IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 37 of 2010. Decided on 16.11.2010. ____________________________________________________ Dinu Ram. …Petitioner. -Versus- Dr. Y.S. Parmar University and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1No. __________________________________________________________ For the petitioner. : Ms. Ranjana Parmar, Advocate. For the respondents. : Mr. Onkar Jairath, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): The material facts necessary for adjudication of this petition are that the petitioner was appointed as daily waged Electrician in the respondent-University on 1st May, 1985. He was regularized as Peon on 8th February, 1996. He made a representation seeking regularization as Electrician on 10th March, 1998. His representation was favourably recommended by respondent No. 2 to the University on 27th March, 1998. The case of the petitioner was also taken up by the respondent No. 2 vide Annexures A-9 to A-12. However, fact of the matter is that representation made by the petitioner was rejected by the respondent-University on 20th February, 2001. 2. Ms. Ranjana Parmar, learned counsel for the petitioner has strenuously argued that his client ought to have been regularized as Electrician and not as Peon since he had 1 Whether the reporters of the local papers may be allowed to see the judgment?.No. - 2 - worked continuously for a period of 10 years as daily waged Electrician. According to her the essential qualification etc. are to be considered at the time of initial appointment and not at the time when his turn came to be considered for regularization. She lastly contented that the experience gained by her client is a substitute for educational qualification. 3. Mr. Onkar Jairath, learned counsel for the respondents has argued that the petitioner did not fulfill the requisite qualification prescribed as per the Recruitment and Promotion Rules. As per notification dated 19th February, 1996, his services could only be regularized as Peon. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Admittedly, the petitioner has worked as Electrician on daily wage basis w.e.f. 1st May, 1985. He was regularized as Peon instead of Electrician, on the ground that he did not possess the essential qualification, i.e., certificate from I.T.I. in the trade of Electrician/Wireman. 6. Case of the petitioner, precisely is that his experience is to be considered as qualification and, moreover, he has been authorized by the Chief Electrical Officer to undertake wiring works. His further case is that taking into consideration his experience as Electrician, his case has rightly been recommended by respondent No. 2 vide Annexures A-9 to A-12. Initially, the case of the petitioner was not considered favourably on the premise that no post of Electrician was available. Petitioner has been working w.e.f. 1st May, 1985 till the date of his regularization and even thereafter as Electrician, though - 3 - regularized as Peon. The experience gained by him has to be treated as qualification for the purpose of regularization. The qualification etc. is to be seen at the time when the petitioner was appointed as daily waged Electrician. He has been permitted to undertake the wiring works etc. as per the certificate issued by the Chief Electrical Inspector. Petitioner in his representation has also mentioned that he has been issued a certificate by the Chief Electrical Inspector, Government of Himachal Pradesh to undertake wiring works in the Government/private buildings. The representation of the petitioner has been rejected vide Annexure A-14 without a speaking order. The representation ought to have been considered in view of the vast experience gained by the petitioner as Electrician. The fact that the petitioner has been confirmed against the post of Peon, will not come in his way to seek regularization to the post of Electrician. The petitioner was regularized as Peon on 08.02.1996. When a person is permitted to work for more than a decade, it presupposes that he knows his job. 7. 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 - 4 - 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 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 - 5 - 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.” 8. 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: - 6 - “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.” 9. 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: “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 - 7 - 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.” 10. In view of the observations made hereinabove, the Court is of the considered view that the case of the petitioner has not been considered in a just and fair manner. He had uninterruptedly worked as Electrician for more than 10 years till his regularization and even thereafter still he is working as Electrician. 11. Accordingly, the petition is allowed. Respondents are directed to consider the case of petitioner for regularization to the post of Electrician immediately after completion of ten years continuous service from his appointment, with all consequential benefits, within a period of two months from the date of production of a certified copy of this judgment. No. costs. (Rajiv Sharma) Judge November 16, 2010. (bhupender) - 8 - - 9 - `