IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.:2039/2008 Reserved on:17.4.2009 Decided on:14.5.2009 B.P. Kaushik. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Ms. Ranjana Parmar, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Deputy Advocate General for the respondents. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that the petitioner was initially appointed against the temporary post of Overseer in the Public Works Department in the pay scale of Rs. 100-300 vide memorandum dated 24.9.1954. He joined his duties on 14.10.1954. Thereafter vide memorandum dated 5.11.1954 he was appointed as Work Charged Overseer in the Himachal Pradesh Public works Department in the pay scale of Rs. 100-300. He joined his duties on 6.11.1954. He obtained diploma in the year 1960 as per Annexure A-5. However, he was offered regular appointment on 6.4.1968. He made several 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 representations to the respondents to declare him to be regularly appointed with effect from the initial date of appointment. He had worked as Work Charged Overseer with effect from 1954 till 1968. In his representations, he has given the instances of two persons, namely, Madhav Parshad Lohia and Hans Raj Kapoor, appointed in the year 1960 on Work Charged status, who were ranked above him in the seniority list of 26.12.1970 as well as in the subsequent seniority list of 26.12.1978. The respondent-Department issued provisional seniority list on 29.8.1985 as it stood on 31.12.1983. He was assigned Sr. No. 630. Sh. Madhav Parshad Lohia was assigned Sr. No. 68. He made representation against the provisional seniority list as per Annexure A-6. The representation made by the petitioner remained unheeded and he was constrained to approach this Court by way of CWP No. 1611/85 for the redressal of his grievance. The CWP No. 1611/85 was transferred to the learned Himachal Pradesh Administrative Tribunal and was assigned TA No. 745/86. The same was disposed of by the learned Himachal Pradesh Administrative Tribunal on 12.11.1991 with the directions to the Chief Engineer, Himachal Pradesh Public Works Department to treat the original application as representation. He was directed to decide the same within three months. The Chief Engineer rejected the representation vide office order dated 12.3.1992. Ms. Ranjana Parmar, Advocate has strenuously argued that the respondents were required to count services of her client rendered with effect from 1954 to 1968 towards for the purpose of seniority and other consequential benefits. She has strenuously relied upon letters dated 26.3.1958, 31.3.1959 and Recruitment and Promotion Rules Annexure A-20 dated 8.11.1960. She further contended that as per these two letters and Recruitment and Promotion Rules, the petitioner was required to be 3 brought on regular establishment. She lastly contended that as per letter dated 31.3.1959, the persons whose degrees/diplomas were not recognized but discharging their duties satisfactorily for three years were brought on regular establishment and the persons, who were not in possession of requisite qualification but had put in seven years of service were also required to be brought on regular establishment. She lastly contended that the respondents were bound to re-draw the seniority list by counting the services rendered by the petitioner as Work Charged Overseer with effect from 14.10.1954 till his regularization on 6.4.1968 for all intents and purposes. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that since the petitioner was not in possession of the requisite essential qualification prescribed under the rules, his case could only be considered for regularization in the year 1968. He then contended that despite the issuance of two letters on 26.3.1958 and 31.3.1959, the suitability of the petitioner was required to be adjudged. He has supported the impugned order dated 12.3.1992 passed by the Chief Engineer (South) whereby the representation made by the petitioner has been rejected. I have heard the learned counsel for the parties and perused the record carefully. The petitioner as per the averments contained in the petition had been offered appointment as Overseer initially on daily wage basis on 24.9.1954 and thereafter as Work Charged on 5.11.1954. It will be apt at this stage to take note of letter dated 26.3.1958. The respondents have not denied that this letter was applicable to the employees serving in the Himachal Pradesh Public Works Department as well. It appears from the contents of this letter that the petitioner and similarly situate persons who 4 were working in the work charged establishment were to be transferred to regular establishment. It is apparent that the respondents have not taken any action on the basis of letter dated 26.3.1958 to transfer the petitioner to regular establishment from work charged establishment. The other important document which has vital ramifications on this case is dated 31.3.1959. It will be proper to quote this letter verbatim which reads thus: “The work-charged Overseers who are not qualified have represented that they should be taken into regular cadre in consideration of their past experience and length of service in the Department. It has, therefore, been decided that subject to good reports those work- charged Overseers who have passed the Sub-Overseers examination or have qualified from the institutions of at least three years standing but which are not so far recognized by the Government may be taken into the regular cadre provided that they have put in at least five years service as work-charged Overseer in the department. It is further decided that those work- charged Overseers who have not passed from any institutions but are found to be competent and knowledgeable and useful in PWD, but may be appointed as regular overseer provided that they have put in minimum service of seven years service in the Department. It is, however, emphasized that no work-charged Overseer can claim absorption in the Regular cadre as a matter of right or on the basis of seniority and his appointment to the regular cadre will be purely on merit subject to above conditions being fulfilled.” It is evident from the phraseology employed in letter dated 31.3.1959 that the Overseers appointed on work charged basis and who have passed the Sub-Overseers examination or have qualified from the institutions of at least three years standing but which was not so far 5 recognized by the Government may be taken into the regular cadre provided they have put in at least five years service as work charged overseer in the Department. The Overseers who were appointed on work charged basis but had not passed any examination but were competent and were knowledgeable and useful in Public Works Department and have put in seven years service could be appointed on regular basis as Overseers. Ms. Ranjana Parmar has drawn the attention of the Court to notification dated 8.11.1960 whereby rules known as “the Himachal Pradesh, Public Works Department Subordinate Services Class-III Section Officer (Technical) Recruitment Rules, 1960” were notified. Rule 5 deals with education and qualification, which reads thus: “5. Educational and other qualifications:- No person shall be appointed to the service unless he holds a diploma or degree in Civil or Electrical or Mechanical Engineering of an Institution recognized by the Government of India or the administration from time to time except in the case of section officers already in employment in the Department as work charged Sectional Officer or otherwise who may be appointed to the service even though they do not have the requisite qualifications subject to their fulfilling the conditions laid down in Chief Engineers No.PWE-157- 1/58-16789-807 dated 31st March, 1959.” It is evident from the phraseology employed in rule 5 that no person could be appointed to the service unless he held a diploma or degree in Civil or Electrical or Mechanical Engineer of an Institution recognized by the Government of India. However, in case of Sectional Officer already in employment in the department as work charged Sectional Officer or otherwise they could be appointed to the services 6 even though they did not have the requisite qualifications subject to their fulfilling the conditions laid down in letter dated 31.3.1959. Letter dated 31.3.1959 has been quoted in its entirety hereinabove. The petitioner had obtained diploma i.e. Annexure A-5. There was some dispute whether the diploma issued by the Madras Government was recognized or not in the State of Punjab. The State of Punjab had withdrawn the reorganization of the higher grade in Civil Engineering issued by the Madras Government on 2.12.1960, however, on the basis of the clarification sought, the Government of Punjab had decided to recognize the diploma certificate issued by this institution, including College of Engineer, Madras vide letter dated 9.10.1961. The petitioner was appointed as Work-charged Overseer in the year 1954. His case was required to be considered for bringing him on regular establishment as per letters dated 26.3.1958 and 31.3.1959 and as per the Recruitment and promotion Rules i.e. Annexure A-20. He had supplied the information that he has obtained the requisite diploma Annexure A-5 to the respondents. Even if it is presumed hypothetically that the diploma obtained by the petitioner was not recognized in that eventuality as per letter dated 31.3.1959, he was required to be considered for regular appointment after he had put in five years of service in the year 1959. Even taking the worse scenario against the petitioner that he has not obtained any diploma at all in that eventuality as per letter dated 31.3.1959 and Recruitment and Promotion Rules notified on 8.11.1960, he was liable to be considered for appointment on regular basis after seven years of service. Their Lordships’ of the Hon’ble Supreme Court have held in B.N. Saxena Vs. New Delhi Municipal Committee and others, AIR 1990 Supreme Court 2021 that the person having no diploma qualification but 7 having experience of service for six years as Senior and Junior Draftsman was entitled to be considered for promotion to the post of Head Draftsman. Their Lordships of the Hon’ble Supreme Court have held as under: “The question is whether the petitioner possesses the prescribed qualification. The revised rules provide alternate qualification for the post of Head Draftsman. The first part of the rule prescribes a diploma with a minimum of three years service as Senior Draftsman in the scale of Rs. 250-400. The second limb of the revised rule refers to the service rendered by the candidate. It provides for six years of service as Senior and Junior Draftsman. The first part of the rule is almost similar to the qualification prescribed prior to the amended rules. The old rule provided: “Matric with Diploma/ certificate in Draftsmanship from a recognised institution with three years experience in preparation of Engineering/Drawing in an Electric supply undertaking or an engineering manufacturing organisation.” The second limb of the rule was evidently to benefit all those persons who have gained sufficient experience as Senior and Junior Draftsmen without possessing any qualification. Experience gained for a considerable length of time is itself a qualification (See the observation in State of U.P. v. J.P. Chaurasia, 1989 (1) SCC 121: (AIR 1989 SC 19). It would be unreasonable to hold that in addition to this considerable experience, one must also have the diploma qualification prescribed under the first part. It could not have been the intention of the rule making authority that persons who were designated as Senior Draftsmen without any Diploma qualification should acquire such diploma qualification for further promotion. Such a view would not be consistent and coherent with the revised rule and its object. We have no doubt that the second limb of the 8 revised rule is independent of the first. The High Court seems to have erred in this aspect of the matter.” In a recent judgment, the Hon’ble Apex Court in Chief Executive Officer, NSSO and others Vs. Biswa Bhusan Nandi, (2008) 10 Supreme Court Cases 161 has held as under: “It is not a case where work experience of technical or professional nature was essential. Even in a case where experience in non-technical professional work was experience (sic) although prescribed as essential yet in a case where the appointing authority is satisfied that the ex-serviceman is expected to perform his duties in the post by undergoing “on-job training” for a short duration in terms of sub rule (4) of Rule 6, as amended, such appointment could have been made.” The petitioner has been assured by the competent authority as per Annexure A-3 that his case for appointment as regular Overseer was under consideration in the year 1966 as well. The effect of not considering the case of the petitioner for regular appointment though he was eligible as per the letters dated 26.3.1958 and 31.3.1959 and Recruitment and Promotion Rules notified on 8.11.1960 was that the persons who were appointed even in the year 1970, namely, Madhav Parshad Lohia and Hans Raj Kapoor were ranked senior to him in the provisional seniority list issued by the respondent-State from time to time. His representations were not heeded to by the respondents for the reasons best known to them. It was only on the basis of the directions issued by the learned Himachal Pradesh Administrative Tribunal in TA No.745 of 1986 on 12.11.1991 that the Chief Engineer was directed to decide the representation. He also misconstrued the Recruitment and Promotion Rules as well as letters dated 26.3.1958 and 31.3.1959 while rejecting the 9 representation. He has failed to take into consideration the letter and spirit of letters dated 26.3.1958 and 31.3.1959. In fact, he had come to the wrong conclusion that the diploma obtained by the petitioner was not recognized in the State of Punjab. The petitioner was entitled to be considered for regular appointment after putting in five years of service as per first clause of this letter dated 31.3.1959. The respondents have purportedly considered the case of the petitioner for regularization as per Annexure R-1 dated 1.4.1968 and Annexure A-4 dated 6.4.1968. This exercise was required to be undertaken by the respondents immediately after the issuance of letters dated 26.3.1958 and 31.3.1959 and at the time when the Recruitment and Promotion Rules were promulgated on 8.11.1960. The action of the respondents of not considering the case of the petitioner is declared arbitrary. He has not been dealt with in a just and fair manner by the respondents. His non-consideration after the issuance of letters dated 26.3.1958 and 31.3.1959 has resulted in grave miscarriage of justice to him. The persons junior to him have been brought above him and even they have been promoted to the post of Assistant Engineers. Accordingly, the petition is allowed. Annexure A-18 dated 12.3.1992 is quashed and set aside. Normally this Court was required to direct the respondents to consider the case of the petitioner, however, taking into consideration the chequered history of the case, it is desirable to grant the effective relief to the petitioner by declaring that the petitioner shall be deemed to have been appointed on regular basis as Overseer immediately after the completion of his five years service as per letter dated 31.3.1959 and Recruitment and Promotion Rules, 1960 with all consequential benefits, including seniority, promotion etc. The respondents are directed to calculate/work out the consequential benefits 10 within a period of eight weeks from today. The petitioner is held entitled to interest @ 9% per annum on the monetary benefits. There shall, however, be no order as to costs. 14.5. 2009 (Rajiv Sharma ), J. *awasthi*