Himachal Pradesh High Court
Yashwant Singh And Others vs State Of Himachal Pradesh And Others on 24 April, 2021
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No.46 of 2020.
.
Reserved on : 22.04.2021.
Date of decision: 24.04.2021.
Yashwant Singh and others .....Petitioners.
Versus State of Himachal Pradesh and others .....Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 No For the Petitioners : Mr. A.K. Gupta, Advocate.
For the Respondents: Mr. Ashok Sharma, Advocate
General with Mr. Vinod
Thakur, Mr. Shiv Pal
Manhans, Additional
Advocate Generals and Mr.
Bhupinder Thakur, Deputy
Advocate General.
(Through Video Conferencing)
Tarlok Singh Chauhan, Judge
The instant petition has been filed for the grant of following relief:-
"That the respondents may be ordered to grant the work charge status to the applicants from the date they have 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 24/04/2021 20:13:55 :::HCHP 2 completed 8 years services with all benefits incidental thereof.
.
2. Since, the respondents have already considered and thereafter conceded the claim of petitioner No.3, therefore, this Court shall confine itself to the claims putforth by petitioner Nos.
1 and 2.
3. The petitioner No.1 was engaged as 'beldar' on daily waged basis with effect from 01.11.1997 and, according to him, he was entitled to work charge status with effect from 01.01.2006, but his services were regularized on 05.01.2010.
Whereas, petitioner No.2 was engaged as daily waged 'beldar' with effect from 01.01.2000 and, according to him, he was entitled to the work charge status with effect from 01.01.2008, but his services were regularized on 06.10.2010.
4. The services of petitioner Nos. 1 and 2 have been ordered to be regularized after completion of 10 years instead of 8 years and aggrieved thereby, they have filed the instant petition.
5. The respondents have filed their reply wherein they have appended therewith mandays chart in respect of both the petitioners which are extracted hereinbelow:-
::: Downloaded on - 24/04/2021 20:13:55 :::HCHP 3"Man days of Daily wages in respect of Shri Yashwant Singh S/O Sh. Devi Ram Beldar Sr. No. Year Man days .1 1999 92 2 2000 130 3 2001 326 4 2002 308 5 2003 365 6 2004 365 7 2005 365 8 2006 365 9 2007 365 10 2008 366 11 2009 365
12 2010 120 upto 30-04-2010 "Man days of Daily wages in respect of Shri Yesh Pal Kanwar S/O Sh. Gaj Raj Singh Beldar Sr. No. Year Man days 1 2000 82 2 2001 317 3 2002 333 4 2003 365 5 2004 333 6 2005 365 7 2006 365 8 2007 365 9 2008 360 10 2009 365 11 2010 278 upto 05-10-2010
6. The claim of the petitioners has been opposed by the respondents on the ground that this Court in CWP No. 778 ::: Downloaded on - 24/04/2021 20:13:55 :::HCHP 4 of 2006 titled 'Gauri Dutt vs. State of H.P.' decided on 29.12.2007, has categorically held that a workman is entitled to .
work charge status after completion of 10 years of service.
7. I have heard the learned counsel for the parties and have gone through the records of the case.
8. It would be noticed from the reply filed by the respondents themselves that initially a period of 10 years of daily waged service was envisaged and provided for granting work charge status/regularization in terms of the policy of the Government as affirmed with certain modifications in Mool Raj Upadhyaya vs. State of H.P. and others, 1994 Supp (2) SCC 316.
9. It is not in dispute that the petitioners No.1 and 2 had completed 240 days of their service in each calendar year and, therefore, their services were required to be regularized as per the policy that was prevalent as on the date of consideration of their cases for regularization. Indisputably, the policy in vogue on the date of consideration clearly providing for regularization of services of daily waged workers, who had continuously worked for 8 years and, therefore, the respondents could not have illegally and arbitrarily regularized the services of ::: Downloaded on - 24/04/2021 20:13:55 :::HCHP 5 petitioners No.1 and 2 on 05.01.2010 and 06.10.2010, respectively i.e. on completion of 10 years of service.
.
10. To be fair to the respondents, it is vehemently argued by the learned Advocate General that the instant petition is clearly time barred and is, therefore, liable to be dismissed on this ground alone.
11. In support of such contention, the learned Advocate General has placed strong reliance on the judgments rendered by this Court in LPA No. 91/2011, titled 'State of H.P. and others vs. Babu Ram' decided on 17.05.2016, CWP No. 1423/2016 titled .Raj Kumar vs. Bharat Sanchar Nigam Limited and others', decided on 06.03.2017, CWP No. 3277/2019 titled 'Bansi Ram Thakur vs. State of H.P. and others, decided on 26.11.2019 and CWP No. 5493/2014, titled 'Surender Kumar vs. Union of India and others', decided on 15.03.2016.
12. However, I find this objection to be not at all sustainable because it has to be borne in mind that the petitioners are Class-IV workers ('beldars') and it was a duty cast on the respondents to consider the cases of the petitioners for conferment of work charge status on completion of required number of years as per the policy. Therefore, the petitioners ::: Downloaded on - 24/04/2021 20:13:55 :::HCHP 6 can only be denied the interest on the eligible benefits and not the benefits as such, which accrued on them as per the policy .
and under which policy, the department was bound to confer the status, subject to the workman satisfying the required conditions.
13. In coming to this conclusion, this Court draws support from the judgment rendered by the learned Division Bench of this Court in CWP No. 2735/2010, titled 'Rakesh Kumar vs. State of H.P. and others, decided on 28.07.2010, wherein it has been held as under:-
"6. The simple question is whether the delay defeats justice? In analyzing the above issue, it has to be borne in mind that the petitioners are only class-IV workers (Beldars). The schemes announced by the Government clearly provided that the department concerned should consider the workmen concerned for bringing them on the work-charged category. So, there is an obligation cast on the department to consider the cases of the daily waged workmen for conferment of the work-charged status, being on a work-charged establishment, on completion of the required number of years in terms of the policy. At the best, the petitioners can only be denied the interest on the eligible benefits and not the benefits as such, which accrued on them as per the policy and under which policy, the department was bound to confer the status, subject to the workmen satisfying the required conditions."::: Downloaded on - 24/04/2021 20:13:55 :::HCHP 7
14. The aforesaid judgment rendered by the learned .
Division Bench of this Court is otherwise binding on this Court and it is more than settled that judicial propriety demands that a binding decision to which an attention has been drawn should neither be ignored nor be overlooked.
15. Moreover, I find that none of these judgments deals with the dispute r to of the instant kind. Babu Ram's case (supra) pertained to the claim of seniority to the post of Foreman (Electrical) with effect from 1998 while the Original Application was filed in the year 2008.
16. In Raj Kumar's case (supra), the petitioner was held to be a fence-sitter as it was after various judgments rendered by the Hon'ble Supreme Court that the petitioner therein had approached the Central Administrative Tribunal after 10 years that too after noticing that the benefits have been granted to the similarly situated persons, as is recorded in para-
2 of the judgment.
17. In Bansi Ram Thakur's case (supra), the dispute had been raised after 21 years of his retirement.
18. In Surender Kumar's case (supra), the petitioner therein had approached the Tribunal for appointment on ::: Downloaded on - 24/04/2021 20:13:55 :::HCHP 8 compassionate ground. His claim had been rejected on 05.02.2008 while the petitioner had approached the Tribunal .
belatedly and in this way more than 14 years had passed since the sole bread earner employee had died.
19. Whereas, the judgment rendered by the learned Division Bench in Rakesh Kumar's case (supra) clearly deals with the claims of daily waged workers seeking work charge status/regularization and it is in this background that not only closure of homes, but deals with the identical situation regarding conferment of work charge status and the question of delay and laches has been expressly considered in that case in para-
6 which has been extracted above.
20. It needs to be observed that where the Court is dealing with one of fundamental rights of poor workman, its role is that of a sentinel for protection of fundamental rights of the weak and down-trodden and cannot, therefore, easily allow itself to be persuaded to refuse the reliefs solely on jejune ground of delay and laches or the like. The right seeking of benefits of regularization of service is a right akin to a fundamental right guaranteed to the workman. Therefore, the plea of delay should not come in the way of granting relief to the workman, more ::: Downloaded on - 24/04/2021 20:13:55 :::HCHP 9 particularly, when the Court is of the opinion that it is the inaction of the respondents that has formed basis of such delay.
.
21. This issue otherwise is no longer res integra in view of the similar reiteration of law made in the judgments rendered by this Court in CWP No. 2415/2012 , titled 'Mathu Ram vs. Municipal Corporation and others', decided on 31.07.2014, CWP No. 7140/2012 titled 'Gian Singh vs. State of H.P. and others' decided on 24.09.2014,(affirmed right up to the Hon'ble Supreme Court), CWPOA No.1245/2019 titled 'Tilak Chand vs.State of H.P. and others', decided on 27.02.2020, CWPOA No. 5566/2019 titled 'Smt. Reema Devi vs. State of H.P. and others' decided on 03.09.2020 and CWPOA No. 5660/2019 titled 'Ghanshyam Thakur vs. State of Himachal Pradesh and others', decided o 09.11.2020.
22. Now, when the benefits have been given to the similarly situated employees, the petitioners cannot be discriminated against or else it will be a case of invidious discrimination.
23. Reference in this regard can conveniently be made to a fairly recent judgment of the Hon'ble Supreme Court rendered by Hon'ble Three Judges' Bench in Civil Appeal No.9412 of 2019 titled 'Siraj Ahmad vs. State of Uttar Pradesh and ::: Downloaded on - 24/04/2021 20:13:55 :::HCHP 10 another', decided on 13.12.2019, wherein it was observed as under:-
.
"23. We further fail to appreciate as to how the same High Court could have considered the case of two employees differently when they were similarly circumstanced. It is not in dispute that the present appellant as well as Rajendra Prasad Dwivedi were selected through the same selection process though their orders of appointment differs. It will be appropriate to refer to the observation made by the Allahabad High Court in Writ Petition No. 3421 of 1996 in the case of Rajendra Prasad Dwivedi vs. State of U.P. which reads thus:
"Upon perusal of the Government Orders dated 26th of August, 1992 as well as 11th of March, 1994, I find force in the submission of the petitioner, therefore, I am of the view that as soon as the petitioner obtained the qualification of AMIE in 1993, he became eligible for promotion to the post of Assistant Engineer. Though only gaining the qualification does not create right of promotion, but I am of the view that if thereafter any promotion has been given to others particularly junior to the petitioner, the petitioner is liable to be considered for promotion from the said date alongwith consequential benefits.
In light of the law laid down by the Hon'ble Supreme Court, in the case referred to herein above, I hereby also observe that the fact that the petitioner was not confirmed in the service, shall not come in the way of the petitioner's promotion as an impediment and the petitioners services even on ad hoc basis on the post of Junior Engineer shall be taken into consideration for the purpose of promotion to the higher post. Accordingly a direction is issued to the respondents to consider the petitioner's case for promotion to the higher post from the date of ::: Downloaded on - 24/04/2021 20:13:55 :::HCHP 11 promotion of his junior within two months, after receipt of a certified copy of this order"
.
(emphasis supplied)
24. The above judgment of the learned Single Judge dated 09.11.2011 was carried in appeal before the division bench of the said court. The division bench of the Allahabad High Court in Special Appeal No. 75 of 2012 in State of U.P. Vs. R. P. Dwivedi in its Order dated 13.02.2014 observed thus:
"On due consideration of rival submissions, we find considerable force in the arguments of respondent. The condition of length of ten years' service was rrelaxed. The respondent, though appointed on ad hoc basis as Junior Engineer on 24.02.1987, had obtained the degree of AMIE on 10.10.1993 before Sri Sunil Dutt Sharma and Sri Sajid Hasan who passed the examination in 1994. As the vacancies were available and the private respondent was qualified to be considered for promotion in 1993, he should have been considered even prior to the aforesaid persons. ...."
(emphasis supplied)
25. The State had also carried the said matter by way of Special Leave Petition Civil (CC) No. 1383031 of 2014 before this court. The SLP also came to be dismissed on 12.01.2015. The state thereafter preferred a Review Petition, seeking review of the Judgment of division bench in the case of State of U.P. vs. Rajendra Prasad Dwivedi by way of Review Petition No. 188 of 2015. The said Review Petition is also dismissed.
26. The only ground on which the High Court has refused to consider the case of the appellant is that in the case of Rajendra Prasad Dwivedi, the court had not considered ::: Downloaded on - 24/04/2021 20:13:55 :::HCHP 12 the issue with regard to nonconcurrence of the U.P. Public Service Commission. At the cost of repetition as .
discussed herein above the appointment of the appellant at the most can be considered as irregular and not illegal.
27. It is to be noted that the appellant has obtained the Bachelor of Science (Engineering) degree in the year 1987 and though Rajendra Prasad Dwivedi had obtained the A.M.I.E. in 1993, taking into consideration that Sunil Dutt Sharma and Sajid Hasan had obtained the degree of A.M.I.E. in 1994, the said Rajendra Prasad Dwivedi was held to be entitled for promotion on 18.01.1995 i.e. the date on which the said Sajid Hasan and Sunil Dutt Sharma were promoted as Assistant Engineer from Junior Engineer. We fail to appreciate the approach of the High Court in denying the promotion to the appellant when all the other three i.e. namely Rajendra Prasad Dwivedi, Sajid Hasan and Sunil Dutt Sharma were appointed in the year 1987 through the same selection process and though Rajendra Prasad Dwivedi had obtained the degree in 1993 and Sajid Hasan and Sunil Dutt Sharma had obtained the same in 1994 whereas the appellant had obtained the said degree in 1987."
24. Lastly and more importantly, the respondents-State has itself issued a notification dated 07.01.2020 to the Engineer-
in-Chief, I&PH wherein after considering the judgment rendered by this Court in Rakesh Kumar's case (supra), it has been observed as under:-
"From: The Secretary(IPH) to the ::: Downloaded on - 24/04/2021 20:13:55 :::HCHP 13 Government of Himachal Pradesh. To . The Engineer-in-Chief, I&PH Department, Jal Shakti Bhawan, Tutikandi, Shimla-171005.
Dated Shimla-171002, the 7th Jan. 2020.
Subject: O.A. No. 1077/2017-Titled All Himachal Pradesh, HPPWD-IPH & Contract Workers Union Vs. State of H.P. Sir, I am directed to refer to your letter No. IPH- SE-III-D/W-Court Case-Rakesh Kumar -Vo1. VII/2018-5191 dated 5.11.2019 on the subject cited above and to say that the matter was taken up with the Finance Department who have advised as under:-
Examined in consultation with F.D. (Pension).
The proposal of the IPH Department to confer work charged status to 816 daily waged persons, based on High Court decision in CWP No. 2735 of 2010, titled -"Rakesh Kumar & Ors. Vs. State of H.P. & Others." Is contract to the order dated 9.07.2019 passed by the erstwhile HPAT in O.A. No., 1077 of 2017 titled as "All Himachal PWD-IPH- Contractual workers Union vs. State of H.P. & Others" because if the IPH Department considers to confer work charged status to 816 daily waged persons based on "Rakesh Kumar's case, the order dated 9.07.2019 of erstwhile HPAT delivered in O.A. No. 1077 of 2017 shall remain un-attended and possibility of filing contempt petition(s) by any of the applicant(s) in said O.As cannot be overruled. Therefore, IPH Department is required to contest the order dated 9.07.2019 of erstwhile HPAT in higher appellate Court on the grounds that regularization of all 816 daily wagers on completion of 08 years daily waged service is ::: Downloaded on - 24/04/2021 20:13:55 :::HCHP 14 not possible being contrary to "Regularization Policy" of the State Government, which specifically provides that .
regularization shall be from prospective effect and it will be against the available vacant post. However, I&PH Department may consider to agree before the higher appellate court to confer work charge status to all class III daily waged persons on completion of 08 years daily waged service (with minimum 240 days in each calender year prior to 31.05.2006 i.e. conversion of work charged staff Class III into regular establishment of I&PH Department based on Rakesh Kumar's case subject to the condition that financial benefits to the Applicants/Petitioners who have filed OAs/Writ r petitions in the HPAT/High Court shall be restricted to 03 years prior to the date of filing of such OAs/Writ petitions in the Courts in terms of F.D.'s letter N.Fin-(PR)-B(7)- 16/98-III (Agriculture) dated 15.12.2011 and Non-applicants/Non-petitioners i.e. who have not filed any O.A./Writ petition, shall be granted financial benefits on notional basis, as has been done in the case of Class IV employees of I&PH Department.
In addition, it may, however, be ensured specifically that this sanction of F.D. for conferment of work charged status in the said Department shall be last concurrence of F.D. and no such case would be entertained by F.D. in future.
You are, therefore, requested to take further action in the matter as per the advice of Finance Department, under intimation to this Department."
25. In view of the foregoing discussion and for the reasons stated above, I find merit in this petition and the same is accordingly allowed. The respondents are directed to grant ::: Downloaded on - 24/04/2021 20:13:55 :::HCHP 15 work charge status to the petitioners on completion of 8 years services with all consequential benefits including seniority etc. .
However, the actual monetary benefits shall be limited to a period of three years prior to the date of filing of the petition i.e. 16.09.2016. Pending application, if any, also stands disposed of.
24th April, 2021. (Tarlok Singh Chauhan) (krt) Judge ::: Downloaded on - 24/04/2021 20:13:55 :::HCHP