IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 5394 of 2008. Decided on 01.07. 2010. _____________________________________________________ Bhola Dev Bhardwaj. …Petitioner. -Versus- State of Himachal Pradesh and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes. __________________________________________________________ For the petitioner. : Mrs. Ranjana Parmar, Advocate. For the respondents : Mr. P.M. Negi, Deputy Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Material facts necessary for the adjudication of this petition, are that the petitioner was appointed as Language Teacher on 13th May, 1969 in Government Middle School, Jaon in the pay scale of Rs.60-120/-, where he has worked till 12th June, 1985. Thereafter, he was transferred to Government Middle School, Dandhal, where he has worked w.e.f. 13.6.1985 to 24.7.1997 and thereafter he was transferred to Government Senior Secondary School, Nirmand, District Kullu. Petitioner has been granted the regular pay scale of Rs.570-1080/- from 1.1.1978, Rs.1640-2950/- w.e.f. 1.1.1986 and Rs.5480-9250/- w.e.f. 1.1.1996. However, no increments have been paid to him. Petitioner has superannuated after attaining the age of 58 years. 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. 2. Mrs. Ranjana Parmar, learned counsel for the petitioner has strenuously argued that taking into consideration the fact that her client has worked for more than 34 years uninterruptedly, he should be deemed to have been appointed on regular basis with all consequential benefits. She has also contented that her client has been paid regular pay scales, as mentioned above, however, no increments have been paid to him. She has relied upon F.R.-24. 3. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that as per Annexure P-3, the appointment of the petitioner was on temporary basis and accordingly he cannot be treated as regular employee and is not entitled to increments. He has also argued that the petitioner was under Matric and in these circumstances, the relief prayed for cannot be granted. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The petitioner was appointed as Language Teacher on 13th May, 1969. The text of the appointment letter reads thus: “Shri Bhola Dev Bhardwaj Under Matric, Prabhakar son of Shri Luder Mani Employment Exchange Kulu Registration No. 136/69 is hereby appointed at Govt. Middle School, Jaon purely on temporary basis at Rs.40/- P.M. plus other allowances in the pay scale of Rs.60/120 against the post of Language teacher. This appointment is without any commitment and assurance and the services of the candidate will stand terminated as soon as regular hand joins in his place and will have no grudge for the same. It is further added that the services of the candidate will be terminated without any prior notice if his work is reported to be unsatisfactory, and the candidate will have no claim for further appointment in the Department.” 6. It is true that as per Annexure P-C, the petitioner was appointed on temporary basis as Language Teacher in the pay scale of Rs.60-120/-. However, he has worked uninterruptedly w.e.f. 13.5.1969 with the respondent-department till the age of superannuation. He has worked for 34 long years. 7. Mr. P.M. Negi, learned Deputy Advocate General has submitted that the minimum qualification for filling up the post of Language Teacher/Hindi Teacher is Matric with Prabhakar and L.T.. According to him, the petitioner is under Matric, hence, his case was rightly rejected by the department. It may be true that the petitioner does not fulfill the requisite qualifications as per the Recruitment and Promotion Rules, however, it is equally important to take note of the fact that the petitioner has taught for more than 34 years uninterruptedly. The experience gained by the petitioner is substitute for his academic qualification. 8. 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 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 meet the remuneration of the Industrial Tribunal. The writ petitions are accordingly allowed, but without costs.” 9. 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.” 10. 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 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.” 11. The petitioner has worked for more than 34 years. Though his appointment was on temporary basis on 13.05.1969, however, with the passage of 34 long years, the same cannot be termed as temporary appointment and he shall be deemed to have been appointed on regular basis. 12. Mrs. Ranjana Parmar, learned counsel for the petitioner has also argued that her client has only been paid the basic pay scale and no increments have been paid to him. It will be apt at this stage to address F.R.-24, which reads thus: “F.R. 24. An increment shall ordinarily be drawn as a matter of course unless it is withheld. An increment may be withheld from a Government servant by the Central Government or by any authority to whom the Government may delegate this power under Rule 6, if his conduct has not been good or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments.” 13. A bare perusal of the contents of F.R.-24 reveals that an increment is ordinarily to be drawn as a matter of course unless it is withheld. The increment can be withheld by the Central Government only if the conduct of an employee has not been good or satisfactory. However, in the present case, there is nothing to suggest, even remotely that the petitioner’s conduct was not good or unsatisfactory. In view of this position, he is entitled to increments w.e.f. the date he was appointed as per the provisions of F.R.-24. 14. The service rules are required to be read to advance the spirit and philosophy of the Constitution. The Court cannot be oblivious to the fact that the family of the petitioner was also dependent on his salary. We have a case of a teacher, who has taught continuously for a period of 34 years without increments and regularization. It was, indeed, not fair on the part of the State to keep on generating hope and feeling of security on him that one day he will be regularized. He has waited for a long long 34 years without being regularized. The persons who are holding high offices must realize the difficulties faced by the persons, like the petitioner. The system must advance justice and there is no room whatsoever for exploiting the persons. The State cannot take advantage of its superior bargaining power to deprive the petitioner and similarly situate persons of the basic financial benefits by not regularizing them, even though they had worked for more than three decades un-interruptedly. 15. Accordingly, in view of the observations made hereinabove, the petition is allowed. The petitioner shall be deemed to have been appointed on regular basis for all intents and purposes w.e.f. his initial date of appointment, i.e., 13.05.1969. The respondents are directed to pay and release the pension to the petitioner on the basis of 34 years qualifying service. The respondents are further directed to release the increments to the petitioner w.e.f. his initial appointment, i.e., 13.05.1969. The needful shall be done within a period of eight weeks from today. No costs. (Rajiv Sharma) Judge July 01, 2010. (bhupender)