Himachal Pradesh High Court
Dharam Dutt vs State Of H.P. & Others on 8 August, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
REPORTABLE
THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 8th DAY OF AUGUST, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
.
CIVIL WRIT PETITION NO.4900 of 2020
Between:-
SH. NEEM CHAND, S/O LATE SH.
DHARAM DUTT, R/O VILLAGE
KHAGLI, POST OFFICE JASSAL,
TEHSIL KARSOG, DISTRICT MANDI,
HIMACHAL PRADESH
.....PETITIONER
(BY MR. C.N.SINGH AND MR.
DEVENDER SHARMA, ADVOCATES)
AND
r to
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL
SECRETARY (FOREST) TO THE
GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA.
2. THE PRINCIPAL CHIEF
CONSERVATOR OF FOREST,
TALLAND, DISTRICT SHIMLA,
HIMACHAL PRADESH-01.
3. THE DIVISIONAL FOREST
OFFICER, FOREST DIVISION,
KARSOG, DISTRICT MANDI,
HIMACHAL PRADEH.
......RESPONDENTS
(BY MR. NARINDER GULERIA,
ADDITIONAL ADVOCATE GENERAL
WITH MR. SUNNY DHATWALIA,
ASSISTANT ADVOCATE GENERAL)
Whether approved for reporting or not?
This petition coming on for orders this day, the Court
passed the following:
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2
ORDER
Being aggrieved and dissatisfied with the order dated 26.08.2020 (Annexure P-15), passed by Pr. Chief Conservator of .
Forest (HoFF), Himachal Pradesh, Shimla, whereby prayer made on behalf of the petitioner for grant of work charge status/regularization from the date he completed 8 years of service with 240 days in each calendar, came to be rejected, petitioner has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein following substantive reliefs:-
r"1.
Issue a writ of Certiorari or other appropriate writ, order or direction quashing the impugned order dated 26.08.2020 (Annexure P-15) for all intents and purposes.
2. Issue a writ of mandamus or other appropriate writ order or direction by directing the respondents-
department to grant regularization/work charge status to the petitioner after completion of eight years of daily wage service w.e.f. 1.1.2002 with all consequential benefits and release the entire arrear in favour of petitioner within time bound manner.
3. Issue a writ of Mandamus or other appropriate writ order or direction, by directing the respondents- department to re-fix the pay of the petitioner accordingly and release the entire arrear in favour of petitioner along with 12% interest within time bound manner.
4. Issue a writ of mandamus or other appropriate writ order or direction by directing the respondents-
::: Downloaded on - 24/12/2022 09:37:38 :::CIS 3department to grant/release the retiral benefits, i.e. pension, leave encashment, gratuity in term of CCS Pension Rules, 1972 as well as leave encashment etc. w.e.f. 01.05.2012 along with 12% .
interest on delayed payment with in time bound manner."
2. Precisely the facts of the case, as emerge from the record are that in the year 1994, petitioner was engaged on daily wage basis as Beldar at Forest Division, Karsog, District Mandi, H.P. Though, on 31.12.2001, petitioner after having completed 8 years of daily wage service with 240 days in each calendar year became eligible for regularization /grant of work charge status w.e.f. 01.01.2002 in terms of the policy for regularization framed by Government, but yet no work charge status/regularization has conferred upon him, rather in the year 2007, after petitioner's having completed 13 years of regular service on daily wage basis, his services were regularized as forest worker. In the year 2007, petitioner filed Original Application before erstwhile H.P. State Administrative Tribunal, which was transferred to this Court and renumbered as CWP(T) No. 1530/2008, titled Neem Chand vs. State of H.P. & others, which came to be disposed of vide order dated 15.03.2010 with the direction to the respondents-
department to consider the case of the petitioner for conferring work charge status after completion of 10 years of service, if sanctioned posts were available beyond 2003. The aforesaid order was assailed by the petitioner by way of LPA No. 161/2010, titled Neem Chand Sharma vs. State of H.P. & ors. before Division Bench of this Court, ::: Downloaded on - 24/12/2022 09:37:38 :::CIS 4 which came to be allowed vide judgment dated 5.10.2010 and the judgment passed by the learned Single Judge, was modified to the extent that conferment of work charge status would depend on the .
availability of the sanctioned post is set aside with a direction to the respondents to consider the case of the petitioner afresh in light of judgment passed by Division Bench of this Court in CWP No. 2735 of 2010, titled Rakesh Kumar vs. State of H.P. & ors., however fact remains that in the year 2016, case of the petitioner was rejected on the ground that Forest Department is not a work charge establishment and case of the petitioner was not covered under Rakesh Kumar' case supra. In view of above, petitioner was again compelled to file Original Application bearing No. 2466/2017, titled Neem Chand vs. State of H.P. & ors., praying therein to grant work charge status/ regularization after completion of 8 years of service on daily wage basis in terms of the policy framed by respondents-department as well as law laid down by this Court in numerous judgments. The erstwhile H.P. State Administrative Tribunal vide order dated 01.11/2017 disposed of the aforesaid Original Application with the direction to the respondents to consider the case of the petitioner in light of judgment passed by this Court in case titled State of H.P. & ors. vs. Bhaskar Ram in CWP No. 1894/2016 and order passed by erstwhile H.P. State Administrative Tribunal in O.A. No. 5338/2016 titled Hero Devi vs. State of H.P. & ors.
The impugned order dated 30.01.2016 (Annexure A-3) in aforesaid Original Application No. 2466/2017 was ordered to be quashed and set aside. The aforesaid order has not been assailed by respondents-
::: Downloaded on - 24/12/2022 09:37:38 :::CIS 5department and as such, same has attained finality qua them, however, fact remains that aforesaid order passed by Tribunal was not complied with and as such, petitioner was compelled to institute .
contempt proceedings, which on account of abolishment of the Tribunal, was transferred to this Court and renumbered as COPCT No.901/2020.Vide order dated 26.08.2020 (Annexure P-
15)respondents-department again rejected the case of the petitioner on the ground that he is not similar situate to the petitioners in Bhaskar Ram and Hero Devi's cases. Though they have been also directed by this Court to grant them work charge status//regularization after completion of 8 years of service on daily wage basis in terms of the regularization policy framed by respondent-department on 04.03.2000 & 06.05.2000, which was further extended vide letter dated 07.06.2002. Though Mr. Sunny Dhatwalia, learned Assistant Advocate General while inviting attention of this Court to order dated 14.09.2020 (Annexure P-10) contended that copy of the same was supplied to the petitioner, but it has been stated by the petitioner that factum with regard to issuance of aforesaid order came to his knowledge when reply to the contempt petition was filed and liberty was granted to the him to lay challenge to the same in the appropriate court of law. Being aggrieved and dissatisfied with the aforesaid order dated 14.09.2020, passed by Divisional Forest Officer, petitioner has approached this Court in the instant proceedings, praying therein for reliefs, as reproduced hereinabove.
3. Reply on behalf of respondents stands filed, wherein ::: Downloaded on - 24/12/2022 09:37:38 :::CIS 6 facts as narrated hereinabove, have been not disputed, rather it has been claimed that since Forest Department is not a work charge establishment, petitioner is not entitled to claim work charge .
status/regularization, especially in terms of Para-7 of the judgment passed by Division Bench of this Court in CWP No. 2735/2010, titled Rakesh Kumar & ors. vs. State of H.P. Apart from above, it has been further averred in the reply that in the event of policy framed by Government on 3.4.2000 and subsequent policy dated 06.05.2000 (Annexure R-5 colly) provided for granting work charge status to those daily wagers, who had completed 8 years of daily wage service on or before 31.03.2000, subject to condition that the work charge establishment existed in such departments. Lastly it has been averred on behalf of the respondents that Govt. policy dated 09.06.2006 and subsequent policies only provided for existing daily wage workers, who completed 8 years of daily wage service as on 31.03.2004 to be eligible for regularization subject to fulfillment of eligibility and other terms and conditions with prospective effect only, i.e. the date of issuance of orders after completion of all codal formalities.
4. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that prayer made on behalf of the petitioner for grant of work charge status/regularization from the date he completed 8 years of regular service, has been wrongly rejected. Record especially (Annexure P-6 colly) clearly reveals that that prior to rejection of the case of the petitioner vide order dated 14.09.2020 (Annexure P-10), respondents-
::: Downloaded on - 24/12/2022 09:37:38 :::CIS 7department granted similar benefits to other similar situated persons namely Sh. Narayan Dass, Sh. Perma Ram, Sh. Dhani Ram etc., as is evident from (Annexure P-6 colly). Close scrutiny of aforesaid .
document available on record clearly reveals that above-named persons, who had also approached this Court by way of civil writ petitions and this Court disposed of the same with the direction to the respondents to decide the representations of the aforesaid petitioners within a period of 10 weeks from the date of production of the judgment in terms of the law laid down by Hon'ble Apex Court in Mool Raj (H.P.), 366.
r to Upadhyaya's case and State of H.P. & ors. vs. Gehar Singh, 2007 (12) SCC 43 and Gauri Dutt & ors. vs. State of H.P. LHLJ 2008 Since, similar situate persons, as have been detailed hereinabove, have already been granted work charge status on their having completed 8/10 years of regular daily wage service in the forest department, there is no justification at all to deny the claim, as has been raised in the instant petition by the petitioner. Moreover, it is well settled by now that work charge status/regularization in terms of mandate as in Mool Raj Upadhyaya's case granted to all daily wage workers working in the various department of the State, on their having completed 8/10 years of regular daily wage service. Division Bench of this Court vide judgment dated 10.5.2018 passed in CWP No.3111/2016, titled State of H.P. vs. Ashwani Kumar has categorically held that work charge establishment is not a pre-requisite for conferment of work charge status/regularization after completion of requisite period provided under the policies. Division Bench of this ::: Downloaded on - 24/12/2022 09:37:38 :::CIS 8 Court has further observed that while dealing with the issue, it is to be borne in the mind that petitioners are only Class-IV workers, i.e. Beldars and the scheme announced by the Govt. clearly provides that .
department concerned should consider the workmen concerned for bringing them the work charge category and as such, there is an obligation cast upon the department to consider the case of daily wage workman for conferment of work charge status after completion of required number of years in terms of the policy. In similar facts and circumstances, this Court in case titled Smt. Reema Devi vs. State of H.P. & ors. in CWPOA No. 5566/2019, decided on 03.09.2020 (Annexure P-12) has already directed the respondents to grant work charge status to the concerned employee from the date he has completed 8 years of daily wage service with 240 days in each calendar year. The relevant para of aforesaid judgment is re-produced hereinunder:-
"Otherwise also, issue in question stands settled in CWP No. 4489 of 2009, titled Ravi Kumar v. State of H.P. and Ors, decided on 14.12.2009, which has been further upheld by the Hon'ble Apex Court in Special Leave to appeal (C) No.33570//2010 titled State of HP and Ors. v. Pritam Singh and connected matters. Apart from above, decision rendered by this Court in CWP No. 3301/2016, Narotam Singh v. HPSEBL and Ors. is also based upon the decision rendered by the Hon'ble Apex Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation (1990) 1 SCC 361, as well as judgment rendered by this Court in CWP No. 9970 of 2012 titled Laxmi Devi v. State of H.P. and Ors. Leaving everything aside, aforesaid judgment rendered by this Court in Ashwani Kumar's case (supra) has been upheld by the Hon'ble Apex ::: Downloaded on - 24/12/2022 09:37:38 :::CIS 9 Court."
5. Aforesaid judgment passed by this Court has been already upheld by Division Bench of this Court in LPA No.160/2021, .
titled State of H.P. & ors. vs. Reema Devi (Annexure P-13), relevant paras of the same are as under :-
"10. It is in light of aforesaid findings that the impugned judgment has been passed. In the facts of the case Ashwani Kumar (supra), the employer had resisted the claim of employee on the ground that HPPWD had ceased to be a work charge establishment for Class-III employees w.e.f. 01.04.2011 and for Class-IV employees w.e.f. 19.08.2005 and thus, the petitioner therein, who had not completed 8 years' service on or r before abolition of work charge establishment was not entitled for grant of status of work charge employee. Hence, the Division Bench of this Court while deciding Ashwani Kumar's case (supra) had held that the work charge establishment is not a pre-requisite for conferment of work charge status.
11. Now adverting to the facts of the instant case, the grant of work charge status to late Shri Het Ram has been denied on the ground that Himachal Pradesh Forests Department had no work charge establishment. In Ashwani Kumar's case (supra) also right of the petitioner therein for grant of work charge status was considered when the HPPWD had ceased to be a work charge establishment."
6. In the case at hand, petitioner was engaged as daily wage worker in the year 1994 and as such, department ought to have granted him work charge status/regularization after his having completed 8 years daily wage service with 240 days in each calendar ::: Downloaded on - 24/12/2022 09:37:38 :::CIS 1 year. However, it has been claimed by the respondents that policy for regularization provided cutoff date as 31.03.2000 by which time, petitioner had not completed 8 years of daily wage service and as .
such, his prayer for grant of work charge status/regularization after completion of 8 years, could not have been considered. However, this Court finds no merit in the aforesaid submission made by learned Assistant Advocate General because policy of regularization framed by Govt. of H.P. came to be extended from time to time. It is not in dispute that prior to promulgation of policy of 2006, regularization policy of year 2000, was very much in existence and as such, it cannot be said that persons, who had completed 8 years of service in the interregnum, can be denied such benefit on the basis of cutoff date, if any, fixed in the subsequent policy. In this regard, reliance is placed upon the judgment rendered by Coordinate Bench of this Court in CWP No.2415 of 2012, titled Mathu Ram vs. Municipal Corporation & others, decided on 31.07.2014, whereby it has been held that mere fact that there was time gap in issuance of policy for regularization, which prescribed different cutoff dates, cannot be a ground to deny the benefit of regularization to the petitioner on his completion of 8 years of service on daily wage basis in terms of the judgment passed by Division Bench of this Court in CWP No. 2735 of 2010, dated 28.07.2010 titled Rakesh Kumar & Ors. vs. State of H.P. & Ors.
Para-5 of Mathu Ram's case (supra) is reproduced herein below:
"5. It cannot be disputed that the policy of ::: Downloaded on - 24/12/2022 09:37:38 :::CIS 1 regularisation has been extended from time to time. The mere fact that there was a time gap in issuance of the policy of regularisation which prescribed different cut off dates cannot be a ground to deny the .
benefit of regularisation to the petitioner on his completion of 8 years of service on daily waged basis in terms of Rakesh Kumar (supra).."
7. Reliance is also placed to the judgment dated 12.03.2020, passed by this Court in CWP No.4482 of 2019, titled State of H.P. & Anr. vs. Rajinder Kumar, wherein, this Court held as under:
"10. The net result is that once the Government itself has framed policy of regularization and the same is extended from rtime to time, then the mere fact that there was a time gap in issuance of the policy of regularization, which prescribed different cut off dates, cannot be a ground to deny the benefits of regularization to workmen on its completion of the requisite length of service."
8. It has been also held by Division Bench of this Court in CWP No.6912 of 2021, titledState of H.P.& ors. vs. Swaran Rekha, wherein this court held as under:-
"11. Yet another judgment of the Division Bench of this Court relied upon by the Tribunal was delivered in LPA No.44 of 2015, titled Municipal Corporation Shimla and others Versus Mathu Ram, decided on 13.10.2015, facts of which case are somewhat identical to the present case. In that case, respondent was appointed in November, 1993. He completed service of eight years in 2001. In the present case also, respondent-original applicant was appointed on 16.08.1993 and completed service of eight years on 16.08.2001. The employee concerned in that case was claiming that he was required to be regularized immediately on completion of eight ::: Downloaded on - 24/12/2022 09:37:38 :::CIS 1 years' service. The appellant-Corporation, however, resisted the claim. It was held by this Court that practice of the respondent Corporation in not regularizing the service of the workmen even though they have completed eight years of service, amounts to unfair labour practice. It may be noted that .
this judgment was also subject to challenge before the Hon'ble Supreme Court in SLP No.1708 of 2016 and was upheld."
9. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, the present petition is allowed and order dated 26.08.2020 (Annexure P-15) is quashed and set aside and petitioner is held entitled for work charge status/regularization w.e.f 01.01.2002 with all consequential benefits including seniority, pay fixation and pensionary benefits etc. Respondents are directed to ensure grant of work charge status/regularization to the petitioner on or before 31.08.2022 along with all consequential benefits including payment of arrears, if any, failing which, petitioner shall be also entitled for interest on the arrears @ 7.5% per annum from the date of accrual of the same till final payment thereof from the respondents.
Present petition stands disposed of in above-terms, so also the pending application(s), if any.
(Sandeep Sharma) Judge 8th August, 2022 (reena) ::: Downloaded on - 24/12/2022 09:37:38 :::CIS