IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No.4141 of 2008 (OA No. 29/1997) Judgment reserved on : 14.7.2009 Date of decision : 7.8. 2009. Mrs. Nirmal Thakur …Petitioner. Versus State of H.P. and another ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. Ramesh Sharma, Advocate. For Respondents : Mr. R.K.Sharma, Sr. Addl. A.G. with Mr. A.K.Bansal, Addl.A.G. and Mr. R.P.Singh, Asstt. A.G. Kuldip Singh, Judge The Original Application No. 29 of 1997 was filed in the Himachal Pradesh Administrative Tribunal which was abolished and later on the cases of the erstwhile Tribunal were transferred to this Court under the Himachal Pradesh Administrative Tribunal (transfer of decided and pending cases and applications) Act, 2008 and on transfer, Original Application No.29 of 1997 has been registered as CWP(T) No.4141 of 2008 in this Court. 2. The petitioner has prayed mainly the following reliefs in the petition:- 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 (A) That the respondents may very kindly be directed to regularize the services of the applicant as Clerk. Alternatively, she may be treated as work charge Clerk in the office of the respondents. (B) That the enhanced wages of a Clerk may kindly be ordered to be paid to the applicant with effect from 1.1.1994, which date has been fixed as cut out date by the Apex Court in terms of the judgment of Mool Raj Upadhaya. (C) That the arrears from 1.1.1994 to 31.3.1995 may also be ordered to be paid to the applicant. 3. The further case of the petitioner is that she started her carrier as daily rated Clerk in the office of respondent No.2 in February, 1988 and since then she had been discharging the duties of Clerk , though the muster-roll of Beldar was issued in her name. She is being paid the wages of Beldar and even revised wages of Beldar were not paid to her which were enhanced from time to time. The petitioner has also pleaded that one post of Clerk is lying vacant in the office, the petitioner is eligible and can be absorbed against that post as Clerk. She had already completed 9 years of service and had completed 240 days in each calendar year and is entitled for regularization or for work-charged status. The Range Officer, Jaidevi vide Annexure A-1 had written to Divisional Forest Officer that petitioner had been serving as Clerk in the office and, therefore, muster-roll of Clerk for petitioner for April 1992 be issued. It has been pleaded that similarly situated persons who are working as Beldars on muster-roll in Sunder Nagar Forest Division had filed writ petition in the High Court which was allowed and a direction was 3 given to pay the wages to those persons of Clerks, who were discharging the duties of Clerks irrespective of their muster-rolls. 4. The petitioner had earlier filed CWP No. 1544 of 1996 in the High Court which was dismissed on 30.9.1996 on the ground of jurisdiction vide Annexure A-2. The petitioner had been working as Clerk. The pleas of unfair labour practice on the part of the respondents and legitimate expectation of the petitioner have also been taken by the petitioner. 5. The petition has been contested by the respondents by filing reply. It has been pleaded that petitioner neither applied for a daily wage Clerk in Range Office, Jaidevi nor she was offered such appointment. She being literate had been assigned the work of copy making in the office. The appointment of the Clerk is to be made in accordance with the recruitment and promotion rules. There is no post of Clerk available with the Department. The petitioner had been engaged as daily wage Mazdoor and not Clerk. She has no right of regularization as Clerk. It has been denied that petitioner had been working as Clerk. There is no post of Clerk in the office of Forest Range Officer, Jaidevi nor was it ever sanctioned by the Government. The case of the petitioner for regularization would be considered on completion of 10 years continuous service. The Range Officer is not competent to engage any Class-III official. On the creation of new working plan division, two persons were engaged at daily wage mazdoor but typing work was taken from them, but they were not paid the wages of Clerks. Lateron those two persons namely Sh. Roop Lal and Mrs. Hemant Sharma were paid the wages of the Clerk after the judgment of the High Court. In the 4 present case, there existed no post of Clerk in the office of Forest Range Officer, Jaidevi. 6. The learned counsel for the petitioner at the time of hearing has submitted that the petitioner has been made regular forest worker w.e.f. 1.7.1999. He has submitted that the petitioner was engaged as Clerk on 1.2.1988 and since then she is continuously discharging the duties of Clerk, therefore, she is entitled to wages of Clerk and regularization on the basis of initial engagement dated 1.2.1988 as Clerk. The alternative case of the petitioner is that the petitioner is entitled to work-charge status on the basis of her engagement as Clerk on 1.2.1988 as per the policy of the Government. The learned counsel for the petitioner has relied judgment dated 24.7.2008 of Division Bench passed in CWP No.448 of 2005. He has also relied judgment dated 23.4.2009 passed in CWP (T) No. 7902 of 2008. On behalf of the respondents, it has been submitted that there is no post of Clerk in the Forest Range Office, Jaidevi nor the petitioner was ever engaged as Clerk. In these circumstances, the payment of wages to petitioner w.e.f. 1.2.1988 and her regularization or giving her work charge status as Clerk on the basis of her engagement on 1.2.1988 does not arise. The petitioner was engaged as daily wage mazdoor and not Clerk. 7. The specific stand of the respondents is that there is no post of Clerk in the Forest Range Office, Jaidevi, therefore, under no circumstance, the petitioner could have been engaged as Clerk in the office of Forest Range Officer, Jaidevi. The petitioner has projected her case that she was engaged as Clerk but she was paid wages of Beldar. The case of the respondents is also to the effect 5 that Range Officer is not entitled to engage Class-III official, therefore, petitioner could not have been engaged as Clerk. The petitioner has failed to bring on record any material that when she was engaged in Forest Range Office, Jaidevi there existed a post of Clerk in that office. There is no reason to disbelieve the stand of the respondents that there was no post of Clerk in the office of Forest Range Officer, Jaidevi and Range Officer was not competent to engage Clerk. In these circumstances, once there was no post of Clerk in the office of Forest Range Officer, Jaidevi, the petitioner could not have been engaged as Clerk in that office on 1.2.1988 and she could not be paid the wages of Clerk and considered for regularization of work-charge status as Clerk. In CWP No. 448 of 2005 the case of the respondents was that though they were engaged as Beldar but they were working as Tracer Draftsmen and, therefore, they claimed the minimum wages fixed for a Tracer Draftsman and not the wages payable to a Beldar. In that case it was not the question that there were no posts of Tracer Draftsman, rather the case of the respondents in that case was that they were actually working as Tracer Draftsmen and should be paid the minimum wages of such posts. The erstwhile Tribunal has recorded a finding of fact that the employees actually worked as Tracer Draftsmen and directed that they are entitled to daily wages as Tracer Draftsmen. The Division Bench affirmed the decision of the Tribunal. 8. The judgment dated 24.7.2008 passed in CWP No.448 of 2005 is of no help to the petitioner inasmuch as the respondents have not admitted that the petitioner was engaged as Clerk. There 6 was no post of Clerk, therefore, the work of Clerk could not have been taken from the petitioner. This being the position, the petitioner did not discharge the duties of Clerk during her engagement. Once she did not discharge the duties of Clerk, therefore, she is not entitled to wages of Clerk or regularization as Clerk. She is also not entitled to the status of work charge Clerk on the basis of her engagement. The judgment dated 23.4.2009 passed in CWP(T) No. 7902 of 2008 is also not applicable in the present case. In that case, the petitioner worked for 33 years, his regularization was not considered by the Department only on the ground that he had not completed 240 days in the years 1992 and 1993. The learned Single Judge vide judgment dated 23.4.2009 directed the respondents to regularize the petitioner immediately after the completion of 10 years of service after ignoring shortfall of 50 days in the years 1992 and 1993 respectively. The question raised in CWP (T) No. 7902 of 2008 was entirely different and, therefore, judgment dated 23.4.2009 in CWP (T) No.7902 of 2008 is not applicable in the present case. 9. The petitioner has miserably failed to establish that she was engaged as Clerk and, therefore, she is not entitled to wages of Clerk or regularization as Clerk or work-charge status as Clerk on the basis of her engagement in the office of Forest Range Officer, Jaidevi on 1.2.1988, resultantly, the petition fails and is accordingly dismissed. ( Kuldip Singh ), August 7 , 2009, Judge. (GR)