Himachal Pradesh High Court
State Of H.P. & Anr vs Rajinder Kumar on 12 March, 2020
Bench: Tarlok Singh Chauhan, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 4482 of 2019
.
Date of decision: 12.03.2020.
State of H.P. & Anr. .....petitioners.
Versus
Rajinder Kumar ....Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting? 1 No.
For the Petitioners: Mr. Ranjan Sharma, Mr. Vinod
Thakur and Mr. Desh Raj Thakur,
Addl. A.Gs. with Ms. Seema
Maniktala and Mr. Bhupinder
Thakur, Dy. A.Gs.
For the Respondent: Nemo.
Tarlok Singh Chauhan, Judge (Oral)
Aggrieved by the orders passed by learned Tribunal on 10.05.2018, whereby it allowed the petition filed by the respondent, the petitioner has filed the instant petition for the grant of following relief(s):-
(i) That the present petition may kindly be allowed and the judgment dated 10.05.2018 passed by the erstwhile Hon'ble Tribunal in OA No. 2090/2018, titled as Rajinder Kumar vs. State of H.P. & others may kindly be set aside.1
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 17/03/2020 20:22:59 :::HCHP 2
(ii) That the instructions/policies of the Govt of H.P. issued from time to time for the conversion of part time to daily .
waged worker and daily waged worker to regularization may kindly be ordered to be upheld.
2. The facts lie in a narrow encompass. The respondent was appointed as a Part Time Water Carrier on 05.09.1996 and worked continuously without any break for 15 years when eventually he was conferred daily wage status in the year 2010.
It was thereafter he approached the Tribunal by filing O.A. No. 2090 of 2018 for following relief(s):-
(i) That in view of the above mentioned facts and circumstances, the present application may kindly be allowed and the respondents may kindly be directed to grant daily wage status to the applicant from the year 2006 and thereafter regularization from the year 2014 alongwith all consequential benefits.
3. The learned Tribunal allowed the petition and a direction was issued to the respondents (petitioners herein) to grant daily wage status to the petitioner after completion of 10 years of service as a part time worker alongwith all consequential benefits including regularization.
4. It is vehemently contended by Mr. Vinod Thakur, learned Additional Advocate General, that the services of the respondent could have been ordered to be regularized only when there was a policy to this effect. In absence of any policy, no such orders confering daily wage status could have been passed.
::: Downloaded on - 17/03/2020 20:22:59 :::HCHP 3According to him, the policy of regularization of the services of part time workers issued on 05.07.2007, was applicable only to .
the cases where the daily wage workers had completed 10 years continuous service as on 31.03.2006 and since the respondent had admittedly not completed 10 years, therefore, the policy was clearly not applicable to his case. It is then contended that the respondent case at best be covered with the policy issued on 13.10.2009, however, in that case also the cut off date as prescribed was 31.03.2009 and, therefore, the petitioner's services could at best have been ordered to be regularized from 31.03.2009 and not from any date anterior to the said date.
5. We, however, find no merit in the contention for the simple reason that the issue in question has now long been settled by series of decisions of this Court.
6. Similar question came up before one of us (Justice Tarlok Singh Chauhan, J.) in CWP No. 2415 of 2012, titled as Mathu Ram vs. Municipal Corporation and others, decided on 31.07.2014, wherein like the present case the respondent (Petitioner herein) had contended that the services of the workman therein in absence of any policy could not be regularised, rejecting the contention it was observed as under:-
5. It cannot be disputed that the policy of regularisation has been extended from time to time.
The mere fact that there was a time gap in issuance ::: Downloaded on - 17/03/2020 20:22:59 :::HCHP 4 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. Aggrieved by the aforesaid judgment, the Municipal Corporation filed LPA No. 44 of 2015, which was rejected by the learned Division Bench of this Court by observing as under:-
5. Respondent was appointed in the month of November, 1993. He has completed 8 years of service in the year 2001. The workmen, who have completed 8 years of service, were required to be regularized immediately after the completion of 8 years' service. Appellant - corporation is State within the meaning of Article 12 of the Constitution of India. The practice of the respondent-
corporation not to regularize the services of the workmen, though they have completed 8 years of service, amounts to unfair labour practice.
6. The issue raised in the LPA is no more res integra in view of the judgment rendered in CWP No.2735 of 2010 decided on 28.7.2010 , titled as Rakesh Kumar vs. State of H.P. and others. Relevant portion of the judgment reads as under:
"2. The only reference to be made for analyzing the grievance of the petitioners is two orders of the Government. One order is dated 3.4.2000 and other is dated 6.5.2000. Order dated 3.4.2000, reads as follows:
"In part ial modification of this Department letter of even number dated 8th July, 1999 on the above subject, I am directed to say that the Government has now decided that the Daily Waged/Contingent Paid workers in all the Departments including Public Works and Irrigation and Public Health Departments ::: Downloaded on - 17/03/2020 20:22:59 :::HCHP 5 (other than work-charged categories)/Boards/Corporations /Universities, etc. who have completed 8 years of continuous service .
(with a minimum of 240 days in a calendar year) as on 31-03-2000 will be eligible for regularization. It has further been decided that completion of required years of service makes such daily wager/contingent paid worker eligible for consideration to be regularized and regularization in all cases will be from prospective effect i.e. from the date the order of regularization is issued after completion of codal formalities.
2. In view of the above decision and in order to avoid any litigation and also any hardship to daily wagers departments shall do the regularization based on seniority and they will ensure that senior persons are regularized first rather than regularizing junior persons first.
3. Other terms and conditions like fulfillment of essential qualification as prescribed in R&P Rules, etc. etc. as laid down in this department letter of 8 th July, 1999, as referred to above, shall continue to be operative.
4. These instructions may kindly be brought to the notice of all concerned for strict compliance.
5. These instructions have been issued with the prior approval of the Finance Department obtained vide their Dy. No. 852 dated 23-03-2000."
3. Order dated 6.5.2000, to the extent relevant, reads as follows:
"2. During the process of regularization of daily wagers, various issues and problems relating to these workers concerning their regularization have been brought to the notice of the Government. The Government in order to avoid such confusion or problems has decided to streamline the existing procedure/instructions in order to bring uniformity of procedure in various Departments of the Government. It has, therefore, been decided that henceforth:
(i) Daily Waged/Contingent Paid Workers who have completed required years of continuous service (with a minimum of 240 days in a calendar year except where specified other wise for the tribal ::: Downloaded on - 17/03/2020 20:22:59 :::HCHP 6 areas) which as per latest instructions issued vide this Department letter of even number dated 3-4-
2000 is 8 years as on 31-03-2000 shall be eligible for .
regularization. However, in
Departments/Corporations/Boards, where the
system of the work charge categories also exists, eligible daily wagers will be considered first for bringing them on the work charge category instead of regularization. Such eligible daily waged workers/contingent paid workers will be considered for regularization against vacant posts or by creation of fresh posts and in both these events prior approval of Finance Department will be required as per heir letter No. Fin-1-C(7)-1/99 dated 24-12-1999. The terms and conditions for such regularization shall be governed as per Annexure
-'A'."
4. This scheme was in force till a new scheme introduced on 9th June, 2006. The contention of the petitioners is that on completion of 8 years service, as per the scheme extracted above, they are liable to be granted the work-charged status being on a work charged establishment."
8. The petitioner therein then approached the Hon'ble Supreme Court, however, the SLP filed by it was dismissed, meaning thereby that the judgment rendered in Mathu Ram's case has since attained finality and is required to be implemented.
9. As observed above, in Mathu Ram's case (supra), the issue in question is no longer res integra in view of the judgment of this Court in Rakesh Kumar's case (supra), which again has attained finality up to the Hon'ble Supreme Court.
10. The net result is that once the Government itself has framed policy of regularization and the same is extended from time to time, then the mere fact that there was a time gap in ::: Downloaded on - 17/03/2020 20:22:59 :::HCHP 7 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.
11. Once that be so, obviously, then no fault can be found that the order passed by the learned Tribunal directing the grant of daily wage status to the respondent on completion of 10 years of service as a part time worker.
12. Consequently, we find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan), Judge (Anoop Chitkara) Judge 12th February, 2020 (sanjeev) ::: Downloaded on - 17/03/2020 20:22:59 :::HCHP