Himachal Pradesh High Court

Hem Raj vs State Of Himachal Pradesh And ... on 24 April, 2021

Bench: Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWPOA No.4275 of 2020.

Reserved on : 22.04.2021.

Date of decision: 24.04.2021.

    Hem Raj                                                    .....Petitioner.

                                   Versus





    State of Himachal Pradesh and others
                                      .....Respondents.


    Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. C.N.Singh, 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 reliefs:-

"i) That the respondent department may kindly be directed to grant work charge status/Regularization (In

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

terms of Jai Singh as well as Chuni Lal Case) to the applicant w.e.f. 1.1.2000 with all consequential benefits

and arrear may kindly be ordered to be released in

favour of applicant in a time bound manner along with 12% interest per annum.

ii) That the respondents department may kindly be directed to re-fix the pay of the applicant w.e.f. 1.1.2000 and arrear be released in favour of the applicant in time bound manner along with 12% interest."

The undisputed facts are that the petitioner was

engaged as daily waged 'beldar' in the Irrigation and Public

Health Department in the year 1991 and thereafter completed

240 days of service in each calendar year with effect from

01.01.1992.

3. The services of the petitioner were initially

regularized vide order dated 04.01.2007 and subsequently with

effect from 01.01.2002.

4. Now, the grievance of the petitioner is that as on the

date of consideration of the case of the petitioner, the policy of

regularization contemplated completion of 8 years of daily

waged service as against the period of 10 years when a formal

policy was formulated and, therefore, his services were required

to be regularized immediately on completion of 8 years service

and not 10 years, as has been done by the respondents.

5. The claim of the petitioner has been opposed by the

respondents on the ground that this Court in CWP No. 778 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.

6. I have heard the learned counsel for the parties and

have gone through the records of the case.

    7.         It would be
                    r          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.

8. However, thereafter the Government itself relaxed

the policy and issued a policy for such daily waged workers, who

had worked continuously for 9 years with minimum of 240 days

in each calendar year on 01.04.1998. The Government further

liberalized the policy for regularization of services of daily waged

workers, who continuously worked for 8 years as on 31.03.1999

with 240 days in each calendar year. This is so stated and

acknowledged by the respondents in para-2 of the reply which

reads as under:-

.

"2.....It is submitted that the Hon'ble Apex Court rendered its judgment in Mool Raj Upadhayaya's case,

wherein it held that the daily waged workers who have worked continuously for 10 or more years with minimum of 240 days in each calendar year as on 31.12.1993, they shall be granted work charge status immediately w.e.f.

01.01.1994. It further held that where a daily waged worker has not completed 10 years of continuous service as on 31-12-1993 shall be granted work charge status

as and when they complete 10 years of continuous

service with minimum of 240 days in each calendar year. Subsequently, the Govt. relaxed the policy and framed and issued a policy for such daily waged workers

who have worked continuously for 9 years with minimum of 240 days in each calendar year as on 01.04.1998. The

Govt. later on further liberalized the policy for regularization of services of daily waged workers who

worked continuously for 8 years as on 31.03.1999 with 240 days in each calendar year. This policy provided for

regularization of daily waged workers from prospective effect i.e. w.e.f. the date of issuance of regularization order after completing all the codal formalities....."

9. It is not in dispute that the petitioner had completed

240 days of his service in each calendar year with effect from

01.01.1992 and had completed his 240 days in each calendar

year with effect from 1992 and, therefore, his services in terms

of policy prevalent on the date of consideration were required

to be regularized from 2000 as the policy clearly provided 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 the petitioner with effect from 01.01.2002 instead of

01.01.2000 when the petitioner had completed 8 years of

regular daily waged 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

petitioner is a Class-IV worker ('beldar') and it was a duty cast

on the respondents to consider the case of the petitioner for

conferment of work charge status on completion of required

number of years as per the policy. Therefore, the petitioner can

only be denied the interest on the eligible benefits and not the

benefits as such, which accrued on him 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."

14. The aforesaid

tojudgment 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 the aforesaid judgments

deals with the dispute 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

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

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 petitioner 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 'Siraj Ahmad

vs. State of Uttar Pradesh and another', 2019 (17) Scale

626, 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 promotion of his junior within two months, after rreceipt 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 relaxed. 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 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:

To r to The Secretary(IPH) to the Government of Himachal Pradesh.

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 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

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

.