Sirmour vs Deep Chand
2021 Latest Caselaw 5050 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                   ON THE 26th DAY OF OCTOBER, 2021




                                                             .
                                 BEFORE





                HON'BLE MR. JUSTICE AJAY MOHAN GOEL

     CIVIL WRIT PETITION (ORIGINAL APPLICATION) No.5748 OF 2019





    Between:-

    SH. MAN SINGH SON OF SH. HIRA





    LAL,  RESIDENT     OF   VILLAGE
    KHERADHAR, P.O. BUIRA, TEHSIL
    RAJGARH, DISTT. SIRMOUR, H.P.
    PRESENTLY     SERVING   AS    A
    CHOWKIDAR IN DEPARTMENT OF
    AGRICULTURE

                   RAJGARH,   DISTT.

    SIRMOUR, H.P.
                                                    ..........PETITIONER

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



    AND

    1.   THE STATE OF H.P. THROUGH




         PRINCIPAL          SECRETARY
         (AGRICULTURE)            WITH





         HEADQUARTERS AT SHIMLA-2,
         H.P.
    2.   THE        DIRECTOR         OF





         AGRICULTURE              WITH
         HEADQUARTERS                AT
         BOILEAUGANJ, SHIMLA-4, H.P.
    3.   THE DEPUTY DIRECTOR OF
         AGRICULTURE              WITH
         HEADQUARTERS AT NAHAN,
         DISTT. SIRMOUR, H.P.
                                            ..........RESPONDENTS

    (MR. ASHOK SHARMA, ADVOCATE GENERAL
    WITH M/S ADARSH SHARMA AND SANJEEV
    SOOD, ADDITIONAL ADVOCATE GENERALS)
    ___________________________________________________________

                Whether approved for reporting:     No




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                                         2



                This petition coming on for hearing this day, the Court

    passed the following:-




                                                                .
                                   ORDER

The controversy involved in this case is in a very

narrow compass. The petitioner was initially engaged as a daily

wage Chowkidar with the Agriculture Department of the

respondent-State w.e.f. 18.01.1993. His services were regularized

as such w.e.f. 18.07.2009. Feeling aggrieved with the fact that in

terms of the policy for regularization of the daily wagers in vogue

at the relevant time, which conferred a right of regularization upon

a daily wager upon completion of eight years of service, the

petitioner approached the Court with the prayer that as his

services were to be regularized post completion of eight years of

service as a daily wager, he was at least entitled to the status of

work charge employee as from the date when he completed eight

years of service as daily wager till regularization.

2. This writ petition, i.e. CWP No. 2313 of 2015, was

ordered to be treated as a representation by the Court with the

direction to the competent authority to pass appropriate orders on

the same. The petition in fact was disposed of by this Court in the

following terms:-

"It is for the respondents to examine the

matter. We are informed that the State has filed an

appeal against the above mentioned decision.

Therefore, it is made clear that the implementation

.

of the judgment referred to above would depend on

the outcome of the decision of the Apex Court. The

needful action, after verifying the facts will be

taken within a period of two months from the date

of the judgment of the Apex Court. The petitioner

concerned will produce a copy of this judgment

alongwith a copy of the writ petition before the 2nd

respondent/competent authority."

3. In compliance thereto, an order was passed by the

competent authority on 30th June, 2015 (Annexure P-1), vide

which, the representation of the petitioner for grant of work charge

status, post completion of eight years service on daily wage basis,

was rejected by the authority with the findings that there was no

work charge cadre available in the Agriculture Department.

4. Feeling aggrieved by the rejection of representation, the

petitioner has filed this petition.

5. Mr. A.K. Gupta, learned Counsel for the petitioner has

argued that the reason, which has been assigned by the competent

authority, to reject the prayer of the petitioner, is palpably bad

because the relief being prayed for by the petitioner could not have

been denied on the ground that there was no work charge

establishment in the Agriculture Department, because in the cases

relating to Agriculture Department itself, there are judgments

.

passed by this Court which lay down that daily wagers working in

the department are entitled for work charge status. He has relied

upon the judgment passed by Hon'ble Division Bench of this Court

in CWP No. 1829 of 2007, titled as State of H.P. and others vs.

Deep Chand, decided on 30.04.2009, to buttress his arguments,

which pertains to Agriculture Department itself.

6. The petition stands opposed by the respondents on the

ground that in the Department of Agriculture, there were only

regular and daily paid categories and as no work charge cadre was

created therein, therefore, there is no infirmity in the order passed

by the competent authority, rejecting the case of the petitioner for

grant of work charge status. Learned Additional Advocate General

by relying upon the averments contained in the response has

submitted that present petition deserves dismissal on this count

itself. Further, he has relied upon the judgment passed by Hon'ble

Supreme Court of India in Union of India and others versus C.

Girija and Others and other connected matters, (2019) 15, SCC

633, and by relying on paras 16 and 17 thereof, he has submitted

that, otherwise also, as the cause of action accrued in favour of the

petitioner in the year 2009 and he did not approach the

appropriate forum within the period of limitation, the plea now

being raised by the petitioner, is hit by limitation, and therefore

also, the petition is bad and is liable to be dismissed.

.

7. I have heard learned Counsel for the parties and gone

through the pleadings as well as the documents appended

therewith as also the judgments relied upon by the parties.

8. As is evident from the facts narrated hereinabove,

feeling aggrieved with the non-grant of work charge status to him,

the petitioner approached this Court, i.e. High Court of Himachal

Pradesh, by way of CWP No. 2313 of 2015. The same was disposed

of by the Court in terms, which already stands quoted

hereinabove.

9. At this stage itself, it is relevant to mention that writ

petitions are not governed by the law of limitation. Although, the

principle of delay and laches is attracted while adjudicating

whether the petitioner has approached the Court under Article 226

of the Constitution of India within reasonable time, but stricto

senso, the law of limitation is not applicable to writ petitions.

10. Now coming to the facts of this case, when in the

earlier petition filed by the petitioner, the ground of delay and

laches was not taken by the State and the writ petition stood

disposed of by this Court in terms of order quoted hereinabove,

and in compliance thereto, the competent authority passed order

on merit, vide which, the case of the petitioner was rejected, now

the State cannot be allowed to rake up the plea of limitation etc.

Further, this Court is of the considered view that by way of

.

passing of Annexure P-1, fresh cause of action has accrued to the

petitioner and this petition was immediately filed by the petitioner

thereafter. Therefore, it cannot be said that this petition is hit by

delay and laches.

11. Now coming to the order passed by the competent

authority, i.e. the issue as to whether the impugned order passed

by the competent authority is sustainable in the eyes of law or not,

this Court is of the considered view that the boggie of work charge

establishment, which is being raked up by the State with regard to

its departments, needs to be straightway rejected by the Court.

The government in its wisdom has come up with various policies

from time to time for regularization of services of daily wage

employees. In terms of said policies, in case a daily wager

completes the requisite number of years, as are referred in the

policy, by putting in minimum 240 days in each calendar year,

then right of regularization stands accrued upon such a daily

wager. It is but obvious that a person will only be regularized

against available vacancy. Therefore, in order to safeguard the

interests of such daily wagers, who have put in requisite number

of years, as are mentioned in the policy, yet, they could not be

regularized for the want of availability of regular vacancy, the

period in between is treated as work charge period so that the

sword of unceremonious removal from service no more hangs over

.

the head of the daily wagers. For this purpose, this Court is of the

considered view that there is no need of any work charge

establishment in the cadre of a department so as to confer the

benefit of work charge status upon a daily wager. Otherwise also,

creation of work charge establishment is not within the domain of

a daily wager. It is in the domain of the department. Government

has formulated policies of regularization, which govern all its

departments/corporations/boards and therefore different

yardsticks cannot be allowed to be applied by different

departments of the government to the effect that one department

will be having work charge establishment and other department

will not be having work charge establishment. This is more so for

the reason that the policy of regularization of services of the

employees does not distinguishes between the departments and

the same is common in that sense for almost all the departments.

12. Accordingly in view of the discussion held hereinabove,

this Court is of the considered view that the order of rejection of

the case of the petitioner dated 30.06.2016 (Annexure P-1),

denying work charge status to him, post completion of eight years

service by him till his services were regularized is not sustainable

in the eyes of law, and accordingly, the same is quashed and set

aside with the direction to the respondent-department to grant

him the benefit of work charge status post completion of eight

.

years service till the date of regularization of his services by the

department, with all consequential benefits.

The petition is allowed in above terms, so also pending

miscellaneous application(s), if any.

(Ajay Mohan Goel) Judge October 26, 2021 (narender