Himachal Pradesh High Court
Balbir Singh vs Dr. Y.S. Parmar University on 4 September, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWPOA No.6882 of 2020 a/w
CWPOA Nos.6873 and 6875 of 2020
Decided on: 4th September, 2024
___________________________________________________________
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CWPOA No.6882 of 2020
Balbir Singh ...Petitioner
Versus
Dr. Y.S. Parmar University ...Respondent
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CWPOA No.6873 of 2020
Ramesh Chand ...Petitioner
Versus
Dr. Y.S. Parmar University ...Respondent
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CWPOA No. 6875 of 2020
Raj Kumar ...Petitioner
Versus
Dr. Y.S. Parmar University ...Respondent
Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge
Hon'ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? Yes.
For petitioner(s): Mr. Dheeraj Kanwar, Advocate.
For respondent(s): Mr. Ramesh Chand Sharma,
Advocate.
Vivek Singh Thakur, Judge (Oral)
Petitioner(s) in all these petitions for involvement of
Whether reporters of Local Papers may be allowed to see the judgment?
similar issue to be decided on the basis of similar facts and
common law, as applicable to the matter, are being decided
together by this common judgment.
.
2. Petitioners have approached this Court for quashing of
office order dated 01.03.2018 [Annexure A-2] and to direct
the respondent-University to regularize their services on
completion of 8 years, from the date of their initial
appointment.
3.
Petitioners Balbir Singh, Raj Kumar and Ramesh Chand
had approached the erstwhile Himachal Pradesh State
Administrative Tribunal by filing OA Nos.5714, 5715 and
5721 of 2017, which were disposed of by the Tribunal vide
order dated 31.10.2017 directing the respondent-University to
confer the benefit to the petitioners in terms of judgment
dated 28.07.2010 passed by this High Court in CWP No.2735
of 2010 titled Rakesh Kumar vs State of HP, subject to
verification of facts and similarity of the petitioners to the
petitioners in Rakesh Kumar's case.
4. In sequel to the aforesaid order dated 31.10.2017
passed by the erstwhile Tribunal, respondent-University
through its Registrar vide even dated separate office orders
issued on 01.03.2018, had rejected the claim of the
petitioners.
5. Feeling aggrieved by the aforesaid rejection, petitioners
.
have filed present petitions before the erstwhile Tribunal in
the year 2018-19 which were transferred to this High Court
on abolition of the Tribunal and registered as present writ
petitions.
6. Undisputedly, petitioners were appointed on daily wage
basis as daily wagers in January 1995 and their services have
been regularized w.e.f. 01.04.2008.
7. Petitioners are claiming benefit of regularization after 8
years of service in terms of the policy of the State Government
in the year 1997, 1998, 1999, 2000 and 2006.
8. In response to the petitions, respondent-University has
taken the stand that regularization of petitioners against
category (D) post, has been done from due date in accordance
with policy framed for regularization of daily wage labourers
by the State Government and after completing all codal
formalities.
9. The extension of benefit of work-charge
status/regularization on completion of 8 years has been
opposed on the ground that University does not have work-
charge establishment.
10. It has been claimed by the University that petitioners
.
were regularized in the year 2008, in accordance with the
policy of the State Government in pursuant to the approval
received from the State Government.
11. Applicability of the policy of regularization formulated
and adopted by the State to the University has not been
12. to
disputed, rather stands admitted.
Though it has been stated in the reply that very nature
of the employment of the daily wage employees is temporary
in nature and they are appointed for execution of specific
work and their services automatically come to an end on
completion of the work, however, the said plea is not relevant
in the present matter because admittedly petitioners who
were engaged in the year 1995 were continuously engaged till
their regularization in April 2008 and, therefore, the work
which was available for more than 12 years, cannot be said to
be work available temporarily, leading to automatic
disengagement of the petitioners.
13. For justifying the denial of work-charge status to the
petitioners on completion of 8 years has also been opposed by
the learned counsel for the respondent-University by referring
judgments of the Supreme Court in State of Rajasthan vs
.
Kunji Raman, (1997) 2 SCC 517; Jaswant Singh & Ors. vs
Union of India & Ors, (1979) 4 SCC 440; State of
Maharashtra vs Purshottam & Ors., (1996) 9 SCC 266; and
judgment dated 28.07.2010 of the High Court passed in CWP
No.2735 of 2010, titled Rakesh Kumar & Ors. vs State of HP.
14.
Plea has also been taken on behalf of respondents that
in view of judgment in Jaswant Singh and others vs. Union
of India and others, (1979) 4 SCC 440, petitioner is not
entitled for the claim to confer work charge status upon him
on completion of requisite number of years as the University
was and is not having any work charge establishment.
15. Term "work-charge", in Jaswant Singh & Ors. vs Union
of India & Ors, (1979) 4 SCC 440; State of Maharashtra
vs. Purshotam and other (1996) 9 SCC 266; and State
of Rajasthan vs. Kunji Raman (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 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.
16. In the given facts and circumstances of present case,
.
judgment relied upon by the respondents pronounced in
Jaswant Singh's case, Purshotam's case and in Kunji
Raman's case (supra), are neither relevant nor applicable.
17. 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.
18. For the purpose of adjudication of present case, Policy
formulated by the respondents-State and approved by the
Supreme Court of India in Mool Raj Upadhyaya v. State of
H.P. & others, 1994 Supp (2) SCC 316 further explained in
Gauri Dutt & others v. State of H.P., Latest HLJ 2008
(HP) 366, and Regularization Policy framed and circulated by
the respondents-State in the year 2000, shall be relevant.
19. Policy approved by the Supreme Court in Mool Raj
Upadhyaya's case reads as under:
"4. Taking into consideration the facts and circumstances of the
case, we modify the said scheme by substituting paragraphs 1 to 4
of the same by the following paragraphs:
.
"(1) Daily-wage/muster-roll workers, whether skilled or
unskilled, who have completed 10 years or more of
continuous service with a minimum of 240 days in a
calendar year on 31-12-1993, shall be appointed as work-
charged employees with effect from 1-1-1994 and shall be
put in the time-scale of pay applicable to the
corresponding lowest grade in the government;
(2) daily-wage/muster-roll workers, whether skilled or
unskilled, who have not completed 10 years of continuous
service with a minimum of 240 days in a calendar year on
31-12-1993, shall be appointed as work-charged
employees with effect from the date they complete the said
period of 10 years of service and on such appointment they
shall be put in the time-scale of pay applicable to the
lowest grade in the government;
(3) daily-wage/muster-roll workers, whether skilled or
unskilled who have not completed 10 years of service with
a minimum of 240 days in a calendar year on 31-12-1993,
shall be paid daily wages at the rates prescribed by the
government of Himachal Pradesh from time to time for
daily-wage employees falling in Class III and Class IV till
they are appointed as work-charged employees in
accordance with paragraph 2;
(4) daily-wage/muster-roll workers shall be regularised in
a phased manner on the basis of seniority-cum-suitability
including physical fitness. On regularisation they shall be
put in the minimum of the time-scale payable to the
corresponding lowest grade applicable to the government
and would be entitled to all other benefits available to
regular government servants of the corresponding grade."
20. Right of regularization/work-charge status of a Daily-
Wage Worker, where the worker/employee has rendered
service, on daily-wage basis, on different posts in lower and
higher grades, has been explained in Gauri Dutt's case, as
under:
.
"18. The last question raises some interesting points. There have
been instances where some employee has worked as beldar for
some time and thereafter he has been engaged in a higher scale as
mate or supervisor etc. The Tribunal in most of these cases has
directed that the employee should be granted work charge status
in the higher post on completion of 10 years of service after
combining the service rendered in the lower scale and the higher
scale. The State is aggrieved by these directions. According to the
learned Advocate General the State has offered work charge status
to these employees on completion of 10 years of combined service
in the lower of the two scales and the State cannot be directed to
grant work charge status in the higher scale. On the other hand, it
is contended on behalf of the employees that since the employees
are already working in the higher scale, it would not be fair and
equitable to grant them work charge status in the lower scale.
19. We have considered the arguments from all angles. We are of
the view that the employee cannot be given the benefit of
combining service rendered in both the scales and be granted
work charge status in the higher scale. We do, however, feel that
at times it may be inequitable to grant the employee work charge
status in the lower scale without giving him an option in this
regard. We are giving two examples to illustrate two extreme
positions. In example (i) we will deal an employee (A) who joined
service on 1.1.1990. He works in the lower scale of beldar from
1.1.1991 to 31.12.1999. He is thereafter posted as Supervisor in
the higher scale. Should he be granted work charge status as
beldar or as Supervisor w.e.f. 1.1.2001? The other example is
converse. Supposing employee (B) has worked as beldar w.e.f.
1.1.1991 to 31.12.1991 and from 1.1.1992 he has worked as
Supervisor. From which date should we grant him work charge
status and in what scale? It is obvious that in the first case the
employee would not mind being granted work charge status even
in the lower scale after 10 years w.e.f. 1.1.2000 since grant of
work charge status would mean that he would get regular scale of
pay. But should the employee be granted work charge status in
the higher scale? We cannot agree with this preposition.
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20. After considering all the pros and cons and keeping in view the
fact that various anomalous situations may arise we are of the
considered view that when an employee completes 10 years of
continuous service combined in two scales, an option should be
given to the employee to either accept work charge status in the
.
lower scale or he may continue to work on daily rated basis in the
higher scale and claim work charge status in the higher scale on
completion of 10 years of continuous service in the said scale. In
the examples given above, employee (A) may prefer to accept work
charge status w.e.f. 1.1.2001 even in the lower scale of beldar
because otherwise he may have to wait for 9 years before he is
granted work charge status. On the other hand, employee (B) in
the second example may prefer to delay the grant of work charge
status by one year so that he can get work charge status in the
higher scale. We feel that in each case the choice should be left to
the employee. However, if the employee on being given a chance to
exercise his option does not convey his option within 30 days, he
shall be granted work charge status in the lower scale by
combining the service rendered in both the scales. This answers
the fourth question."
21. Relevant operative portion of orders dated 3.4.2000 and
6.5.2000, issued by Government of Himachal Pradesh,
notifying and circulating terms for regularization of daily-
wage workers in the year 2000, on completion of eight years
continuous service, are as under:
Order dated 3.4.2000:
"...................
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 Departments including
Public Works and Irrigation and Public Health Department (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
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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 dated 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."
Order dated 6.5.2000:
".................
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 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
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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'."
22. A Division Bench of this High Court in CWP No.2735 of
2010, titled as Rakesh Kumar v. State of H.P. & others,
decided on 28.7.2010, has held that till the new scheme, if
introduced, comes into being, the old scheme shall be in
force, and employees, till introduction of new scheme, shall be
entitled for benefits of previous scheme. In other words, on
introduction of new scheme, employees shall be entitled for
benefits of new scheme, particularly when applicability of
subsequent scheme is more beneficial to the employees than
the old scheme. The employees, who are governed by old
scheme, but are also governed under new scheme devolving
benefits better than earlier scheme, are definitely entitled for
benefits of the latest scheme.
23. With respect to ground taken by the respondents-
Department that Department is not having work-charged
establishment and, thus, benefit of period of service as a
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work-charged employee cannot be extended to the petitioners,
it is apt to record that in Mool Raj Upadhyaya's case an
affidavit was filed by the 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/was having work-charged
establishment or not.
24.
In Gauri Dutt's case, 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.
25. Upholding the order passed by the erstwhile H.P. State
Administrative Tribunal, a Division Bench of this Court, vide
judgment dated 10.5.2018, in CWP No.3111 of 2016, titled
as State of Himachal Pradesh v. Ashwani Kumar, has
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pronounced that work-charged establishment is not a pre-
requisite for conferment of work-charged status nor
conversion of work-charged employee into regular employee
.
would make such establishment non-existent.
26. Civil Appeal No.5753 of 2019, titled as State of H.P. vs.
Ashwani Kumar, preferred by the State in Ashwani
Kumar's case has been dismissed by the Supreme Court on
22.07.2019. Similarly, SLP (C) No. 8830-8869 of 2011
preferred by the State in Rakesh Kumar's case also stands
dismissed by the Supreme Court on 15.01.2015.
27. In response to plea that work-charged establishment
does not exist in the respondent-Department, learned counsel
for the petitioners has also referred pronouncements of this
High Court in cases CWPOA No. 5748 of 2019, titled 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 Ghanshyam Thakur
Vs. State of Himachal Pradesh and others; LPA No.151 of
2021, titled State of HP Vs. Beli Ram, decided on
- 15 -
09.08.2023; CWPOA No.5554 of 2019, titled Daulat Ram
vs. State of HP and others; CWPOA No.6468 of 2020 titled
Uggam Ram vs. State of HP and others decided on
.
09.11.2023; and CWPOA No.6151 of 2020 titled Rashid
Mohammed vs. State of HP and others decided on
13.06.2024; wherein similar plea of respondent-State did not
find favour of the Court.
28. According to pronouncement in Mool Raj Upadhyaya's
case, clarified in Gauri Dutt's case, work charge status was
to be conferred irrespective of existence of work charge
establishment. The said fact has not been considered in
Rakesh Kumar's case. In fact, in Rakesh Kumar's case,
this issue was not adjudicated but without considering Mool
Raj's case and without assigning any reason, a passing
observation was made. Whereas this issue has been
adjudicated and decided in subsequent judgment in Ashwani
Kumar's case. Therefore, observations made on this issue in
Rakesh Kumar's case are not binding especially when Civil
Appeal in Ashwani Kumar's case has been dismissed by
Supreme Court. Therefore, abolition or non-existence of work-
charge establishment in the respondent-Department has no
- 16 -
effect on the rights of petitioner 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.
29. For conferment of work-charged status, work-charged
establishment in the Department is not prerequisite. The
same has also been affirmed by the Principal Division Bench
of this Court in judgment dated 9.8.2023 passed in LPA No.
30. to
151 of 2021, titled State of H.P. & another Vs. Beli Ram.
The aforesaid principle has also been affirmed in
CWPOA No.6710 of 2020, titled as Ram Singh & others vs.
State of H.P. & others, decided on 08.09.2023; CWPOA
No.6614 of 2020, titled as Ram Singh vs. State of H.P. &
others, decided on 23.11.2023; CWPOA No.6217 of 2020,
titled as Pawan Kumar vs. State of Himachal Pradesh &
others; and CWPOA No.7497 of 2020, titled as Pritam
Singh vs. State of H.P. & others, decided on 29.07.2024.
31. 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
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time gap between two Policies, learned counsel for the
petitioners has referred pronouncement of this Court in CWP
No. 2415 of 2012, titled as Mathu Ram Vs. Municipal
.
Corporation and others, decided on 31.7.2014.
32. Judgment of Single Bench passed in Mathu Ram's
case has been affirmed by a Division Bench in LPA No. 44 of
2015, titled as Municipal Corporation, Shimla & others
vs. Mathu Ram, decided on 13.10.2015.
33.
Conclusion of verdict of Mathu Ram's and Rakesh
Kumar's cases, with respect to gap between issuance/
formulation of two policies, is that previous policy/scheme
shall remain in force till issuance/ formulation/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
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requisite number of years prescribed in the Policy/Scheme.
34. 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. Present case is also an example of such
practice.
35. So far as regularization of petitioners is concerned, that
may depend upon the availability of post, but for conferring
work charge status, existence of post or existence of work
charge establishment is not necessary and, therefore, plea on
this count to deny conferment of work charge status upon the
petitioners, on completion of 8 years, is also not tenable.
36. In view of above discussion, we are of the considered
opinion that there is merit in the claim of the petitioners and
plea of the respondent-University to oppose the same, is liable
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to be rejected.
37. Accordingly, respondent is directed to confer the work-
charge status/regularization, as the case may be, from
.
completion of 8 years of regular daily wage service from initial
date of appointment i.e. January 1995 and issue appropriate
order for the said purpose by conferring the status upon the
petitioners from 01.01.2003 with all consequential benefits.
Appropriate order extending consequential benefits be issued
on or before 15.10.2024. Consequential monetary benefits be
disbursed to them within four weeks thereafter.
All the petition(s) are allowed and disposed of in
aforesaid terms.
(Vivek Singh Thakur)
Judge
(Ranjan Sharma)
Judge
September 04, 2024
(Chiranjeev)
