IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 12480 of 2008 Date of Decision: 28.11.2011. Tara Devi …….. Petitioner Versus H.P. State Forest Corporation Limited and Ors. …….. Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the petitioner : Mr. Ashwani K. Sharma, Advocate. For the respondents : Mr. Bhupinder Thakur, Advocate. Justice Sanjay Karol, J. (Oral) Petitioner has prayed for the following reliefs:- “ (i) That the act of the respondents in changing the designation of the applicant from Office Helper to Peon- cum- Office Helper and then subsequently from Peon- cum-Office Helper to Peon may kindly be declared illegal, arbitrary, contrary, unjust, unconstitutional, unwarranted and unsustainable in the eyes of law and the respondents may please be directed to make the correction in the designation of the applicant from Peon to Office Helper and the applicant be considered as Office Helper for all purposes w.e.f. 1-9-1991. (ii) That the respondents may further be directed to regularise the services of the applicant as Office Helper w.e.f. 6-5-2003, the date, when the applicant was regularised as Peon vide order dated 6-5-2003 issued Whether reports of Local Papers may be allowed to see the judgment? 2 by the respondent No.2, alongwith all consequential benefits. (iii) That the memo dated 24-4-2005 (Annexure /A- 21) and 4-2-2005 (Annexure/A-25) issued by the respondent No.2 may please be quashed as the same is contrary to the record. (iv) That the record of the case may kindly be summoned up and the costs of the application may be awarded in favour of the applicant. (v) That any other relief which this Hon’ble Tribunal may deem fit and proper may also be granted to the applicant.” 2. Petition is opposed inter-alia by taking following preliminary objections, reference whereof would be beneficial for deciding the controversy in issue:- “3. The applicant was employed as daily waged in the office of Sub Divisional Manager Una on 1.9.1991 and has been regularized as Peon vide Divisional Manager, Una Office order No.23/2003-04 dated 14.5.2003 (Annexure-R-I). The offer of appointment was given to the applicant vide Director (North) H.P. State Forest Corporation Limited, Dharamsala office order No.25 dated 6.5.2003 (Annexure-R-II). The applicant accepted the offer of appointment and submitted joining report dated 8.5.2003 (Annexure R- III). The appointment/regularizations of the applicant was done along with other daily waged in the H. P. State Forest Corporation, keeping in view the decision made by the Board of Directors, criteria’s framed for the same and seniority of each daily wage maintained in the office of Divisional Manager and Head office as well. 3 The category wise seniority of daily wage peon sent to Managing Director, H.P. State Forests Corporation Limited Shimla by Divisional Manager, Forest Working Division, Una vide letter No.6242-43 dated 27.7.1992 is enclosed herewith as (Annexure-R-IV). Further category wise information in respect of daily wage staff was sent to management of H.P. State Forest Corporation Limited, Dharamsala vide letter No.E- 22/11696-97 dated 10.2.1993 (extract copy of the same is enclosed as (Annexure-R-V). 4. The designation of the applicant was written as Office Helper and Peon-cum-office Helper in cash book during the month of 9/91 and 10/91 respectively at the sweet of the then Sub Divisional Manger Una in anticipation of approval from the higher authority and without completing the codal formalities. Managing Director asked an information of daily waged category wise vide his letter No.7649-52 dated 14.7.92 (Annexure R-VI) which was replied by Divisional Manager Una vide his letter No.6242-43 dated 27.7.92 (enclosed as Annexure R-IV) The records reveals that (Annexure-R-V) the qualification of applicant was under matric during appointment, therefore, the applicant had not fulfilled the required qualification (i.e. minimum Matric) for the post of office helper on 1.9.1991. Moreover as per record of this office the applicant had not produced/submitted the proof of qualification during the first appointment of applicant as daily waged. It is pertinent to add here that in writing the applicant was never employed as Office Helper.” 3. It is not in dispute that petitioner was engaged on daily wage basis in the Office of Sub Divisional Manager, Una w.e.f. 4 1.9.1991. It is also not in dispute that petitioner stands regularized as Peon w.e.f. 6.5.2003 (Annexure A-22). From the material placed on record, it also can not be disputed that petitioner had cleared her Matriculation Examination and obtained a pass certificate dated 25th June, 1991 (Annexure A-4); cleared her Sr. Secondary Examination some time in June 1994 (Annexure A-5); and also completed her course in Shorthand in the year 1995 (Annexure A-6). Record also reveals that in the first two months of her engagement, petitioner was paid wages that of a Helper. This is evident from record maintained by the respondents themselves (Annexures A-16, A-17 and A-18). Here, her presence in the office record is marked as a Helper. These documents evidentially show that she has received wages that of a Helper/ Peon-cum-Helper. It was only from the month of December, 1991 onwards that petitioner was paid wages of a Peon and not a Helper. She made a grievance about the same, but it appears that no action was taken. She also made a representation to the Director that she be paid wages of a Helper which was rejected by the competent authority in terms of order dated 24th April, 2003 (Annexure P-21), which reads as under:- “HIMACHAL PRADESH STATE FOREST CORPORATION LIMITED, DIRECTORATE NORTH ZONE DHARAMSHALA-176215. No.SFC/NZ/E-29/-747-48 Dated 24.4.03 Smt. Tara Devi, Daily Wages Peon, Through, Divisional Manager, Una. 5 Subject:- Correction in designation. Memo : Please refer to your representation dated 4.2.03 on the subject cited above. In this connection it is informed that as per report of Divisional manager, una your designation has never been changed in writing, hence your designation can not be changed at this stage. Director (North) Dharamshala. CC:- Divisional Manager, Una w.r. to his letter No. E-22/372 dated 9.4.2003 and 455 dt. 19.04.2003 for information.” 4. However, immediately thereafter, her services were regularized as a Peon on 6th May, 2003 (Annexure A-22), aggrieved thereof, petitioner filed an appeal/representation, again bringing out her grievances which stand rejected in terms of impugned order dated 4.2.2005 (Annexure A-25), which reads as under:- “HIMACHAL PRADESH STATE FOREST CORPORATION LIMITED, DIRECTORATE NORTH ZONE DHARAMSHALA. No.SFC/NZ/E-90/ 10623-25 Dated 4.2.2005 Smt. Tara Devi, Peon Through, Divisional Manager, Forest Working Division, Una. Subject:- Correction of designation. Memo : Please refer to your representation dated 27.01.2005 on the subject cited above. You have already been informed vide this office memo No.SFC/NZ/E-29/747-48 dated 24.04.2003 that your designation as Office helper has never been changed in writing. Hence no action on your reminder dated 27.01.2005 can be taken. 6 Director (North), Dharamshala. CC:- Managing Director, H.P. State Forest Corporation Limited, Shimla with reference to representation dated 27.01.05 from Smt. Tara Devi. Peon of Forest Working Division, Una addressed to your office with a copy to this office. 2. Divisional Manager, Forest Working Division, Una for information.” 5. It is not the case of the respondents that no post of Helper was in existence/ lying vacant as on the date of engagement of petitioner in September, 1991. Stand taken by respondents that petitioner was otherwise ineligible for being considered for the post of Helper, ex- facie appears to be incorrect, as is evident from the certificates of her educational qualification placed on record by the petitioner. Plea taken by the respondents that there was interpolation in the record maintained by the Office of Sub Divisional Manager, Forest Working Division, Una with regard to the status of petitioner as recorded in (Annexures A-1 and A-2), is not substantiated by any inquiry or action taken by the respondents against erring officials. Also no action was taken to correct the same. In fact, this stands falsified by various communications, certificates and orders issued by various officers of the respondent Corporation itself. Chart (Annexure A-7) issued by Sub Divisional Manager, Forest Working Division, Una shows that petitioner is working as an Office Helper. Certificate (Annexure A-13) issued by Divisional Manager, Forest Working Division, Una shows that petitioner has been successfully discharging her duties as Office 7 Helper for a period at least three years prior to 2nd of September, 1994. Office order dated 27.4.2000 (Annexure A-15) also establishes that she has been working in the office and dealing with the files of correspondence and in addition thereto, assigned duty of typing work in the office. Most importantly and significantly, there is a letter dated 25.5.2000 (Annexure A-16) issued by the Divisional Manager, Forest Working Division, Una to the following effect:- “FOREST WORKING DIVISION, UNA. (A. UNIT H.P. STATE FOREST CORPORATION LIMITED) NO.HPSFC/FWD/UNA/5..13/1495-96 Dated: 25.5.2000 The Director (North), H.P. State Forest Corporation Ltd. Dharamsala Distt. Kangra (H.P.) Subject:- Information regarding daily paid workers who have completed 8 years of service as on 31.3.2000. Sir, ‘Jai Hind’ Kindly refer to the Managing Director, HPSFC, Ltd: Shimla office letter No.HPSFC/Estt./1804-1830 dated 25.4.2000 on the subject cited above. As desired by Head Office vide above referred to communication the complete information on prescribed performa for regularisation of the service of 4 daily wagers who have completed 8 years of service as on 31.3.2000 is sent herewith for further necessary action. Thanking you, Yours faithfully, for HP. State Forest Corporation Ltd; Divisional Manager, Forest Working Division, Una. 8 Encls: As above. FOREST WORKING DIVISION UNA (A UNIT OF HP STATE FOREST CORPORATION LIMITED) -0- (Statement showing the particulars of daily wager who have completed 8 years of service as on 31.3.2000) Sr. No Name Father’s name Date of Birth Educational qualification Date of apptt. in different categories from time to time (from initial apptt. Till 31.3.2000) Whether 240 days completed in cash calendar year (say Yes or No) Category. Date of Apptt. 1. 2. 3. 4. 5. 6. 7. 8. 1. Tara Devi Sh. Kishan Chand 9.10.71 10+2 Peon 1.9.1991 Yes. 1. Certified that information has been prepared correctly after verification of pay bill/muster-rolls of each official; 2. Initially she was engaged as office helper, thereafter her designation found changed as Peon. But she is doing clerical job in Pvt. Resin section w.e.f. 1.9.91. Therefore, she may be considered for regularisation as Office Helper. Divisional manager, Forest Working Division, Una.” (Emphasis supplied) 6. Noticeably, different certificates have been issued by different officers over different period of time. It may have been possible for the petitioner to have interpolated the record, as is now sought to be urged by the respondents or perhaps obtained false/incorrect certificate from one officer who may have been close to her but facts, as emerged from record, reveal a totally different picture. It appears that petitioner has been successfully performing duties assigned to her from time to time. That is why all the 9 officers, over a period of time, have been recommending her case. It is clear that she was fully eligible to be engaged as a Helper and in my considered view, respondents should have not only released her wages that of a Helper but also regularized her as such. It is also seen that while rejecting petitioner’s representation/appeal, no reasons have been assigned by the authorities. 7. For all the aforesaid reasons, petition is allowed. Impugned orders dated 24.4.2003 (Annexure A-21) and 4.2.2005 (Annexure A-25) are quashed. Respondents are directed to look into the matter afresh and take a decision with regard to petitioner’s regularization as a Helper, in accordance with law, and instructions issued from time to time. Learned counsel for petitioner submits that in the event of respondents taking a favourable decision with regard to regularization of petitioner as a Helper, petitioner shall not insist on release of dues/wages for the period when she was in daily waged service. All consequential actions shall be taken by the respondents within a period of three months from the date of receipt of certified copy of this judgment. 8. With the aforesaid observations, present petition stands disposed of, so also the pending application(s), if any. (Sanjay Karol), Judge. 28th November, 2011 k.sharma