Himachal Pradesh High Court
Subject Matter Specialist vs Hon'Ble Court Itself Has Directed ... on 28 September, 2021
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 28th DAY OF SEPTEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE ANOOP CHITKARA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 6116
of 2019.
Between:-
NAIN DEI W/O NEB CHAND,
P.O. LUJ, TEHSIL PANGI,
DISTRICT CHAMBA, H.P.
PRESENTLY WORKING AS
BELDAR IN THE OFFICE OF
SUBJECT MATTER SPECIALIST
HORTICULTURE PANGI AT KILLAR,
DISTRICT CHAMBA, H.P.
....PETITIONER.
(BY SH. MUKESH THAKUR, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY
(HORTICULTURE) TO THE GOVT. OF
HIMACHAL PRADESH, SHIMLA.
2. DIRECTOR OF HORTICULTURE
HIMACHAL PRADESH, NAVBAHAR
SHIMLA - 171 002.
3. ADDITIONAL DIRECTOR OF
HORTICULTURE POSTED AT
DHARAMSHALA, DISTRICT KANGRA,
HIMACHAL PRADESH
4. SUBJECT MATTER SPECIALIST
HORTICULTURE, PANGI AT
KILLAR, DISTRICT CHAMBA,
HIMACHAL PRADESH.
[ .....RESPONDENTS.
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(BY MR. NAND LAL THAKUR,
ADDITIONAL ADVOCATE GENERAL
WITH MR. KUNAL THAKUR,
.
DEPUTY ADVOCATE GENERAL)
Reserved on : 27th September, 2021
Decided on : 28th September, 2021
This petition coming on for hearing this day, the Court
passed the following:
JUDGMENT
Challenging the non-conferment of work charge status by
the respondent-department, the petitioner had filed the Original
Application before the erstwhile H.P. Administrative Tribunal.
2. After abolition of H.P. Administrative Tribunal, the case file
was transferred to this Court and registered as CWPOA No.6116 of
2019.
3. The petitioner claimed to have been appointed on daily
wage basis as Class-IV employee, with respondent No.4-department
w.e.f. 01.05.1994. The petitioner further claimed that she had worked
continuously with the respondent-department and her services were
regularized on 15.12.2006, after 12 years of daily wage services,
whereas, she was entitled to conferment of work-charge status, on
completion of eight years service with 240 days in each calendar year,
as per the policy prevalent at that time. She also submitted that the
respondent-department granted the work-charge status to the similarly
situated persons. She further submitted that the action of the
.
respondent-department in not granting the work-charge status from
the due date is illegal, arbitrary discriminatory, unconstitutional and
violative of Articles 14 and 16 of the Constitution of India.
4. In the reply, the respondents contradicted the initial
engagement of the petitioner as well as the fact regarding completion
of 240 days in each calendar year, from the date of initial
engagement. The respondents submitted that the petitioner was
initially engaged as daily paid labourer on 1.1.1991 and admitted that
the petitioner has completed 160 days, in each calendar year, after the
year 1994, as per the criteria fixed for Pangi Sub-Division of Chamba
District. The respondents further submitted that the services of the
petitioner were regularized strictly as per the policy for regularization
and on seniority basis.
5. The respondents further submitted that the ratio of the
judgment rendered in CWP No. 2735 of 2010, titled Rakesh Kumar
versus State of H.P. & others does not apply to the petitioner as the
Hon'ble Court itself has directed that the question of conferment of
work-charge status does not arise in case the establishment ceases to
be a work-charge establishment. The respondents further submitted
that since the respondent-department is not a work charge
establishment, therefore, the applicant is not entitled to regularization
.
on the analogy of Rakesh Kumar's case.
6. The limited claim of the petitioner is that she was entitled
to conferment of work charge status on completion of eight years'
service as she worked with the respondent-department with 240 days,
in each calendar year. However, as per the criteria fixed for Lahaul
area of Lahaul and Spiti District and Pangi Sub-Division of Chamba
District, the number of minimum requisite days are 160. A reference
to this effect be also made to man-days chart Annexure R-1, which
reveals that the petitioner has worked for more than 160 days in each
calendar year, after the year 1994 as well as ANNEXURE-'A' to the
Regularization Policy Annexure R-2, which provides for number of
minimum requisite days. As far as conferment of work charge status
is concerned, the matter is no more res Integra.
7. The State did not claim any irregularity in her initial
recruitment or its process.
8. In Gauri Dutt v. State of HP, 2007 Law Suit (HP) 397,
Division Bench of this Court holds,
[1] By this judgment we are disposing of the aforesaid
batch of writ petitions since the following common
questions of law arise for decision in these petitions.
1. Whether the scheme of putting the workers on
work charged basis as approved by the Apex
Court in Mool Raj Upadhyaya's case is applicable
.
to those daily waged employees who had not
completed minimum of 240 days of service in a
calendar year as on 31st December, 1993?
2. If the answer to the first question is in the
negative, what will be the process of
regularization of services of those employees who
had not completed 240 days of service in a
calendar year as on 31st December, 1993 or had
joined service after Ist January, 1994?
3. Whether the scheme, as approved by the Apex
Court, in Mool Raj Upadhyaya's case, is only
applicable to the employees of the Irrigation and
Public Health Department and Public Works
Department of the State of Himachal Pradesh or
is applicable to all the daily rated employees
working under the Government of H.P.?
4. Where if an employee has rendered service on
daily waged basis on 2 separate posts in lower
and higher scales, can the employee be given
benefit of the service rendered by him in the
lower scale and be regularized in the higher scale
by combining the two services after 10 years?
[17] Under para 4 of the scheme the State was under an
obligation to regularize all daily waged/muster roll
workers whether they had joined prior to 31.12.1993 or
thereafter. The State has framed a scheme in this behalf on
6th May, 2000. In our opinion those employees who are
not governed by the direction given in Mool Raj
Upadhyaya's case as set out by us above, shall be
governed by the scheme of 2000. The second question is
answered accordingly.
[18] The State of H.P. has also raised a plea that the
scheme in Mool Raj Upadhyaya's case is only applicable
to the employees of the IPH and PWD departments of the
State of H.P. and is not applicable to other employees. We
have already quoted para 6 of the affidavit of Mr.
Subramanyam which clearly shows that the scheme, as
presented by the State of H.P. to the Apex Court, was to be
applicable to all the daily rated employees in all the
departments in H.P. In view of the affidavit of Mr.
.
Subramanyam, the State cannot now urge that this scheme
is not applicable to other departments. In answer to the
third question, it is held that the scheme is applicable to all
daily waged employees working in any department of
State of H.P.
9. The services of the petitioner were regularized with effect
from 15.12.2006, following the scheme framed by the State
Government as applicable to her, however, the petitioner had
completed eight years of services, with 160 days in each calendar
year, as on 30.04.2002. Therefore, she was entitled to conferment of
the work charge status on the date when she had completed eight
years of service. Thus, as per the policy applicable at that time and
in view of the law laid down by this Court in Gauri Dutt v. State of
HP, CWP 778 of 2006, decided on 29-12-2007, (2007 Law Suit (HP)
397), the petitioner would be entitled to get the work charge status on
completion of eight years of service and other incidental and
consequential benefits, subject to her fulfilling the terms and
conditions of such policy. Therefore, the respondents are directed to
verify and grant such benefits, if applicable, within four months from
today. All the officials, who shall deal with this file, shall put a date
when they receive/forward the file so that the deadwood is identified
in case of any lapse.
.
10. Consequently, the present petition is disposed of in the
above terms, so also the pending miscellaneous application(s), if any.
(Anoop Chitkara),
September 28, 2021(ps) Judge
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