Disposed

Kharak Singh v. State

Himachal Pradesh HC6 Oct 2010CWP/4866/2010

Case brief

AI extract

What is this about?

In multiple service petitions, the Bench refined procedures for regularizing Nepali daily-wage workers lacking Indian citizenship certificates. The Court upheld requiring eligibility certificates under 1977 Central Resolutions and directed the State to confer work charge status per prior precedents.

What did the court decide?

Respondents directed to consider cases for work charge status and issue eligibility certificates within four months.

Kharak Singh Vs State — Service and Employment | Himachal Pradesh HC (2010)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CWP No. 4866/2010 alongwith CWPs No.4867, 4868, 4869, 4870,

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4871, 4872, 4873, 4874, 4875 and

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4877 of 2010

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Decided on:6. 10.2010.

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1. CWP No. 4866/2010 Kharak Singh.

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Versus

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State of Himachal Pradesh and another.

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...Petitioner. ... Respondents.

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2. CWP No. 4867/2010 Dhan Bahadur.

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...Petitioner.

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Versus

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State of Himachal Pradesh and another.

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... Respondents.

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3. CWP No. 4868/2010 Prem Bahadur.

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Versus

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State of Himachal Pradesh and another. 4. CWP No. 4869/2010 Tikka Ram Versus State of Himachal Pradesh and another. 5. CWP No. 4870/2010 Vir Bahadur.

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Versus

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State of Himachal Pradesh and another. 6. CWP No. 4871/2010 Man Singh. Versus State of Himachal Pradesh and another. 7. CWP No. 4872/2010 Raju.

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...Petitioner. ... Respondents.

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…Petitioner …Respondents. ...Petitioner. ... Respondents. ...Petitioner.

... Respondents.

...Petitioner.

Versus

State of Himachal Pradesh and another. 8. CWP No. 4873/2010 Nand Bahadur.

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Versus

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State of Himachal Pradesh and another. 9. CWP No. 4874/2010 Ramesh Kumar.

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Versus

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State of Himachal Pradesh and another. 10. CWP No. 4875/2010 Ram Kumar. Versus State of Himachal Pradesh and another. 11. CWP No. 4877/2010 Ramesh. Versus State of Himachal Pradesh and another.

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... Respondents. ...Petitioner. ... Respondents. ...Petitioner. ... Respondents.

...Petitioner.

... Respondents.

...Petitioner.

... Respondents.

Coram

The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Rajiv Sharma, Judge.

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1 Whether approved for reporting?

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For the Petitioner : Mr. P.D. Nand and Mr. J.R. Gajta, Advocates (in all the petitions.

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For the Respondents: Mr. R.K. Bawa, Advocate General with Mr. Ankush Dass Sood, Addl. A.G. (in all the petitions).

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Justice Rajiv Sharma (oral)

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Since common questions of law and facts are involved in all these petitions, the same are taken up together for hearing and are being disposed of by a common judgment.

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Petitioners were engaged on daily wage basis on 15.1.1991, 1.11.1994, 14.7.1995, 1.6.1990, 1.2.1990, 1.8.1992, 1.4.1992, 1.6.1990, 1.10.1992, 1.10.1993 and in the month of April, 1994, respectively. Their cases for regularization were considered by the duly constituted Screening Committee since they had put in ten years of service with 240 days in each calendar year on 18.8.2007. However, petitioners were neither regularized nor were conferred with work charge status on the ground that they have not furnished eligibility certificates nor they have produced the certificates of their being Indian citizen. The issues raised in these petitions have already been decided by this Court in CWP No. 1594/2008 decided on 27.9.2009, titled as Man Singh versus State of Himachal Pradesh and others and other connected matters and in No. CWP(T) No.10220/2008, decided on 17.3.2010,

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Whether the reporters of the local papers may be allowed to see the Judgment?

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titled as Phool Maya versus State of Himachal Pradesh and

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others. The text of judgment Man Singh case (supra) reads thus:

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“The core issue involved in these petitions is the manner in which the services of Nepalis are to be regularized. The Court had issued various directions from time to time to elicit information from the State Government the manner in which the services of the petitioner and similarly situate persons are to be regularized.

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The State Government has placed on record copy of resolution dated 1.3.1977. The text of letter dated 1.3.1977 reads thus:

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“The Government of India have decided that in supersession of earlier instructions regarding the eligibility for appointment under the Government of India, the standard rule for recruitment will henceforth be modified as follows:

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A candidate for appointment to any Central Service or

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post must be-

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(a) a citizen of India, or

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(b) a subject of Nepal, or

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(d) a Tibetan refugee who came over to India before

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the Ist January, 1962, with the intention of permanently settling in India, or

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(e) a person of Indian origin who has migrated from Pakistan, Burma, Sri Lanka, East African countries of Kenya, Uganda, the United Republic Zambia, Malawi, Zaire and Ethiopia with the intention of permanently settling in India.

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Provided that a candidate belonging to categories (b), (c), (d) and (e) shall be a person in whose favour a certificate of eligibility has been issued by the Government of India.

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Provided further that candidates belonging to categories (b), (c) and (d) above will not be eligible for appointment to the Indian Foreign Service.

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A candidate in whose case a certificate of eligibility is necessary may be admitted to an examination or interview conducted by the Union Public Service Commission or other recruiting authority, but the offer of appointment may be given only after necessary eligibility certificate has been issued to him by the Government of India.

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Order: Ordered that a copy of this Resolution may be communicated to all State Governments, all Ministries of the Government of India etc. and also that the Resolution be published in the Gazette of India.”

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In sequel to resolution dated 1.3.1977, the Ministry of Home Affairs had issued office memorandum dated 10.5.1978. The operative portion of the letter reads thus:

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“4. The question whether certificate of eligibility in terms of Resolution referred to above should continue to be issued by this Department or whether any delegation can be made in this regard has been examined in the context of the present policy to maximize delegation and to reduce delay in appointments. It has now been decided that the certificate of eligibility should, in future, be issued by the Ministry/Department itself which is administratively concerned with the post where the candidate is likely to be appointed on the basis of the information referred to in para 2 above, being received from the authorities concerned.”

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The Commissioner-cum-Secretary (Home) has sought certain clarifications on the issue of certificate of eligibility in the case of Shri Sita Ram Bhadur on 22.2.1996. The Ministry of Personnel, Public Grievances and Pensions have sent the following communication to the Commissioner-cum-Secretary (Home), Government of Himachal Pradesh in the month of March, 1996. The text of the letter reads thus:

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“I am directed to refer to your letter No. Home-B (E)32/95, dated the 22nd Feb., 1996 on the subject mentioned above and to say that as per the standard rule for recruitment laid down in this Department’s Resolution No. 15014/3 (s)/76Estt. (B) dated the Ist March, 1977, a subject of Nepal shall be eligible for appointment to a Central Service or posts provided a certificate of eligibility in his favour has been issued by the Government of India. Vide delegation made in the Department of Personnel & A.R. O.M. No. 15016/1/78- Estt. (B) dated the 10th May, 1978 (copy enclosed), “a certificate of eligibility is now to be issued by the Ministry/Department itself which is administratively concerned with the posts where the candidate is likely to be appointed. The State Public Services have been included in the List II-State List of the Seventh Schedule to the Constitution of India. Accordingly, it is for the Government of

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Himachal Pradesh to consider and take a decision on the requests made by Shri Sita Ram Bhadur and Smt. Kaushalya Devi for issuing a certificate of eligibility in their favour keeping in view the policy instructions on the subject issued by the State Government.”

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The State Government has issued notification dated 15.2.2007 whereby Recruitment and Promotion Rules for Beldar Non-Gazetted Class IV in the Department of Agriculture, Himachal Pradesh were notified. According to Rule 14, a candidate for appointment to any service or post must be a citizen of India. The State Government while issuing these rules have not taken into consideration the resolution passed by the Central Government on 1.3.1977 and the office memorandum dated 10.5.1978.

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The Court passed the following order on 20.5.2009:

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“The learned Senior Additional Advocate General has placed on record letter dated 5.5.2009 addressed by the Director of Agriculture, Himachal Pradesh to the Principal Secretary (Agriculture). The text of the letter dated 5.5.2009 reads thus:

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‘In this context, it is submitted that earlier, the matter for issuance of eligibility certificate was taken up with Govt. of India and it was advised vide letter No. E.11.4151/2000-PT.I, dated 11.2.2000 that Citizenship Certificate is a statutory document which is issued by the Ministry of Home Affairs, Govt. of India under Citizenship Act, 1955 and the citizen Rules, 1956 as per letter No. 140302/2 (s)/96-Estt. (B) dated 26.3.1996 wherein the Govt. of India vide delegation made in the Department of Personnel and A.R. O.M. No. 15016/1/78 Estt. (B), dated 10.5.1978. A certificate of eligibility is now to be issued by the Ministry/Department itself which is administrative concerned with the post, where the candidate is likely to be appointed. The State Public Services have been included in the List II-State list of the seventh schedule to the Constitution of India keeping in view the policy instructions on the subject issued by the State Govt. (Copies enclosed). Further in the case of Sh. Ram Bahadur, Dil Bahadur, Chander Bahadur and Laxman bahadur permission/approval was accorded by the Govt. vide letter No. Agr.E (3)4.2005-L, dated 3.6.2005 and 4.7.2005 (copies enclosed). It is requested that

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as per permission/approval in favour of above mentioned officials, necessary approval/ permission/eligibility certificate to regularize Sh. Man Singh, DPL and other DPLs, may kindly be conveyed at the earliest, so as to take further action in the matter accordingly.’

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Accordingly, the Principal Secretary (Agriculture) is directed to take the decision within a period of three weeks from today. The decision shall be placed on record by way of affidavit.

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List after three weeks.”

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In sequel thereto, the State Government has filed an affidavit whereby certificate of eligibility has been issued in favour of the petitioner on 16.7.2009. Thereafter, the services of the petitioner-Shri Man Singh have been regularized vide office order dated 18.7.2009. The Secretary (Agriculture) to the Government of Himachal Pradesh has also issued a letter to the Director of Agriculture on 16.7.2009. The text of letter reads thus:

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“I am directed to refer to your letter No. Agr.H(I)(B)57/2000-Vol-I (Sirmour), dated 16th July, 2009 on the subject cited above and to enclose herewith Eligibility Certificate in respect of Shri Man Singh, Beldar duly signed. So far as Political Clearance in respect of Shri Man Singh is concerned, you are requested to take up the matter with the Ministry of Home Affairs, Government of India, immediately under intimation to this Department. You are further requested to apprise the Hon’ble High Court of H.P. accordingly by filing an affidavit even on behalf of the Government i.e. Respondent No.1 immediately under intimation to this Department.”

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It is evident from the reading of letters quoted hereinabove that only eligibility certificate is required in case of Nepalis. In fact, the services of Shri Man Singh stood regularized after issuance of eligibility certificate. So far as Political Clearance in respect of Shri Man Singh is concerned, the Directorate of Agriculture was requested to take up the matter with the Ministry of Home Affairs, Government of India.

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In view of the observations made hereinabove, since the decision has been taken in case of Shri Man Singh to regularize his services on the basis of eligibility certificate issued by the Head of Department, the same procedure is

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required to be followed in the cases of petitioners in CWP (T) No. 7605 of 2008, titled Suraj Bahadur Versus H.P.S.F.C. and CWP (T) No. 7609 of 2008, titled Raj Kumar Versus State of H.P. within a period of eight weeks.

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With the observations made hereinabove, the writ petitions are disposed of. No costs”

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3. The Text of judgment in Phool Maya’s case (supra)

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reads thus:

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“2. The respondents No.1 to 4 have filed reply that the petitioner is a Nepali and Foreign National. The Recruitment and Promotion Rules for work-charge establishment notified on 5.5.1995 do not permit the work charge status to petitioner. Rule 14 of the aforesaid Rules has been modified on 11.7.2000. In brief, the learned Deputy Advocate General has submitted that in view of the Recruitment and Promotion Rules for the post of work-charge Beldar in the Department of Public Works Department, Himachal Pradesh (for short ‘Rules’), Annexure R-1 the petitioner is not entitled to work-charge status even if she has completed 10 years of continuous service with 240 days in each calendar year. The respondents in their reply have not disputed the engagement of the petitioner on daily wages since February 1990. There is no specific stand of the respondents that petitioner has not completed 10 years of continuous service with 240 days in each calendar year.

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Rule 2 provides that there are 7865 sanctioned posts of work charged Beldars, method of recruitment is given in Rule 10. The first part of Rule 10 is to the effect that 100% by appointment failing which by direct recruitment. In Rule 10, it has not been made clear that 100% by appointment are to be made from which category. The second part of Rule 10 indicates that remaining appointments are to be made by direct recruitment. The Rule 11 provides that 100% appointments are to be made from amongst the daily waged Beldars who have completed 10 years of continuous service as such with minimum of 240 days in each calendar year. This clears the mist regarding the expression 100% by appointment provided in Rule 10. In other words, the method of recruitment for

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100% by appointment is nothing else but from daily waged Beldars who have completed 10 years of continuous service as such with minimum of 240 days in each calendar year. The learned Deputy Advocate General has submitted that Rule 14, provides eligibility. The bare perusal of Rule 14 indicates that Rule 14 is applicable only to direct recruitment, a second category under Rule 10 and not to the first category under Rule 10 100% by appointment, who are none else but daily waged Beldars, a different category other than direct recruitment.

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The letter dated 11.7.2000 provides for amendment of Rule 14 of existing standard proforma of Recruitment and Promotion Rules (Essential requirement for direct recruitment). The letter dated 11.7.2000 does not affect the case of petitioner for more than one reason. There is nothing on record to show that in pursuance of letter dated 11.7.2000, Annexure R-1 Rules were amended and new Rule 14 was incorporated. The new Rule is meant for direct recruitment whereas case of petitioner is of appointment under first part of Rule 10 which is different from direct recruitment. In addition, petitioner has attained eligibility for work charge status on 1.2.2000 much before amendment was proposed on 11.7.2000 in the existing standard proforma of Recruitment and Promotion Rules. Therefore, letter dated 11.7.2000 does not affect the claim of petitioner for work charge status on completion of 10 years continuous service with 240 days in each year w.e.f. 1.2.1990.

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The petitioner has completed 10 years of continuous service with 240 days in each calendar year as daily wage Beldar, her case is squarely covered by the judgment of Mool Raj Upadhyaya (supra). According to Mool Raj’s case the Beldars, who have completed 10 years of service upto 31.12.1993 shall get work-charge status w.e.f. 1.1.1994 and the Beldars, who will complete 10 years after 31.12.1993 shall get the work charge status on completion of 10 years. In the present case, since the respondents have not denied the fact that the petitioner has completed 10 years of continuous service with minimum of 240 days in each calendar year starting from 1.2.1990, therefore, on completion of 10 years w.e.f. 1.2.1990, the petitioner is entitled to work-charge status

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as per Mool Raj Upadhyaya (supra). In these circumstances, the petition deserves to be allowed.”

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In view of the law laid down by this Court, we are of the considered view that the cases of the petitioners are required to be considered by the respondents for conferring work charge status to the petitioners as per the principles laid down in Mool Raj Upadhaya versus The State of Himachal Pradesh and others , 1994 Supp (2) SCC 316 and State of Himachal Pradesh and others versus Gehar Singh , (2007) 12 SCC 43.

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Consequently, in view of the observations made hereinabove, the respondents are directed to consider the case of the petitioners for conferring work charge status strictly in accordance with the principles laid down in Mool Raj Upadhaya versus The State of Himachal Pradesh and others, 1994 Supp (2) SCC 316 and State of Himachal Pradesh and others versus Gehar Singh, (2007) 12 SCC 43, Phool Maya’s case (supra) and Man Singh’s case (supra) within a period of four months after the production of certified copy of this judgment by the petitioners from due dates. Respondents are also directed to issue eligibility certificates to the petitioners as per ratio laid down in Man Singh case (supra).

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In view of above directions, all the petitions are disposed of.

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No costs.

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(Justice Kurian Joseph), Chief Justice.

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(Justice Rajiv Sharma) Judge.

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6.10. 2010 .* awasthi *****

Kharak Singh v. State

Case brief

What is this about?

What did the court decide?

Kharak Singh v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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