IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 3214/2008 Decided on:23.4.2010 _____________________________________________ Sita Ram. …Petitioner. Versus Himachal Pradesh State Electricity Board and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mrs. Ranjana Parmar, Advocate. For the Respondents: Mrs Anjula Khajuria, Advocate. _____________________________________________________ Rajiv Sharma, Judge (oral). Material facts necessary for the adjudication of this petition are that the petitioner claims that he was appointed as Beldar with effect from May, 1982 to December, 1983 in the respondent-Board and thereafter he started working as Electrical Fitter. His name finds mention in the seniority list of Electrical Fitters and his date of appointment is shown to be 1.5.1985. He made representation to the Secretary of the respondent-Board on 6.3.1992 seeking regularization as Electrical Fitter. He made another representation 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 on 11.3.1992. However, the respondent-Board decided to consider the case of the petitioner for appointment as Helper on regular basis vide office order dated 23.2.1993. The petitioner made representation on 17.6.1995 bringing to the notice of the Secretary of the respondent-Board that since he was working as Electrical Fitter on daily wage with effect from 1.12.1985, his case should have been considered for regularization to the post of Electrical Fitter and not as Helper. He did not accept this offer as per contents of Annexure A-6. He made another representation to the Chairman of the respondent-Board on 16.9.1995 for the redressal of his grievance. Case of the respondent-Board, in a nutshell, is that since the petitioner was not possessing essential qualification of ITI as provided under the Recruitment and Promotion Rules, his case could not be considered for regularization as Electrical Fitter. Mrs. Ranjana Parmar has strenuously argued that her client was engaged on daily wage basis as Electrical Fitter with effect from May, 1985 and he was liable to be regularized as Electrical Fitter and not as Helper. She then contended that even, as per the Recruitment and Promotion Rules, a person, who had worked as Helper for a period of six years, was not required to possess qualification of ITI. She lastly contended that assuming, not conceding, that the petitioner was not in possession of essential qualification, the experience gained by her client is a substitute for educational qualification. Mrs. Anjula Khajuria has vehemently argued that since the petitioner did not possess the essential qualification prescribed 3 under the Recruitment and Promotion Rules, he could not be considered for regularization against the post of Electrical Fitter. I have heard the learned counsel for the parties and have perused the pleadings carefully. A bare perusal of seniority list Annexure A-2 and communication Annexure A-5 reveals that the engagement of the petitioner as Fitter is with effect from 1985. He had been working without any break in the capacity of Fitter with effect from 1985. The action of the respondents to regularize him as Helper and not Electrical Fitter, as per Annexure A-5 dated 23.2.1993, was arbitrary. A bare perusal of Recruitment and Promotion Rules placed on record by the petitioner and the respondent-Board makes it abundantly clear that the post in question is to be filled up 25% by direct recruitment and 75% by promotion and in case of direct recruitment essential qualification is matriculation with ITI certificate in fitter trade. However, as far as 75% quota, which is required to be filled up by way of promotion, is concerned, a person with ITI certificate having two years service, matriculation having four years service and others having six years regular service are entitled for promotion. The petitioner admittedly had been working as Fitter with effect from 1.12.1985 and has worked for more than six years. He was required to be considered for regularization as Fitter and not Helper. There is nothing wrong with the action of the petitioner whereby he has not accepted the post of Helper. He had been making representations, as per the pleadings noticed above, 4 for the redressal of his grievance, including relaxation in educational qualifications. The respondent-Board is a State within the meaning of Article 12 of the Constitution of India. Whether the petitioner possessed essential qualification, as per the Recruitment and Promotion Rules, or not was to be looked into by the employer when the petitioner was engaged as Fitter with effect from 1.12.1985 and not at the time when his turn came to be considered for regularization, as per the norms prescribed by the respondent- Board. The experience gained by the petitioner itself is qualification. When a person is permitted to work for more than a decade, it presupposes that he knows his job. Their Lordships of the Hon’ble Supreme Court in Bhagwati Prasad versus Delhi State Mineral Development 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: “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 5 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 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 6 meet the remuneration of the Industrial Tribunal. The writ petitions are accordingly allowed, but without costs.” 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: “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 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.” 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 7 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: “28. 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. 30. 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.” The petitioner was again offered the post of Helper vide Annexure M-1 dated 5.3.2003. He has accepted the same. The Court is of the considered view that the action of the petitioner accepting this post will not come in his way seeking regularization from anterior date in accordance with law. 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: “19. Notwithstanding the fact that the services of the respondents have been regularised with effect from 1st 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.” 8 The petitioner has not been dealt with in a just and fair manner by the respondent-Board. He has been made to work as a Electrical Fitter with effect from 1.12.1985. There is no break in his service. His case should have been considered for regularization as a Electrical Fitter instead of Helper. Petitioner has rightly refused to accept the post of Helper in the year 1993. Respondent- Board has waited for another ten years even to regularize the petitioner against the post of Helper. In view of the observations made hereinabove, it is evident that even the rigours of qualification stood diluted as far as the post of Electrical Fitter to be filled up by way of promotion, is concerned from the category of Helpers. A person having six years experience in the lower post, i.e. Helper is eligible to be considered for promotion to the post of Electrical Fitter without possessing ITI qualification. The petitioner had been working as Electrical Fitter with effect from 1.12.1985 and the experience gained by him is to be treated as qualification as per the law laid down by their Lordships of the Hon’ble Supreme Court, cited hereinabove. The action of the respondent-Board of initially offering the post of Helper to the petitioner on 23.2.1993 and thereafter with effect from 5.3.2003 is declared null and void. Accordingly, the petition is allowed. The respondents are directed to consider the case of the petitioner for regularization as Electrical Fitter immediately after the completion of five years by taking into consideration his initial date of engagement i.e. 1.12.1985 with all the consequential benefits. Needful be done 9 within a period of ten weeks from today. There shall, however, be no order as to costs. (Rajiv Sharma), Judge 23.4.2010 *awasthi*