Himachal Pradesh High Court
Balbir Singh vs Dr. Y.S. Parmar University on 4 September, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWPOA No.6882 of 2020 a/w
CWPOA Nos.6873 and 6875 of 2020
Decided on: 4th September, 2024
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CWPOA No.6882 of 2020
Balbir Singh ...Petitioner
Versus
Dr. Y.S. Parmar University ...Respondent
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CWPOA No.6873 of 2020
Ramesh Chand ...Petitioner
Versus
Dr. Y.S. Parmar University ...Respondent
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CWPOA No. 6875 of 2020
Raj Kumar ...Petitioner
Versus
Dr. Y.S. Parmar University ...Respondent
Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge
Hon'ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? Yes.
For petitioner(s): Mr. Dheeraj Kanwar, Advocate.
For respondent(s): Mr. Ramesh Chand Sharma,
Advocate.
Vivek Singh Thakur, Judge (Oral)
Petitioner(s) in all these petitions for involvement of 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 09/09/2024 20:29:35 :::CIS -2-similar issue to be decided on the basis of similar facts and common law, as applicable to the matter, are being decided together by this common judgment.
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2. Petitioners have approached this Court for quashing of office order dated 01.03.2018 [Annexure A-2] and to direct the respondent-University to regularize their services on completion of 8 years, from the date of their initial appointment.
3. Petitioners Balbir Singh, Raj Kumar and Ramesh Chand had approached the erstwhile Himachal Pradesh State Administrative Tribunal by filing OA Nos.5714, 5715 and 5721 of 2017, which were disposed of by the Tribunal vide order dated 31.10.2017 directing the respondent-University to confer the benefit to the petitioners in terms of judgment dated 28.07.2010 passed by this High Court in CWP No.2735 of 2010 titled Rakesh Kumar vs State of HP, subject to verification of facts and similarity of the petitioners to the petitioners in Rakesh Kumar's case.
4. In sequel to the aforesaid order dated 31.10.2017 passed by the erstwhile Tribunal, respondent-University through its Registrar vide even dated separate office orders ::: Downloaded on - 09/09/2024 20:29:35 :::CIS -3- issued on 01.03.2018, had rejected the claim of the petitioners.
5. Feeling aggrieved by the aforesaid rejection, petitioners .
have filed present petitions before the erstwhile Tribunal in the year 2018-19 which were transferred to this High Court on abolition of the Tribunal and registered as present writ petitions.
6. Undisputedly, petitioners were appointed on daily wage basis as daily wagers in January 1995 and their services have been regularized w.e.f. 01.04.2008.
7. Petitioners are claiming benefit of regularization after 8 years of service in terms of the policy of the State Government in the year 1997, 1998, 1999, 2000 and 2006.
8. In response to the petitions, respondent-University has taken the stand that regularization of petitioners against category (D) post, has been done from due date in accordance with policy framed for regularization of daily wage labourers by the State Government and after completing all codal formalities.
9. The extension of benefit of work-charge status/regularization on completion of 8 years has been ::: Downloaded on - 09/09/2024 20:29:35 :::CIS -4- opposed on the ground that University does not have work-
charge establishment.
10. It has been claimed by the University that petitioners .
were regularized in the year 2008, in accordance with the policy of the State Government in pursuant to the approval received from the State Government.
11. Applicability of the policy of regularization formulated and adopted by the State to the University has not been
12. to disputed, rather stands admitted.
Though it has been stated in the reply that very nature of the employment of the daily wage employees is temporary in nature and they are appointed for execution of specific work and their services automatically come to an end on completion of the work, however, the said plea is not relevant in the present matter because admittedly petitioners who were engaged in the year 1995 were continuously engaged till their regularization in April 2008 and, therefore, the work which was available for more than 12 years, cannot be said to be work available temporarily, leading to automatic disengagement of the petitioners.
13. For justifying the denial of work-charge status to the ::: Downloaded on - 09/09/2024 20:29:35 :::CIS -5- petitioners on completion of 8 years has also been opposed by the learned counsel for the respondent-University by referring judgments of the Supreme Court in State of Rajasthan vs .
Kunji Raman, (1997) 2 SCC 517; Jaswant Singh & Ors. vs Union of India & Ors, (1979) 4 SCC 440; State of Maharashtra vs Purshottam & Ors., (1996) 9 SCC 266; and judgment dated 28.07.2010 of the High Court passed in CWP No.2735 of 2010, titled Rakesh Kumar & Ors. vs State of HP.
14. Plea has also been taken on behalf of respondents that in view of judgment in Jaswant Singh and others vs. Union of India and others, (1979) 4 SCC 440, petitioner is not entitled for the claim to confer work charge status upon him on completion of requisite number of years as the University was and is not having any work charge establishment.
15. Term "work-charge", in Jaswant Singh & Ors. vs Union of India & Ors, (1979) 4 SCC 440; State of Maharashtra vs. Purshotam and other (1996) 9 SCC 266; and State of Rajasthan vs. Kunji Raman (1997) 2 SCC 517, is in different context, whereas this term, in Himachal Pradesh, is used in different context. A person, working on daily-waged basis, before his regularization, is granted work-charged ::: Downloaded on - 09/09/2024 20:29:35 :::CIS -6- status on completion of specified number of years as daily-
wager and effect thereof is that thereafter non-completion of 240 days in a calendar year would not result into his ouster .
from the service or debar him from getting the benefit of length of service for that particular year. Normally, work-
charged status is conferred upon a daily-wager, on accrual of his right for regularization, on completion of prescribed period of service, but non regularization is for want of regular vacancy in the department or for any other just and valid reason. Therefore, it is a period interregnum daily-wage service and regularization, which is altogether different form the temporary establishment of work-charge, as discussed in the judgment of the Apex Court relied upon by the State and, for practice in Himachal Pradesh, work-charged status is not conferred upon the person employed in a project but upon such daily-wage workers, who are to be continued after particular length of service for availability of work but without regularization for want of creation of post by Government for his regularization/ regular appointment. Therefore, work is always available in such cases and the charge of a daily-
wager is created thereon to avoid his disengagement for ::: Downloaded on - 09/09/2024 20:29:35 :::CIS -7- reasons upon which a daily-wager can be dispensed with from service.
16. In the given facts and circumstances of present case, .
judgment relied upon by the respondents pronounced in Jaswant Singh's case, Purshotam's case and in Kunji Raman's case (supra), are neither relevant nor applicable.
17. On conferment of work-charged status, sword of disengagement, hanging on the neck of workmen, is removed on completion of specified period of daily-waged service, as thereafter instead of daily-wage, the employee would get regular pay-scale and would be entitled to other consequential benefits for which a daily-waged employee is not entitled.
18. For the purpose of adjudication of present case, Policy formulated by the respondents-State and approved by the Supreme Court of India in Mool Raj Upadhyaya v. State of H.P. & others, 1994 Supp (2) SCC 316 further explained in Gauri Dutt & others v. State of H.P., Latest HLJ 2008 (HP) 366, and Regularization Policy framed and circulated by the respondents-State in the year 2000, shall be relevant.
19. Policy approved by the Supreme Court in Mool Raj ::: Downloaded on - 09/09/2024 20:29:35 :::CIS -8- Upadhyaya's case reads as under:
"4. Taking into consideration the facts and circumstances of the case, we modify the said scheme by substituting paragraphs 1 to 4 of the same by the following paragraphs:
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"(1) Daily-wage/muster-roll workers, whether skilled or unskilled, who have completed 10 years or more of continuous service with a minimum of 240 days in a calendar year on 31-12-1993, shall be appointed as work-
charged employees with effect from 1-1-1994 and shall be put in the time-scale of pay applicable to the corresponding lowest grade in the government;
(2) daily-wage/muster-roll workers, whether skilled or unskilled, who have not completed 10 years of continuous service with a minimum of 240 days in a calendar year on 31-12-1993, shall be appointed as work-charged employees with effect from the date they complete the said period of 10 years of service and on such appointment they shall be put in the time-scale of pay applicable to the lowest grade in the government;
(3) daily-wage/muster-roll workers, whether skilled or unskilled who have not completed 10 years of service with a minimum of 240 days in a calendar year on 31-12-1993, shall be paid daily wages at the rates prescribed by the government of Himachal Pradesh from time to time for daily-wage employees falling in Class III and Class IV till they are appointed as work-charged employees in accordance with paragraph 2;
(4) daily-wage/muster-roll workers shall be regularised in a phased manner on the basis of seniority-cum-suitability including physical fitness. On regularisation they shall be put in the minimum of the time-scale payable to the corresponding lowest grade applicable to the government and would be entitled to all other benefits available to regular government servants of the corresponding grade."
20. Right of regularization/work-charge status of a Daily-
Wage Worker, where the worker/employee has rendered ::: Downloaded on - 09/09/2024 20:29:35 :::CIS -9- service, on daily-wage basis, on different posts in lower and higher grades, has been explained in Gauri Dutt's case, as under:
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"18. The last question raises some interesting points. There have been instances where some employee has worked as beldar for some time and thereafter he has been engaged in a higher scale as mate or supervisor etc. The Tribunal in most of these cases has directed that the employee should be granted work charge status in the higher post on completion of 10 years of service after combining the service rendered in the lower scale and the higher scale. The State is aggrieved by these directions. According to the learned Advocate General the State has offered work charge status to these employees on completion of 10 years of combined service in the lower of the two scales and the State cannot be directed to grant work charge status in the higher scale. On the other hand, it is contended on behalf of the employees that since the employees are already working in the higher scale, it would not be fair and equitable to grant them work charge status in the lower scale.
19. We have considered the arguments from all angles. We are of the view that the employee cannot be given the benefit of combining service rendered in both the scales and be granted work charge status in the higher scale. We do, however, feel that at times it may be inequitable to grant the employee work charge status in the lower scale without giving him an option in this regard. We are giving two examples to illustrate two extreme positions. In example (i) we will deal an employee (A) who joined service on 1.1.1990. He works in the lower scale of beldar from 1.1.1991 to 31.12.1999. He is thereafter posted as Supervisor in the higher scale. Should he be granted work charge status as beldar or as Supervisor w.e.f. 1.1.2001? The other example is converse. Supposing employee (B) has worked as beldar w.e.f. 1.1.1991 to 31.12.1991 and from 1.1.1992 he has worked as Supervisor. From which date should we grant him work charge status and in what scale? It is obvious that in the first case the employee would not mind being granted work charge status even in the lower scale after 10 years w.e.f. 1.1.2000 since grant of work charge status would mean that he would get regular scale of pay. But should the employee be granted work charge status in the higher scale? We cannot agree with this preposition.::: Downloaded on - 09/09/2024 20:29:35 :::CIS
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20. After considering all the pros and cons and keeping in view the fact that various anomalous situations may arise we are of the considered view that when an employee completes 10 years of continuous service combined in two scales, an option should be given to the employee to either accept work charge status in the .
lower scale or he may continue to work on daily rated basis in the higher scale and claim work charge status in the higher scale on completion of 10 years of continuous service in the said scale. In the examples given above, employee (A) may prefer to accept work charge status w.e.f. 1.1.2001 even in the lower scale of beldar because otherwise he may have to wait for 9 years before he is granted work charge status. On the other hand, employee (B) in the second example may prefer to delay the grant of work charge status by one year so that he can get work charge status in the higher scale. We feel that in each case the choice should be left to the employee. However, if the employee on being given a chance to exercise his option does not convey his option within 30 days, he shall be granted work charge status in the lower scale by combining the service rendered in both the scales. This answers the fourth question."
21. Relevant operative portion of orders dated 3.4.2000 and 6.5.2000, issued by Government of Himachal Pradesh, notifying and circulating terms for regularization of daily-
wage workers in the year 2000, on completion of eight years continuous service, are as under:
Order dated 3.4.2000:
"...................
In partial 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 Departments including Public Works and Irrigation and Public Health Department (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 ::: Downloaded on - 09/09/2024 20:29:35 :::CIS
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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.
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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 dated 8th 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."
Order dated 6.5.2000:
".................
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 otherwise for the tribal 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 ::: Downloaded on - 09/09/2024 20:29:35 :::CIS
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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 their 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'."
22. A Division Bench of this High Court in CWP No.2735 of 2010, titled as Rakesh Kumar v. State of H.P. & others, decided on 28.7.2010, has held that till the new scheme, if introduced, comes into being, the old scheme shall be in force, and employees, till introduction of new scheme, shall be entitled for benefits of previous scheme. In other words, on introduction of new scheme, employees shall be entitled for benefits of new scheme, particularly when applicability of subsequent scheme is more beneficial to the employees than the old scheme. The employees, who are governed by old scheme, but are also governed under new scheme devolving benefits better than earlier scheme, are definitely entitled for benefits of the latest scheme.
23. With respect to ground taken by the respondents-
Department that Department is not having work-charged establishment and, thus, benefit of period of service as a ::: Downloaded on - 09/09/2024 20:29:35 :::CIS
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work-charged employee cannot be extended to the petitioners, it is apt to record that in Mool Raj Upadhyaya's case an affidavit was filed by the Chief Secretary to the Government of .
Himachal Pradesh, formulating a Scheme for granting work-
charged status to all daily-waged employees, serving in the State of Himachal Pradesh, in all Departments, irrespective of the fact that Department is/was having work-charged establishment or not.
24. In Gauri Dutt's case, it has been held that the scheme formulated in Mool Raj Upadhaya's case is applicable to daily-waged employees working in any department of the state of Himachal Pradesh and the employees, who are not governed by the directions given in Mool Raj Upadhaya's case, shall be governed by a Scheme framed by the State in this regard and it has also been observed that granting of work-charged status would mean that an employee would get regular scale of pay.
25. Upholding the order passed by the erstwhile H.P. State Administrative Tribunal, a Division Bench of this Court, vide judgment dated 10.5.2018, in CWP No.3111 of 2016, titled as State of Himachal Pradesh v. Ashwani Kumar, has ::: Downloaded on - 09/09/2024 20:29:35 :::CIS
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pronounced that work-charged establishment is not a pre-
requisite for conferment of work-charged status nor conversion of work-charged employee into regular employee .
would make such establishment non-existent.
26. Civil Appeal No.5753 of 2019, titled as State of H.P. vs. Ashwani Kumar, preferred by the State in Ashwani Kumar's case has been dismissed by the Supreme Court on 22.07.2019. Similarly, SLP (C) No. 8830-8869 of 2011 preferred by the State in Rakesh Kumar's case also stands dismissed by the Supreme Court on 15.01.2015.
27. In response to plea that work-charged establishment does not exist in the respondent-Department, learned counsel for the petitioners has also referred pronouncements of this High Court in cases CWPOA No. 5748 of 2019, titled Man Singh Vs. The State of Himachal Pradesh and others;
CWPOA No. 52 of 2019, titled Beli Ram Vs. State of Himachal Pradesh and another; CWPOA No. 5566 of 2019, titled as Reema Devi Vs. State of H.P. and others;
and CWPOA No. 5660 of 2019, titled Ghanshyam Thakur Vs. State of Himachal Pradesh and others; LPA No.151 of 2021, titled State of HP Vs. Beli Ram, decided on ::: Downloaded on - 09/09/2024 20:29:35 :::CIS
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09.08.2023; CWPOA No.5554 of 2019, titled Daulat Ram vs. State of HP and others; CWPOA No.6468 of 2020 titled Uggam Ram vs. State of HP and others decided on .
09.11.2023; and CWPOA No.6151 of 2020 titled Rashid Mohammed vs. State of HP and others decided on 13.06.2024; wherein similar plea of respondent-State did not find favour of the Court.
28. According to pronouncement in Mool Raj Upadhyaya's case, clarified in Gauri Dutt's case, work charge status was to be conferred irrespective of existence of work charge establishment. The said fact has not been considered in Rakesh Kumar's case. In fact, in Rakesh Kumar's case, this issue was not adjudicated but without considering Mool Raj's case and without assigning any reason, a passing observation was made. Whereas this issue has been adjudicated and decided in subsequent judgment in Ashwani Kumar's case. Therefore, observations made on this issue in Rakesh Kumar's case are not binding especially when Civil Appeal in Ashwani Kumar's case has been dismissed by Supreme Court. Therefore, abolition or non-existence of work-
charge establishment in the respondent-Department has no ::: Downloaded on - 09/09/2024 20:29:35 :::CIS
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effect on the rights of petitioner for conferment of work-
charged status after completion of 8 years in terms of Policy of the Government as well as verdict of Rakesh Kumar's .
case.
29. For conferment of work-charged status, work-charged establishment in the Department is not prerequisite. The same has also been affirmed by the Principal Division Bench of this Court in judgment dated 9.8.2023 passed in LPA No.
30. to 151 of 2021, titled State of H.P. & another Vs. Beli Ram.
The aforesaid principle has also been affirmed in CWPOA No.6710 of 2020, titled as Ram Singh & others vs. State of H.P. & others, decided on 08.09.2023; CWPOA No.6614 of 2020, titled as Ram Singh vs. State of H.P. & others, decided on 23.11.2023; CWPOA No.6217 of 2020, titled as Pawan Kumar vs. State of Himachal Pradesh & others; and CWPOA No.7497 of 2020, titled as Pritam Singh vs. State of H.P. & others, decided on 29.07.2024.
31. Regarding regularization of the petitioners from prospective dates of passing of order after issuance of fresh Policy of the Government and withholding regularization/ grant of work-charged status to the petitioners for want of ::: Downloaded on - 09/09/2024 20:29:35 :::CIS
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time gap between two Policies, learned counsel for the petitioners has referred pronouncement of this Court in CWP No. 2415 of 2012, titled as Mathu Ram Vs. Municipal .
Corporation and others, decided on 31.7.2014.
32. Judgment of Single Bench passed in Mathu Ram's case has been affirmed by a Division Bench in LPA No. 44 of 2015, titled as Municipal Corporation, Shimla & others vs. Mathu Ram, decided on 13.10.2015.
33. Conclusion of verdict of Mathu Ram's and Rakesh Kumar's cases, with respect to gap between issuance/ formulation of two policies, is that previous policy/scheme shall remain in force till issuance/ formulation/introduction of subsequent policy/scheme, but cut of date for completion of requisite number of years shall be redundant in subsequent years and benefit of policy/scheme shall be extended to employees immediately on completion of continuous service for requisite number of years with minimum prescribed number of working days in each calendar year. In case regularization is not possible for want of availability of vacancy, the work-charge status has to be conferred upon daily wage employee on completion of ::: Downloaded on - 09/09/2024 20:29:35 :::CIS
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requisite number of years prescribed in the Policy/Scheme.
34. Despite having bestowed status of custodian of rights of its citizens, State or its functionaries invariably are adopting .
exploitative method in the field of public employment to avoid its liabilities, depriving the persons employed from their just claims and benefits by making initial appointments on temporary basis, i.e. contract, adhoc, tenure, daily-wage etc., in order to shirk from its responsibility and delay the conferment of work-charge status or extension of benefits of regularization Policy of the State by not notifying Policies in this regard in future. Present case is also an example of such practice.
35. So far as regularization of petitioners is concerned, that may depend upon the availability of post, but for conferring work charge status, existence of post or existence of work charge establishment is not necessary and, therefore, plea on this count to deny conferment of work charge status upon the petitioners, on completion of 8 years, is also not tenable.
36. In view of above discussion, we are of the considered opinion that there is merit in the claim of the petitioners and plea of the respondent-University to oppose the same, is liable ::: Downloaded on - 09/09/2024 20:29:35 :::CIS
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to be rejected.
37. Accordingly, respondent is directed to confer the work-
charge status/regularization, as the case may be, from .
completion of 8 years of regular daily wage service from initial date of appointment i.e. January 1995 and issue appropriate order for the said purpose by conferring the status upon the petitioners from 01.01.2003 with all consequential benefits.
Appropriate order extending consequential benefits be issued on or before 15.10.2024. Consequential monetary benefits be disbursed to them within four weeks thereafter.
All the petition(s) are allowed and disposed of in aforesaid terms.
(Vivek Singh Thakur) Judge (Ranjan Sharma) Judge September 04, 2024 (Chiranjeev) ::: Downloaded on - 09/09/2024 20:29:35 :::CIS