HPSEB Vs Dayal Singh

 HPSEB Vs Dayal Singh 07.07.2005
CWP No. 198 of 1998
LS Panta and Surjit Singh

Service matter

Constitution of India - Articles 226 and 227 - regularisation of services - cut off date.

Case referred :

Bhagwati Prasad v. Delhi State Mineral Development Corporation, (1990)1 SCC 361 : 1990 LIC 126.

For the Petitioner :- Sharwan Dogra, Advocate.

For the Respondent :- Rakesh Jaswal, Advocate.

ORDER

Writ petitioner, Himachal Pradesh State Electricity Board is aggrieved by the order dated December 18, 1997, passed by the HP State Administrative Tribunal in OA No. 628 of 1996, whereby the prayer of respondent Dayal Singh for regularization of his services as Air Compressor Operator, from the date he became eligible for such regularization, in terms of the settlement arrived at in the Hon'ble Supreme Court, has been ordered. Therefore, the present writ petition, under Articles 226 and 227 of the Constitution of India, has been filed for the judicial review of the aforesaid order of the State Administrative Tribunal.

2. Facts relevant for comprehending the controversy may be summed up thus. Respondent Dayal Singh was employed as Air Compressor Operator on daily wages basis in May, 1982 in Rongtong Construction Division of the petitioner. In the year 1987, when the project in connection with which the respondent was employed completed, he (the respondent) was shifted to Thirot Construction Division, Bhunter. Some litigation between the daily wages workers and the State Electricity Board, that is the petitioner, was pending in the Hon'ble Supreme Court. That was settled amicably. Terms of the settlement were reduced into writing and filed in the Hon'ble Supreme Court. That litigation was disposed of in terms of the said settlement. The copy of the order of the Hon'ble Supreme Court containing the terms of settlement is on record as Annexure P-7. One of the terms of the settlement was that the writ petitioner would regularize those of the daily paid persons, working in various units, who had completed five years of uninterrupted service as on April 30, 1991, strictly on the basis of seniority, in each category of daily paid staff, subject to availability of posts. It was also a condition of that settlement that only that daily paid staff was to be regularized which possessed minimum educational qualification prescribed for the regular posts. The respondent, who had been in continuous service since 1982, as Air Compressor Operator, was not appointed on regular basis, in terms of the aforesaid settlement. He filed an Original Application before HP State Administrative Tribunal, being OA No. 628 of 1996. During the pendency of that Original Application, he was offered the post of Beldar, on regular basis. The order contained two conditions, one that the respondent shall withdraw the writ petition/original application/legal proceedings instituted by him, before joining the post and that he will not file any petition in future claiming equal pay for the alleged equal work, for the period prior to September 8, 1997. The respondent made an application to the Tribunal, seeking a direction to the petitioner, that he (the respondent) be allowed to join as Beldar on regular basis, subject to the final decision of the Original Application, already filed by him. That application was allowed, vide order dated October 3, 1997 by the Tribunal. The respondent then joined as Beldar.

3. The Original Application filed by the respondent before the Tribunal was contested by the present writ petitioners. It was alleged that initially the respondent was employed in connection with some project at Rongtong Construction Division in May, 1982 and that on the completion of that project, the respondent became surplus and so he was accommodated in Thirot Construction Division, Bhunter. It was alleged that the adjustment of the respondent did not give him seniority over the staff already working in the division in which he was adjusted, ie the Thirot Construction Division, Bhunter. It was also alleged that the seniority of respondent was to be counted in the later mentioned division from the date of his joining the service, ie 11-6-1987. It was also alleged that the services of daily rated workers, with five years of uninterrupted service, were to be regularized, depending upon the availability of the posts. It was further stated that the aforesaid settlement provided for the regularization of the services of only those daily rated workers, who possessed the qualifications prescribed for the regular posts. It was alleged that minimum qualification for the post of Air Compressor Operator was Matriculation with ITI and since the respondent did not fulfil that qualification, he had not been regularized as Air Compressor Operator, but was offered the regular post of Beldar, which he accepted and, hence, there was no merit in his Original Application.

4. The Tribunal, vide impugned order dated December 18, 1997, allowed the Original Application and directed the petitioner to regularize the services of the respondent as Air Compressor Operator from the date he became eligible, in terms of the settlement arrived at in the case that was before the Hon'ble Supreme Court.

5. In the present writ petition, the petitioner has taken all those pleas, as were taken in the reply to the Original Application, filed by the respondent before the Tribunal. Its contention is that the Tribunal has not correctly interpreted the terms of the settlement and so its findings are wrong and illegal.

6. We have heard the learned counsel for the parties and perused the record. A reading of Annexure P-7, that is the copy of the order of the Hon'ble Supreme Court, based on the terms and conditions of the settlement, makes it clear that the writ petitioner agreed to regularize the services of all those daily paid workers, who had completed five years of uninterrupted service as on April 30, 1991, subject to availability of posts. The Rule of seniority was to be observed in regularizing the services. The settlement also provided that the services of only those workers were to be regularized, who possessed minimum educational qualification, prescribed for the regular post. The date of the order of the Hon'ble Supreme Court which was passed on the basis of the aforesaid settlement is 3-5-1991.

7. It is after the passing of the aforesaid order dated 3-5-1991 (Annexure P- 7) that the writ petitioners prescribed the minimum qualification of Matriculation with ITI for the post of Air Compressor Operator vide notification dated 6-8-1991 (Copy Annexure P-5). Therefore, this notification has simply to be ignored in considering whether the respondent fulfils the prescribed qualification for the post against which regularization is sought.

8. Prior to the issuance of notification dated 6-8-1991, (copy Annexure P-5), the writ petitioner had issued a notification in the year 1984, prescribing the qualification for various posts, including that of the Air Compressor Operator. The notification is dated 10-5-1984 (copy Annexure P-6). As per this notification, minimum qualification for the post of Air Compressor Operator was middle/pass with ITI diploma. Respondent was appointed as daily rate basis as Air Compressor Operator, even before the issuance of the notification (copy Annexure P-6). This Court gave a direction to the writ petitioner vide order dated 4-3-2005, to state on affidavit of some responsible person employed with it whether any qualifications was prescribed for the post of Air Compressor Operator, at the time when the respondent was employed, ie to say in the year 1982. The affidavit of Superintending Engineer working with the Writ Petitioner has been filed, in which it is categorically declared that no qualification was prescribed for the post of Air Compressor Operator in the year 1982, when the respondent was employed.

9. The notification dated 6-8-1991 (copy Annexure P-5) has some foot notes. Foot note 2 says that the educational/technical qualification in respect of the persons engaged on daily wages/Muster-Rolls upto the date of notification of these regulations and in whose case the educational/technical qualification has not been changed, shall also stand relaxed to the extent as prescribed in the earlier notified R&P Regulations. It is the light of this footnote No. 2, that the Tribunal has held that the condition regarding educational qualification prescribed in notification dated 6-8-1991 (copy Annexure P-5) stands automatically relaxed in the case of the respondent. We see no reason to disagree with this view of the Tribunal.

10. There are several other reasons for which we would not like to interfere with the order of the Tribunal. First, when the settlement pursuant to which the respondent sought the regularization of his service had taken place, passing of matriculation examination with ITI diploma was not a condition for the recruitment of Air Compressor Operator, as declared by the Superintending Engineer of the petitioner, in the supplementary affidavit dated 29-4-2005. Secondly, the eligibility condition including the educational qualification of the employee due for regularization is to be seen as prevailing not on the date when he is to be considered for regularization, but on the date or at the time of his initial appointment on daily wage basis. In this view of the matter, we find support from a judgment of Hon'ble Supreme Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation, (1990)1 SCC 361 : (1990 LIC 126).

11. It was argued, though half-heartedly, that the respondent having accepted the appointment as Beldar on regular basis had rendered himself disentitled to seek regularization, as Air Compressor Operator. The contention merits no consideration, but has been noticed out of courtesy to the learned counsel representing the writ petitioner. As already pointed out, the offer of appointment on regular basis as Beldar was made to the respondent during the pendency of the Original Application before the State Administrative Tribunal. He brought this fact to the notice of the Tribunal by making an application and sought permission to join the said post, without prejudice to his right to the relief(s) claimed by him in the Original Application. The Tribunal allowed his application and it was thereafter that the respondent joined the services as Beldar on regular basis. Therefore, his joining the service as Beldar, does not stand in his way to the grant of relief, asked for by him in the Original Application.

12. As an upshot of the above discussion, the writ petition is dismissed with costs, quantified at Rs. 5,000/-. The costs shall be paid to the respondent.

13. In view of the dismissal of the writ petition, the order dated 11-6- 1998 passed in MP No 371 of 1998 shall stand vacated.

Petition dismissed.