IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 92 of 2008. Decided on: 14.06.2010. Babli Devi. …Petitioner. -Versus- State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes. __________________________________________________________ For the petitioner. : Mr. S.D. Vasudeva, Advocate. For the respondents. : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Vikas Rathore, Deputy Advocate General and Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Material facts necessary for the adjudication of this petition are that the petitioner has passed her matriculation examination in the year, 1994. Thereafter, she has obtained diploma of Dai during the years, 1994-1995. Her name was registered in the Himachal Nurses Registration Council, Shimla, Department of Health & Family Welfare, Himachal Pradesh at Sr. No. 2886 on 27.06.1995. Petitioner was engaged on daily wage basis at Primary Health Centre, Badyara for 89 days as Dai against the post of Class-IV servant which was lying vacant in 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - C.H., Rohru vide office order dated 26th April, 1997. The text of the office order dated 26th April, 1997 reads thus: “Km. Babli, D/o Khushi Ram Chauhan, Vill. Badiara, Gram Panchayat Jangla, Teh. Chirgaon, Distt. Shimla is hereby engaged on daily wages in PHC Badiara for 89 days as dai against a vacant post of C-IV servant lying in CH Rohru, Distt. Shimla on the rates fixed by the Deputy Commissioner Shimla. She should join her duty at PHC Badiara with 7 days from the receipt of this memo failing which the offer will be treated as cancelled.” 2. The respondent-State has regularized the services of the petitioner as Class-IV employee vide office order dated 7th September, 2007. She joined her duties on 14th September, 2007. Thereafter, the petitioner has made a detailed representation vide Annexure A-9, seeking her regularization against the post of Dai instead of Class-IV employee. 3. The case of the petitioner, in a nut-shell, is that from the very inception, she had been working as Dai though appointed as Class-IV employee and was required to be regularized as Dai and not a Class-IV employee. The case of the respondent-State precisely is that though the petitioner is working as a Dai, but she was appointed against the post of Class-IV employee and there is no illegality in regularizing her services as Class-IV servant. 4. I have heard the learned counsel for the parties and gone through the record. 5. Petitioner is a trained Dai. She has obtained diploma of Dai during the years, 1994-1995. Her name was registered with - 3 - the Himachal Nurses Registration Council, Shimla, Department of Health & Family Welfare, Himachal Pradesh at Sr. No. 2886 on 27.06.1995 vide Annexure A-2. She was appointed on daily wage basis against a vacant post of Class-IV employee. She had worked continuously as Dai till 7th September, 2007. However, the respondents have regularized the services of the petitioner as a Class-IV employee vide Annexure A-7, dated 7th September, 2007. The Court is of the considered view that since the petitioner had been working on daily wage basis as Dai since 29th April, 1997, her services ought to have been regularized as Dai and not as a Class-IV employee. There is no merit in the submission of Mr. R.K. Sharma, learned Senior Additional Advocate General that since the petitioner has accepted her appointment as Class-IV employee and joined on 14.09.2007, she is precluded from seeking regularization as Dai. The petitioner cannot waive her fundamental/constitutional right to be regularized as Dai instead of Class-IV employee. The respondent-State ought to have taken into consideration the actual duties performed by the petitioner on daily wage basis as Dai before the issuance of office order dated 7th September, 2007. The petitioner is a trained Dai and has worked continuously for more than ten years. In these circumstances, she was required to be regularized as Dai. In view of the observations made hereinabove, the petition is allowed. Annexure A-7, dated 07.09.2007 is quashed and set aside qua the petitioner. The respondents are directed to consider the case of the petitioner for regularization to the post of - 4 - Dai with all consequential benefits within a period of four weeks from today. The petition stands disposed of. No costs. (Rajiv Sharma) Judge June 14, 2010. (bhupender) - 5 -