1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No.4620/2008 (OA No.1939/97) Date of decision: 23.6.2009 Baru Ram ….Petitioner Vs. State of HP & ors ….Respondents. Coram: The Hon’ble Mr. Justice R.B. Misra, Judge. Whether approved for reporting?1 For the Petitioner: Mr. S.S. Sood, Advocate. For the respondents Mr. R.K. Sharma, Sr. Additional Advocate General. Per R.B. Misra (J) (Oral) According to the petitioner, he was employed as daily wage beldar in the year 1969 and had completed 28 years of service. However, ignoring his claim, his juniors have been regularized and despite the fact that he has completed 240 days in each calendar year, has not been regularized. Therefore, the petitioner has prayed that his services had to be regularized from the year 1979, i.e. the year when he had completed 10 yeas of service with 240 days in each calendar year by giving the benefit in view of the decision in Mool Raj Upadhyaya Versus State of HP and others 1994 Supp (2) SCC 316. 2. On the other hand, Sh. R.K. Sharma, learned Senior Additional Advocate General has submitted that the scheme for regularization framed by the State of HP has been referred in Mool Raj 1 Whether reporter of local papers is allowed to see the judgment? 2 Upadhyaya case (supra) and as per decision of above said case, case of the petitioner could have been considered and regularized. 3. According to Sh. R.K. Sharma, petitioner since has already been regularized from 1998, as such his claim of regularization to the post of Beldar /Mali /Chowkidar is not legally sustainable. Reliance has been placed by Sh. Sharma on the decision of Constitution Bench of Supreme Court in Secretary, State of Karnataka & ors Vs. Uma Devi (3) and others (2006) 4 SCC-1 where the law is well settled that no one can claim for regularization in the garb of violation of right to employment under Article 21 of the Constitution of India. Even temporary, contractual, casual, daily wager or ad hoc employee cannot claim or seek mandamus or direction for absorption/regularization as such employee or person has no enforceable legal right to be permanently absorbed nor one could show that the State has legal duty to make him permanent nor a mandamus be issued in favour of the employee directing the Government to make him permanent. However, in all fairness, Mr Sharma has submitted that the Supreme court in the decision of Uma Devi (supra), has not put any restriction regarding the regularization proposed to be made in view of any scheme or rules having been brought by the State Government. Mr. Sharma has also invited the attention of this court to the decision of Supreme Court in State of HP and others Vs. Gehar singh (2007) 12 SCC 43, where, the decision of Mool Raj Upadhyaya has been considered and a direction was given for regularization of an employee. 4 A Scheme for Betterment (Appointment) and Regularization of Muster Roll/Daily-Wage Workers in Himachal Pradesh was prepared by the Government of Himachal Pradesh, the salient features whereof are reproduced hereinbelow: 3 “1 Daily-wage/muster roll workers, whether skilled or unskilled, who have completed 10 years or more of continuous service with a minimum of 240 days in a calendar year as on 31.12.1991, will be treated as monthly rated employees, on a consolidated fixed pay without any allowances, and an annual increment, as Para 1 Annexure A. They shall be entitled to annual increment for those months, in which they work for a minimum of 15 working days per calendar month. They shall continue to be monthly-rated employees, till they are appointed as work-charged employees. 2. All those daily rated employees whether skilled or unskilled who had completed 10 years of continuous service with a minimum of 240 working days in a calendar year as on 31.12.1987, shall be appointed as work charged employees in a phased manner as soon as the stay orders of the Hon’ble High Court of Himachal Pradesh are vacated. On appointment as work-charged employees, they shall be put in the timescale of pay applicable to the corresponding lowest grade in the Government. 3. The daily rated workers, who would have completed 20 years of service as on 31.12.1992 shall be regularized w.e.f. 1.4.1993 on the basis of seniority-cum- suitability including physical fitness. On regularization, they shall be put in the minimum of the timescale of pay applicable to the lowest corresponding post concerned under the Government and would be entitled to all other benefits available to regular 4 government servants of the corresponding grade. 4. In the event of any anomaly between the wages prescribed for the monthly rated employees and that prescribed by the Government from time to time under the Minimum Wages Act, 1948, the monthly rated employees are entitled to wages, which are higher, at any point of time, in future.” 5 The aforesaid ‘Scheme’ fell for the consideration by Hon’ble Supreme Court in the writ petition filed by Shri Mool Raj Upadhyaya where the claim was made for the regularization of his service as well as for payment of salary, allowances and other benefits as were being given to the regular employees on the principle of “equal pay for equal work”. While considering the said Betterment Scheme, Hon’ble Supreme Court modified the same by substituting the aforesaid Paras 1 to 4 of Mool Raj Upadhyaya (supra) in the following paras (SCC pp.317- 18, para-4). “(1) daily-wage/muster roll workers, whether skilled or unskilled, who have completed 10 years of more of continuous service with a minimum of 240 days in a calendar year on 31.12.1993, shall be appointed as work charged employees with effect from 1.1.1994 and shall be put in the timescale 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 5 a minimum of 240 days in a calendar year on 31.12.1993, 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 timescale 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 31.12.1993, shall be paid daily wages at the rates prescribed by the Government of Himchal 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 Para-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 timescale 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.” 6 The Scheme as referred to in Mool Raj Upadhyaya (supra) envisages two stages in regularizing the services of daily wage/muster roll workers. In the first stage, after completion of 10 yeas or more continuous service with a minimum of 240 days in a calendar year on 31.12.1993, daily wage/muster roll workers were to be appointed as work charged employees with effect from 1.1.1994. Thereafter they were to be regularized in the 6 second stage in a phased manner on the basis of seniority-cum- suitability including physical fitness. 7. In my respectful consideration, the decision of Uma Devi (supra) though is a guideline in respect of regularization of daily wager/muster roll/ad hoc employee, however, since in the State of HP a scheme of regularization has already been framed and as per the scheme as approved in Mool Raj Upadhyaya case (supra), petitioner’s case was to be considered by giving him the benefit from 1.1.1994 provided a person or an employee had already completed 10 years and had put in a minimum of 240 days in a calendar year on 31.12.1993. Since the petitioner has already completed 10 years of service in the year 1979 and has rendered 240 days in a calendar year in the past, as such the case of the petitioner could have been considered subsequent to the year 1979 only but, as per scheme, on consideration of the case of an employee or a daily wager/muster roll worker, permanent status could have been granted only from 1.1.1994. Therefore, on analysis of the entire facts and circumstances, petitioner’s case could have been considered only from 1.1.1994 instead of 1998 and the benefit was to be extended from 1.1.1994. Therefore, the mandamus is being issued for considering and expediting within three months, the case of the petitioner for regularization w.e.f. 1.1.1994 instead of 1998, by giving him status of work charge employee view of decision in Mool Raj Upadhyaya case (supra). In view of the above stated position, writ petition is allowed. ( R.B. Misra ), Judge. 23.6.09(sl) 7