Himachal Pradesh High Court
Division Nahan vs State Of H.P. In Erstwhile H.P. State ... on 2 May, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 2nd DAY OF MAY, 2022
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CIVIL WRIT PETITION No. 2455 of 2020
BETWEEN:-
MOHD. ISLAM SON OF SH. BALA KHAN,
RESIDENT OF VILLAGE KONTHRON, P.O.
BIKRAMBAG, TEHSIL NAHAN, DISTRICT
SIRMOUR, H.P. EX. FOREST WORKER
DIVISION NAHAN, DISTT. SIRMOUR, H.P. ...PETITIONER
(BY SH.ASHWANI KUMAR GUPTA, ADVCATE.)
AND
1. STATE OF H.P. THROUGH THE
PRINCIPAL SECRETARY (FORESTS)
WITH HEADQUARTERS AT SHIMLA-2,
H.P.
2. THE PRINCIPAL CHIEF CONSERVATOR
OF FORESTS WITH HEADQUARTERS AT
SHIMLA, H.P.
3. THE DIVISIONAL FOREST OFFICER,
FORESTS DIVISION NEHAN, DISTT.
SIRMOUR, H.P. ...RESPONDENTS
(BY SH.HEMANT VAID, ADDITIONAL
ADVOCATE GENERAL.)
Reserved on: 19.4.2022
Decided on: 2.5.2022
Whether approved for reporting?
This petition coming on for pronouncement this day, the
Court delivered the following:
JUDGMENT
Petitioner was engaged as daily waged worker to carry out various seasonal forestry works in Nahan Range of Nahan Forest Division w.e.f. 1.1.1998, who completed minimum 240 days in each calendar year since 1998 continuously. In terms of regularization Policy dated ::: Downloaded on - 02/05/2022 20:06:05 :::CIS 2 CWP No. 2455 of 2020 18.6.2007 issued by Government of Himachal Pradesh, on availability of vacant post, he was regularized w.e.f. 20.9.2012.
2. Petitioner filed Original Application No. 1870 of 2018, titled .
Mohd. Islam Vs. State of H.P. in erstwhile H.P. State Administrative Tribunal, seeking direction to regularize his service from the date of completion of eight years service from his initial appointment, with all incidental benefits thereof, claiming that his case was squarely covered under order dated 6.7.2017 passed in Original Application No. 5338 of 2016, titled Hero Devi Vs. State of Himachal Pradesh & others.
3. On the basis of undertaking given by learned Deputy Advocate General on behalf of Department that in case petitioner was found similarly situated to Hero Devi, case of petitioner shall be considered accordingly, Original Application No. 1870 of 2018 was disposed of by the Tribunal vide order dated 16.4.2018 directing the competent authority, subject to verification and on finding similarity, to extend the benefit of Hero Devi's case alongwith consequential benefits to the petitioner within three month from the date of production of certified copy of the said order.
4. In compliance of the aforesaid order dated 16.4.2018, competent authority, vide Office Order dated 17.5.2019 (Annexure P-1), concluded that case of petitioner was not similar to that of Hero Devi, as Hero Devi had been appointed from 1.1.1992 and she was covered under the Scheme approved by the Supreme Court in case of Mool Raj Upadhaya Vs. State of Himachal Pradesh, 1994 Supp. (2) SCC 316., whereas petitioner was appointed after 1.1.1994 i.e. w.e.f. 1.1.1998.
::: Downloaded on - 02/05/2022 20:06:05 :::CIS 3 CWP No. 2455 of 20205. Petitioner has assailed the Office Order dated 17.5.2019 by filing present petition by claiming his right of regularization/grant of work-
charged status after completion of eight years service with minimum 240 .
days in each calendar year since 1.1.1998 on the basis of pronouncement of this Court dated 28.7.2010 passed in CWP No. 2735 of 2010, titled Rakesh Kumar Vs. State of H.P.
6. Claim of the petitioner has been opposed by the Department on the ground that Forest Department does not have work-charged establishment, as clarified by Additional Chief Secretary (Forests) to the Government of Himachal Pradesh vide communication dated 24.9.2015 sent to Principal Chief Conservator of Forests (HoFF), Himachal Pradesh, stating that Forest Department is not a work-charged establishment and according to judgment passed in CWP No. 2735 of 2010, work-charged status was to be granted only in case where in the department work-
charged establishment exists, and further that the Policies of the Government dated 3.4.2000 and subsequent Policy dated 6.5.2000 and 9.6.2006 were also providing grant of work-charged status on completion of eight years on daily waged service as on 31.3.2000, but subject to condition that work-charged establishment exists in such Department, and also that as petitioner had not completed eight years service till the cutoff date in above referred Policies and thus was not entitled for work-charged status/regularization and, therefore, it has been contended that he has rightly been regularized in terms of Regularization Policy dated 18.6.2007 with prospective effect w.e.f. 20.9.2012 on availability of post.
7. The main thrust of respondent-Department for not granting work-charged status status to the petitioner is that Forest Department is ::: Downloaded on - 02/05/2022 20:06:05 :::CIS 4 CWP No. 2455 of 2020 not a work-charged establishment, and further that on regularization/grant of work-charged status to the employees by issuing of Policies for completion of requisite period of service till cutoff date provided in the .
Policy, other employees completing such length of service thereafter, subsequent to cutoff date of the Policy, cannot be regularized/granted work-charged status prior to issuance of next subsequent Policy by the Government and, therefore, claim of petitioner for grant of work-charged
8. to status/regularization on completion of eight years, has been opposed.
For substantiating rejection of claim of petitioner for conferring work charged status upon them for want of Work Charged 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 and judgment dated 27.10.2014 rendered by a single Bench of this Court in CWP No. 4589 of 2012, titled Vinay Kumar Vs. State of H.P.
9. 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.
::: Downloaded on - 02/05/2022 20:06:05 :::CIS 5 CWP No. 2455 of 202010. 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 whether 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 erstwhile H.P. State Administrative Tribunal, it has been pronounced that work-charged establishment is not a prerequisite for conferment of work-charged status nor conversion of work-charged employee into regular employee would make such establishment non-existent. Therefore, abolition of work-
charged establishment in the respondent-Department w.e.f. 19.8.2005 has no 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.
11. 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 "workcharged", discussed State of Rajasthan v. Kunji Raman, ::: Downloaded on - 02/05/2022 20:06:05 :::CIS 6 CWP No. 2455 of 2020 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 dailywaged 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 service or debar him from getting the benefit of length of service for that particular year. Normally, workcharged 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-charged, as discussed in the judgment of the Apex Court relied upon by the State and, for practice in Himachal Pradesh, workcharged 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 charged 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 dailywaged 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."
12. Undoubtedly, a daily wager shall only be regularized against available vacancy. However, for conferring work-charged status availability of vacancy is irrelevant. It is a status to be conferred upon daily-wager on completion of requisite period of service as daily-wager, in ::: Downloaded on - 02/05/2022 20:06:05 :::CIS 7 CWP No. 2455 of 2020 terms of Policy, in absence of regular vacancy, so as to safeguard 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-charged status is to be conferred upon daily wager. Government has power to create or abolish work-charged 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-
charged status on a daily waged cannot be denied for want of work-
charged establishment in the Department.
13. 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-charged establishment does not exist in Forest Department and, thus, benefit of conferment of work-charged status upon the petitioner cannot be extended, is not tenable. Hence, objection of the respondents to oust the petitioner on these grounds is not tenable. Judgment in Ashwani Kumar's case has been rendered after pronouncement in ::: Downloaded on - 02/05/2022 20:06:05 :::CIS 8 CWP No. 2455 of 2020 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.
14. No doubt, petitioner is 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's case which has attained finality for affirmation from the Supreme Court, read with pronouncement of this High Court in Ashwani Kumar's case, petitioner is entitled for conferment of work-
charged 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.
15. Regarding regularization of the petitioner from prospective dates of passing of order after issuance of fresh Policy by the Government and withholding regularization/grant of work-charged status to the petitioner for time gap between two Policies, learned counsel for the petitioner has 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 ::: Downloaded on - 02/05/2022 20:06:05 :::CIS 9 CWP No. 2455 of 2020 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)."
.
16. 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:
"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 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 ::: Downloaded on - 02/05/2022 20:06:05 :::CIS 10 CWP No. 2455 of 2020 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. r etc. as laid down in this department letter of 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."
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 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 ::: Downloaded on - 02/05/2022 20:06:05 :::CIS 11 CWP No. 2455 of 2020 31-03-2000 shall be eligible for regularization.
However, in Departments/ Corporations/Boards, where the system of the work charged .
categories also exists, eligible daily wagers will be considered first for bringing them on the work charged 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.
r 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."
17. 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 off 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 as per latest Policy. In case regularization is not possible for want of availability of vacancy, the work-charged status has to be conferred upon daily waged employee on completion of requisite number of years prescribed in the Policy/Scheme.
::: Downloaded on - 02/05/2022 20:06:05 :::CIS 12 CWP No. 2455 of 202018. 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-charged status or extension of benefits of regularization Policy of the
19. to State by not notifying Policies in this regard in future.
In view of above discussion, petitioner is held entitled for work charged status w.e.f. 01.01.2006 with all consequential benefits, including seniority, pay fixation and pensionary benefits etc. Accordingly, respondents are directed to ensure grant of work charged status to the petitioner on or before 30.06.2022 alongwith all consequential benefits, including payment of arrears, if any, failing which petitioner shall also be entitled for interest on the arrears @ 7.50% per annum from the date of accrual till final payment thereof from the respondents.
20. Petition stands disposed of in aforesaid terms, so also pending application(s), if any.
(Vivek Singh Thakur), nd 2 May, 2022 Judge.
(Keshav) ::: Downloaded on - 02/05/2022 20:06:05 :::CIS