IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 3860/2008 (OA No. 170/96) Decided on: 20.3.2009 Vishan Dass ..…Petitioner Versus H.P. State Electricity Board & others …Respondents Coram The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting ?1No. For the petitioner : Mr. T.S. Chauhan, Advocate. For Respondents : Mrs. Anjula Khajuria, Advocate. Sanjay Karol, J. (Oral) The petitioner has prayed for the following reliefs:- “That the application may kindly be allowed and the impugned order Ann. A5 and A10 may be quashed and set-aside and the respondents may be directed to accept the joining report submitted by the applicant vide Ann. A3 with effect from 21st of November, 1995 and the applicant may also be held entitled for all consequential benefits with effect from 21st of November 1995 and the records may be ordered to be summoned and the applicant may also be awarded the cost of this application.” 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 During the hearing Mr. Tara Singh Chauhan, learned counsel for the petitioner, restricted his prayer qua Annxure-A5 only. On 4th of February 1984, after due completion of all procedural formalities, including sponsorship of his name through Employment Exchange, petitioner joined as junior Draftsman with the respondent Board. He continued to serve as such on daily wage basis which is evident from Experience certificate Annexure-A1 issued by the authorities. Respondents have formulated “the Recruitment and Promotion Regulations for drawing staff of Himachal Pradesh State Electricity Board” (hereinafter referred to as the ‘Regulations’). For the post of Junior Draftsman the eligibility criteria laid down is as under:- “Matriculation or its equivalent with Diploma in Draftsman trade from a recognized Institution.” Pursuant to the direction issued by the Hon’ble Supreme Court, by way of settlement arrived at between the Board and its employee, duly referred to in the order dated 10th of May 1991, the service of the petitioner on completion of five years of uninterrupted service was to be regularized. Vide letter dated 1.11.1995 (Annexure RA-1) the Secretary of the Board directed the Chief Engineer to issue an offer of appointment to number of junior Draftsmen including the petitioner. Importantly it conveyed that the approval of the competent authority for appointment of the workmen on regular basis against the vacant post had already been accorded. In the case of the petitioner the qualification, on the basis of which approval 3 was accorded, was mentioned as “Diploma in Building Construction”. The Chief Engineer, however, was asked to verify the technical and educational qualifications of each individual before issuing the appointment orders. Offer of appointment was issued to the petitioner in terms of letter dated 17th November 1995 (Annexure-A2). On the basis of the same, petitioner submitted his joining report but, however, the respondents authorities refused to accept the same in terms of letter dated 28th of November 1995 (Annexure-A5). The relevant contents of the same are as under:- “The original National Trade Certificate submitted by you is in the Trade of Building Construction, whereas the same is required in the trade of “Draftsmanship”. The case has however, been referred to Chief Engineer (OP) South HPSEB, Shimla- 4, separately for clarification on this point. You are therefore, hereby informed that the joiningreport submitted by you has not been accepted. As such you are advised to submit proper Trade Certificate i.e. in trade of “Draftsmanship”. In the return the only reason assigned by the respondents, for not accepting the joining report is that the petitioner did not possess the requisite qualification as provided for under the R&P rules. On 10th of March, 2009 this Court directed the Secretary of the Board to file a supplementary affidavit which has been handed over in the Court today. The same is taken on record. While reiterating its earlier stand, in the supplementary affidavit, it has been explained that clarification was sought for 4 from the Director Technical Education according to whom “Craftsman Training Scheme Building Construction & Draughtsman (Civil) are distinctly two different trade of civil engineering”. The affidavit however disclosed that with regard to other similarly situated persons the department had relaxed the norms and offered appointment on regular basis. The contents of letter dated 27th of December 1995 (Annexure-A10) are reproduced as under:- “Subject: Regarding the National Trade Certificate in the Trade of Building Construction. Sir, With reference to your office letter No. CEO- Ed-4/95-20814 dated 20.12.95 on the above cited subject. In this connection, it is intimated that under the craftsman Training Scheme Building Construction & Draughtsman Civil trades are distinctly two different trades relating to civil engineering. Prior to 1985-86 the trade of Building Construction was of two years duration with 10+ pass as entrance qualification for admission to the trade in ITI’s of H.P. However, after 1985-86 the duration of trade was reduced to one year with entrance qualification as 8+ pass by NCVT/DGE&T Government of India. However, the trade of D/Man civil is of 2 years duration having admission qualification as 10+, with pass in science and mathematic.” From the certificate issued by the National Council for Training in Vocational Trades (Annexure-A7) it is clear that 5 the petitioner has completed the course of training and passed the prescribed test “in the trade of Building Construction” after undertaking training for a period of two years. The Director of Technical Education has only clarified that the “Building Construction” and “Draftsman Civil Trades” are distinctly two different trades related to civil engineering. It does not convey with certainty that the Diploma obtained by the petitioner is not a diploma in Draftsman trade. Further it is a matter of record that with regard to technical qualification petitioner’s case had actually been processed, considered and approval for regularization accorded by the Secretary of the Board in terms of letter dated 1.11.1995. The Chief Engineer was only directed to verify the educational/technical qualification which in the case of the petitioner was mentioned as “diploma in Building Construction”. The petitioner passed the said diploma from a recognized institute. This cannot be disputed. Hence the non acceptance of the petitioner’s joining report was inappropriate. That apart the respondents themselves have stated in the affidavit that cases pertaining to similarly situated persons were considered and rules with respect to technical qualifications relaxed to appoint such persons as junior Draftsman on regular basis. The same is evidenced by Annexure RA-4 dated 24.3.1988. The respondents themselves have admitted that even in 2002 the rules were relaxed with regard to another employee. It has not been explained as to why the same procedure was not adopted in the case of the petitioner when it was found that he did not possess the educational 6 qualification. It is the petitioner’s grievance that inspite of repeated requests the respondents did not take any action. In fact the petitioner was kept in dark and forced to file the present petition in November 1996. Even in the return the respondents did not disclose this fact. It was only when the Secretary of the Board was directed to file his personal affidavit the whole truth came to light. The action of the respondents, on the face of it appears to be malafide. Apparently an attempt was made to conceal the relevant information both from the petitioner and the Court, obviously with the sole purpose of depriving the petitioner of his legitimate right, entitlement and dues. Under these circumstances, Annexure-A5 dated 28.11.1995 directing the petitioner to submit proper trade certificate i.e. in the trade of Draftsmanship is quashed. The respondents are directed to regularize the petitioner’s appointment in terms of letter dated Ist of November 1995. If necessary, the respondents shall exercise their power of relaxation as was so done in the case of other similarly situated persons. The petitioner shall also be entitled to all consequential benefits in accordance with the rules. Necessary action shall be taken by the respondent within a period of two months from today. The petition is allowed and disposed of with the aforesaid observations. (Sanjay Karol), Judge. March 20, 2009 (vs)