IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.5984 of 2010 along with CWP No.5985 of 2010 Judgment reserved on: 22.2.2011 Date of Decision: 24.2.2011. 1.Sh.Laiq Ram in CWP No.5984 of 2010 2.Smt.Kewala Devi in CWP No.5985 of 2010 …Petitioners. Versus State of Himachal Pradesh and others …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes For the Petitioner(s): Sh.Dilip Kumar Sharma, Advocate. For the Respondent(s): Sh.Vivek Thakur, Addl.A.G. for respondents- State. Sh.Shrawan Dogra, counsel for respondents- Municipal Corporation. Deepak Gupta, J. 1. These two petitions are being disposed of by a common judgment since common questions of fact and law are involved in both these cases. 2. CWP No.5984 of 2010 has been filed by Liaq Ram. In the year 1989 he was appointed as night duty chowkidar in the Women’s Hostel Sanjauli which was being run by a Trust known as Himachal Kalyan Nidhi (hereinafter referred to as the Trust). Admittedly, an agreement was 2 entered into between the Trust and the Municipal Corporation whereby the Municipal Corporation took over the rights and liabilities of the working Women’s Hostel Sanjauli meant for housing the working women in Shimla town. 3. The grievance of the petitioner is that though he is working night and day, he has been shown as a part time employee and his services have not been regularized or even put on daily-wage basis right from the very beginning. 4. CWP No.5985 of 2010 has been filed by Smt.Kewala Devi who was appointed in the year 1994 as sewadar- cum-chowkidar in the same hostel. Her prayer is also that though she has been working since the year 1994, neither she has been regularized nor any effort made to substantially increase her salary. 5. The stand of the Municipal Corporation, in both the cases, is that the petitioners are not employees of the Corporation. It has further urged that in terms of the agreement entered into between the Trust and the Corporation it is the Trust which is running the hostel and the Municipal Corporation is only helping and maintaining the same. The Municipal Corporation in 3 terms of the agreement has constituted a Managing Committee of five persons out of which one person is to be nominated by the Trust and therefore it cannot be said that the petitioners are employees of the Corporation. 6. It is further submitted that Sh.Liaq Ram was appointed as Peon-cum-Chowkidar by the Trust and as per the agreement he does not become an employee of the Corporation. Sh.Shrawan Dogra, learned counsel for the Corporation submitted that the Corporation is not utilizing any funds of the Trust and is in fact utilizing the funds generated by renting out the rooms and it has no spare funds to pay the employees and the employees can only be paid out of the funds generated by the Trust. 7. To appreciate the rival contentions of the parties it would be pertinent to refer to the agreement. A perusal of this agreement shows that the working Women’s hostel was set up by the Himachal Kalyan Nidhi after obtaining major financial assistance from the Government of India and the land was provided by the Municipal Corporation Shimla. It is also apparent that the Government of India permitted the Himachal Kalyan Nidhi to transfer the working Women’s Hostel to the Municipal Corporation Shimla vide its letter dated 7th July, 1989. All the assets 4 and liabilities of the Trust relating to the Working Women’s Hostel were transferred to the Shimla Municipal Corporation which agreed to take over the assets and liabilities on certain terms and conditions. Condition No.4 reads as follows: “4. That the services of the staff presently working in the working women Hostel will be taken over by the Municipal Corporation, Shimla, with immediate effect on the same terms and conditions which they currently enjoy. The terms and conditions of their employment will not be changed to their disadvantage. The following staff is at present working in the working Women hostel and their emoluments are mentioned against each: Designation No. of posts Pay scale(consolidated) Warden 1 650/- p.m. Chowkidar 1 425/- p.m. Part-time Sweeper 1 110/- p.m.” 8. A bare perusal of this condition shows that the Municipal Corporation took over the services of the staff working in the working Women’s Hostel. No doubt the condition provides that the terms and conditions would not be less advantageous than that being enjoyed by the employees but this condition clearly shows that the services of the employees were taken over by the Municipal Corporation and now the Municipal Corporation cannot urge that the petitioners are not its employees. 9. In fact Smt.Kewala Devi, petitioner in CWP No.5985 of 2010, was appointed by the Assistant Commissioner, 5 Municipal Corporation, Shimla on 7th May, 1994 pursuant to Resolution No.6 passed by the Municipal Corporation Shimla on 30.3.1994. Once the Municipal Corporation has passed a resolution appointing Smt.Kewala Devi how can it argue that she is not the employee of the Corporation. 10. Petitioner Liaq Ram has been working since the year 1989. He has made a specific averment that though he is shown to be a part time employee he is actually working as Chowkidar round the clock. This averment has not been specifically denied by the Municipal Corporation. 11. The Municipal Corporation is a State within the meaning of Article 12 of the Constitution of India. Such an instrumentality cannot rake up the plea that it does not have funds to pay its employees. It is the duty of the employer to ensure that the employees are paid salary which is not less than the minimum wages. It is also not disputed that the State from time to time has been issuing directions to the Municipal Corporation that it should regularize the services of its employees. However, no specific policy in this behalf has been placed before me. Normally this Court cannot give directions for regularization but at the same time this Court cannot be a 6 mute spectator to an unhealthy practice where the poor employees at the lowest rung of the ladder who have no bargaining capacity are made to work for a pittance without getting a reasonable salary. 12. In view of the aforesaid facts, I feel that the interest of justice will be served in case a direction is issued to the Municipal Corporation to pay the petitioners w.e.f. 9th September, 2010 i.e. the date when these petitions were filed, minimum salary which is being paid to a regular class-IV employee of the Municipal Corporation. This direction is issued because the petitioners who are the employees of the Corporation cannot be paid salary less than their counterpart class IV employees who are working on regular basis. These directions be complied with latest by 31st May, 2011. The Corporation shall also make an endeavour to regularize the services of the petitioners latest by 31st December, 2011. 13. Both the petitions are disposed of in the aforesaid terms. No costs. February 24, 2011 ( Deepak Gupta ) PV Judge.