Naresh Kumar Vs State

“a) That the respondents may be directed to maintain the seniority of the petitioner as daily paid clerk from February 1992 and regularize the services of the petitioner as clerk prior to the juniors regularized on February, 2011.

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b. That the respondents may further be directed to create the posts of clerk for regularization of the petitioner and grant all consequential benefits after his regularization on seniority basis.”

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The grievance of the petitioner is that despite the

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fact that from his initial engagement in the year 1992, work of a

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Clerk was being extracted from him, yet he was being wrongly

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reflected as a Class-IV employee till the year 1998 and only thereafter, he was reflected as a Clerk and the same has resulted in the denial of the right of regularization upon him as a Clerk from due date.

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During the pendency of the petition, the Court was informed that the petitioner was initially given the offer of being regularized against a Class-IV employee, however, he did not concur to the same. Subsequently, his services were regularized w.e.f. 31.03.2014 as a Clerk.

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Learned counsel for the petitioner submits that in light of the fact that the petitioner always performed the duties of a Clerk, the act of the respondents of not conferring regularization

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to the petitioner as from the due date from his initial date of appointment is bad in law.

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On the other hand, learned counsel for the respondent-Board submits that the petitioner was initially engaged as a Class-IV employee and it was only w.e.f. 21.06.1998 that the duties of a Clerk were extracted from him and thereafter he has been duly regularized by the Department w.e.f. 31.03.2014. She thus submits that there is no merit in the

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petition and the same is liable to be dismissed.

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The petitioner has tried to demonstrate that in between the period 1992 to 1998 also, work of a Clerk has been extracted from him. However, this Court is of the considered view that as it stands admitted even by the respondent-Board, as is evident from Annexure P-3 dated 30.10.2009, which is the tentative inter se seniority with respect to daily wagers of different categories working in the said Department as on 31.03.2009, that the petitioner was performing the duties of a Clerk w.e.f. 21.06.2008 to 31.03.2009, least that was expected from the Department was to regularize the services of the petitioner as a Clerk, once the petitioner had completed the requisite number of years as per the policy of the regularization of the Department. The denial of this right to the petitioner and regularizing him belatedly on 31.03.2014 as a Clerk is not sustainable in the eyes of law.

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In fact, this Court has closely scrutinized the reply

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filed by respondent No.2 and a perusal thereof demonstrates that with regard to the regularization of the petitioner as a Clerk, one of the objections raised by the employer is that he was not possessing the requisite qualification of 10+2. Learned counsel

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for the respondent-Board submitted that the petitioner acquired the qualification of +2 in the year 2012 and thereafter, he was regularized in the year 2014.

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Learned counsel, by referring to Annexure R-2 appended with the reply, submitted that in terms of said notification issued in the month of January 2009, the minimum qualification for recruitment against the post of Clerk was made 10+2 and as the petitioner was not possessing said qualification, therefore, after he acquired the qualification, his services were regularized.

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I have heard learned counsel for the parties and have also carefully gone through the record.

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Learned counsel for the parties have made available for the perusal of the Court The Himachal Pradesh Market Committee Bye-laws 1972, as also the Himachal Pradesh State Agricultural Marketing Board (Recruitment and Conditions of Service of Officers and Staff) Regulations, 2006, notified vide notification dated 3^rd of September, 2006.

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Learned counsel for the parties have also made available for the perusal of the Court, the communication issued by Deputy Secretary (Personnel) to the Government of Himachal Pradesh dated 18^th June, 2007 on the subject Regularization of Daily-Waged/Contingent Paid Workers. This communication reads as under:-

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“In continuation of this Department letter of even No. dated 9th June, 2006, on the subject cited above, I am directed to say that the matter regarding liberalizing the policy of regularization of Daily Waged/Contingent Paid Workers in all the Departments had been engaging the attention of the Government for sometime past. After careful consideration, the Government has further decided that the Daily Waged/Contingent Paid workers in all the Departments, including Public Works and Irrigation and Public Health Departments, who have completed 8 years of continuous service (with a minimum of 240 days in a calendar year except where specified otherwise for the tribal areas) as on 31-032006 may be regularized against vacant posts in various departments. The regularization will be subject to the fulfillment of similar terms and conditions as laid down earlier under the instructions referred to above.”

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A perusal of this communication demonstrates that in terms of the same, the Secretary (Personnel) to the Government of Himachal Pradesh informed all concerned that the matter regarding liberalizing the policy of regularization of daily-waged/contingent paid workers in all the Departments had been engaging the attention of the Government and after careful consideration, Government had decided that dailywaged/contingent paid workers in all Departments, including Public Works and IPH, who had completed 8 years of continuous service with a minimum of 240 days in a calendar year as on 31.03.2006, be regularized against vacant posts in various Departments. Thus, in terms of this policy, a daily wager with 8 years of service with 240 days in each calendar year as on 31.03.2006 was entitled for regularization against vacant posts.

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Another communication dated 9^th September, 2008 issued by Secretary (Personnel) to the Government of Himachal Pradesh to all concerned was also made available for

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the perusal of the Court and the relevant portion thereof is quoted hereinbelow:-

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“In continuation of this Department letter No. PER (AP)-C-B(2)-1/2006-Vol. II dated 18th June, 2007, I am directed to say that the matter regarding liberalizing the policy of regularization of Daily Waged Workers in all the Departments had been engaging the attention of the Government for sometime past. After careful consideration, the Government has now decided that the Daily Waged workers in all the Departments, including Public Works and Irrigation & Public Health Departments, who have completed 8 years of continuous service (with a minimum of 240 days in a calendar year except where specified otherwise for the tribal areas) as on 31.3.2008 may be regularized only against vacant posts in various departments. No new post for this purpose will be created. Completion of required years of service makes such daily wager eligible for consideration to be regularized. Regularization in all cases will be from prospective effect i.e. after the date the order of regularization is issued after completion of codal formalities. The regularization will be subject to the observance of the following terms and conditions:-

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Norms/Principles regarding regularization of Daily Waged Workers.

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(i) Daily waged workers who have completed 8 years of continuous service (with a minimum of 2.40 days in a calendar year except where specified otherwise for the tribal areas) as on 31.3.2008 may be considered for regularization only against the available vacancies in various Departments and the terms & conditions for such regularization shall be governed as per Annexure'A'.

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(ii) No new post of any category will be created.

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(iii) After regularization, the original post of the concerned daily wager shall be abolished.

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(iv) The regularization will depend subject to availability of budget allocated to the Department concerned for that year.

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(v) Since no new post is to be created, therefore, no additional fund/budget will be demanded.

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(vi) 8 years of continuous service is only an eligibility criteria and regularization shall be only from prospective effect Le after the date the orders of regularization is issued after completion of codal formalities.

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(vii) The daily waged workers being considered for such regularization shall possess minimum educational qualification as prescribed in the Recruitment & Promotion Rules of such post.

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(viii) In case of a Daily Waged worker, who has worked for less than 8 years on higher wages, on a higher pay scale post, he will be considered for regularization by combining the service both in the lower scale post and higher scale post but he shall be regularized on a lower post because for regularization on a higher post, 8 years complete dally wage service on the higher pay scale post shall be essential.

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(ix) The Daily Waged Workers may be regularized against the posts/vacancies of relevant categories purely on seniority basis subject to rejection and by doing so in case any roster point for reserved/feeder category remains under utilized, these shall be made good in future recruitments by filling up the backlog first.

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(x) Such daily waged workers, who were within the age limit prescribed for direct recruitment at the time of engagement on daily wages basis, may be given relaxation in age limit while regularizing their services, if they have crossed the maximum age limit as prescribed in the Recruitment and Promotion Rules.

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(xi) Such daily waged workers, who have been engaged without being sponsored by the Employment Exchange, may be given relaxation while regularizing their services.

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(xii) The Department(s) are not required to make prior consultation with the H.P. Public Service Commission for regularization of services in case of those posts which fall within the purview of the FLP. Public Service Commission.

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(xiii) The Seniority of the "Daily Waged Workers" as are regularized under this policy vis-à-vis employees appointed on regular basis shall be determined on the date of issue of these policy instructions. The inter-seseniority of such "Daily Waged Workers" shall be determined in accordance with order of regularization of

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such daily wager based on seniority as daily wager. (xiv) There shall be no resultant vacancy by way of such regularization because such vacancies shall be abolished.

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These instructions have been issued after approval of the Finance Department received vide their U.O. No. 50849965/ िव� - एफ /08 dated 29.8.2008.”

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Coming to the facts of this case, in terms of Annexure P-3, it is the own case of the Board that the duties of Clerk were performed by the petitioner as from 21.06.1998 onwards in terms of communication dated 18.06.2007.

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Thus, though the petitioner was not completing 8 years of service with 240 days in a calendar year as on 31.03.2006, but, he was fulfilling the criteria of regularization in terms of communication dated 9^th September, 2008 as he had completed 8 years of service with 240 days in each calendar

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year as on 31.03.2008. Therefore, the right of regularization accrued upon the petitioner in terms of communication dated 09.09.2008 as on 31.03.2008.

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In terms of the reply filed by the Board, the reason as to why the petitioner was not regularized was that he was not fulfilling the eligibility criteria of qualification. Along with the reply, the Board has appended Annexure R-2, notification dated

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January 2009, in terms whereof, Clause-7 of Schedule-II of the 2006 regulations was amended and the qualification for appointment against the post of Clerk was changed from matriculation with 2^nd Division or 10+2 examination or its equivalent, to 10+2 or its equivalent qualification. Thus, as up to the coming into force of this notification, the minimum educational qualification for appointment against the post of Clerk was matriculation with 2^nd Division or 10+2.

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In the present case, the right of regularization accrued to the petitioner in terms of the policy of regularization of daily-wage workers issued on 9^th September, 2008. The minimum qualification required for appointment as a Clerk at the relevant time was matriculation with 2^nd Division or 10+2. The qualification of 10+2 was introduced subsequently in the year 2009.

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For ready reference, this Court is quoting the relevant portion of Schedule-II of the 2006 Regulations, dealing with Recruitment and Promotion against the post of Clerk:-

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“RECRUITMENT AND PROMOTION RULES FOR THE POSTS OF CLERK (NON-GAZETTED) CLASS-III IN THE H.P. STATE AGRICULTURAL MARKETING BOARD VIPAN BHAWAN KHALINI, SHIMLA.

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Name of the post : Clerk

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Number of posts : 39 (Thirty Nine) 3. Classification : Grade ‘C’

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Scale of pay : Rs.3120-100-3220-110-3660-1204260-140-4400-150-5000-1605160 with initial start of Rs.3220.

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Whether Selection or Non-Selection post :

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Non-Selection.

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Age for direct recruitment: Between 18 years and 45 years.”

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“Minimum educational and other qualification required for direct recruitment.

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(a) Essential qualification: (1) Should have passed matriculation with second division or 10+2 examination or its equivalent from a recognized University/Board.

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(2) Should passes a minimum speed of 30 W.P.M in English Typewriting or 25 W.P.M in Hindi Typewriting.

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(b) DESIRABLE UALIFICATION(S): Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Himachal Pradesh.”

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The factum of the petitioner being a matriculate with 2^nd Division is evident from Annexure P-3 itself, in which the qualification of the petitioner in the tentative seniority list is mentioned as such. Therefore, the stand of the Board that the petitioner gained eligibility for regularization against the post of Clerk only in the year 2012, after he is completed his 10+2 is not sustainable in the eyes of law.

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After coming into force of the 2008 notification, the petitioner was entitled for regularization w.e.f. 31.03.2008 as he was fulfilling the educational qualifications laid down in the Recruitment and Promotion Rules for the post in issue.

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Thus, denial of promotion to the petitioner against the post of Clerk as from 01.04.2008 is not sustainable in the eyes of law.

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Once the petitioner was fulfilling the eligibility criteria for being regularized against the post of Clerk in terms of notification dated 9^th September, 2008 and he was also having the essential qualification to be regularized against the post, the act of the Board of not regularizing him from due date is held to be bad in law.

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Therefore, this petition is allowed. The act of the respondents of not regularizing the petitioner from due date, i.e., w.e.f. 01.04.2008, is held to be bad and the respondents are directed to regularize the petitioner w.e.f. 01.04.2008 that is when the right of regularization accrued to the petitioner in terms of the policy of regularization of daily-wage workers dated 9^th September, 2008 with all consequential benefits, including monetary benefits and seniority.

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Pending miscellaneous applications, if any, also stand disposed of.

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(Ajay Mohan Goel) Judge July 18, 2026 (Vinod)

Naresh Kumar v. State

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Naresh Kumar v. State

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