1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No.12454 of 2008 Date of decision: 1.8.2011 ________________________________________________________________ Ram Bahadur .....Petitioner. Versus State of Himachal Pradesh & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ________________________________________________________________ For the petitioner: Mr. Narinder Thakur , Advocate vice Mr. Neel Kamal Sood, Advocate. For the respondents : Mr. P.K. Sharma, Addl. Advocate General with Mr. Anil Jaswal, Dy. Advocate General V.K. Sharma, J. (Oral). The petition has been filed on the following prayer:- “To direct the Respondents to withdraw the orders dated 8th July, 2005, Annexure A-2, whereby the services of the applicant have been regularized w.e.f. 4.10.2002 and further to restore the orders dated 7th July, 2005, Annexure A-1, whereby the services of the applicant have been regularized from the due date i.e. w.e.f. 1.4.1995.” 2. In reply, the respondents have taken the following stand vide para 6(i) to (vii):- “Para 6(i to vii) In reply to these para's it is submitted that the applicant was engaged as casual labourer on daily wages on Muster Roll to carry out the Agricultural farm operations on the Vegetable Development Farm at Baritee in the Department of Agriculture. The applicant completed 240 days in a calendar 1 Whether reporters of Local Papers may be allowed to see the judgment? No. 2 year in different schemes/works and the applicant is a citizen of Nepal. The Govt. has taken the decision that a candidate for appointment to any service or post must be a citizen of India. A copy of the notification is annexed as Annexure R/1. Instead of this the applicant has been considered for the regularization of the basis of Govt. policy and in accordance with R & P Rules and who completed 10 years continuous service with minimum of 240 days in the calendar year. It is pertinent to submit that the applicant has been considered for regularization w.e.f. 01-04-1995 to 03-10-2002 purely on notional basis without any pay and allowances and he will be entitled for financial benefit w.e.f. 04-10-2002. The copy of order is annexed as Annexure R/II. In view of the judgment delivered by the Hon'ble Supreme Court of India in the case of Jai Devi Gupta Versus State of HP reported in AIR 1998 SC 2819. That the arrears of the Govt./Department should be restricted for a period of three years only. A copy of which is enclosed as Annexure R/III. The applicant has been given the appointment w.e.f. 01-04-1995 on notional basis and the financial benefit has already been given of the applicant w.e.f. 04-10-2002 when the actual joining is 20-07-2005. Hence, the claim of the applicant is devoid of any merit and deserves to be dismissed in limine in the interest of justice.” 3. Services of the petitioner, who is a Nepali national, were regularized as Beldar on temporary basis vide memo dated 7.7.2005, Annexure A-1. This memo specifically refers to issuance of 'No Objection Certificate' issued in favour of the petitioner by the Ministry of External Affairs, Government of India vide letter dated 11.2.2000. However, later on vide office order dated 8.7.2005, Annexure A-2, the aforesaid memo dated 7.7.2005, Annexure A-1 was modified on the very next day stating that the date of regularization of the petitioner may be read as 4.10.2002 instead of 3 1.4.1995. Being aggrieved, the petitioner filed Original Application(OA) No. 2043/1999 in the erstwhile H.P. State Administrative Tribunal (since abolished) which vide order dated 15.12.2005, Annexure A-3 quashed the order impugned therein, which has been filed with the present petition as Annexure A-1, dated 7.7.2005 and ordered that the status quo as existed immediately before issuance of the said order shall stand restored. However, it was clarified that the order passed by the Tribunal (Annexure A-3) would not come in the way of the respondents in re- examining the matter in accordance with law. 4. Consequently, the matter was re-examined by the respondents in the light of office memoranda dated 11.7.2000, Annexure R/1 and 15.1.2002, Annexure R/3 pursuant to which office order dated 22.2.2006, Annexure R/2 was issued whereby services of the petitioner were regularized as Beldar 'purely on notional basis without any pay and allowances alongwith financial benefits w.e.f. 4.10.2002.' However, to my mind the case of the petitioner is squarely covered under judgment dated 27.7.2009 passed by this court in CWP No. 1594/2008, Shri Man Singh vs. State of H.P. & Ors and the connected matters, text whereof is as under:- “Since common questions of law and facts are involved in these petitions, they have been taken up together for hearing and are being disposed of by a common judgment. The core issue involved in these petitions is the manner in which the services of Nepalis are to be regularized. The Court had issued various directions from time to time to elicit information from the State Government the manner in which the services of the petitioner and similarly situate persons are 4 to be regularized. The State Government has placed on record copy of resolution dated 1.3.1977. The text of letter dated 1.3.1977 reads thus: “The Government of India have decided that in supersession of earlier instructions regarding the eligibility for appointment under the Government of India, the standard rule for recruitment will henceforth be modified as follows: A candidate for appointment to any Central Service or post must be- (a) a citizen of India, or (b) a subject of Nepal, or (c) a subject of Bhutan, or (d) a Tibetan refugee who came over to India before the Ist January, 1962, with the intention of permanently settling in India, or (e) a person of Indian origin who has migrated from Pakistan, Burma, Sri Lanka, East African countries of Kenya, Uganda, the United Republic Zambia, Malawi, Zaire and Ethiopia with the intention of permanently settling in India. Provided that a candidate belonging to categories (b), (c), (d) and (e) shall be a person in whose favour a certificate of eligibility has been issued by the Government of India. Provided further that candidates belonging to categories (b), (c) and (d) above will not be eligible for appointment to the Indian Foreign Service. A candidate in whose case a certificate of eligibility is necessary may be admitted to an examination or interview conducted by the Union Public Service Commission or other recruiting authority, but the offer of appointment may be given only after necessary eligibility certificate has been issued to him by the Government of India. Order: Ordered that a copy of this Resolution may be communicated to all State Governments, all Ministries of the Government of India etc. and also 5 that the Resolution be published in the Gazette of India.” In sequel to resolution dated 1.3.1977, the Ministry of Home Affairs had issued office memorandum dated 10.5.1978. The operative portion of the letter reads thus: “4. 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.” The Commissioner-cum-Secretary (Home) has sought certain clarifications on the issue of certificate of eligibility in the case of Shri Sita Ram Bhadur on 22.2.1996. The Ministry of Personnel, Public Grievances and Pensions have sent the following communication to the Commissioner- cum-Secretary (Home), Government of Himachal Pradesh in the month of March, 1996. The text of the letter reads thus: “I am directed to refer to your letter No. Home-B (E)3-2/95, dated the 22nd Feb., 1996 on the subject mentioned above and to say that as per the standard rule for recruitment laid down in this Department’s Resolution No. 15014/3 (s)/76-Estt. (B) dated the Ist March, 1977, a subject of Nepal shall be eligible for appointment to a Central Service or posts provided a certificate of eligibility in his favour has been issued by the Government of India. Vide delegation made in the Department of Personnel & A.R. O.M. No. 15016/1/78-Estt. (B) dated the 10th May, 1978 (copy enclosed), “a certificate of eligibility is now to be issued by the Ministry/Department itself which is 6 administratively concerned with the posts where the candidate is likely to be appointed. The State Public Services have been included in the List II- State List of the Seventh Schedule to the Constitution of India. Accordingly, it is for the Government of Himachal Pradesh to consider and take a decision on the requests made by Shri Sita Ram Bhadur and Smt. Kaushalya Devi for issuing a certificate of eligibility in their favour keeping in view the policy instructions on the subject issued by the State Government.” The State Government has issued notification dated 15.2.2007 whereby Recruitment and Promotion Rules for Beldar Non-Gazetted Class IV in the Department of Agriculture, Himachal Pradesh were notified. According to Rule 14, a candidate for appointment to any service or post must be a citizen of India. 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. The Court passed the following order on 20.5.2009: “The learned Senior Additional Advocate General has placed on record letter dated 5.5.2009 addressed by the Director of Agriculture, Himachal Pradesh to the Principal Secretary (Agriculture). The text of the letter dated 5.5.2009 reads thus: ‘In this context, it is submitted that earlier, the matter for issuance of eligibility certificate was taken up with Govt. of India and it was advised vide letter No. E.11.4151/2000-PT.I, dated 11.2.2000 that Citizenship Certificate is a statutory document which is issued by the Ministry of Home Affairs, Govt. of India under Citizenship Act, 1955 and the citizen Rules, 1956 as per letter No. 140302/2 (s)/96-Estt. (B) dated 26.3.1996 wherein the Govt. of India vide delegation made in the Department of Personnel and A.R. O.M. No. 7 15016/1/78 Estt. (B), dated 10.5.1978. A certificate of eligibility is now to be issued by the Ministry/Department itself which is administrative concerned with the post, where the candidate is likely to be appointed. The State Public Services have been included in the List II-State list of the seventh schedule to the Constitution of India keeping in view the policy instructions on the subject issued by the State Govt. (Copies enclosed). Further in the case of Sh. Ram Bahadur, Dil Bahadur, Chander Bahadur and Laxman bahadur permission/approval was accordedtification dated 15.2.2007 whereby Recruitment and Promotion Rules for Beldar Non-Gazetted Class IV in the Department of Agriculture, Himachal Pradesh were notified. According to Rule 14, a candidate for appointment to any service or post must be a citizen of India. 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. The Court passed the following order on 20.5.2009: “The learned Senior Additional Advocate General has placed on record letter dated 5.5.2009 addressed by the Director of Agriculture, Himachal Pradesh to the Principal Secretary (Agriculture). The text of the letter dated 5.5.2009 reads thus: ‘In this context, it is submitted that earlier, the matter for issuance of eligibility certificate was taken up with Govt. of India and it was advised vide letter No. E.11.4151/2000-PT.I, dated 11.2.2000 that Citizenship Certificate is a statutory document which is issued by the Ministry of Home Affairs, Govt. of India under Citizenship Act, 1955 and the citizen Rules, 1956 as per letter No. 140302/2 (s)/96-Estt. (B) dated 26.3.1996 wherein 8 the Govt. of India vide delegation made in the Department of Personnel and A.R. O.M. No. 15016/1/78 Estt. (B), dated 10.5.1978. A certificate of eligibility is now to be issued by the Ministry/Department itself which is administrative concerned with the post, where the candidate is likely to be appointed. The State Public Services have been included in the List II-State list of the seventh schedule to the Constitution of India keeping in view the policy instructions on the subject issued by the State Govt. (Copies enclosed). Further in the case of Sh. Ram Bahadur, Dil Bahadur, Chander Bahadur and Laxman bahadur permission/approval was accorded by the Govt. vide letter No. Agr.E (3)4.2005-L, dated 3.6.2005 and 4.7.2005 (copies enclosed). It is requested that as per permission/approval in favour of above mentioned officials, necessary approval/ permission/eligibility certificate to regularize Sh. Man Singh, DPL and other DPLs, may kindly be conveyed at the earliest, so as to take further action in the matter accordingly.’ Accordingly, the Principal Secretary (Agriculture) is directed to take the decision within a period of three weeks from today. The decision shall be placed on record by way of affidavit. List after three weeks.” In sequel thereto, the State Government has filed an affidavit whereby certificate of eligibility has been issued in favour of the petitioner on 16.7.2009. Thereafter, the services of the petitioner-Shri Man Singh have been regularized vide office order dated 18.7.2009. The Secretary (Agriculture) to the Government of Himachal Pradesh has also issued a letter to the Director of Agriculture on 16.7.2009. The text of letter reads thus: “I am directed to refer to your letter No. Agr.H(I)(B)5-7/2000-Vol-I (Sirmour), dated 16th 9 July, 2009 on the subject cited above and to enclose herewith Eligibility Certificate in respect of Shri Man Singh, Beldar duly signed. So far as Political Clearance in respect of Shri Man Singh is concerned, you are requested to take up the matter with the Ministry of Home Affairs, Government of India, immediately under intimation to this Department. You are further requested to apprise the Hon’ble High Court of H.P. accordingly by filing an affidavit even on behalf of the Government i.e. Respondent No.1 immediately under intimation to this Department.” It is evident from the reading of letters quoted hereinabove that only eligibility certificate is required in case of Nepalis. In fact, the services of Shri Man Singh stood regularized after issuance of eligibility certificate. So far as Political Clearance in respect of Shri Man Singh is concerned, the Directorate of Agriculture was requested to take up the matter with the Ministry of Home Affairs, Government of India. In view of the observations made hereinabove, since the decision has been taken in case of Shri Man Singh to regularize his services on the basis of eligibility certificate issued by the Head of Department, the same procedure is required to be followed in the cases of petitioners in CWP (T) No. 7605 of 2008, titled Suraj Bahadur Versus H.P.S.F.C. and CWP (T) No. 7609 of 2008, titled Raj Kumar Versus State of H.P. within a period of eight weeks.” 5. Therefore, the office memoranda dated 11.7.2000, Annexure R/1 and 22.2.2006, Annexure R/2 have no application in the facts and circumstances of the present case. It is because, as already noticed, though the petitioner is a Nepali national, yet the requisite 'No Objection Certificate' had already been issued in his favour by the Ministry of External Affairs, Government of India as far 10 back as 11.2.2000 on the basis of which the respondents themselves had regularized his services as Beldar. Thus, the requirement of R & P Rules that the incumbent ought to be an Indian national and dictum of law laid down by Hon'ble Supreme Court in the case of Jai Dev Gupta, supra do not apply to the facts of this case. 6. In view of the above, the petition is allowed and consequently, office orders Annexure A-2, dated 8.7.2005 and Annexure R/2, dated 22.2.2006 are quashed with a direction to the respondents/competent authority to re-consider the entire matter in the light of the judgment dated 27.7.2009 in CWP No. 1594/2008, Shri Man Singh vs. State of H.P. & Ors and the connected matters, referred to hereinabove and take a final decision in the matter in accordance with law within three months from the date of production of a copy of this judgment by the petitioner, after affording an opportunity of being heard to him, if so desired and to pay him the consequential benefits, if any, within further two months. 7. The petition as also pending application(s), if any, stand disposed of. (V.K. Sharma) Judge 1st August 2011 (vt)