Himachal Pradesh High Court
Sh. Atma Ram vs State Of Himachal on 7 March, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 7th DAY OF MARCH, 2022
.
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO.6365 Of
2019
Between:-
1. SH. ATMA RAM
S/O SH. DURGA,
R/O VILLAGE, CHARIDHAR,
POST OFFICE KUNHOO, TEHSIL KARSOG,
DISTRICT MANDI, HIMACHAL PRADESH.
2.
SH. RAM DASS
S/O SH. SAGRU RAM,
R/O VILLAGE DHINGLI,
POST OFFICE KUNHOO, TEHSIL KARSOG,
DISTRICT MANDI, HIMACHAL PRADESH.
....PETITIONERS
(BY SH. CHANDERNARAYAN SINGH,
ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY
(FOREST) TO THE GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA.
2. CHIEF CONSERVATOR OF FOREST,
TALLAND, DISTRICT SHIMLA,
HIMACHAL PRADESH.
3. DIVISIONAL FOREST OFFICER,
FOREST DIVISION, KARSOG,
DISTRICT MANDI, HIMACHAL PRADESH.
....RESPONDENTS
(BY SH.RAJU RAM RAHI, DEPUTY
ADVOCATE GENERAL)
Whether approved for reporting? Yes
Reserved on: 07.01.2022
Decided on: 07.03.2022
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2
This petition coming on for pronouncement this day,
the Court passed the following:
ORDER
.
Petitioners were engaged on daily-wage basis as Beldars in the Forest Department in the year, 1992, but they had completed minimum 240 days in each calendar year continuously w.e.f. 1994 and completed eight years daily wage service as such on 31.12.2002. However, they were regularized vide order dated 10.10.2007 on issuance of Policy by the Government of Himachal Pradesh and availability of vacancies.
2. Petitioners, alongwith others had filed CWP No.3056 of 2009, titled as Megh Singh & others vs. State of Himachal Pradesh, which was disposed of with a direction to the respondent-Department to consider the case of the petitioners for regularization in terms of judgment passed in Mool Raj Upadhyaya vs. State of H.P. & Others, 1994 Supp (2) SCC 316.
Claim of the petitioners was rejected in the year 2011 on the ground that petitioners did not complete ten years of requisite continuous daily wage service prior to 31.12.2003, which was precondition for extending benefit in terms of Mool Raj Upadhayaya's case. Whereupon, petitioners preferred Contempt Petition (COPC No.527 of 2011) which was disposed of with a direction to the respondents to consider the case of the petitioners in terms of judgment of the Division Bench of this High Court passed in CWP No.2735 of 2010, titled as Rakesh Kumar and others vs. State of Himachal Pradesh. For not taking ::: Downloaded on - 09/03/2022 20:11:10 :::CIS 3 any decision by the respondents, another contempt petition (COPC No.666 of 2015) was preferred by the petitioners which was disposed of with a direction to consider case of the .
petitioners within a week from the date of passing of the order i.e. 19.11.2015.
3. After taking into consideration clarification received from the Government, it has been concluded by the respondent-
Department that Forest Department is not a Work Charge Establishment and, therefore, as observed in Rakesh Kumar's case, petitioners are not entitled for grant of work charge status in terms of judgment in Rakesh Kumar's case.
4. Feeling aggrieved and dissatisfied with the rejection of their claim, present petition has been preferred.
5. Petition has been opposed by the respondent-
Department on the ground that Forest Department is not a Work Charge Establishment and, therefore, petitioners' claim has been rightly rejected and further that Policies of the State issued from time to time do not provide conferment of work charge status or regularization immediately on completion of requisite years of service prescribed therein, but services of the workmen are regularized or conferred work charge status only on issuance of new Policy with prospective effect, but not on completion of period of service specified in previous Policy. According to respondents, petitioners are working continuously with minimum 240 working days in each calendar year w.e.f. 01.01.1995, but not from 01.01.1994.
::: Downloaded on - 09/03/2022 20:11:10 :::CIS 46. For substantiating rejection of claim of petitioners for conferring work charge status upon them for want of Work Charge Establishment in Forest Department, respondents have .
placed reliance on judgment of a Division Bench in CWP No.2735 of 2010, titled as Rakesh Kumar vs. State of H.P. and others.
7. In response to plea that work-charged establishment does not exist in the respondent-Department, learned counsel for the petitioner has referred pronouncements of this High Court in cases CWPOA No. 5748 of 2019, titled as 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 as Ghanshyam Thakur Vs. State of Himachal Pradesh and others wherein similar plea of respondent-State did not find favour of the Court. Crux of these pronouncements has been discussed hereinafter.
8. It is undisputed that in Mool Raj Upadhaya Vs. State of Himachal Pradesh, 1994 Supp. (2) SCC 316, affidavit was filed by 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/or was having work-charged establishment or not.
In judgment dated 10.5.2018 rendered by Division Bench of this Court in CWP No. 3111 of 2016, titled as State of Himachal Pradesh Vs. Ashwani Kumar, upholding the order passed by ::: Downloaded on - 09/03/2022 20:11:10 :::CIS 5 erstwhile H.P. State Administrative Tribunal, it has been pronounced that work-charged establishment is not a pre-
requisite for conferment of work-charge status nor conversion of .
work-charged employee into regular employee would make such establishment non-existent. Therefore, abolition of work-charge establishment in the respondent-Department w.e.f. 19.8.2005 has no effect on the rights of petitioners 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.
9. Following observations of this Court made in Beli Ram's case are also relevant to be referred here, which read as under:-
"22. In Gauri Dutt and others Vs. State of H.P., reported in Latest HLJ 2008 (HP) 366, 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. 23. Term "work- charged", discussed State of Rajasthan v. Kunji Raman, reported in (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 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 ::: Downloaded on - 09/03/2022 20:11:10 :::CIS 6 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 for 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 reasons upon which a daily-wager can be dispensed with from service.
24. .. .. .. ..
..
25. 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."
10. Undoubtedly, a daily wager shall only be regularized against available vacancy. However, for conferring work-charged status availability of vacancies is irrelevant. It is a ::: Downloaded on - 09/03/2022 20:11:10 :::CIS 7 status to be conferred upon daily-wager on completion of requisite period of service as daily-wager, in terms of Policy, in absence of regular vacancy, so as to safe guard the interest of .
daily-wager regarding his right to be regularized on completion of specific years on daily wages with requisite number of working days in each calendar year, so that after crossing a bar, a daily-
wager may not be ousted to deprive him from regularization by discontinuing his services being daily-wager and for that purpose there is no need of any work-charged establishment in the Department, as work-charge status is to be conferred upon daily wager. Government has power to create or abolish work-charge establishment. In case claim of the workmen for regularization in terms of Policy is to be deferred for want of approval of the Government, availability of the vacancy or for any other action to be performed on the part of State or Department, then conferment of work-charge status on a daily waged cannot be denied for want of work-charge establishment in the Department.
11. Judgment in Vinay Kumar's case relied upon by respondents has been passed by a Single Bench of this Court, whereas thereafter judgment on the same issue, in Ashwani Kumar's case, has been passed by a Division Bench of this Court and the same is binding on this Court as for passing of judgment in Ashwani Kumar's case by Division Bench, verdict of Single Judge is to be considered to have been over-ruled, therefore, grounds taken by respondents-Department that work-charge ::: Downloaded on - 09/03/2022 20:11:10 :::CIS 8 establishment in Public Works Department to class-IV posts had been abolished w.e.f. 19.8.2005 and thus benefit of conferment of work-charge status upon the petitioners cannot be extended, .
is not tenable. Hence, objection of the respondents to oust the petitioners in these grounds is not tenable. Judgment in Ashwani Kumar's case has been rendered after pronouncement in Rakesh Kumar's case. Both the pronouncements are by Division Benches. Thus, present petition is to be adjudicated in terms of ratio of Ashwani Kumar's case read with judgment passed in Rakesh Kumar's case.
12. No doubt petitioners are not covered under the Policy formulated and approved by the Supreme Court in Mool Raj Upadhaya's case, but in terms of pronouncements of the Division Bench of this Court in Rakesh Kumar' case which has attained finality for affirmation from the Supreme Court, read with pronouncement of this High Court in Ashwani Kumar's case, petitioners are entitled for conferring work-charge status immediately on completion of 8 years continuous service as daily waged with 240 working days in each calendar year. These judgments are binding in nature and it is settled law that binding decision should neither be ignored nor be overlooked.
13. 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 time gap between two Policies, learned counsel for the petitioner has ::: Downloaded on - 09/03/2022 20:11:10 :::CIS 9 referred pronouncements of this Court passed in CWP No. 2415 of 2012, titled as Mathu Ram Vs. Municipal Corporation and others, decided on 31.7.2014, wherein learned Single Judge has .
made the following observations:-
"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 of the policy of regularisation which prescribed different cut off dates cannot be a ground to deny the benefit of regularisation to the 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)."
14. Judgment of Single Bench passed in Mathu Ram's case has been affirmed by a Division Bench in LPA No. 44 of 2015, 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:::: Downloaded on - 09/03/2022 20:11:10 :::CIS 10
"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 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 the Departments including Public Works and Irrigation and Public Health Departments (other than work-charged categories)/Boards/ Corporations /Universities, etc. who have completed 8 r 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 8th July, 1999, as ::: Downloaded on - 09/03/2022 20:11:10 :::CIS 11 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 r 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 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 ::: Downloaded on - 09/03/2022 20:11:10 :::CIS 12 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."
15. Conclusion of verdict of Mathu Ram's and Rakesh Kumar's cases, with respect to gap between issuance/formation of two policies, is that previous policy/scheme shall remain in force till issuance/formation/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 requisite number of years prescribed in the Policy/Scheme.
16. Plea of the respondent-Department that petitioners are serving continuously with 240 working days w.e.f.
01.01.1995 has not been controverted in rejoinder filed by the ::: Downloaded on - 09/03/2022 20:11:10 :::CIS 13 petitioners or otherwise. However, examples of similarly situated persons have been placed on record, wherein respondent-Department has conferred work charge status upon .
similarly situated workmen in the year, 2006 in compliance of judgment of this High Court in CWP No.4071 of 2012, titled as Dhani Ram vs. State of Himachal Pradesh, and there is no rebuttal to these examples placed on record by the petitioners.
17. 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.
18. In view of above discussion, petitioners are held entitled for work charge status w.e.f. 01.01.2004 with all consequential benefits, including seniority, pay fixation and pensionary benefits etc. and accordingly, respondents are directed to ensure grant of work charge status to the petitioners on or before 30.06.2022 alongwith all consequential benefits, including payment of arrears, if any, failing which petitioners shall also be entitled for interest on the arrears @ 7.50% per ::: Downloaded on - 09/03/2022 20:11:10 :::CIS 14 annum from the date of accrual till final payment thereof from the respondents.
19. Petition stands disposed of in aforesaid terms, so .
also pending application(s), if any.
(Vivek Singh Thakur), Judge.
March 7, 2022
(Purohit)
r to
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