State Of Himachal Pradesh And ... vs Vipan Kumar
2023 Latest Caselaw 4954 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

LPA No.82/2023 Date of Decision : 1st May, 2023

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State of Himachal Pradesh and others ...... Applicants-Appellants Versus

Vipan Kumar ......Respondent Coram:

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Acting Chief Justice

The Hon'ble Mr. Justice Virender Singh, Judge

Whether approved for reporting? No

For the Appellants : Mr. Anup Rattan, Advocate General with

Mr. Ramakant Sharma & Ms. Sharmila Patiyal, Additional Advocate Generals, Mr. Arsh Rattan & Ms. Priyanka Chauhan, Deputy Advocate Generals and Mr. Rajat Chauhan, Law Officer.

For the Respondent : Mr. Naresh Kumar Verma, Advocate.

Tarlok Singh Chauhan, Acting Chief Justice (oral)

CMP(M) No.248 of 2023

For the reasons stated in the application, which is duly supported

by an affidavit of the Principal Chief Conservator of Forests (Admin &

HRD), Himachal Pradesh, Shimla, the application is allowed and delay

of 123 days' that has crept up in filing of the instant appeal is

condoned. The application stands disposed of.

Appeal be registered.

1 Whether reporters of Local Papers may be allowed to see the judgment?

LPA No.82 /2023

2. The learned writ Court allowed the writ petition filed by the

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respondent herein by directing the appellants to grant work charge

status to her from the date she had completed 8 years service as daily

wager in the department along with consequential benefits.

3. Aggrieved by the judgment, the respondent-employer has filed

the instant appeal on 15.02.2023. However, after filing the appeal, the

issue raised herein stands authoritatively decided by the learned

Principal Division Bench of this Court in bunch of petitions, lead being

LPA No. 165 of 2021 case titled State of H.P. and others vs.

Surajmani and another, decided on 12.01.2023, wherein the

judgment passed by the learned Single Judge therein to the similar

effect as in the instant case has been affirmed by the learned Principal

Division Bench by observing as under:-

"52. In the present cases, all the daily wage employees are seeking conferment of work charge status on their completion of 8 years service in view of the various

Policies framed by the State from time to time. In this regard, the Hon'ble Supreme Court, in its decision passed in Mool Raj's case supra, had modified the Scheme formulated by the State and had observed that the daily wagers who had completed 10 years continuous service with minimum of 240 days in each calendar year, on 31.12.1993, shall be appointed as

work charge employees. Admittedly, thereafter as per the amended Policy framed by the State from time to time, the requirement of completion of 10 years

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continuous service with minimum 240 days in each calendar year, was reduced to 8 years. This Court in Rakesh Kumar's case supra was dealing with the

employees of Irrigation and Public Health Department who had been regularized in service as per the various Schemes announced by the State from time to time.

The grievance raised by the petitioners in the said cases was that they should have been granted work charge status before regularization.

53. The Division Bench of this Court made reference to

the order passed by the Government in Paragraphs 2 and 3 of its order dated 28.7.2010, passed in CWP No.2735 of 2010 titled Rakesh Kumar vs. State of

H.P. & Ors., and the same read 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 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

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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 Government in order to avoid such confusion or problems has decided to

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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 other wise 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 their 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'."

54. It was also noticed by the Division Bench that new Scheme was introduced on 9.6.2006 and on completion

of 8 years of service, the employees were liable to be granted work charge status. The Writ Petitions filed by Rakesh Kumar and others were allowed and the Special Leave Petition filed against the order passed by the

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Division Bench of this Court, was dismissed vide order dated 15.1.2015. Thereafter, in Ashwani Kumar's case supra, this Court upheld the decision passed by the

Tribunal, whereby, the daily wage employees had been ordered to be conferred work charge status on completion of 8 years of service. The finding of the

Tribunal that work charge establishment was not a prerequisite for conferment of work charge status was upheld by this Court in Ashwani Kumar's case and the

decision given by this Court in Ashwani Kumar's case

was upheld by the Hon'ble Supreme Court. Thereafter, many cases have been decided by this Court, basing reliance on the decision given by this Court in Ashwani

Kumar's case and the judgments passed by this Court, have, admittedly, been implemented by the State.

55. Hence, the State, which is expected to act like a

model employer and should have rather granted the

same relief, as claimed by the respondents and other petitioners being similarly situated qua the daily

wagers/petitioners who had approached this Court and decisions have already been passed in their favour, but has rather now argued that the decision given by this Court in Ashwani Kumar's case supra did not lay down any law and the observations made therein were per incuriam. This leads to the inference that the State/Department has rather adopted a pick and choose Policy. Once, the judgment in Ashwani Kumar's case

supra has been implemented and has attained finality, then the respondents/petitioners who are similarly situated, are liable to be granted the same relief. So far as the observation made by this Court in Rakesh

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Kumar's case supra to the effect that the question of conferment of work charge status did not arise in case the establishment ceases to be a work charge

establishment, is concerned, the said observation had been made without there being any issue raised in this regard. The decision given in Rakesh Kumar's case has

been admittedly implemented and the petitioners have been granted work charge status on their completion of 8 years of service on daily wage basis. Thus, in that case

there was no issue as to whether the

establishment was a work charge one or not. Thus, in the present cases, the issue involved already stands settled vide judgment given by this Court in Ashwani

Kumar's case supra which has been followed by this Court time and again and, admittedly, many writ petitions have been decided in terms thereof and the

said decisions have been duly implemented. Hence, the

State cannot be permitted to take a pick and choose Policy. In the case of Rakesh Kumar supra, this Court

had categorically held that the question of delay in the present cases is not to be taken for consideration and can be considered for denial of interest on the eligible benefits and not the benefits as such. Hence, the State cannot be permitted to re-agitate the issue which has already been settled by this Court. Rather, the State should itself grant the relief to the daily wagers by conferring work charge status on them after completion

of 8 years of service in terms of their Policies and decisions of this Court.

56. So far as the cases involving Himachal Pradesh State Electricity Board Limited are concerned, learned

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counsel for the Board has placed reliance on the decision of this Court given in CWP No.211 of 2018, titled Himachal Pradesh State Electricity Board Limited

& others vs. Jagat Singh, wherein, the case of an employee who had been conferred work charge status as a Beldar had claimed that he should be regularized

as a Mate on completion of ten years of service. In the said case, it was held that a person who had been working as a Beldar on work charge basis and has been

regularized as such, could not claim the relief that he

was entitled for conferment of work charge status on the post of Mate as he had accepted his status as work charge Beldar/regular Beldar thereafter. This shows that

in the Electricity Board, work charge status is being conferred on the daily wage employees. Hence, the employees working with the Electricity Board and who

have completed eight years of service would also be

covered by the decision given in Ashwani Kumar's case supra.

57. In view of the above, the writ petitions filed by the employees are allowed and the respondents are directed to grant work charge status to the employees from the date they had completed eight years of service on daily wage basis in terms of the decision given by this Court in Ashwani Kumar's case supra. However, benefits consequent to conferment of work charge

status in terms of instant judgment shall be restricted to three years for the period prior to filing of petition.

58. The Letters Patent Appeal(s), which have been filed by the respondents/State/employer against the orders

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passed by learned Single Judge, including LPA No.165 of 2021, as well as writ petitions filed by the respondents/State/ employer against the orders passed

by the Tribunal, are dismissed with the clarification that the benefits consequent on conferment of work charge status in terms of the judgment passed by the learned

Single Judge shall be restricted to three years for the period prior to filing of petition."

4.

We have gone through the judgment rendered by the learned

Principal Division Bench in Surajmani's case (supra) and find no

reason to differ with the view taken by the learned Principal Division

Bench.

5. Accordingly, for the reasons stated in Surajmani's case (supra)

which shall be read as mutatis mutandis in the present case also, we

find no merit in this appeal and the same is accordingly dismissed,

leaving the parties to bear their own costs.

6. All pending applications also stand disposed of.

( Tarlok Singh Chauhan ) Acting Chief Justice

( Virender Singh) Judge May 01, 2023 (KS)