IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 898 of 2008 Judgement reserved on: 18.11.2010 Date of decision: 19.11.2010. Smt. Rano Devi …..Petitioner. Vs. State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr.Vivek Singh Thakur, Advocate. For the Respondents : Mrs. Ruma Kaushik, Additional Advocate General, for respondents No. 1 to 3. Kuldip Singh, Judge. The petitioner has filed this petition for a direction to respondents to regularize her or give her work-charge status on completion of ten years of service. 2. The further case of the petitioner is that she was appointed on 1.12.1984 by respondent No. 4 on daily wages, she served as Clerk, this was admitted by the respondents in Reference No. 43 of 1992 decided by the Presiding Judge, Labour Court, Shimla on 2.7.1997. The Labour Court had ordered to pay wages of Clerk alongwith incidental allowances to the petitioner. The award dated 2.7.1997 was challenged in CWP No. 502 of 1997, which was decided on 24.5.2003. The High Court affirmed the award dated Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… 2.7.1997 to the extent salary and allowances were ordered to be paid by the Labour Court. The petitioner was accordingly paid the salary and arrears. 3. The petitioner during the pendency of writ petition was regularized w.e.f. 1.1.1998 but inadvertently the petitioner could not accept the offer of regularization. The petitioner has completed ten years service with 240 days in each calendar year since the year 1984. 4. On 8.1.2003, the respondent No. 3 had issued letter for deploying the petitioner and others in Health and Family Welfare Department on secondment basis, initially for one year in the first instance. The petitioner is performing similar duties as are being performed by regularly appointed employees. Some juniors have been regularized but the petitioner has not been regularized. The action of the respondents for not regularizing the petitioner is unfair, discriminatory, void and illegal. The petitioner has completed 24 years, but she has not been regularized. On these averments, the petition was filed. 5. The respondents No. 2 and 4 have contested the petition by filing joint reply. They admitted that petitioner was engaged as daily wage worker with respondent No. 4 w.e.f. 1.12.1984. It has been submitted that respondents had offered regularization to petitioner in the year 1998 as a worker/ labourer w.e.f. 1.1.1998, which was not accepted by the petitioner. The award dated 2.7.1997 was modified by this court vide judgement dated 24.5.2003 in CWP No. 502 of 1997. The petitioner was initially appointed as daily wage …3… worker and as such she was rightly offered the regularization against the post of worker/ labourer but due to the reasons best known to the petitioner, the offer of regularization was not accepted by the petitioner. The petitioner wanted to be regularized against the post and scale of Clerk. Now the petitioner is not working with respondents No. 2 and 4. The respondents No. 2 and 4 have already given the benefits to the petitioner as per judgement passed in CWP No. 502 of 1997. 6. The respondent No. 3 in the reply has stated that petitioner alongwith other similarly situated persons was deployed on secondment basis as daily wage worker vide office order dated 8.1.2003 with the condition that H.P General Industries Corporation Ltd. shall bear the amount of employer share of CPF in respect of individual worker for the period of appointment on secondment basis. The petitioner in pursuance of office order dated 8.1.2003 has joined her duties with respondent No. 3 on secondmend basis on 17.1.2003. The respondent No. 3 has no role to play in the matter. The service of the petitioner with the Health Department commences w.e.f. 17.1.2003. 7. I have heard the learned counsel for the parties. The petitioner was engaged on 1.12.1984 by respondent No. 4 on daily wages. According to respondents No. 2 and 4, the petitioner was engaged as daily wage worker. The case of the petitioner was that services of the petitioner were taken right from very beginning as Clerk. In the award dated 2.7.1997 issue No. 1 was whether the petitioner is entitled to get the wages of Clerk instead of beldar in …4… view of the work of Clerk taken from her. The Labour Court answered the reference on 2.7.1997, which was challenged in CWP No. 502 of 1997 decided on 24.5.2003 wherein it has been held as follows:- “As a result, the present petition is allowed and the impugned award (Annexure P 1) is modified to the extent that the respondent No. 2 would be entitled to salary/ wages at the minimum of the pay scale of Rs. 400-600 with permissible allowances thereon which effect from 1.12.1984 to 31.12.1985 and thereafter at the minimum of the pay scale of Rs. 950- 1800 with permissible allowances thereon with effect from 1.1.1986. The difference between emoluments already paid to respondent No. 2 and those payable to her pursuant to this order shall be paid to her within three months from today and thereafter minimum salary in the prevailing time scale of pay meant for the post of Clerk (Class III) with appropriate allowances shall be available to her to long as she works on daily rates basis as a Clerk. In case any amount is found to have been paid to respondent No. 2 in excess, the same shall be adjusted in a phased and reasonable manner from her future salary so that she may not be out of pocket to a large extent.” 8. The petitioner was offered regularization by the corporation on the post of worker/ labourer on 2.1.1998. This was not accepted by the petitioner. The respondents No. 2, 4 have stated in the reply that petitioner never wanted to be regularized as worker/ labourer and wanted to be regularized against the post of Clerk. The respondent No. 3 has washed off hands in the matter by taking the plea that petitioner is working in the Health Department on secondment basis on the specific condition that H.P. General …5… Industries Corporation Limited shall bear the amount of employer share of CPF for the period of appointment on secondment basis. It is thus clear that as per respondent No. 3 the petitioner is an employee of respondents No. 2 and 4. The respondent No. 1 has not filed reply. The learned Additional Advocate General on 18.11.2010 adopted the reply of respondents No. 2 and 4 for respondent No. 1 also. 9. The initial engagement of the petitioner on 1.12.1984 has not been placed on record nor the terms and condition of initial appointment of petitioner have been placed on record by any party. However, from the judgement dated 24.5.2003 passed in CWP No. 502 of 1997, it is clear that right from the very beginning the petitioner had been discharging the duties of Clerk (Class III) and therefore, it was held that she would be entitled to salary/ wages at the minimum of the pay scale of Rs. 400-600 with permissible allowances thereon with effect from 1.12.1984 to 31.12.1985 and thereafter at the minimum of the pay scale of Rs. 950-1800 with permissible allowances thereon with effect from 1.1.1986. Therefore, on the face of judgement dated 24.5.2003, it cannot be said that petitioner was not engaged as Clerk right from very beginning. The petitioner from the very beginning has taken consistent stand that she is entitled to the wages of Clerk and other consequential benefits. The respondents No. 2 and 4 in their reply have stated that petitioner had not accepted her regularization as worker/ labourer as she waned to be regularized on the post of Clerk. The petitioner has right to be considered for regularization in accordance with law. The learned …6… counsel for the petitioner has relied judgement dated 9.4.2010 in CWP(T) No. 6861 of 2008 that if a person had been working as a Clerk from the very beginning then his case was required to be considered for regularization to the post of Clerk. The relevant portion of judgement dated 9.4.2010 is as follows:- “Mr. H.K. Paul has drawn the attention of the Court to Annexure A-10/T, dated 28th February, 1996. This letter has been written by the Chief Conservator of Forests (P&D) to the Principal Chief Conservator of Forests. He has informed the Principal Chief Conservator of Forests that the petitioner was continuously working as Clerk for the last ten years and has completed 240 days every year. It means that the petitioner had been working as Clerk from the very beginning i.e. 12th August 1985. The case of the petitioner was required to be considered for regularization to the post of Clerk in view of the admission made in the reply as well as per contents of letter dated 28th February 1996. The action of the respondents of regularizing the petitioner as office Worker and not as Clerk on 31.12.1997 was arbitrary exercise of power. The representation made by the petitioner on 8.9.1998 was rejected by the respondent on 2nd August, 1999 without a speaking order.” 10. The respondent No. 3 has taken the stand that petitioner is working on secondment basis in the department. In Mool Raj Upadhyaya 1994(2) SLR 377, it has been held as follows:- “Taking into consideration the facts and circumstances of the case, we modify the said scheme by substituting paragraphs 1 to 4 of the same by the following paragraphs: ‘(1) Daily-wage/ Muster Roll Workers, whether skilled or unskilled, who have completed 10 years or more …7… of continuous service with a minimum of 240 days in a calendar year on December 31,1993, shall be appointed as work-charged employees with effect from January 1,1994 and shall be put in the time scale of pay applicable to the corresponding lowest grade in the Government; (2) Daily-Wage/ Muster Roll Workers, whether skilled or unskilled, who have not completed 10 years of continuous service with a minimum of 240 days in a calendar year on December 31,1993, shall be appointed as work-charged employees with effect from the date they complete the said period of 10 years of service and on such appointment they shall be put in the time scale of pay applicable to the lowest grade in the Government; (3) Daily-Wage/ Muster Roll Workers, whether skilled or unskilled, who have not completed 10 years of service with a minimum of 240 days in a calendar year on December 31,1993, shall be paid daily wages at the rates prescribed by the Government of Himachal Pradesh from time to time for daily- wage employees falling in Class III and Class IV till they are appointed as work-charged employees in accordance with paragraph 2; (4) Daily-Wage/ Muster Roll Workers shall be regularized in a phased manner on the basis of seniority-cum- suitability including physical fitness. On regularization they shall be put in the minimum of the time scale payable to the corresponding lowest grade applicable to the Government and would be entitled to all other benefits available to regular Government servants of the corresponding grade.’ …8… The Scheme, as modified, shall be implemented with effect from January 1, 1994 and if any excess amount has been received by any employee on the basis of the interim orders passed by this Court, the same shall not be required to be refunded by him.” 11. It has been established on record that petitioner has been continuously working as Clerk initially with respondents No. 2 and 4 w.e.f. 1.12.1984 and thereafter with Health Department on secondment basis. She has completed the requisite period for work- charge status/ regularization in terms of Mool Raj Upadhyaya (supra). The respondent No. 2 is directed to consider the case of the petitioner for work-charge status/ regularization as Clerk in terms of Mool Raj Upadhyaya and relevant policy within a period of two months from the date of supply of a copy of this judgement by the petitioner. The respondent No. 2 shall communicate the decision so taken within a further period of one month to respondent No. 3 and thereafter respondent No. 3 shall implement the decision of respondent No. 2 within a further period of two months and allow the petitioner to work in the Health Department on secondment basis in accordance with the decision of respondent No.2 with all consequential benefits. The petition is allowed on above terms. No costs. November 19, 2010. ( Kuldip Singh ), (Hem) Judge.