Sh. Rupinder Dutt Sharma vs Babu Ram
2021 Latest Caselaw 4026 HP

       IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
                  ON THE 20th DAY OF AUGUST, 2021
                           BEFORE




                                                     .
           HON'BLE MR. JUSTICE SURESHWAR THAKUR





    CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO.7463 of
                            2019.





    Between:-
    1. SH. RUPINDER DUTT SHARMA, S/O
        SHRI SHALIGRAM, RESIDENT OF
        VILLAGE JAUNAJI, TEHSIL SOLAN,




        DISTRICT SOLAN, H.P.,
        PRESENTLY SERVING AS AN
        ANIMAL ATTENDANT IN
        VETERINARY DISPENSARY,

        JAUNAJI, DISTRICT SOLAN,

        H.P.
    2. SH. BRAHAMA DUTT SON OF
        SH. SINGH RAM, RESIDENT OF
        VILLAGE AND POST OFFICE


        GAURA, TEHSIL AND DISTRICT
        SOLAN, H.P.
        PRESENTLY SERVING AS AN
        ANIMAL ATTENDANT IN




        VETERINARY DISPENSARY,
        GAURA, DISTRICT SOLAN,





        H.P.
    3. SH. RAMESH KUMAR SON OF





        SH. MUNI LAL, RESIDENT OF
        VILLAGE AND POST OFFICE
        JHARJA, TEHSIL SOLAN, DISTRICT
        SOLAN, H.P.
        PRESENTLY SERVING AS AN
        ANIMAL ATTENDANT IN
        VETERINARY DISPENSARY
        JHARJA, DISTRICT SOLAN, H.P.

                                           ....PETITIONERS.




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    (BY MR. A.K. GUPTA, ADVOCATE)




                                                        .

           AND





    1.   THE STATE OF H.P. THROUGH
         PRINCIPAL SECRETARY (ANIMAL
         HUSBANDARY) WITH HEADQUARTERS





         AT SHIMLA-2, H.P.

    2.   THE DIRECTOR OF ANIMAL
         HUSBANDARY, WITH HEADQUARTERS

         AT SHIMLA, H.P.

    3.   THE DEPUTY DIRECTOR, ANIMAL
         HUSBANDARY WITH HEADQUARTERS
         AT SOLAN, H.P.



                                             ....RESPONDENTS.




    (BY MR. ASHWANI SHARMA, ADDL.





    ADVOCATE GENERALS WITH MR.
    VIKRANT CHANDEL AND MR. GAURAV





    SHARMA, DEPUTY ADVOCATE GENERALS.)


    RESERVED ON : 16th AUGUST, 2021.
    DELIVERED ON: 20th AUGUST, 2021.




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               This petition coming on for orders this day, the Court




                                                           .

    passed the following:-





                             JUDGMENT

Through, the extant petition, the petitioners avers

that since, 1994, they have, as Animal Attendants, completed 8

years of continuous service with 240 days in each of the

calendar year, under, the respondents.

r Consequently, the writ

petitioners make a claim in their writ petition that, they are

entitled to become conferred with a work charge status,

immediately upon completion of the afore years of service in the

apposite year, whereas, they were regularised in the year, 2006.

Consequently, through, the extant writ petition, the writ

petitioners claim the making of mandamus, upon, the

respondents to grant them work charge status

2. The respondents, in their reply, meted to the writ

petition, vehemently contested the vigour of the afore made

claim in the writ petition. The respondents, in their reply,

contended that the Animal Husbandry Department is not having

...4...

.

a work charge establishment, hence conferment of work charge

status does not arise in case the establishment ceases to be a

work charge establishment. Furthermore, the respondents in

their reply agitate that the writ petition contains a stale claim,

and, it is also time barred, and, thereupon, the espoused relief

cannot be granted to him, in consonance with the verdict made

by this Court, upon, LPA No. 91 of 2011, titled as State of H.P.

Vs. Babu Ram, on 17.05.2016.

3. The conundrum besetting this Court, hence,

requiring the meteing of an answer thereto, is comprised, in the

factum whether in the absence of existence of work charge

status establishment with the respondent concerned, hence, the

espoused work charge status could be validly conferred, upon

the workmans concerned, in the apposite year, given theirs

thereat completing 8 years of continuous service with 240 days

of continuous service in each of the calendar year(s) concerned.

4. The afore conundrum, is, answered through a

decision made by this Court, upon, Civil Writ Petition No. 3111

...5...

of 2016, titled as State of H.P. & Ors. vs. Ashwani Kumar, on

.

10.05.2018. Through, the afore made decision, this Court had,

after making the relevant conclusion in paragraph No.6 thereof,

para whereof stands extracted hereinafter:

"6. Having carefully perused the material available on record,

especially judgement rendered by this Court in Ravi Kumar vs. State of H.P. and Ors., as referred hereinabove, which has been further upheld by the Hon'ble Apex Court in Special

Leaver to appeal © No. 33570/2010, titled State of HP and

Ors. v. Pritam Singh and connected matters, this Court has no hesitation to conclude that there is no error in the finding recorded by the learned Tribunal that work charge

establishment is not a pre-requisite for conferment of work charge status. The Division Bench of this Court while rendering its decision in CWP No.2735 of 2010, titled Rakesh

Kumar vs. State of H.P. decided on 28.7.2010, has held that

regularization has no concern with the conferment of work charge status after lapse of time, rather Court in aforesaid

judgment has categorically observed that while deciding the issue, it is to be borne in mind that the petitioners are only class-IV worker (Beldars) and the scheme announced by the Government, clearly provides that the department concerned should consider the workmen concerned for bringing them on the work charged category and as such, there is an obligation cast upon the department to consider the case of daily waged workman for conferment of daily work charge status, being

...6...

on a work charged establishment on completion of required

.

number of years in terms of the policy. In the aforesaid

judgment, it has been specifically held that benefits which accrued on workers as per policy are required to be conferred

by the department."

held that existence of work charge establishment in the

department concerned, is not a pre-requisite, for conferment of

work charge status,

upon, the workman

Consequently, this Court in the verdict supra had granted the r concerned.

espoused status to the workman concerned. The state of

Himachal Pradesh became aggrieved from the afore made

decision in Ashwani Kumar's case (supra), and, instituted

thereagainst a Civil Appeal No(s) 5753/2019 before the Hon'ble

Apex Court, and, the Hon'ble Apex Court dismissed the afore

Civil Appeal, and, affirmed the verdict made by this Court in

Ashwani Kumar's case (supra). However, it only accorded to the

workman concerned, the notional benefits, inasmuch, as, the

status of work charge from 1.1.2003.

5. The learned counsel appearing for the petitioners,

submits that since the res-controversia carried in the afore

...7...

.

decision, completely covers the conundrum supra, besetting this

Court, thereupon, the benefit of the afore conclusive, and,

binding verdict made by this Court in Ashwani Kumar's case

(supra), be also made available to the petitioners herein.

6. Even though, the afore made argument has force

and legal vigour.

However, the respondents, in their reply

contend that in the light of the decision made in LPA No.91 of

2011, titled as State of H.P. & Ors. vs. Babu Ram, on 17.05.2016,

whereins, any prayer against entertaining(s) of stale and time

barred claim(s) has been countenanced. Consequently, the

learned Additional Advocate General submits that since, alike

the afore drawn verdict, the writ claim is time barred,

thereupon, in consonance with the decision made by this Court

in Babu Ram's case (supra), the writ petition deserves dismissal.

However, this Court does not find any favour with the argument

(supra) made by the learned Additional Advocate General, as,

the decision made in Ashwani Kumar's case (supra), is a decision

which directly appertains to the conundrum (supra) besetting

...8...

.

this Court. As a corollary, when the decision expostulates or

expounds a ratio decidendi, upon, a legal conundrum rather

common both to the lis therein, and, to the lis at hand,

thereupon, it obviously becomes a judgement in rem, and, does

not becomes a judgment in personam. The effect of a judicial

verdict being classified as a judgment in rem, is expounded in a

verdict made by the Hon'ble Apex Court, upon, Civil Appeal No.

9849 of 2014, titled as State of Uttar Pradesh & Ors. vs.

Arvind Kumar Srivastava & Ors, and, is carried in para No.23

of the afore verdict, para whereof stands extracted hereinafter:-

"23. The legal principles which emerge from the reading of the

aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:

(1) 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 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 similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other

...9...

similarly situated persons did not approach the Court earlier,

.

they are not to be treated differently.

(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 same and woke up after long delay only because of the reason that their

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.

(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 person. Such a situation can occur when the subject matter of the

decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). 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

...10...

to satisfy that their petition does not suffer from either laches

.

and delays or acquiescence."

Therein it has been categorically spelt that the benefit of a

judgment in rem, has to be accorded to all similarly situated

persons, irrespective of whether the latter has approached the

court or not. Since, it has also been expostulated therein, vis-a-

vis, judgments in rem or pronouncements in rem, hence cast

obligation(s) upon the authorities concerned, to suo motto,

extend the benefits thereof, to all the similarly situated persons,

and, further when it has also been echoed therein, that a verdict

would be classified as a judgement in rem, when it touches,

upon, a scheme for regularisation, as is the scheme at hand,

thereupons, dehors any want of any writ petitioners in

approaching the court in time, cannot be a valid ground, for

denying them, the benefit of a judgment in rem, as, is the

judgment rendered in Ashwani Kumar's case (supra). Therefore,

the effect, if any, of delay,on the part of the writ petitioners to

redress, the, writ claim, or it being stale, becomes waned, as, all

the effects thereof completely submerged within the ambit of

...11...

.

the verdict made in Ashwani Kumar's case (supra), verdict

whereof, is classifiable as a judgment in rem. Therefore, the

verdict of the Hon'ble Apex Court in Arvind Kumar Srivastava's

case (supra), is applicable to the lis at hand, as, it answers a

legal conundrum, common to both the lis', as, appertaining to

similarly situate litigants.

r to delays not barring applicability of a judgment(s) in rem, to,

7. For the foregoing reasons, the extant writ petition is

allowed, and, the respondents are directed to, only notionally

confer the status of work charge, upon, the petitioners whereat

they have completed eight years of continuous service with 240

days of continuous service in each of the calendar years

concerned. All pending applications also stand disposed of.

(Sureshwar Thakur) Judge 20th August, 2021.

(jai)