IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 2584 of 2008. Reserved on: 13.07.2010. Decided on: 30.7.2010. __________________________________________________________ Geeta Ram. … 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. : Mr. A.K. Gupta, Advocate. For the Respondents. : Mr. R.K. Bawa, Advocate General with Mr. Vikas Rathore, Deputy Advocate General and Mr. R.P. Singh, Assistant Advocate General. Rajiv Sharma, J. Material facts necessary for adjudication of this petition are that the petitioner was initially engaged as Beldar on daily wage basis in the month of January, 1989. He was retrenched in the month of July, 1990. He raised an industrial dispute. The State Government after receiving the failure report from the Conciliation Officer made reference to the Labour Court to the following effect:- “Whether the termination of services of Shri Naginder Singh and 6 other workers (list enclosed) by the Executive Engineer, Himachal Pradesh, Irrigation and Public Health Division, Nahan, Distt. Sirmour, H.P. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - without any notice, charge sheet, enquiry and without compliance of Section 25(F) of the Industrial Disputes Act, 1947 on completion of more than 240 days service is legal and justified, if not, to what relief of service benefits including back wages, seniority and amount of compensation, the aggrieved workmen are entitled?” 2. In sequel to the reference made by the State Government, petitioner filed statement of claim. The employer also filed reply to the same. The Labour Court answered the reference in the following terms:- “Keeping in view the aforesaid findings and discussion, I hold that the petitioners No.3, 4, 5, 8 and 9 are entitled to reinstatement in job with continuity and seniority from the date of the reference but without back wages. Petitioners No.1, 2, 6 and 7 are not entitled to any relief. Hence, the reference is answered accordingly. Let a copy of this award be sent to the appropriate government for its publication.” 3. The case of the petitioner, in a nutshell, is that as per award dated 4th January, 2002, he was held entitled to seniority from the date of reference. The reference, in the present case was made by the State Government on 19.5.1997. However, the respondents have not counted the seniority with effect from 19.5.1997 till 4.1.2002. 4. Mr. A.K. Gupta, learned counsel for the petitioner has strenuously argued that after counting five years with effect from 19.5.1997 to 4.1.2002 his client had already completed ten years and he is entitled to be regularised. Mr. R.K. Bawa, learned Advocate General has strenuously argued that the seniority cannot be counted with effect from 19.5.1997 to 4.1.2002. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. - 3 - 6. The petitioner was engaged as Beldar on daily wage basis, as noticed above, in the month of January, 1989. He was retrenched. The Labour Court as per award dated 4.1.2002 has ordered his reinstatement in job with continuity and seniority from the date of reference, but without back wages. The award was pronounced on 4th January, 2002. Petitioner has been held entitled to seniority with effect from the date of reference, i.e. 19.5.1997 to 4.1.2002. Petitioner was reinstated and after counting five years with effect from 19.5.1997 onwards, he had completed more than ten years. He was required to be regularised as per notification issued by the State Government on the subject. 7. Mr. R.K. Bawa, learned Advocate General has argued that the petitioner was not in possession of minimum essential qualification of Middle Standard as prescribed in Annexure R-1, dated 30.9.1996 called the “Himachal Pradesh Department of Irrigation and Public Health Work Charged Mason (Class-II Non Gazetted) Recruitment and Promotion Rules, 1996. 8. Admittedly, the petitioner is only 3rd pass. However, it is settled law by now that the qualification etc. is required to be seen at the time when the engagement takes place and not later on when a person is to be considered for regularization after putting in more than ten years of service. The experience gained by the petitioner as mason is itself a qualification. Mr. R.K. Bawa, learned Advocate General submits that the case of the petitioner was also forwarded to the State Government for regularization in relaxation to the educational qualification. However, the same was turned down by the State Government on 18.9.2008. 9. Their Lordships of the Hon’ble Supreme Court in Bhagwati Prasad versus Delhi State Mineral Development - 4 - Corporation, (1990) 1 SCC 361 have held that practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. Their Lordships have further held that 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 and once the appointments are made as daily rated workers and they are 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 qualification. Their Lordships have held as under (para-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 qualifications. In our view, three 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 - 5 - 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 4 0 of the senior-most workmen should be regularised with immediate effect and the remaining 118 petitioners should be regularised in a phased manner, before April 1, 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.” 10. The same principle is reiterated by their Lordships of the Hon’ble Supreme Court in B.N. Saxena versus New Delhi Municipal Committee and others, (1990) 4 SCC 205. Their Lordships have held that a Senior Draftsman not possessing any diploma but having six years experience, qualified under the second alternative of the revised rules. Their Lordships have further held that the experience gained is itself a qualification. Their Lordships have held as under (para-7): “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 - 6 - 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 revised rule is independent of the first. The High Court seems to have erred in this aspect of the matter.” 11. In Gujarat Agriculture University versus Rathod Labhu Bechar and others, (2001) 3 SCC 574, their Lordships of the Hon’ble Supreme Court have held that the daily rated workers who had been working on the posts for a long number of years without complaint is a ground by itself for the relaxation of the eligibility condition. Their Lordships have held as under (paras-28 & 30)): “We feel that daily rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts is a ground by itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption, hence Clause l(a) need modification to this effect. Thus in view of their long experience on the fact of this case and for the concerned posts the prescribed qualification, if any, should not come in the way of their regularisation. Clause l(b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post.” 12. Their Lordships of the Hon’ble Supreme Court in State of Himachal Pradesh and others versus Gehar Singh, (2007) 12 SCC 43 have held as under (para-19): “Notwithstanding the fact that the services of the respondents have been regularised with effect from 1st - 7 - January, 2003 and they have joined their posts from that date without protest, they cannot, in our view, be denied the benefits as directed to be given to them by the Tribunal and affirmed by the High Court which had already accrued to them under the Scheme which was approved in Mool Raj Upadhyaya's case.” 13. The petitioner has worked continuously for more than ten years as mason. There is no break in his service after his re- engagement. The experience gained by the petitioner is a substitute for qualification. The petitioner has gained sufficient skills to work as mason in the last ten years. 14. Accordingly, in view of the observations made hereinabove, the petition is allowed. Respondents are directed to consider the case of the petitioner for regularization as mason immediately after completion of ten years of service by giving him the benefit of seniority with effect from 19.5.1997 to 4.1.2002 as per award dated 4.1.2002 with all consequential benefits. Needful shall be done within a period of six weeks from today. There shall, however, be no orders as to costs. (Rajiv Sharma), J. July 30, 2010. (sck).