IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 8114 of 2008 Decided on: 26.11.2010 Om Parkash and another …Petitioners Versus State of H.P. and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1. Yes For the petitioners : Mr. Dilip Sharma, Advocate. For the respondents : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General, for respondents. _______________________________________________________________________ Rajiv Sharma, Judge (Oral) : Petitioners' case, in a nut-shell, is that though, they have worked as Work Mistries w.e.f. 17.1.1984 and 23.1.1986, respectively, however, they have been regularized as Beldars. Mr. Dilip Sharma, learned counsel for the petitioners has drawn attention of this Court to Annexures A-10 and A-11 . A bare perusal of these Annexures i.e. mandays-charts makes it abundantly clear that the petitioners had been working primarily as Work Mistries. However, they have been regularized as Beldars and not against the post of Work Mistry. Mr. Dilip Sharma, learned counsel for the petitioners submits that the Work Mistries were getting higher wages vis-a-vis Beldars. Since, the petitioners had worked as Work Mistries/Work Inspectors for more 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes -2- than 10 years, they ought to have been regularized as Work Mistries/ Work Inspectors. 2. Mr. P.M. Negi, learned Deputy Advocate General submits that since the petitioners were not holding essential educational qualification, they could not be regularized as Work Mistries/Work Inspectors. 3. The Court is of the view that the qualification was required to be seen at the time when they were appointed. The experience gained by the petitioners as Work Mistries/Work Inspectors for more than 10 years itself is a qualification. 4. 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 -3- 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 -4- 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.” 5. 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 -5- 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.” 6. 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.” 7. Accordingly, the writ petition is allowed with a direction to the respondents to consider the case of the petitioners for the post of Work Mistry/Work Inspector, immediately after completion of 10 years, as per mandays-charts i.e. Annexure A-10 and A-11, within a -6- period of two months after production of certified copy of this judgment by the petitioners. No costs. (Rajiv Sharma), Judge November 26, 2010 (K. Attri)