IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 1778 of 2008 Judgment reserved on : 30.11.2010 Date of decision: 30.12.2010. Smt. Jeet Kumari ….. Petitioner. Vs. H.P. State Forest Corporation & Anr. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Ajay Dhiman Advocate. For the Respondents : Mr. Bhupinder Thakur, Advocate. Kuldip Singh, J. The petitioner has prayed for quashing of office order No.241/2007-08 dated 24.3.2008 Annexure A-4 with a prayer that respondents may be directed to allow the petitioner to work as diary and dispatch clerk on daily wage basis. It has also been prayed that respondents may be directed to consider the case of the petitioner for regularisation as diary and dispatch clerk in as much as the petitioner has completed the requisite years of daily wage service as per the policy of the respondent-1/Corporation. In alternative, direction has been sought to respondents to consider the case of the petitioner for Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… work-charged status as clerk after completion of ten years of daily wage service. 2. The case of the petitioner is that her husband Virender Singh died on 10.12.1997 when he was working with respondent No.1-Corporation. The petitioner applied for appointment in the Corporation on compassionate grounds. The petitioner vide office order dated 21.12.1998 Annexure A-1 on the recommendation of Director (North), Dharamshala, was appointed by respondent No.2 on compassionate ground in Working Division of Forest Corporation at Hamirpur. The petitioner in pursuance of order dated 21.12.1998 joined in the office of respondent No.2 on 26.12.1998. 3. The respondent No.2 vide office order No.91/1998 dated 15.1.1999 assigned the duties of diary and dispatch clerk to the petitioner. It is the case of the petitioner that since her joining in respondent No.1-Corporation she is performing the duties of clerk in Forest Working Division, Hamirpur. The petitioner has also annexed experience certificate dated 16.4.2007 indicating that she had been working as clerk on daily wages since 26.12.1998. According to petitioner as per judgment in ‘Mool Raj Upadhay’ of Supreme Court, the petitioner is entitled to the status of work-charge clerk. The petitioner has also alleged that as per policy of the Corporation the persons who have completed eight years of daily wage service are to be regularised. The petitioner is awaiting her regularisation as clerk as she has completed the requisite period for regularisation. 4. The respondent No.2 instead of regularizing the service of the petitioner as clerk reverted the petitioner from the post of daily …3… wager diary and dispatch clerk to perform the duty of class-IV employee on daily wage basis vide office order dated 24.3.2008 Annexure A-4. The petitioner is fully eligible to be appointed as clerk. She is having the requisite qualification for the post. The action of respondents for reverting the petitioner from the post of daily wage clerk to daily wage class-IV employee is illegal, arbitrary and unconstitutional. 5. The petition has been contested by respondents No.1 and 2 by filing reply. In preliminary objections, it has been stated that the petitioner has been engaged on daily wages on the death of her husband on compassionate grounds who had worked with the Corporation on daily wages. The petitioner being a widow was given job in the office on daily wages keeping in view the fact that she could not perform the odd jobs in the field, but the petitioner was never engaged as clerk. The daily wager is required to perform physical work, watch and ward duty in the forests, sometimes at odd hours. 6. On merits, it has been stated that petitioner was appointed as daily wager vide letter dated 21.12.1998. The petitioner joined her duty on 26.12.1998. It has not been denied that petitioner was asked to perform duty of dispatcher vide office order dated 15.1.1999. Later on all daily wagers were given the designation of field man vide letter dated 5.9.2001 of Managing Director of the Corporation. The petitioner was also considered as field woman alongwith other daily wagers. It has been admitted that petitioner has been performing her duties in dispatch section with respondent No.2 since 15.1.1999 on daily wages. The petitioner cannot be …4… designated as clerk. The case of the petitioner will be considered for regularisation against the post of field woman as and when the order for regularisation against such posts is received from the Government as per policy. The clerks are appointed as per Recruitment & Promotion Rules for the appointment of clerks and availability of posts. The petitioner has not been appointed as clerk as per Recruitment and Promotions Rules. There are no instructions/ policy to regularise the daily wager against the post of clerk. The petitioner cannot be regularised as a clerk. The respondents No.1 and 2 have prayed for dismissal of the petition. 7. I have heard the learned counsel for the parties. It has been submitted on behalf of the petitioner that since 15.1.1999 the petitioner is continuously discharging her duties of diary and dispatch clerk with respondent No.2. There is a policy of regularisation after eight years of daily wage service. The petitioner has already rendered more than eight years of continuous daily wage service with respondent No.2 but instead of regularizing her as clerk the respondents vide office order dated 24.3.2008 have directed the petitioner to perform duties of class-IV employee on daily wages in the office of Divisional Manager, Hamirpur. The learned counsel for the petitioner has relied judgment dated 3.3.2008 in CWP No.456 of 1997. 8. The learned counsel for the respondents has submitted that petitioner was engaged on daily wages on compassionate grounds after the death of her husband who was working in the Corporation. The daily wagers are required to work at odd hours in …5… the field including forests, the petitioner being a woman was adjusted in the office of respondent No.2 to handle diary and dispatch work. The petitioner was never engaged as clerk and therefore, she is not entitled to regularisation as clerk. The case of the petitioner would be considered for regularisation as field woman as and when post will be available for regularisation. 9. It is admitted case of the parties that petitioner was engaged on compassionate grounds on daily wages after the death of her husband. The petitioner was engaged on daily wage basis vide letter dated 21.12.1998 and she joined as such on 26.12.1998. She is performing the duties of diary and dispatch clerk in the office of respondent No.2 since 15.1.1999. The sole question in the petition is whether petitioner who was engaged on daily wage basis is entitled to regularisation as clerk on the ground that she had been performing the duties of clerk. 10. According to respondents the husband of the petitioner had worked in the Corporation on daily wages, the petitioner was engaged as class-IV employee on daily wage basis on compassionate grounds. According to respondents a clerk can be appointed only in accordance with Recruitment and Promotion Rules. Merely the petitioner is discharging duties of clerk in the Corporation that does not mean that she was engaged as clerk and once she was not engaged as clerk she is not entitled to regularisation as clerk. The discharging of the duties of clerk will not confer the status of clerk. …6… 11. In CWP No.456 of 1997 the petitioner was shown to be on the muster roll of Watch and Ward Staff, he was actually performing the duty of clerk-cum-typist. He had claimed that he should be regularised as clerk-cum-typist. The Corporation took the stand that petitioner was initially engaged as Chowkidar on daily wage basis w.e.f. 1.8.1985 to 31.10.1988 and from 1.11.1988 the petitioner had worked as helper and continued to work as such till 31.12.1997 and was regularised w.e.f. 1.1.1998 as Chowkidar. In CWP No.456 of 1997 H.P. State Forest Corporation was respondent No.1. The Division Bench in judgment dated 3.3.2008 in CWP No.456 of 1997 has held as follows:- “Even if we accept the affidavit of the respondent- Corporation, it is apparent that in case the petitioner opts to be regularised as a helper and his services as such are considered from 1.11.1988, he shall be liable to be regularised as helper w.e.f. 1.11.1998. The Division Bench has further held as follows:- Keeping in view the law laid down by this Court in CWP No.778 of 2006 State of H.P. Vs. Gauri Dutt and the option exercised by the learned counsel for the petitioner, we direct that the respondent- Corporation shall regularise the petitioner as a helper w.e.f. 1.11.1998 with all consequential benefits.” 12. It has been submitted by learned counsel for the petitioner that there is a policy of regularisation. In para 6(vi) of the petition the petitioner has pleaded that as per policy of the Corporation, the persons who have completed eight years of daily wage service are to be regularised. The respondents in reply have not denied the existence of such policy, they have rather stated that …7… petitioner will be considered for regularisation against the post of field woman as and when the orders for regularisation for the post of field woman are received from the Government as per policy. Thus, it is clear that there is a policy with respondent No.1 for regularisation of daily wagers. 13. The petitioner has been assigned duties of diary and dispatch clerk since 15.1.1999. It is not the case of the respondents that diary and dispatch work is not the duty of clerk. On the contrary respondent No.2 has given experience certificate dated 16.4.2007 indicating that petitioner has been working as diary and dispatch clerk (on daily wages) since 26.12.1998. The erstwhile Tribunal, where the matter was earlier pending, on 26.3.2008 had directed the respondents to maintain status quo as existed prior to issuance of Annexure A-4 dated 24.3.2008. According to respondents there is no policy of regularisation as clerk of daily wager. But it has not been specifically pleaded by respondents that there is no policy of regularisation of daily wager clerk as clerk with respondent No.1. Thus, there is no dispute that the petitioner is working as diary and dispatch clerk with respondent No.2 since 26.12.1998. It is the case of the petitioner that petitioner is fully eligible for appointment on the post of clerk. In these circumstances, in view of judgment dated 3.3.2008 in CWP No.456 of 1997 the petitioner has made out a case for consideration of her case for regularisation by respondents as clerk as per policy of regularisation of daily wagers which was prevalent at the relevant time. 14. No other point was urged. …8… 15. The result of above discussion, the petition is allowed, office order dated 24.3.2008, Annexure A-4 is quashed. The respondents in the light of observations made above are directed to consider the case of petitioner for regularisation as clerk, as per policy of regularisation of daily wagers which was prevalent at the relevant time within a period of three months from the date of supply of copy of this judgment to the competent authority by the petitioner and the respondents shall implement the decision so taken within further one month with all consequential benefits. No costs. December 30, 2010 ( Kuldip Singh ) (sks) Judge.