Sh. Atma Ram vs Pradesh
2022 Latest Caselaw 663 HP

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    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                   ON THE 7th DAY OF MARCH, 2022




                                                            .

                                 BEFORE

               HON'BLE MR. JUSTICE VIVEK SINGH THAKUR





    CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO.6365 Of
                             2019
    Between:-





    1.   SH. ATMA RAM
         S/O SH. DURGA,
         R/O VILLAGE, CHARIDHAR,
         POST OFFICE KUNHOO, TEHSIL KARSOG,
         DISTRICT MANDI, HIMACHAL PRADESH.
    2.

         SH. RAM DASS

         S/O SH. SAGRU RAM,
         R/O VILLAGE DHINGLI,
         POST OFFICE KUNHOO, TEHSIL KARSOG,
         DISTRICT MANDI, HIMACHAL PRADESH.
                                                             ....PETITIONERS


         (BY SH. CHANDERNARAYAN SINGH,
         ADVOCATE)
         AND




    1.   STATE OF HIMACHAL PRADESH
         THROUGH      PRINCIPAL    SECRETARY





         (FOREST) TO THE GOVERNMENT OF
         HIMACHAL PRADESH, SHIMLA.





    2.   CHIEF CONSERVATOR OF FOREST,
         TALLAND, DISTRICT SHIMLA,
         HIMACHAL PRADESH.

    3.   DIVISIONAL FOREST OFFICER,
         FOREST DIVISION, KARSOG,
         DISTRICT MANDI, HIMACHAL PRADESH.
                                                          ....RESPONDENTS
         (BY  SH.RAJU  RAM       RAHI,   DEPUTY
         ADVOCATE GENERAL)

         Whether approved for reporting? Yes
         Reserved on:   07.01.2022
         Decided on:    07.03.2022




                                           ::: Downloaded on - 09/03/2022 20:11:10 :::CIS
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                This petition coming on for pronouncement this day,

    the Court passed the following:

                              ORDER

.

Petitioners were engaged on daily-wage basis as

Beldars in the Forest Department in the year, 1992, but they had

completed minimum 240 days in each calendar year

continuously w.e.f. 1994 and completed eight years daily wage

service as such on 31.12.2002. However, they were regularized

vide order dated 10.10.2007 on issuance of Policy by the

Government of Himachal Pradesh and availability of vacancies.

2. Petitioners, alongwith others had filed CWP No.3056

of 2009, titled as Megh Singh & others vs. State of Himachal

Pradesh, which was disposed of with a direction to the

respondent-Department to consider the case of the petitioners

for regularization in terms of judgment passed in Mool Raj

Upadhyaya vs. State of H.P. & Others, 1994 Supp (2) SCC 316.

Claim of the petitioners was rejected in the year 2011 on the

ground that petitioners did not complete ten years of requisite

continuous daily wage service prior to 31.12.2003, which was

precondition for extending benefit in terms of Mool Raj

Upadhayaya's case. Whereupon, petitioners preferred Contempt

Petition (COPC No.527 of 2011) which was disposed of with a

direction to the respondents to consider the case of the

petitioners in terms of judgment of the Division Bench of this

High Court passed in CWP No.2735 of 2010, titled as Rakesh

Kumar and others vs. State of Himachal Pradesh. For not taking

any decision by the respondents, another contempt petition

(COPC No.666 of 2015) was preferred by the petitioners which

was disposed of with a direction to consider case of the

.

petitioners within a week from the date of passing of the order

i.e. 19.11.2015.

3. After taking into consideration clarification received

from the Government, it has been concluded by the respondent-

Department that Forest Department is not a Work Charge

Establishment and, therefore, as observed in Rakesh Kumar's

case, petitioners are not entitled for grant of work charge status

in terms of judgment in Rakesh Kumar's case.

4. Feeling aggrieved and dissatisfied with the rejection

of their claim, present petition has been preferred.

5. Petition has been opposed by the respondent-

Department on the ground that Forest Department is not a Work

Charge Establishment and, therefore, petitioners' claim has been

rightly rejected and further that Policies of the State issued from

time to time do not provide conferment of work charge status or

regularization immediately on completion of requisite years of

service prescribed therein, but services of the workmen are

regularized or conferred work charge status only on issuance of

new Policy with prospective effect, but not on completion of

period of service specified in previous Policy. According to

respondents, petitioners are working continuously with minimum

240 working days in each calendar year w.e.f. 01.01.1995, but

not from 01.01.1994.

6. For substantiating rejection of claim of petitioners for

conferring work charge status upon them for want of Work

Charge Establishment in Forest Department, respondents have

.

placed reliance on judgment of a Division Bench in CWP No.2735

of 2010, titled as Rakesh Kumar vs. State of H.P. and others.

7. In response to plea that work-charged establishment

does not exist in the respondent-Department, learned counsel for

the petitioner has referred pronouncements of this High Court in

cases CWPOA No. 5748 of 2019, titled as Man Singh Vs. The

State of Himachal Pradesh and others, CWPOA No. 52 of 2019,

titled Beli Ram Vs. State of Himachal Pradesh and another,

CWPOA No. 5566 of 2019, titled as Reema Devi Vs. State of H.P.

and others and CWPOA No. 5660 of 2019, titled as Ghanshyam

Thakur Vs. State of Himachal Pradesh and others wherein similar

plea of respondent-State did not find favour of the Court. Crux of

these pronouncements has been discussed hereinafter.

8. It is undisputed that in Mool Raj Upadhaya Vs. State

of Himachal Pradesh, 1994 Supp. (2) SCC 316, affidavit was filed

by Chief Secretary to the Government of Himachal Pradesh,

formulating a Scheme for granting work-charged status to all

daily-waged employees, serving in the State of Himachal

Pradesh, in all Departments, irrespective of the fact that

Department is/or was having work-charged establishment or not.

In judgment dated 10.5.2018 rendered by Division Bench of this

Court in CWP No. 3111 of 2016, titled as State of Himachal

Pradesh Vs. Ashwani Kumar, upholding the order passed by

erstwhile H.P. State Administrative Tribunal, it has been

pronounced that work-charged establishment is not a pre-

requisite for conferment of work-charge status nor conversion of

.

work-charged employee into regular employee would make such

establishment non-existent. Therefore, abolition of work-charge

establishment in the respondent-Department w.e.f. 19.8.2005

has no effect on the rights of petitioners for conferment of work-

charged status after completion of 8 years in terms of Policy of

the Government as well as verdict of Rakesh Kumar's case.

9. Following observations of this Court made in Beli

Ram's case are also relevant to be referred here, which read as

under:-

"22. In Gauri Dutt and others Vs. State of H.P., reported in Latest HLJ 2008 (HP) 366, it has been held

that the scheme formulated in Mool Raj Upadhaya's case is applicable to daily-waged employees working in any department of the state of Himachal Pradesh

and the employees, who are not governed by the

directions given in Mool Raj Upadhaya's case, shall be governed by a Scheme framed by the State in this regard and it has also been observed that granting of

work-charged status would mean that an employee would get regular scale of pay. 23. Term "work- charged", discussed State of Rajasthan v. Kunji Raman, reported in (1997) 2 SCC 517, is in different context, whereas this term, in Himachal Pradesh, is used in different context. A person, working on daily- waged basis, before his regularization, is granted work-charged status on completion of specified number of years as daily-wager and effect thereof is that thereafter non-completion of 240 days in a calendar year would not result into his ouster from the

service or debar him from getting the benefit of length of service for that particular year. Normally, work- charged status is conferred upon a daily-wager, on accrual of his right for regularization, on completion of prescribed period of service, but for non-regularization

.

is for want of regular vacancy in the department or for any other just and valid reason. Therefore, it is a period interregnum daily-wage service and

regularization, which is altogether different form the temporary establishment of work-charge, as discussed in the judgment of the Apex Court relied upon by the State and, for practice in Himachal Pradesh, work-

charged status is not conferred upon the person employed in a project but upon such daily-wage workers, who are to be continued after particular

length of service for availability of work but without

regularization for want of creation of post by Government for his regularization/ regular appointment. Therefore, work is always available in

such cases and the charge of a daily-wager is created thereon to avoid his disengagement for reasons upon which a daily-wager can be dispensed with from

service.

                  24. ..            ..                    ..                ..





                      ..

25. On conferment of work-charged status, sword of

disengagement, hanging on the neck of workmen, is removed on completion of specified period of daily- waged service, as thereafter instead of daily-wage, the employee would get regular pay-scale and would be entitled to other consequential benefits for which a daily-waged employee is not entitled."

10. Undoubtedly, a daily wager shall only be

regularized against available vacancy. However, for conferring

work-charged status availability of vacancies is irrelevant. It is a

status to be conferred upon daily-wager on completion of

requisite period of service as daily-wager, in terms of Policy, in

absence of regular vacancy, so as to safe guard the interest of

.

daily-wager regarding his right to be regularized on completion

of specific years on daily wages with requisite number of working

days in each calendar year, so that after crossing a bar, a daily-

wager may not be ousted to deprive him from regularization by

discontinuing his services being daily-wager and for that purpose

there is no need of any work-charged establishment in the

Department, as work-charge status is to be conferred upon daily

wager. Government has power to create or abolish work-charge

establishment. In case claim of the workmen for regularization in

terms of Policy is to be deferred for want of approval of the

Government, availability of the vacancy or for any other action to

be performed on the part of State or Department, then

conferment of work-charge status on a daily waged cannot be

denied for want of work-charge establishment in the

Department.

11. Judgment in Vinay Kumar's case relied upon by

respondents has been passed by a Single Bench of this Court,

whereas thereafter judgment on the same issue, in Ashwani

Kumar's case, has been passed by a Division Bench of this Court

and the same is binding on this Court as for passing of judgment

in Ashwani Kumar's case by Division Bench, verdict of Single

Judge is to be considered to have been over-ruled, therefore,

grounds taken by respondents-Department that work-charge

establishment in Public Works Department to class-IV posts had

been abolished w.e.f. 19.8.2005 and thus benefit of conferment

of work-charge status upon the petitioners cannot be extended,

.

is not tenable. Hence, objection of the respondents to oust the

petitioners in these grounds is not tenable. Judgment in Ashwani

Kumar's case has been rendered after pronouncement in Rakesh

Kumar's case. Both the pronouncements are by Division

Benches. Thus, present petition is to be adjudicated in terms of

ratio of Ashwani Kumar's case read with judgment passed in

Rakesh Kumar's case.

12. No doubt petitioners are not covered under the

Policy formulated and approved by the Supreme Court in Mool

Raj Upadhaya's case, but in terms of pronouncements of the

Division Bench of this Court in Rakesh Kumar' case which has

attained finality for affirmation from the Supreme Court, read

with pronouncement of this High Court in Ashwani Kumar's case,

petitioners are entitled for conferring work-charge status

immediately on completion of 8 years continuous service as daily

waged with 240 working days in each calendar year. These

judgments are binding in nature and it is settled law that binding

decision should neither be ignored nor be overlooked.

13. Regarding regularization of the petitioners from

prospective dates of passing of order after issuance of fresh

Policy of the Government and withholding regularization/grant of

work-charged status to the petitioners for want of time gap

between two Policies, learned counsel for the petitioner has

referred pronouncements of this Court passed in CWP No. 2415

of 2012, titled as Mathu Ram Vs. Municipal Corporation and

others, decided on 31.7.2014, wherein learned Single Judge has

.

made the following observations:-

"5. It cannot be disputed that the policy of regularisation has been extended from time to time.

The mere fact that there was a time gap in issuance of the policy of regularisation which prescribed different cut off dates cannot be a ground to deny the benefit of regularisation to the of the policy of regularisation

which prescribed different cut off dates cannot be a ground to deny the benefit of regularisation to the petitioner on his completion of 8 years of service on

daily waged basis in terms of Rakesh Kumar (supra)."

14. Judgment of Single Bench passed in Mathu Ram's

case has been affirmed by a Division Bench in LPA No. 44 of

2015, observing as under:-

"5. Respondent was appointed in the month of

November, 1993. He has completed 8 years of service in the year 2001. The workmen, who have completed 8

years of service, were required to be regularized immediately after the completion of 8 years' service.

Appellant - corporation is State within the meaning of Article 12 of the Constitution of India. The practice of the respondent-corporation not to regularize the services of the workmen, though they have completed 8 years of service, amounts to unfair labour practice.

6. The issue raised in the LPA is no more res integra in view of the judgment rendered in CWP No.2735 of 2010 decided on 28.7.2010, titled as Rakesh Kumar vs. State of H.P. and others. Relevant portion of the judgment reads as under:

"2. The only reference to be made for analyzing the grievance of the petitioners is two orders of the Government. One order is dated 3.4.2000 and other is dated 6.5.2000. Order dated 3.4.2000, reads as follows:

.

"In partial modification of this Department letter of even number dated 8th July, 1999 on the above subject, I am directed to say

that the Government has now decided that the Daily Waged/Contingent Paid workers in all the Departments including Public Works and Irrigation and Public Health Departments

(other than work-charged categories)/Boards/ Corporations /Universities, etc. who have completed 8 r years of continuous service (with a minimum

of 240 days in a calendar year) as on 31-03- 2000 will be eligible for regularization. It has further been decided that completion of

required years of service makes such daily wager/contingent paid worker eligible for consideration to be regularized and

regularization in all cases will be from prospective effect i.e. from the date the

order of regularization is issued after completion of codal formalities.

2. In view of the above decision and in order to avoid any litigation and also any hardship to daily wagers departments shall do the regularization based on seniority and they will ensure that senior persons are regularized first rather than regularizing junior persons first.

3. Other terms and conditions like fulfillment of essential qualification as prescribed in R&P Rules, etc. etc. as laid down in this department letter of 8th July, 1999, as

referred to above, shall continue to be operative.

4. These instructions may kindly be brought to the notice of all concerned for strict compliance.

.

5. These instructions have been issued with the prior approval of the Finance Department obtained vide their Dy. No. 852 dated 23-03-

2000."

3. Order dated 6.5.2000, to the extent relevant, reads as follows:

"2. During the process of regularization of daily

wagers, various issues and problems relating to these workers concerning their regularization have been brought to the notice of the Government. The r Government in order to avoid such confusion or

problems has decided to streamline the existing procedure/instructions in order to bring uniformity of procedure in various Departments of the

Government. It has, therefore, been decided that henceforth:

(i) Daily Waged/Contingent Paid Workers who

have completed required years of continuous service (with a minimum of 240 days in a

calendar year except where specified otherwise for the tribal areas) which as per

latest instructions issued vide this Department letter of even number dated 3-4- 2000 is 8 years as on 31-03-2000 shall be eligible for regularization. However, in Departments/ Corporations/Boards, where the system of the work charge categories also exists, eligible daily wagers will be considered first for bringing them on the work charge category instead of regularization. Such eligible daily waged workers/contingent paid workers will be

considered for regularization against vacant posts or by creation of fresh posts and in both these events prior approval of Finance Department will be required as per heir letter No. Fin-1-C(7)-1/99 dated 24-12-1999. The

.

terms and conditions for such regularization shall be governed as per Annexure -'A'."

4. This scheme was in force till a new scheme

introduced on 9th June, 2006. The contention of the petitioners is that on completion of 8 years service, as per the scheme extracted above, they are liable to be granted the work-charged status being on a

work charged establishment."

15. Conclusion of verdict of Mathu Ram's and Rakesh

Kumar's cases, with respect to gap between issuance/formation

of two policies, is that previous policy/scheme shall remain in

force till issuance/formation/introduction of subsequent

policy/scheme, but cut of date for completion of requisite

number of years shall be redundant in subsequent years and

benefit of policy/scheme shall be extended to employees

immediately on completion of continuous service for requisite

number of years with minimum prescribed number of working

days in each calendar year. In case regularization is not possible

for want of availability of vacancy, the work-charge status has to

be conferred upon daily wage employee on completion of

requisite number of years prescribed in the Policy/Scheme.

16. Plea of the respondent-Department that petitioners

are serving continuously with 240 working days w.e.f.

01.01.1995 has not been controverted in rejoinder filed by the

petitioners or otherwise. However, examples of similarly

situated persons have been placed on record, wherein

respondent-Department has conferred work charge status upon

.

similarly situated workmen in the year, 2006 in compliance of

judgment of this High Court in CWP No.4071 of 2012, titled as

Dhani Ram vs. State of Himachal Pradesh, and there is no

rebuttal to these examples placed on record by the petitioners.

17. Despite having bestowed status of custodian of

rights of its citizens, State or its functionaries invariably are

adopting exploitative method in the field of public employment

to avoid its liabilities, depriving the persons employed from their

just claims and benefits by making initial appointments on

temporary basis, i.e. contract, adhoc, tenure, daily-wage etc., in

order to shirk from its responsibility and delay the conferment of

work-charge status or extension of benefits of regularization

Policy of the State by not notifying Policies in this regard in

future.

18. In view of above discussion, petitioners are held

entitled for work charge status w.e.f. 01.01.2004 with all

consequential benefits, including seniority, pay fixation and

pensionary benefits etc. and accordingly, respondents are

directed to ensure grant of work charge status to the petitioners

on or before 30.06.2022 alongwith all consequential benefits,

including payment of arrears, if any, failing which petitioners

shall also be entitled for interest on the arrears @ 7.50% per

annum from the date of accrual till final payment thereof from

the respondents.

19. Petition stands disposed of in aforesaid terms, so

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also pending application(s), if any.

(Vivek Singh Thakur), Judge.

    March 7, 2022
          (Purohit)




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