Himachal Pradesh High Court
Surjeet Singh vs State Of Himachal Pradesh & Others on 31 October, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWPOA No.6210 of 2020
Date of Decision: October 31, 2023
Surjeet Singh ...Petitioner.
.
Versus
State of Himachal Pradesh & others ..Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
of
The Hon'ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting?1 Yes
For the Petitioner: Ms.Babita Chauhan, Advocate, vice Mr.A.K.
rt Gupta, Advocate, Advocate.
For the Respondents: Mr.Anup Rattan Advocate General,
alongwith Mr.Varun Chandel, Additional
Advocate General.
Vivek Singh Thakur, J (Oral)
Petitioner has approached this Court, seeking direction to the respondents to grant him work charge status/regularization from the date of completion of 8 years daily waged service with all consequential benefits incidental thereof.
2. Undisputed facts, in present petition, are that petitioner has been appointed as daily wage Beldar in the Department of Industries w.e.f. 01.07.1997 in Sericulture Wing of the Department. Till the year 1999, he did not complete 240 days in each calendar year. He worked continuously with 240 days from the year 2000 onwards till his regularization vide office order dated 27.09.2014.
1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 04/11/2023 20:34:20 :::CIS 23. Claim of the petitioner has been repelled by the respondents on the ground that Industries Department does not have work charge establishment and, therefore, judgment in .
CWP No.2735 of 2010, titled as Rakesh Kumar vs. State of H.P. & others, decided on 28.07.2010, is not applicable and that direction in Rakesh Kumar's case was related to Policy dated 03.04.2000 and 06.05.2000, whereas petitioner is covered by of Policy issued in 2006 and, thus, also Rakesh Kumar's judgment is not applicable to the petitioner and further that petitioner was not entitled for any benefit of the Policy of 2000 as his case has rt been covered under the subsequent Policy and he has been rightly regularized prospectively w.e.f 27.09.2014 as per regularization Policy in force at relevant point of time
4. To substantiate its plea related to work charge, respondent-Department has relied upon pronouncement of the Supreme Court in State of Maharashtra vs. Purshotam and others, reported in (1996) 9 SCC 266 and State of Rajasthan vs. Kunji Raman, reported in 1997(2) SCC 517.
5. With respect to ground taken by the respondents-
Department that Industries Department is not having work-
charged establishment and, thus, benefit of period of service as a work-charged employee cannot be extended to the petitioner, it is apt to record that in Mool Raj Upadhyaya vs. State of H.P. and others, 1994 Supp. (2) SCC 316, an affidavit was filed by the Chief Secretary to the Government of Himachal Pradesh, formulating a Scheme for granting work-charged status to all ::: Downloaded on - 04/11/2023 20:34:20 :::CIS 3 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.
.
6. 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 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 rt has also been observed that granting of work-charged status would mean that an employee would get regular scale of pay.
7. 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 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.
8. Civil Appeal No.5753 of 2019, preferred by the State has been dismissed by the Supreme Court on 22.07.2019.
Similarly, SLP preferred by the State in Rakesh Kumar's case also stands dismissed by the Supreme Court.
9. Term "work-charged", discussed in Purshotam and Kunji Raman's cases, is in different context, whereas this term, in ::: Downloaded on - 04/11/2023 20:34:20 :::CIS 4 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 service or debar him from getting the benefit of length of service for that particular year. Normally, work-charged status of 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 rt 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.
10. In the given facts and circumstances of present case, judgments relied upon by the respondents reported in Purshotam ::: Downloaded on - 04/11/2023 20:34:20 :::CIS 5 and Kunji Raman cases (supra), are neither relevant nor applicable.
11. 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 of for which a daily-waged employee is not entitled.
12. In response to plea that work-charged establishment does not exist in the respondent-Department, learned counsel for rt 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.
13. 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.
::: Downloaded on - 04/11/2023 20:34:20 :::CIS 6In 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 pre-
requisite for conferment of work-charge status nor conversion of work-charged employee into regular employee would make such of establishment non-existent.
14. According to pronouncement in Mool Raj Upadhaya's case, clarified in Gauri Dutt's case, work charge status was to be rt 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, 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 the Supreme Court. Therefore, non-existence of work-charge establishment in the respondent-Department has no effect on the rights of petitioners for conferment of work-charged status after completion of 8 years daily waged service in terms of Policy of the Government as well as verdict of Rakesh Kumar's case.
15. With respect to plea of the respondents that judgment in Rakesh Kumar is not applicable to the respondent-
Department being judgment related to Policy of 2000, ::: Downloaded on - 04/11/2023 20:34:20 :::CIS 7 observation of the Supreme Court in its pronouncement in State of Uttar Pradesh and others vs. Arvind Kumar Srivastava and others, (2015) 1 SCC 347, would be relevant which reads as .
under:-
"22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all rt similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2. However, this principle is subject to well-recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. they would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of ::: Downloaded on - 04/11/2023 20:34:20 :::CIS 8 regularization and the like [(see K.C. Sharma v. Union of Inida, (1997) 6 SCC 721)]. On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly .
in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.
of
16. Directions issued in Rakesh Kumar's case are rem in nature, which have been issued with intention to give benefit to rt all similarly situated persons. Therefore, Rakesh Kumar's judgment is judgment in rem and benefit thereof has to be extended to all similarly situated persons, including petitioner. In view of above observation of the Supreme Court, plea of respondents that judgment in Rakesh Kumar's case is not applicable to the petitioner, is not sustainable.
17. Petitioners are Beldars and belong to a lowest rank in their class. As per Policy a duty was cast on the respondents to consider the cases of eligible workmen for conferment of work charge status on completion of required number of years as per Policy.
18. The issue in this regard also stands settled in the judgment of Rakesh Kumar's case, wherein it has been observed 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 ::: Downloaded on - 04/11/2023 20:34:20 :::CIS 9 (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, of the department was found to confer the status, subject to the workmen satisfying the required conditions."
19. rt 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 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 dailywager 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 ::: Downloaded on - 04/11/2023 20:34:20 :::CIS 10 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.
20. Regarding regularization of the petitioners from prospective dates of passing of order after issuance of fresh of 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 rt 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)."
21. 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 ::: Downloaded on - 04/11/2023 20:34:20 :::CIS 11 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 of H.P. and others. Relevant portion of the judgment reads as under:
rt "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 consideration to be regularized and regularization in all cases will be from prospective effect i.e. from the date the order ::: Downloaded on - 04/11/2023 20:34:20 :::CIS 12 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 of letter of 8th July, 1999, as referred to above, shall continue to be operative.
rt 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 ::: Downloaded on - 04/11/2023 20:34:20 :::CIS 13 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 considered for regularization against vacant posts or by creation of fresh posts and in both these events prior approval of Finance of Department will be required as per heir letter No. Fin-1-C(7)-1/99 dated 24-12-1999. The terms and rt 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."
22. 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 ::: Downloaded on - 04/11/2023 20:34:20 :::CIS 14 be conferred upon daily wage employee on completion of requisite number of years prescribed in the Policy/Scheme.
23. 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 of 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 rt Policy of the State by not notifying Policies in this regard in future. Present case is also an example of such practice where despite stating in the reply that case of petitioners is under consideration for grant of work charge status in terms of Rakesh Kumar's case, but the same has not been conferred upon the petitioners till date.
24. Accordingly, respondents are directed to grant work charge status/regularization to the petitioner from the date of completion of 8 years of continuous daily wage service in the Department with 240 working days in each calendar year along with all consequential benefits including salary, seniority, pay fixation and pensionary benefits, if any, on or before 31.01.2024.
In case admissible benefits are not paid to the petitioner on or before 31.01.2024, respondents shall also be liable to pay interest thereon from accrual thereof at the rate of 6% per annum.
::: Downloaded on - 04/11/2023 20:34:20 :::CIS 15Petition is allowed in aforesaid terms alongwith pending application(s), if any.
(Vivek Singh Thakur), .
Judge.
(Bipin Chander Negi), Judge.
October 31, 2023 (Purohit) of rt ::: Downloaded on - 04/11/2023 20:34:20 :::CIS