IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 6172 of 2008 Reserved on: 22.11.2010 Decided on: 01.12.2010 Megh Lal …. Petitioner Versus H.P.S.E.B. & Ors. … Respondents Coram : The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Ahuja, Judge For the petitioner: Mr. Ajay Sharma, Advocate. For the respondents: Ms. Anjula Khajuria, Advocate. Justice V.K. Ahuja, J.: The petitioner hereinafter also referred to as the applicant filed an Original Application under Section 19 of the Administrative Tribunal Act, 1985. On abolition of the State Administrative Tribunal, the petition stood transferred to this Court and was registered as CWP(T). 2. Briefly stated, the facts of the case as alleged by the applicant are that the respondents engaged the services of the applicant as Foreman with effect from 23.11.1988. The applicant had been working as Foreman on daily wage basis. The applicant has been made work-charge against the post of T/Mate in the scale of Rs.2720-4300 instead of making him work-charge against the post of Foreman, which order was illegal and wrong, which has been challenged by the applicant. The applicant alleged that he has completed 10 years of service with 240 days in every calendar 2 year on daily wage basis as Foreman with the respondent Board and the act of the respondents in not confirming the services as work-charge Foreman, is against the judgment of Mool Raj Upadhyaya’s case. Thus, he has prayed the relief that he be confirmed as Foreman on completion of 10 years of service. 3. In reply, the respondents have pleaded as under:- “In context, the replying respondents submit with utmost respect that the applicant was initially engaged on daily rated as Foreman w.e.f. 26-11-88 and worked as such upto 23-2-99. The applicant was offered the post of T/Mate workcharge vide order endorsement No. KSSD/E-2-3/98-99-3647-52 dated 24-2-99. Accepting all the terms and conditions of the appointment order, the applicant submitted his joining report on dated 24-2-99 (FN). No doubt the applicant was engaged on daily wages as Foreman, but as per R&P Rules framed by the Board for the appointment of Foreman(Regular) or workcharge there is no provision for direct recruitment of Foreman and 100% posts of Foreman is filled up by promotion from amongst Lineman. As per R&P Rules for the appointment of Lineman, 80% posts are filled up by promotion amongst Assst. Lineman and 20% posts by direct recruitment who fulfill the criteria having passed matriculation examination and ITI certificate in Electrician trade. The applicant does not fulfill the above criteria as the applicant has passed 9th class examination and does not possess the ITI certificate in Electrician. As such, the applicant could not be offered the appointment for the post of lineman. As per R&P Rules for the appointment of Asstt. Lineman 100% post of Asstt. Lineman are filled up by promotion amongst the post of T/Mate, as such the applicant could not be offered the post of Asstt. Lineman.” 3 4. It is, therefore, clear from a perusal of the reply filed by the respondents that neither the petitioner was entitled to be considered as Foreman regular on the basis of direct recruitment nor by promotion since he was not posted as Lineman and he did not fulfill the criteria for direct recruitment having not possessed the Matriculation Examination or having ITI certificate in Electrician Trade. The mere fact that he may have been working as Foreman on daily wage basis does not make him entitled to the post of Foreman(Regular) since he does not possess the essential qualification as required in the Recruitment and Promotion Rules for appointment to the post of Foreman. 5. Learned counsel for the petitioner has not been able to show that how the petitioner is entitled to be promoted against the post of Foreman and the mere fact that for some period he may have worked as Foreman on daily wage basis does not entitle him to be appointed against the post, to which he was not eligible. 6. Learned counsel for the petitioner had relied upon the decision in Gujarat Agricultural University Vs. Rathod Labhu Bechar and others, AIR 2001 Supreme Court 706. In that case, the question being considered by the Apex Court was in regard to a daily wage worker who had completed more than 10 years of continuous service with minimum 240 days in each calendar year. It was the eligibility clause in scheme that worker should possess prescribed qualifications of post at time of their appointment. It was observed that the workers working in post for long number of years without complaint by itself is sufficient qualification. It was also observed that long experience is equatable with such qualification and the eligibility clause need to be modified 4 and eligibility condition relaxed in favour of such worker. The question before Their Lordships was in regard to a daily wage worker and not for a technical post of Foreman and the directions given were that the eligibility clause needs to be modified and relaxed in favour of such worker who was a daily wage worker only. In the present case, the applicant was also a work-charge employee and the mere fact that he may have worked for some time as Foreman as against the post without having been given regular appointment does not entitle him to be appointed against the substantive post of Foreman. 7. The applicant has alleged that he is covered by the scheme of Mool Raj Upadhyaya vide which the workers working against the post for a period of 10 years are entitled to be confirmed at the lowest post, to which they were appointed and as such, the applicant was entitled to be confirmed as work-charge Foreman on completion of 10 years service applying the decision in Mool Raj Upadhyaya Vs. State of H.P. and others, 1994 Supp (2) Supreme Court Cases 316. No case is made out for grant of benefit in favour of the petitioner to be confirmed as Foreman on which he was never appointed and as such, there is no merit in the petition, which is dismissed accordingly, so also the pending application(s), if any. (Justice Kurian Joseph), Chief Justice (Justice V.K. Ahuja ), December 01, 2010 Judge (BSS)