IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 6658 of 2010 Decided on: 30.11.2010 Bimla Devi …. Petitioner Versus State of H.P. & Ors. …. Respondents Coram : The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Ahuja, Judge For the petitioner: Mr. Rakesh Jaswal, Advocate. For the respondents: Mr. R.K. Bawa, Advocate General with Mr. Ankush Dass Sood, Addl. Advocate General and Mr. J.K. Verma, Deputy Advocate General. Justice Kurian Joseph, C.J. (Oral): The writ petition is filed with the following prayers:- “i) That writ in the nature of certiorari may kindly be issued by quashing impugned show cause notice dated 19.6.2010, Annexure P-2, being illegal. ii) That writ in the nature of mandamus may kindly be issued by directing the respondents to allow the petitioner to work as Beldar on regular basis with the respondent department. iii) That the respondents may further be directed to grant the relaxation in the educational qualification and also the work charge status on competition of 8 years.” 2. It is seen from the Show Cause Notice that the benefit of regularization is sought to be withdrawn on the ground that the petitioner has not passed 5th standard. It is to be seen that the petitioner has been continuing as Class-IV Beldar ever-since 1977 on 2 daily waged basis. Thereafter, only in terms of the policy of the Government on regularization, the petitioner was regularized on 19.2.2010. The regularization is also as a Class-IV employee. In case the petitioner could work satisfactorily for 13 years as a Class-IV daily waged Beldar without any complaint, there is no point for insisting passing Class-V when she is regularized. 3. The learned Advocate General insisted upon the terms of the R&P Rules. But the R&P Rules also provides for the power to the Government to relax the qualification in appropriate cases. Having regularized the petitioner, apparently the authority was of the view that it is a case fit for relaxation. The Supreme Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation, AIR 1990 Supreme Court 371, has held in para 6 as follows: “6. The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 and ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational 3 qualifications. In our view, there years’ experience, ignoring artificial break in service for short periods created by the respondent, in the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re-appointment that period may be excluded in the computation of the three years period. Since the petitioners before us satisfy the requirement of three years’ service as calculated above, we direct that 40 of the senior-most workmen should be regularized with immediate effect and the remaining 118 petitioners should be regularized in a phased manner, before April, 1991 and promoted to the next higher post according to the standing orders. All the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts. We further direct that 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately. Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts. The respondent is directed to deposit a sum of Rupees 10,000/- in the Registry of this Court within four weeks to meet the remuneration of the Industrial Tribunal. The writ petitions are accordingly allowed, but without costs.” 4. We are of the view that it is an appropriate case where the Government should consider the case of the petitioner for relaxation. Therefore, the Writ Petition is disposed of with a direction to the first respondent to consider the case of the petitioner for relaxation in accordance with law expeditiously. Needless to say that further proceedings pursuance to the Show Cause Notice will be deferred till such time. 4 5. With the above observations, the writ petition stands disposed of, so also the pending application(s), if any. Copy dasti. (Justice Kurian Joseph), Chief Justice (Justice V.K. Ahuja ), November 30, 2010 Judge (BSS/SDS)