Mohinder Kumar vs State of Himachal Pradesh and another

Justice Kurian Joseph, C.J.—The issue raised in this petition pertains to the question as to whether limited direct recruitment for the post of Clerk, to the extent of 20%, a Class-IV employee having five years'' service, be it in Government or Semi Government, is qualified for consideration. The relevant provision reads as follows:

...ii) 20% by limited direct recruitment from amongst the ''regular'' Class-IV officials possessing the 10+2 qualification through competitive examination to be conducted by the H.P. Subordinate Services Selection Board, Hamirpur, having five years regular service OR regular service combined with continuous service rendered on daily wage or on contract basis failing which by direct recruitment on regular basis or by recruitment on contract basis, as the case may be. The contract employees will get emoluments as given in Col. 15-A and will be governed by service conditions as specified in the said column.

It is the stand of the Government that five years'' regular service combined with continuous service rendered on daily wage or on contract basis should be in Government only.

In the affidavit filed by the first respondent, it has been clarified as follows:

...The Personnel Department is of the considered view that the provision of LDR is only applicable to the Class-IV officials of the Government Department and it is obvious that the service rendered by them under the Government can be taken into account for computing 5 years. However, the service of such Class-IV officials of Boards and Corporations who have been permanently absorbed in the Government Departments can also be taken into account for eligibility purpose. Whereas the incumbents who were initially working on daily wage basis in Board and Corporation and subsequently appointed in Government Departments as Class-IV, their service as daily wage in Board and Corporation cannot be taken for eligibility criteria of five years prescribed in the Rules/instructions because of the reason that they are treated as fresh entrants in the Govt. Department.

(Emphasis supplied)

The provision and the clarification of the Government, as extracted above, would show that a Class-IV employee in regular service combined with continuous service rendered on daily wage or on contract basis, is eligible for consideration against 20% quota. It is the stand of the Government that the service of Class-IV officials of Boards and Corporations, who have been permanently absorbed in Government Departments can also be taken into account for the eligibility purpose. However, as is seen from the affidavit of the Government, it is stipulated that the daily waged employees of Boards and Corporations when subsequently appointed in Government Departments as Class-IV, their services as daily wage in Boards and Corporations will not be counted towards their eligibility criteria of five years. We are afraid that this stand cannot be appreciated. The daily waged period in Boards and Corporations is counted for regularization. The daily waged service in Boards and Corporations followed by daily waged service in Government is also counted for the purpose of regularization. If that be so, and if the rule is to be interpreted in its plain language, it can only lead to one interpretation, namely, daily waged services either in Government or in Boards and Corporations followed by regular appointment in Government is also to be counted for the five years period, required for the purpose of 20% limited direct recruitment.

The writ petition is hence allowed with a direction to the respondents to consider the case of the petitioner, in case he is having five years'' service, by taking into consideration daily waged service in Board and Corporation followed by daily waged and regular service in Government. The needful shall be done within a period of one month from the date of production of a copy of this judgment by the petitioner. The pending application(s), if any, also stands disposed of.

Copy dasti, on usual terms.