Himachal Pradesh High Court
On The 20Th Day Of August vs Babu Ram on 20 August, 2021
Bench: Sureshwar Thakur
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.6344 of
2019.
Between:-
SHRI SANT RAM, SON OF
SH. SHIVIA, RESIDENT OF
VILLAGE DHINGLOO, POST
OFFICE PANGNA, TEHSIL
KARSOG, DISTRICT MANDI,
H.P. r
....PETITIONER.
(BY MR. C.N. SINGH, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY,
(FOREST) TO THE GOVERNMENT OF
HIMCHAL PRADESH, SHIMLA
2. CHIEF CONSERVATOR OF FREST,
TALLAND, DISTRICT SHIMLA,
HIMCHAL PRADESH.
3. DIVISIONAL FREST OFFICER,
FOREST DIVISION, KARSOG,
DISTRICT MANDI, H.P.
....RESPONDENTS.
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(BY MR. HEMANT VAID & MR.
ASHWANI SHARMA, ADDITIONAL
ADVOCATE GENERALS WITH MR.
VIKRANT CHANDEL AND MR.
GAURAV SHARMA, DEPUTY
ADVOCATE GENERALS.)
Reserved on : 17th August, 2021.
Delivered on : 20th August, 2021.
This petition coming on for orders this day, the Court
passed the following:-
JUDGMENT
A perusal of the mandays chart, appertaining to the
writ petitioner, as, becomes drawn in Annexure R-IV, unfolds
that since, 1990 he has, as a Mali, completed 8 years of
continuous service with 240 days in each of the calendar year,
under, the respondents hence in the year 1998. Consequently,
the writ petitioner makes a claim in his writ petition that, he is
entitled to become conferred with a work charge status,
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immediately upon completion of the afore years of service,
inasmuch, as in the year 1998, whereas, he was regularised in
the year, 2003. Consequently, through, the extant writ petition,
the writ petitioner claims the making of mandamus, upon, the
respondents to grant him work charge status w.e.f. 1.1.1998.
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 instructions dated 6.5.2000 borne in
Annexure R-VIII, on the point of work charge status are
applicable to the Departments/Corporations/Boards where the
system of work charge categories exists. The respondent
department is not a work charge establishment. Therefore, the
Govt. Policy dated 3.4.2000 and instructions thereof dated
6.5.2000, to the extent of grant of work charge status, on
completion of 8 years of continuous service, is, not applicable in
the respondent department. Furthermore, the respondents in
their reply agitate that the writ petition contains a stale claim,
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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 workman concerned, in the year 1998, given his 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
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:
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"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
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."
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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 concerned.
Consequently, this Court in the verdict supra had granted the
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 petitioner,
submits that since the res-controversia carried in the afore
decision, completely covers the conundrum supra, besetting this
Court, thereupon, the benefit of the afore conclusive, and,
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binding verdict made by this Court in Ashwani Kumar's case
(supra), be also made available to the petitioner 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
this Court. As a corollary, when the decision expostulates or
expounds a ratio decidendi, upon, a legal conundrum rather
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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
similarly situated persons did not approach the Court earlier,
they are not to be treated differently.
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(2) However, this principle is subject to well recognized
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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
to satisfy that their petition does not suffer from either laches
and delays or acquiescence."
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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 petitioner in
approaching the court in time, cannot be a valid ground, for
denying him, the benefit of a judgment in rem, as, is the
judgment rendered in Ashwani Kumar's case (supra).
Consequently, the effect, if any, of delay,on the part of the writ
petitioner to redress, the, writ claim, or it being stale, becomes
waned, as, all the effects thereof completely submerged within
the ambit of the verdict made in Ashwani Kumar's case (supra),
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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 delays not barring applicability of a judgment(s)
7. to
in rem, to, similarly situate litigants.
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 petitioner w.e.f.
1998, whereat he has 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)
