IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 2359 of 2023 th Decided on 25 November, 2024 Smt. Sunita Devi …Petitioner Versus State of Himachal Pradesh and others …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge

1 Whether approved for reporting? Yes For the petitioner: Mr. A.K. Gupta and Ms. Babita Chauhan, Advocates.

For the respondents: Mr. Sumit Sharma, Deputy Advocate General.

Ajay Mohan Goel, Judge (Oral By way of this writ petition, the petitioner has, inter alia, prayed for the following relief:-

“That Annexure P-1 may be set aside/quashed and the respondents may be ordered to grant daily wage status to the petitioner from the date she completed requisite period of service, with all benefits incidental thereof.”

2. The issue involved in this writ petition is in a very narrow campus. The petitioner, who claims to have been appointed on part-time basis in the year 2008, with respondent No.3 on the recommendation of Naib Tehsildar Dadahu, has assailed office order dated 28.02.2023, (Annexure P-1), passed by Deputy Commissioner Sirmour dated 28.02.2023, in terms whereof, her representation for conversion of her status from part time to daily wager has been rejected.

3. Learned counsel for the petitioner has submitted that the petitioner has been serving with the respondents on part time basis as a Sweeper-cum-Peon since the year 2008. Since then, her services have not even been converted to daily wage basis. He submits that this amounts to exploitation of the petitioner per se as on one hand, the respondents are extracting the work of a Sweeper-cum-Peon from her by giving her the nomenclature of a part time worker, though, she is performing her duties throughout the day, but her prayer for conversion on daily wage basis has been rejected on the ground that the petitioner does not fulfills the educational qualification criteria. Learned counsel has submitted that the experience which the petitioner has gained overcomes the non-possessing of educational qualification.

4. Learned counsel has drawn the attention of the Court to a three judges Judgment of the Hon’ble Supreme Court of India in AIR No.1990 Supreme Court 371, titled as Bhagwati Prasad versus Delhi State Mineral Development Corporation, in which, Hon’ble Supreme Court has been pleased to observe that even if incumbent is not possessing the requisite qualification to hold the post, then, the factum of their working and having gained sufficient experience in the actual discharge of the duties attached to the posts held by them is a sure guide to assess the suitability. Hon’ble Supreme Court has also held that initially minimum educational qualification prescribed for the different jobs is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made and workers were allowed to work for a considerable length of time, it would be hard and harsh to deny them the benefit being sought for by them on the ground that they lack the prescribed educational qualifications.

5. Learned counsel has also referred to the judgment of the Hon’ble Division Bench of this Court in Letters Patent Appeal No.104 of 2021 alongwith CWP Nos. 6262 of 2021 &

6263 of 2021, titled as State of Himachal Pradesh and others versus Jagdish Kumar and others, and has submitted that in this judgment also, Hon’ble Division Bench by placing reliance of various judgments of the Hon’ble Supreme Court of India have been placed to hold that long number of years without complaint is a ground by itself for relaxation in eligibility conditions. Accordingly, learned counsel for the petitioner has submitted that the present petition be allowed and office order dated 28.02.2023 (Annexure P-1) be quashed and set aside and respondents be directed to convert the service of the petitioner to daily wage.

6. On the other hand learned Deputy Advocate General has defended the act of the respondents. He has drawn the attention of the C