as a duty period for which petitioner shall be entitled to pay and allowances. Petitioner shall also be entitled to consequential 5 benefits. Needful shall be done within a period of three months from the date of the receipt of the certified copy of the judgment. (Justice Kurian Joseph), Chief Justice. (Justice Sanjay Karol), Judge. June 28, 2011 (PK)