Himachal Pradesh High Court
Nek Ram vs State Of H.P on 15 October, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No.5908 of 2020
Date of decision: 15.10.2024
Nek Ram ...Petitioner.
Versus
State of H.P. ...Respondents.
Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?
For the Petitioner. Mr. Rahul Mahajan, Advocate.
For the Respondents: Mr. Pawan Kumar Nadda, Additional
Advocate General, for the respondents.
Vivek Singh Thakur, Judge (Oral)
Petitioner Sh. Nek Ram was initially engaged as a daily waged
Beldar in the respondent Department during the year 1996. Though the
petitioner kept on working in the respondent Department continuously, but
till the year 1998 he was not permitted to complete 240 days in each
calendar year, so as to prevent him from claiming regularization, after
completion of 8 year of service as per Regularization Policy framed by the
Government from time to time. From the year 2006, petitioner was
permitted to work continuously for 240 days in each calendar year and,
thereafter, on completion of eight years continuous service with 240 days in
each calendar year, his services were regularized vide office order dated
15.03.2008, against sanctioned/vacant post.
2. For redressal of his grievance, the petitioner had approached
Labour Officer-cum-Conciliation Officer seeking reference of Industrial
Dispute to the Labour Court, but claim of the petitioner was rejected vide
office order dated 20.12.2016 issued by Deputy Labour Commissioner,
Himachal Pradesh on the ground that the petitioner had already been
regularized and therefore, there was no justification for referring the matter
to the Labour Court and the petitioner should raise his matter before the
appropriate forum under Fundamental Rules, Supplementary Rules and
Central Civil Service Rules.
3. Since the petitioner was engaged in the year 1996 and he kept
on working in the Department uninterruptedly till his regularization, he filed a
representation dated 17.04.2017 (Annexure A-4) to the concerned
authority, praying therein that the artificial breaks given to him in various
years, prior to the year 1999, may be condone, but in vain.
4. Vide communication dated 23.05.2017 (Annexure A-5)
respondents intimated the petitioner that his representation to consider his
break period towards continuity and seniority of service and regularization
after completion of eight years of service from retrospective date has been
rejected with observation that claim of the petitioner was rightly rejected by
the Deputy Labour Commissioner vide office order dated 20.12.2016.
5. In the aforesaid communication, respondents set up a case
that at no point of time, artificial breaks were ever given rather the petitioner
himself worked intermittently as per his convenience and further that
petitioner was engaged as per availability of work and funds.
6. In the aforesaid background, the petitioner approached
erstwhile Himachal Pradesh Administrative Tribunal by way of OA(D)
No.207 of 2018, titled Nek Ram Vs. State of Himachal Pradesh and
others, which, on abolition of erstwhile Administrative Tribunal, has been
transferred to this High Court and registered as CWPOA No.5908 of 2020.
7. Petition has been preferred, praying the following main reliefs:-
a) Direct the respondents to count the breaks period of
applicant w.e.f. 1996 to 1998 in his seniority and continuity of
service for all purposes.
b) Direct the respondents to regularize the services of
applicant on completion of 8 years continuous service w.e.f.
01.01.2005 in regular pay scale applicable at that time on
notional basis after count the breaks period of applicant w.e.f.
1996 to 1988 in his seniority and continuity in service.
8. Respondents have filed reply, wherein facts, as have been
noted herein above, have not been disputed but the claim put forward by the
petitioner has been resisted by raising the plea that though the petitioner
was initially given appointment in the year 1996 but till the year 1998, he
never completed 240 days in each calendar year, as such, there was no
occasion for the Department to grant work charge status or regularize his
service.
9. Man days chart placed on record alongwith reply (Annexure
A-1) reveals that the petitioner worked for the following days in the
Department from 1996 to 2008:-
Sr. No. Year Days
6. 2001 364.5
10. It is stand of the respondents that since the petitioner worked
continuously for 240 days in each calendar year from the year 1999 to
31.12.2006 respondents, taking note of policy of regularization framed by
the Government of Himachal Pradesh, having rightly ordered regularization
vide office order dated 15.03.2008 against sanctioned/vacant post
(Annexure A-2). Besides above, it has been also claimed on behalf of the
respondents that since work charge establishment had ceased to exist in the
Department no work charge status could have been automatically granted to
the petitioner, being Class-IV employee that too from retrospective date.
11. Undisputedly nature and contents of petition, prayer made
therein and response filed to the petition as well as facts and circumstance
of present case are similar to the case decided by a Division Bench of this
High Court, vide Judgment dated 28.11.2023 in CWPOA No.6089 of 2020,
titled as Shri Dharam Chand Vs. H.P. State and Others.
12. Consequently, present petition also deserves to be decided in
terms of decision dated 28.11.2023, passed in CWPOA No.6089 of 2020.
13. In view of above, the reasons assigned and discussion
contained for deciding CWPOA No.6089 of 2020 shall be mutatis mutandis
applicable to present matter for all intents and purposes.
14. As apparent from the Man days chart, in the year 1996,
petitioner had worked only for 29 days and therefore, petitioner has not
pressed for counting his service for the purpose of benefits from the year
1996 but pressed his prayer from 01.01.1997, whereafter he was not
allowed to complete 240 days by the respondents, despite availability of
work rather Department continued to engage the juniors to the petitioner
during that period. Therefore, petitioner shall be entitled for the benefits from
01.01.1997 onwards only.
15. Petitioner has also placed reliance on judgment dated
27.06.2024 passed in CWPOA No.6081 of 2020 "Puran Chand Vs. State
of Himachal Pradesh and Others" in similar facts and circumstances to
substantiate his claim.
16. Accordingly, as also directed in CWPOA No.6089 of 2020,
respondents are directed to condone the break period of the petitioner in
1997 and 1998 and count the same for continuity in service and seniority
and confer work charge status/regularize the services of the petitioner from
the date of completion of eight years w.e.f. 01.01.1997, along with all
consequential benefits.
The petition stands allowed and disposed of in the afore terms,
alongwith all pending applications.
(Vivek Singh Thakur),
Judge.
(Ranjan Sharma),
Judge.
15th Oct, 2024.
(manish)
