Himachal Pradesh High Court
Gagret vs Ashwani Kumar on 1 November, 2022
Bench: Satyen Vaidya
Reportable/unreportable
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 1st DAY OF NOVEMBER, 2022
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) 2045 of
2020
Between:-
GULZARI LAL S/O SH. RATTAN
SINGH, RESIDENT OF VILLAGE AND
PO BADOH, TEHSIL AMB, DISTRICT
UNA, H.P., PRESENTLY WORKING AS
BELDAR (CLASS IV) IN THE OFFICE
OF EXECUTIVE ENGINEER, I &PH
FLOOD PROTECTION, DIVISION
GAGRET, DISTRICT UNA.
....PETITIONER
(SH. SUBHASH SHARMA, ADVOCATE)
AND
1. STATE OF HP THROUGH
SECRETARY (I&PH), GOVERNMENT
OF HP, SHIMLA.
2. ENGINEER IN CHIEF, I&PH US,
CLUB, SHIMLA.
3. EXECUTIVE ENGINEER, I&PH
FLOOD PROTECTION, DIVISION
GAGRET, DISTRICT UNA, HP.
....RESPONDENTS
(SH. DESH RAJ THAKUR, ADDITIONAL ADVOCATE
GENERAL WITH SH. NARENDER THAKUR, DEPUTY
ADVOCATE GENERAL ).
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Reserved on: 27.10.2022
Date of decision: 01.11.2022.
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This petition coming on for orders this day, the
Court passed the following:
ORDER
By way of instant petition, petitioner has prayed for
the following substantive relief:-
"i). To quash and set aside Annexure A-6 dated
24.12.2016 passed by respondent department.
ii) Respondent department may kindly be directed
to grant work charge status to the applicant on
completion of 8 years of service, i.e. 1.1.2003.
iii) That the respondent department may further
kindly be directed to grant all consequential
benefits to the applicant."
2. The claim of petitioner is for grant of work charge
status w.e.f. 1.1.2003 by counting his service to be continuous
from 1995.
3. Respondents are contesting the claim of petitioner
on the grounds that from 1995 till 1998, petitioner had not
completed 240 days in any of the calendar years. It was w.e.f.
1999 that petitioner could complete 240 days of his daily wage
employment. Thus, petitioner completed eight years of
.
continuous service as daily wager on 31.12.2006 but since the
State Government had abolished the work charge status for
Class-IV employees w.e.f. 12.12.2005, petitioner was not
entitled for automatic conformant of work charge status even
on completion of eight years. Petitioner became entitled for
regularization in 2010 and was accordingly regularized from
due date.
4. I have heard learned counsel for the parties and
have also gone through the record carefully.
5. The instant litigation has a chequered history. The
services of petitioner were disengaged in 1998. Petitioner
approached the erstwhile State Administrative Tribunal by way
of O.A. No. 2304 of 1998. The said application was disposed of
by the erstwhile Tribunal vide order dated 4.6.1999 in following
terms:-
"The learned Additional Advocate General has
represented that the Department is ready to engage
the applicant as daily-waged Beldar in another
Section which is situated at a distance of 30 kms
from the present place where the applicant was
working. The aforesaid officer is accepted by the
learned counsel for the applicant and therefore, in
view of the aforesaid offer given by the learned
Additional Advocate General, the applicant be re-
engaged without any undue delay.
.
With these observations, the present application
stands disposed of. However, the applicant shall not
be entitled for back wages but the period of absence
shall be treated for the purpose of seniority."
6. After his reengagement, petitioner once again
approached this Court by way of CWP No. 4527 of 2012,
seeking work charge status w.e.f. 1.1.2003 on the basis of his
daily wage service, rendered by him since 1995 and a
Coordinate Bench of this Court vide judgment dated
16.10.2014, passed in CWP No. 4527 of 2012, directed the
respondents to consider the case of petitioner. Respondents
rejected the case of petitioner vide office order dated 25.4.2015.
Petitioner then approached the erstwhile State Administrative
Tribunal by filing O.A. No. 1387 of 2015, which was disposed of
vide order dated 27.2.2016 in following terms:-
"The present original application, therefore, is
allowed with the following directions:-
i) Consequently, the respondents are directed to
consider the case of the applicant for granting
him work charge status on completion of 8
years service, that is, with effect from 1st
January, 2003.
ii) The respondents are further directed to grant all
consequential benefits to the applicant within a
.
period of one month on production of certified
copy of this order."
7. The aforesaid order passed by the learned erstwhile
Tribunal was assailed by respondents by way of CWP No. 3010
of 2016 but the same was dismissed by a Division Bench of this
Court on 8.12.2016. Respondent No.3 again rejected the case
of petitioner vide office order dated 24.12.2016, which is the
subject matter of present petition.
8. The facts of the case now are not in dispute.
Petitioner has rendered continuous daily wage service with 240
days in a calendar year since 1999 and was regularized in
2010. Thus, petitioner will be entitled for work charge status
on completion of eight years of continuous daily wage service
w.e.f. 1999. As per admission made by respondent No.3 in
impugned order dated 24.12.2016, petitioner had completed
eight years of continuous service as on 31.12.2006. In this
view of the matter, petitioner became entitled for grant of work
charge status w.e.f. 1.1.2007.
9. The petitioner has been denied the benefit of work
charge status even from 1.1.2007 on the premise that the State
Government had abolished the work charge establishment
w.e.f. 12.12.2005 and in absence of availability of work charge
.
establishment, on completion of eight years of daily wage
continuous service of petitioner, he could not be granted such
benefits.
10. The aforesaid reasons assigned by respondents
cannot be countenanced. Judging the ground of rejection
against the contention raised on behalf of the petitioner, this
Court is of considered view that the impugned rejection order,
Annexure P-6, cannot be sustained in view of the judgment
passed by a Division Bench of this Court in CWP No. 3111 of
2016, titled State of H.P. & Others vs. Ashwani Kumar, in
which it has been held as under:
"6. Having carefully perused material available on
record, especially judgment rendered by this Court in
Ravi Kumar v. State of H.P. and Ors., as referred
herein above, which has been further upheld by the
Hon'ble Apex Court in Special Leave to Appeal (C) 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 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
schemes 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."
11. Recently in State of Himachal Pradesh vs. Smt.
Reema Devi, LPA No. 161 of 2021, decided on 23.05.2022, a
Division Bench of this Court following Ashwani Kumar's case
(supra) held as under, in the case where also the respondent
department was involved: -
"11. Now adverting to the facts of the instant case,
the grant of work charge status to late Shri Het Ram
has been denied on the ground that Himachal
Pradesh Forests Department had no work charge
establishment. In Ashwani Kumar's case (supra) also
right of the petitioner therein for grant of work charge
.
status was considered when the HPPWD had ceased
to be a work charge establishment.
12. This Court while delivering judgment in
Ashwani Kumar's case (supra) had, thus, decided the
principle that work charge establishment was not a
prerequisite for conferment of work charge status and
thus, would not confine only to the petitioner in the
said case. In view of this, the contention raised on
behalf of the appellants that the judgment in
Ashwani Kumar's case (supra) was a judgment in
personam, cannot be sustained."
12. Thus, the action of the respondents in denying the
claim of the petitioner for grant of work charge status after
completion of 8 years' continuous service as daily wager is
clearly arbitrary and discriminatory hence cannot be sustained.
13. In view of the above discussion, the petition is
allowed and the impugned office order dated 24.12.2016,
Annexure P-6, is quashed and set-aside. The respondents are
directed to grant work charge status to the petitioner w.e.f.
1.1.2007 till the date of his regularization. Needless to say that
the consequential benefits shall also follow, subject however, to
the condition that petitioner shall be entitled for consequential
financial benefits, if any, only for a period of three years
.
immediately preceding the date of filing of petition.
14. The petition is accordingly disposed of, so also the
pending application(s), if any.
(Satyen Vaidya)
1st November, 2022 Judge
(kck)
