IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 616 of 2010 along with CWP Nos. 610, 611, 612, 614, 639, 690 and 691 of 2010. Date of Decision : August 5 , 2011 1. CWP No. 616 of 2010 Bikram Singh versus Him Urja and another 2. CWP No. 610 of 2010 Anjani Kumar Sharma versus Him Urja and another 3. CWP No. 611 of 2010 Vinod Kumar Sharma versus Him Urja and another 4. CWP No. 612 of 2010 Hem Raj versus Him Urja and another 5. CWP No. 614 of 2010 Kuldeep Singh versus Him Urja and another 6. CWP No. 639 of 2010 Atma Ram versus Him Urja and another 7. CWP No. 690 of 2010 Deen Dayal Thakur versus Him Urja and another 8. CWP No. 691 of 2010 Roshni Devi versus Him Urja and another Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the petitioner(s) : Ms. Ranjana Parmar, Advocate, for the petitioner(s). For the respondents : Mr. Vikrant Thakur, Advocate, with Mr. Anil Kumar, Advocate, for the respondents. Justice Sanjay Karol, J. (Oral) In all these petitions question involved is same. Facts are also similar. It is not in dispute that petitioners were engaged as Whether reports of Local Papers may be allowed to see the judgment? 2 Motivators on daily wage basis pursuant to memorandum dated 18.1.1986 (Annexure P-1) which reads as under:- “To The Sub-Divisional Officer (C), Bharmour, District Chamba, Himachal Pradesh. Dated Shimla-171002 the 18th January, 86. Sub:- Engagement of Motivators on daily wages regarding integrated Rural Energy Project. Memorandum: Please refer to your letter No. IREP-BHR-1/85-3 dated the 8th January, 1986. The Government has allowed to engage motivators from five to 10, according to the requirement of each IREP Block and sanction for the engagement has been issued accordingly. The wages to them can be paid out of the funds for implementation of Programme or other charges, already available with you. As regards the monthly wages, it should be according to the rates fixed by the Deputy Commissioner in their respective District, for engagement of Class III employees on daily wages, as the qualification prescribed is normally the same as is in the case of Clerk etc. The copy of the concept and role of village motivators engaged by Dhaul Project has been only sent to you for your guidance. The use of such village motivators at any particular period, can be decided better by you according to the situation of the area, keeping in view the progress to achieve the implementation of the Programme. Since some supply will be arranged shortly by the H.P. Agro. Industries, under the Programme, being implementing you will require the services of some motivators immediately if not of all, as allowed. Sd/- Project Director, Science & Technology Deptt. Himachal Pradesh, Shimla.” [Emphasis supplied] 2. Apparently Motivators were to be engaged on wages payable to Class-III employees on daily basis. 3 3. It is also not in dispute that petitioners, who were appointed on daily wage Motivators have been successfully discharging their duties to the satisfaction of their employer. Petitioners grievance arose when their services were regularized w.e.f. 1.1.1997 but pay was fixed in the scale which was lower than the wages paid to Class-III employees. This is evident from memorandum (Annexure P-4). As such they represented to the respondent for rectifying the error which had crept in the memorandum. Undisputedly respondents themselves rectified the mistake in terms of office order dated 1.11.2002 (Annexure P-10) and declared petitioners, as Class- III employees and entitled to pay scale of `3120 – 5160. However, this was allowed w.e.f. 1.11.2002 and not from the date of regularization i.e. 1.1.1997. 4. Undisputedly petitioners made several representations requesting that their pay scale be released w.e.f. 1.1.1997 instead of 1.11.2002. Since respondents did not take any action, petitioners have filed these present petitions. 5. Respondents have filed their affidavit, opposing the petition by making the following averments:- “4. It is true that the petitioner was in receipt of daily @ Rs. 20/- per day as motivator. However, it is mentioned that the post of the motivator was not class- iii post in the year 1986, when the present petitioner was appointed. The services of the petitioner was regularized as Motivator in the Pay Scale of Rs. 770- 1410 as per approval of the Service Committee, 4 HIMURJA/F.C.-cum-Secretary (Finance) to the Government of Himachal Pradesh.” “8. Not admitted. It is to be mentioned here that the case of the petitioner was considered for regularization in accordance with the provisions of instructions issued vide their letter No. PER(AP)-C-B(2)-2/97- dated the 16th December, 1997 which clearly indicates that “in case a daily waged/contingent Paid worker, who has worked for less than 10 years on a higher pay scale, he will be considered for regularization by combining the service both in the lower scale and higher scale but he shall be regularized on a lower post because for regularization on a higher post, 10 years complete service is essential”. As such, the petitioner was not eligible for the grant of higher pay scale. Hence, the plea of the petitioner does not seem genuine. As per to the above said instructions the scale of class-iv was allowed to the petitioner at that time.” “9. The scale of class-III was allowed to the Motivators w.e.f. 1-11-2002 by seeking the relaxation from the Chief Executive Officer, HIMURJA in Recruitment and Promotion Rules for the post of Motivator. The recruitment and promotion rules for the post of Motivator for direct recruitment provides “Matric with 2nd division with Science and two years trade certificate from ITI duly recognized by H.P.S. Technical Board (Fitter/Electrician/Mechanic) preferably”. The petitioner is having qualification of Matric with third Division. In view of above rules the petitioner was not eligible for the grant of the scale of Class-III from the date of his regularization to the post of Motivator.” 5 6. The stand taken by the respondents in para 8 appears to be contradictory to the action already taken by them. If petitioners were to be regularized in the “lower post” then obviously office order dated 1.11.2010 (Annexure P-10) is in contravention of their own policy. But that cannot be so. Conscious decision was taken by the respondents to appoint the petitioners as Motivators in category where wages of Class-III employees was to be paid. 7. For the very same reason other objections with regard to educational qualifications needs to be rejected. If petitioners were not eligible, inasmuch as they were not Matric with 2nd division with Science and two years trade certificate from ITI duly recognized by H.P.S. Technical Board, then obviously their services could not have been regularized and pay scale of Class-III employees accorded to them. The stand with regard to ineligibility, on account of lack of educational qualification, is also untenable in law for the reason that the said eligibility criteria was introduced for the first time, with the amendment of the Rules only in the year 2000. Whereas the services of the petitioners, as Motivators, stood regularized w.e.f. 1.1.1997. 8. In almost identical situation this Court in CWP(T) No. 3214 of 2008, titled as Sita Ram versus Himachal Pradesh State Electricity Board and another, decided on 23.4.2010 after relying upon the decisions rendered by the Apex Court in Bhagwati Prasad versus Delhi State Mineral Development Corporation, (1990) 1 SCC 361; Gujarat Agriculture University versus Rathod Labhu Bechar and 6 others, (2001) 3 SCC 574 and B. N. Saxena versus New Delhi Municipal Committee and others, (1990) 4 SCC 205 has held that the services of Electrical Fitters ought to be regularized from the date of their initial engagement for the reason that eligibility criteria as on the date of initial engagement is to be seen. 9. Hence the stand taken by the respondents, being untenable in law needs to be rejected and petitions allowed. Respondents are directed to fix petitioners’ pay in the pay scale accorded to them in terms of Annexure P-10, from the date of their regularization as per Annexure P-4. 10. All consequential action shall be taken within a period of four months from the date of receipt of certified copy of the judgment. It is clarified that if amounts, due and admissible, are not released to the petitioners within the aforesaid period, then thereafter, petitioners shall be entitled to interest @ 9% p.a. which shall be recovered from the personal salary of the defaulting officers incharge of the matter. 11. With the aforesaid observations, all the petitions stand disposed of, so also the pending application(s), if any. (Justice Sanjay Karol), Judge. August 5 , 2011 (PK)