Himachal Pradesh High Court
Smt. Prabhi Devi Wife Of Late Sh. Sher ... vs Pinju Ram Etc on 28 April, 2022
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE DAY OF 28th APRIL, 2022.
BEFORE
.
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO.6047 OF 2019
Between:-
SMT. PRABHI DEVI WIFE OF LATE SH. SHER SINGH,
RESIDENT OF VILLAGE DHARWAN, POST OFFICE KOTLI,
TEHSIL KOTLI, DISTRICT MANDI, H.P.
...... PETITIONER
(BY MR. AJAY SHANDIL, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH THROUGH SECRETARY
(AGRICULTURE) TO THE GOVERNMENT OF H.P. SHIMLA.
2. DIRECTOR OF AGRICULTURE, HIMACHAL PRADESH,
SHIMLA.
3. DEPUTY DIRECTOR OF AGRICULTURE, MANDI, DISTRICT
MANDI, H.P.
4. AGRICULTURE DEVELOPMENT OFFICER, SAIGALOO
SADAR BLOCK, DISTRICT MANDI, H.P.
......RESPONDENTS
(BY MR. BHUPINDER THAKUR AND MR. YUDHBIR SINGH
THAKUR DEPUTY ADVOCATES GENERAL)
1
WHETHER APPROVED FOR REPORTING? Yes.
This petition coming on for orders this day, the Court
passed the following :
ORDER
The instant petition has been filed for the grant of following substantive reliefs:
i) That the present Original Application may kindly be allowed, the action of the respondents in rejecting the claim of the applicant and the impugned order dated 9.12.2014 (Annexure A/17) may kindly be quahsed and set aside being against the mandate of the policy for providing 1 Whether reporters of Local Papers may be allowed to see the judgment ? Yes.::: Downloaded on - 28/04/2022 20:07:42 :::CIS 2
employment assistance to the dependents of Government servants, who die while in Government service leaving their family in indigent circumstances has been circulated vide OM No.Per(AP-II)F(4)-4/89 dated 18.1.1990 as .
amended from time to time as well as against the precedent laid down by the Hon'ble Supreme Court of India and the Hon'ble High Court of H.P.
ii) That the respondents may kindly be directed to give employment to the applicant under the policy for providing employment assistance to the dependents of Government servants, who die while in Government service leaving their family in indigent circumstances has been circulated vide OM No.Per (AP-II)F(4)-4/89 dated 18.1.1990 as amended from time to time.
iii) That the respondents may kindly be directed to extend the benefit of daily wage status to the husband of the applicant i.e. late Sh. Sher Singh w.e.f. 1.1.2004 instead of 12.6.2009 in view of the law laid down by Hon'ble High Court of Himachal Pradesh as well as notification dated 27 th February, 2004 (Annexure A/11) and thereafter regularize the services of the husband of the applicant w.e.f. 1.1.2012 immediately after the completion of 8 years as per Government notifications and consequential benefits such as arrears, family pension & employment on compassionate grounds may kindly be paid to the applicant alongwith the interest.
2. Briefly stated the facts, giving rise to the present petition are that petitioner's husband late Shri Sher Singh, while serving in the respondent department, as daily wage worker died on 31.8.2014. The husband of the petitioner was engaged, as part time sweeper with the respondent department in October, 1984 and worked, as such continuously and uninterruptedly. The petitioner submitted an application for considering her case for appointment on compassionate basis to respondent No.4, vide letter dated 18.9.2014. Thereafter, respondent No.3 referred back the case of the petitioner to respondent No.4, vide letter, dated 27.9.2014 with the directions to send complete case file by attaching requisite ::: Downloaded on - 28/04/2022 20:07:42 :::CIS 3 documents. The Government of Himachal Pradesh, has framed a Policy to regulate and regularize the services of part time worker, vide Notification, dated 27th February, 2004, whereby it has been .
decided that part time Class-IV employees, who have completed ten years continuous service as on 31.12.2003, will be made daily wager. As per the Notification, dated 27th February, 2004, services of the petitioner's husband was required to be made on daily wage basis w.e.f. 1.1.2004 and as per the Policy, the services were required to be regularized w.e.f. 1.1.2012 and these benefits have not been granted to the husband of the petitioner, as his services were made on daily wage basis w.e.f. 12.6.2009 instead of 1.1.2004. The husband of the petitioner served in the respondent department for 30 years i.e. 24 years, on part time basis and 5 years and 2 months, as on daily wage basis and thereafter, died in harness while in service leaving behind three family members solely dependent upon him. Respondent No.3 forwarded the employment case of the petitioner on compassionate grounds alongwith all requisite documents to respondent No.2 on 24.11.2014 and recommended her case on compassionate grounds being widow of late Sher Singh working daily paid Beldar with the respondent department. Respondent No.2 rejected the case of the petitioner for employment on compassionate grounds, vide letter dated 9.11.2014, by giving reference of the Notification dated 16.8.2005 that late Sher Singh husband of the petitioner had not completed 7 years of service, as daily waged worker and had only rendered 5 years and 2 months, therefore, the petitioner is not entitled for employment on compassionate grounds.
::: Downloaded on - 28/04/2022 20:07:42 :::CIS 43. Reply to the petition has been filed and it has been averred that husband of the petitioner was working, as a part time worker, as daily waged labourer w.e.f. 8.6.2009, as per Government .
Policy dated 5.7.2007. Thereafter husband of the petitioner expired on 31.8.2014, while completed five years service, as daily waged labourer. The State Government, vide letter, dated 16.8.2005, fixed seven years criteria, as daily waged labourer to provide employment assistance to the dependents of daily waged labourer, who died in service, therefore, the claim of the petitioner is not maintainable. r
4. Mr. Ajay Shandil, learned counsel for the petitioner has strenuously argued that the petitioner was given daily waged status in the year 2009 and he died in the year 2014. The respondents concerned have not granted the compassionate appointment to the wife of the petitioner due to the reason that her husband had not completed seven years service, as daily waged status. He has further argued that the husband of the petitioner was working, as a part time worker before his death and he has completed ten years of service, as part time worker on 1.1.2004. In these circumstances, the petitioner is entitled for compassionate appointment. In support of his arguments, he has relied uponjudgment rendered by Hon'ble Apex Court in Civil Appeal Nos.898-900 of 2019 titled State of Himachal Pradesh & anr.
vs. Pinju Ram etc., decided on 22.1.2019, on this aspect.
5. On the other hand, Mr. Bhupinder Thakur, learned Deputy Advocate General has vehemently argued that the petitioner was given daily waged status on 12.6.2009 and since the husband of the petitioner has not completed seven years service, ::: Downloaded on - 28/04/2022 20:07:42 :::CIS 5 as daily waged status, the compassionate appointment cannot be granted to her.
6. In rebuttal, learned counsel for the petitioner has .
argued that husband of the petitioner has completed ten years of service, as daily waged status and it is only because of the arbitrary action on the part of respondents that he was not confer daily waged status in the year 2004 and so, the respondents concerned may be directed to confer the daily waged status to the husband of the petitioner from 1.1.2004.
7. I have heard the learned counsel for the parties and gone through the entire material available on records carefully.
8. Hon'ble Apex Court in State of Himachal Pradesh and another vs. Pinju Ram etc. AIR 2019 Supreme Court 1065, has held as under :
"Pursuant to the above directions of the High Court, the State Government in the Department of Revenue issued instructions on 22 September 2011. The instructions, inter alia, govern Revenue Chowkidars and provided as follows:
1. That the amount of wages to daily waged Revenue Chowkidars shall be paid from the date they have actually been appointed and working as full time daily wager in the department.
2. Since the Revenue Chowkidars have worked as part-time prior to their conversion into daily wagers, therefore, they are not entitled to any financial benefit like arrear etc. Attention is also invited to Hon'ble High Court judgment 21.04.2011 passed in a CWP No. 2192 of 2011 titled Moti Singh vs. State and Ors. Where direction has been issued that "in case the petitioner is granted daily waged status retrospectively, he shall not be entitled to any consequential monetary benefit.
3. Seniority to these daily waged Revenue Chowkidars may be granted from the date of completion of 10 years as Part Time workers."::: Downloaded on - 28/04/2022 20:07:42 :::CIS 6
The submission which has been urged on behalf of the State in support of the appeals is that the original policy dated 27 February 2004 governed part time employees of the State Government, who upon the completion of ten years of service .
as on 31 December 2003, were to be made daily wagers. The Revenue Chowkidars who are not appointed by the State were not governed by the above policy. The Revenue Chowkidars are essentially engaged by the Panchayats. Hence, it was urged that in pursuance of the judgment of the High Court dated 21 April 2011, a conscious decision was taken on 22 September 2011 by the State Government in the Department of Revenue by which Revenue Chowkidars were to be granted seniority from the completion of ten years as part time workers but their wages as daily wagers would be from the date on which they were actually appointed and were working as daily wagers in the department. Similarly, on 7 July 2012, the State Government reiterated its position by directing that part time revenue chowkidars who had completed 10 years of service until 31 March 2012 will be made daily wagers from the date when they have completed ten years of service, their seniority being reckoned from the date of completion of ten years without any financial benefits of the past period.
Hence, it was urged that the High Court was in error in issuing a direction for the payment of consequential benefits with effect from 1 January 2007.
Having regard to this background, we are of the view, that once the State Government decided to bring part time revenue chowkidars on a daily wage basis with the added stipulation that while their seniority would count from the completion of ten years, this would be without any past financial benefits, this principle was required to be duly followed."
9. After hearing the learned counsel for the parties and the entire documents which have come on record, this Court finds that the husband of the petitioner was required to be made regular on daily wage basis, as he has completed more than seven years service, as daily wage worker on the date of his death. In these circumstances, the rejection order passed by the respondents concerned, is not in consonance with the facts of the present case, ::: Downloaded on - 28/04/2022 20:07:42 :::CIS 7 as the only ground for rejection is that he has not completed seven years service, as daily wage basis, which is factually incorrect.
10. Hon'ble High Court of Himachal Pradesh, in CWP .
No.281 of 2007, titled State of H.P & another vs. Mehar Singh & others, decided on 12.4.2007, has held as under :
"During the course of hearing of the original application, counsel for the applicants did not press the main prayer and submitted that the applicants would be satisfied in case the petitioners are granted thestatus of daily wagers in accordance with letter dated 27 th April, 2004, issued by the Chief Secretary (Personnel) to the Government of Himachal Pradesh, to the various Heads of Departments. relevant portions of which reads as follows:-
"1. Part Time Class IV employees who have completed ten years of continuous service as on 31.12.2003 will be made daily wagers. Posts vacated by such part time employees shall stand abolished."
The Tribunal has only directed the State to give daily wage appointment to those applicants who have completed ten years of service, as per the aforesaid instructions. The State has challenged this order before us. From the reply filed before the Tribunal, it is apparent that that the petitioners were part time employees of the State. In fact, before the Tribunal when the applications were seeking parity of scales with the regular Chowkidars/Peons, the State specifically took the plea that the applicants were only part time employees and could not be paid the same scale of pay as is being paid to the regular employees.
It is the State which has taken a policy decision vide letter dated 27 th April, 2004 to give appointments on daily wages to all Part Time Class IV employees who have completed 10 years service on 31.12.2003. This policy has not been modified. The applicants are squarely covered under this policy. All that the Tribunal has done is to direct the State Government to implement its own policy/instructions. There is no error in the order of the Tribunal. The writ petition is dismissed. No order as to costs."
::: Downloaded on - 28/04/2022 20:07:42 :::CIS 811. In view of the aforesaid discussions made hereinabove, Annexure A/17 dated 9.12.2014, is against the factual position, as the husband of the petitioner has completed more than seven .
years of service, as daily wage basis employee, as he has completed ten years service, as part time worker and is ordered to made as daily wage labourer from 1.1.2004, as per his entitlement, as he has completed more than seven years service, as daily wage employee i.e. ten years service, he is ordered to be considered as employee having more than seven years service of daily wage service. In these circumstances, the impugned order dated 9.12.2014 (Annexure A/17) is quashed and set aside by directing the respondents concerned to consider the case of the petitioner for appointment of compassionate ground and offer her appointment on compassionate ground, in accordance with law, within a period of three months from today.
12. In view of the above, the instant petition is disposed of in the aforesaid terms, so also the pending application(s), if any. No order as to costs.
13. For compliance, to come up on 28th July, 2022.
(Chander Bhusan Barowalia)
28th April, 2022 Judge
(CS)
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