Himachal Pradesh High Court

Bhagat Ram vs State Of Himachal Pradesh And Others on 4 September, 2024

Author: Vivek Singh Thakur

Bench: Vivek Singh Thakur

2024:HHC:8283 REPORTABLE

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPOA No.6667 of 2020 along with CWPOA Nos.7478, 7480, 7506, 7543 and 7612 of 2020

Decided on: 04.09.2024 __________________________________________________________

1. CWPOA No.6667 of 2020 Bhagat Ram .....Petitioner

Versus

State of Himachal Pradesh and others ......Respondents

2. CWPOA No.7478 of 2020 Bhag Mal .....Petitioner Versus

State of H.P. and others ......Respondents

3. CWPOA No.7480 of 2020 Bhagi Ram .....Petitioner

Versus

State of H.P. and others ......Respondents

Sher Singh .....Petitioner Versus

State of H.P. and others ......Respondents

Vidhu Ram .....Petitioner Versus

State of H.P. and others ......Respondents

AND

2024:HHC:8283 -2- REPORTABLE

Subhash Chand .....Petitioner

Versus

State of H.P. and others ......Respondents

Coram Hon'ble Mr. Justice Vivek Singh Thakur, Judge

Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? Yes

For the petitioner(s): Mr. Sanjeev Bhushan, Senior Advocate with Mr. Rajesh Kumar, Advocate, in CWPOA No.6667 of 2020.

r Mr. Kishore Pundeer, Advocate vice

Mr. Shriman Vishwnath Bhardwaj, Advocate, in CWPOA Nos.7478, 7480 and 7506 of 2020 and Mr. Kishore Pundeer, Advocate, in

CWPOA No.7543 of 2020.

Mr. Ashok Kumar Verma, Advocate, in CWPOA No.7612 of 2020.

For the respondents: Mr. Vishav Deep Sharma, Additional

Advocate General, in CWPOA No.6667 of 2020.

Mr. P.K. Nadda, Additional Advocate General, in CWPOA Nos.7478, 7480 and 7506 of 2020.

Mr. Hemant K. Verma, Deputy Advocate General, in CWPOA Nos.7543 and 7612 of 2020.

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

2024:HHC:8283 -3- REPORTABLE

Vivek Singh Thakur, Judge [Oral]

All these petitions, for involvement of issue

to be decided on the basis of similar facts and common law,

are being decided by this common judgment.

2. Petitioners were appointed by the respondents-

departments, i.e. HPPWD and IPH, on various dates during

the years 1991 to 1999. Common grievance of the

petitioners is that after their initial engagement as daily

wagers, they were not permitted to complete 240 days in

each calendar year in order to deprive them from benefit of

regularization after completion of requisite years of service

as per Regularization Policy formulated and adopted by the

State of HP/Departments from time to time.

3. It is further case of petitioners that after certain

period, they were allowed to complete 240 days daily waged

service in each calendar year and resultantly,

regularization of their services was delayed for belated

completion of requisite period of prescribed daily waged

service with 240 days in each calendar year. Some of

petitioners are still in service, whereas some of them stood

retired on attaining the age of superannuation.

               2024:HHC:8283         -4-      REPORTABLE

    4.          Petitions   have          been       repelled          by       the

Departments by filing response with submissions that it

was not the Department which gave breaks/artificial

breaks to petitioners for depriving them from benefits of

regularization policy by not allowing them to complete 240

days in each calendar year but it were petitioners who

themselves worked intermittently as per their convenience

and, therefore, they are not entitled for benefit of service

rendered by them for the years in which they did not work

for 240 days in each calendar year.

5. It has also been submitted on behalf of

respondents-Departments that though work charge

establishment was available in IPH and PWD Departments

earlier but after abolition of work-charge establishment in

said Departments, petitioners are not entitled for

conferment of work charge status on completion of

requisite years but are entitled for regularization only

subject to availability of vacancy, on the basis of which they

have been regularized from the dates of their respective

regularization as per Policy.

6. Though it has been claimed by Departments

2024:HHC:8283 -5- REPORTABLE

that petitioners themselves worked intermittently from their

initial appointments till the years since when they

completed 240 days in each calendar year but to

substantiate such stand nothing has been placed on

record. It is not a case of Departments that no work was

available and despite issuing notice or calling upon by the

Departments, petitioners did not join their duty as daily

wagers. There is nothing on record to indicate that at any

point of time, any action was ever taken by Departments

against the petitioners asking them to join the duty despite

availability of work and funds.

7. Respondents-Departments have not placed on

record any material, including Muster Rolls etc. of the

relevant period during which, according to Departments,

petitioner(s) intermittently absented from the work at their

own, to establish their claim that petitioner(s), despite

availability of work, did not attend the work. It is not case

of the respondents-Departments that work was not

available and, therefore, petitioner(s) were not engaged or

remained absent, rather it is claim of the Departments that

petitioner(s), at their own absented from duty. The said fact

2024:HHC:8283 -6- REPORTABLE

could have been established by the Departments by placing

on record relevant material, including Muster Roll,

indicating absence of the petitioner(s) but availability of

work as well as presence of others who were allowed to

continue to work during those days.

8. In view of above, stand of Departments that

petitioners themselves did not attend the work during

initial years of their engagement appears to be an

afterthought to justify the artificial breaks given to

petitioners to avoid financial liability for which otherwise

petitioners would have been entitled for working 240 days

in each calendar year during their initial years.

9. It has been contended by learned counsel for

petitioner(s) that issue involved in present case is squarely

covered by judgment dated 30th August, 2017 passed by a

Division Bench of this Court in LPA No. 645 of 2011

titled as State of HP vs. Keshav Ram; judgment dated

14th December, 2009 passed in CWP No. 4489 of 2009

titled Ravi Kumar vs. State of HP; judgment dated

10.05.2018 passed in CWP No. 3111 of 2016 titled State

of HP vs. Ashwani Kumar and also judgment dated

2024:HHC:8283 -7- REPORTABLE

28.11.2023 passed in CWPOA No. 6089 of 2020 titled

Dharam Chand vs. State of HP.

10. 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 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.

11. Civil Appeal No.5753 of 2019, preferred by

State in Ashwani Kumar's case has been dismissed by the

Supreme Court on 22.07.2019.

12. It is well settled in various pronouncements of

this High Court that for conferring Work Charge status on

a daily waged worker on completion of requisite years,

existence of work charge establishment in the Department

is not necessary.

13. In this regard, it is apt to record that in

Mool Raj Upadhyaya vs. State of H.P. and others, 1994

Supp. (2) SCC 316, an affidavit was filed by the Chief

2024:HHC:8283 -8- REPORTABLE

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.

14. Term "work-charge" in Himachal Pradesh is

used in different context, than work-charge status in other

States. 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 daily-wage service and

regularization, which is interregnum altogether different

2024:HHC:8283 -9- REPORTABLE

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.

15. 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.

16. In response to plea that work-charged

establishment does not exist in the respondent-

2024:HHC:8283 - 10 - REPORTABLE

Department, learned counsel for the petitioner has also

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, LPA No.151 of 2021,

titled State of HP vs. Beli Ram, decided on 09.08.2023,

CWPOA No.5554 of 2019, titled Daulat Ram vs. State

of HP and others, wherein similar plea of respondent-

State did not find favour of the Court.

17. According to pronouncement in Mool Raj

Upadhyaya's case, clarified in Gauri Dutt and others vs.

State of HP reported in Latest HLJ 2008(HP) 366, work

charge status was to be conferred irrespective of existence

of work charge establishment. The said fact has not been

considered in judgment dated 28.07.2010, passed in CWP

No. 2735 of 2010 titled as Rakesh Kumar vs. State of

HP and others. In fact, in Rakesh Kumar's case, this

2024:HHC:8283 - 11 - REPORTABLE

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 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.

18. For conferment of work-charged status, work-

charged establishment in the Department is not

prerequisite. The same has 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. 151 of 2021,

titled State of H.P. & another Vs. Beli Ram.

19. The aforesaid principle has also been affirmed

2024:HHC:8283 - 12 - REPORTABLE

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; and CWPOA No.6217 of 2020, titled as

Pawan Kumar vs. State of Himachal Pradesh &

others."

20. In similar circumstances, learned Single Judge

of this High Court in CWP No.352 of 2019, titled as

Keshav Ram v. State of Himachal Pradesh, decided on

1.7.2020, after taking into consideration judgments passed

in CWP(T) (CWPOA) No.8145 of 2008, titled as Beli Ram

v. State of H.P. and others decided on 02.06.2009; and

CWP(T)(CWPOA) No.8143 of 2008, titled as Layak Ram v.

State of H.P. and others, decided on 15.6.2009, has

ordered that petitioner therein shall be deemed to have

completed 240 days during years 2001 and 2002 also, in

which years he was not allowed to complete 240 days, with

further direction to regularize the services of the petitioner

with all consequential benefits from the date of completion

of 8 years' service, counting the same from initial date of

2024:HHC:8283 - 13 - REPORTABLE

appointment.

21. Similar directions were passed by learned

Single Judge of this High Court vide judgment dated

09.07.2010, passed in CWP(T) (CWPOA) No.5752 of 2008,

titled as Keshav Ram v. Secretary IPH & others,

directing the respondents-Departments that petitioner shall

be deemed in continuous service from the date of his initial

engagement after ignoring the fictional breaks given to the

petitioner therein from the year 1994, with further

observation that the petitioner shall be entitled to all

consequential benefits of continuous service of period from

the date of initial appointment.

22. Judgment passed in CWP(T) (CWPOA) No.5752

of 2008, titled as Keshav Ram v. State of Himachal

Pradesh, was assailed by the State of Himachal Pradesh by

filing LPA No.645 of 2011, titled as State of H.P. &

others v. Sh. Keshav Ram, which was dismissed by a

Division Bench of this High Court vide judgment dated

30.8.2017, by considering the judgment of the Supreme

Court in Mohd. Abdul Kadir and anr. v. Director

General of Police, Assam and others, (2009) 6 SCC 611,

2024:HHC:8283 - 14 - REPORTABLE

with observation which reads as under:-

"9. During proceedings of the case, it is also brought to our notice that SLP(C) bearing No.21833 of 2010 having been preferred by the respondents against the similar judgment passed by the Division Bench of

.

this Court in CWP(T) No. 1807 of 2009, titled Satish

Kumar vs. State of HP and Ors. and LPS (Civil) No. 20740 of 2008 titled Sarvjeet vs State of HP and Ors, stand dismissed and as such, judgment passed by the Division Bench of this Court in CWP No. 4367 of 2009,

wherein directions were issued to respondents to condone the shortage of few days in a particular year while calculating 240 days, has attained finality. Learned Additional Advocate General was not able to dispute the factum as brought to our notice with regard

to dismissal of the aforesaid SLP preferred by the respondents-State.

10. Leaving everything aside, after having carefully perused the impugned judgment, we find that

judgment impugned before us is squarely based upon

law laid down by the Hon'ble Apex Court, in Mohd. Abdul Kadir case supra and as such, there is no scope of interference by this Court."

23. In CWP No.4489 of 2009, titled as

Ravi Kumar v. State of H.P, decided on 14.12.2009, a

similar view has been taken by a Division Bench of this

High Court.

24. By relying upon Mohd. Abdul Kadir's [(2009)6

SCC 11] Keshav Ram's (CWP No.3111 of 2016) and

Ashwani Kumar's cases, similar period of artificial breaks

during few years, after initial appointment of the petitioner,

was also directed to be condoned by a Division Bench of

2024:HHC:8283 - 15 - REPORTABLE

this High Court in CWPOA 6089 of 2020, titled as

Dharam Chand v. H.P. State and others, decided on

28.11.2023.

25. After going through the pleadings in the

petitions as well as reply(ies) thereto and documents placed

on record and also on perusal of judgments, referred supra,

it is undisputed that present matters are squarely covered

by aforesaid judgments passed in Keshav Ram, Ravi

Kumar, Ashwani Kumar and Dharam Chand's cases.

(1). CWPOA No.6667 of 2020 titled Bhagat Ram Versus State of Himachal Pradesh and others

26. Petitioner in this petition was engaged as daily

waged Beldar in January, 1991 in IPH, Sub-Division

Matyana, District Shimla. During that year, he completed

295 days. He was dis-engaged in the year 1992 and was re-

engaged in the year 1996. From year 1996 onwards, he

continued till August 1999. In the year 1999, he was again

dis-engaged whereupon, he raised an industrial dispute

under Industrial Disputes Act and during

that process in conciliation proceedings, respondent-

Department had agreed to continue the petitioner and,

2024:HHC:8283 - 16 - REPORTABLE

as such, he was allowed to continue as daily wager since

1998 till his regularization on 21.09.2011 and stands

retired on 30.09.2015.

27. In aforesaid circumstances, petitioner has

approached this Court, seeking direction to the

respondents to extend benefit of service to him, at-least

from 1998, after condoning artificial breaks given to him by

conferring regularization/work charge status upon the

petitioner r along with consequential benefits w.e.f.

01.01.2005.

The man-days Chart of petitioner [Bhagat Ram] in CWPOA No.6667 of 2020, titled Bhagat Ram Versus State of H.P. and others.

Years 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001

Mandays 295 90 0 0 0 127 168 233 225 207 218

Years 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 -

Mandays 364 365 366 365 361 361 366 363 365 261 -

Artificial Aug., 1996 1997 1998 1999 2000 2001 breaks year-wise

of days

(2). CWPOA No.7478 of 2020 titled Bhag Mal Versus State of H.P. and others

28. Petitioner in this petition was engaged as daily

2024:HHC:8283 - 17 - REPORTABLE

waged Beldar in June 1998 in IPH, Division Padhar,

District Mandi. In the years 1998 and 1999, petitioner had

worked for 50 and 56 days, respectively. In 2000, he was

engaged for 177 days and, therefore, his initial date of

engagement is being considered from 01.01.2000. He was

regularized on 17.02.2012 and stands retired on

31.07.2020.

29. In this petition, petitioner has prayed to direct

the respondents to extend the benefits of service from

initial engagement or at-least w.e.f. the year 2000 after

condoning artificial breaks given to him by conferring

regularization/work charge status upon the petitioner

along with consequential benefits from 01.01.2007.

The man-days Chart of petitioner [Bhag Mal] in CWPOA No.7478 of 2020, titled

Bhag Mal Versus State of H.P. and others.


      Years      1998    1999   2000   2001   2002     2003   2004   2005     2006      2007     2008





    Mandays       50      56    177     63    224      267    352     339         331   365      366





      Years      2009    2010   2011   2012    -        -      -       -           -     -        -

    Mandays      356     334    334     48              -      -       -           -     -        -



    Artificial    1998          1999          2000            2001         2002              -
     breaks
    year-wise

    Number         50            56           177              63           224              -
    of days





                      2024:HHC:8283              - 18 -         REPORTABLE

    (3).    CWPOA No.7480 of 2020 titled Bhagi Ram Versus
            State of H.P. and others

30. Petitioner in this petition was engaged as

daily waged Beldar 01.12.1997 in IPH, Division Padhar,

District Mandi. He was regularized on 09.03.2007 and

stands retired on 31.05.2024.

31. In this petition, petitioner has prayed to direct

the respondents to extend the benefits of service from

initial engagement from the year 1998, after condoning

artificial breaks given to him by conferring regularization/

work charge status upon the petitioner along with

consequential benefits from 01.01.2006.

The man-days Chart of petitioner [Bhagi Ram] in CWPOA No.7480 of 2020, titled Bhagi Ram Versus State of H.P. and others.




    1998    1999     2000   2001   2002    2003      2004        2005       2006       2007   2008    2009

     178      231    295    334    303.5   333      348.5         355       346        343    318.5    254




    2010         -    -      -       -      -            -          -       -      -          -





     78          -    -      -              -            -          -       -      -          -



    Artificial       1998          1999                  -              -               -





     breaks
    year-wise


    of days




    (4).    CWPOA No.7506 of 2020 titled Sher Singh Versus
            State of H.P. and others

32. Petitioner in this petition was engaged as

2024:HHC:8283 - 19 - REPORTABLE

daily waged Beldar 21.11.1994 in IPH, Division Padhar,

District Mandi. He was regularized on 19.01.2007 and is

continuing in service till date.

33. In this petition, petitioner has prayed to direct

the respondents to extend the benefits of service from

initial engagement after condoning artificial breaks given to

him by conferring regularization/work charge status upon

the petitioner along with consequential benefits from

01.01.2003. r

34. Though, petitioner was engaged in November,

1994, but his initial engagement for the purpose of

considering benefit is to be taken into account from

01.01.1995.

The man-days Chart of petitioner [Sher Singh] in CWPOA No.7506 of 2020, titled

Sher Singh Versus State of H.P. and others.


    1995   1996    1997    1998   1999   2000   2001        2002       2003   2004   2005   2006





    183     256     333    359    365    354    329          365       363    366    363     365





    2007     -       -      -      -      -         -         -         -      -      -

     18      -       -      -             -         -         -         -      -      -



      Artificial    1995           -                -              -           -
    breaks year-
        wise


     Number of       183           -
       days





                    2024:HHC:8283            - 20 -      REPORTABLE

(5). CWPOA No.7543 of 2020 titled Vidhu Ram Versus State of H.P. and others

35. Petitioner in this petition was engaged as

daily waged Beldar 21.06.1994 in IPH, Division Padhar,

District Mandi. He was regularized on 22.10.2007 and

stands retired on 28.02.2022.

36. In this petition, petitioner has prayed to direct

the respondents to extend the benefits of service from

initial engagement after condoning artificial breaks given to

him by conferring regularization/work charge status upon

the petitioner along with consequential benefits from

01.01.2003.

37. Though, petitioner was engaged in June, 1994,

but his initial engagement for the purpose of considering

benefit is to be taken into account from 01.01.1995.

The man-days Chart of petitioner [Vidhu Ram] in CWPOA No.7543 of 2020, titled

Vidhu Ram Versus State of H.P. and others.

    1996   1997    1998    1999   2000   2001   2002     2003    2004      2005   2006    2007

     78     122    256     250    366    303    325       305     336      304     332    294





      Artificial    1995          1996                              1997
    breaks year-
        wise


       days

(6).CWPOA No.7612 of 2020 titled Subhash Chand Versus State of H.P. and others

38. Petitioner in this petition was engaged as

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daily waged Beldar 06.07.1999 in HPPWD National

Highway Division, Jogindernagar, District Mandi. He was

regularized on 25.09.2018 and is continuing in service till

date.

39. In this petition, petitioner has prayed to direct

the respondents to extend the benefits of service from

initial engagement after condoning artificial breaks given to

him by conferring regularization/work charge status upon

the petitioner along with consequential benefits from

01.01.2008.

40. Though, petitioner was engaged in July, 1999,

but his initial engagement for the purpose of considering

benefit is to be taken into account from 01.01.2000.

The man-days Chart of petitioner [Subhash Chand] in CWPOA No.7612 of 2020,

titled Subhash Chand Versus State of H.P. and others.

1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

85 217 173 155 154 145 154 157 212 366 362 354

2011 2012 2013 2014 2015 2016 2017 2018 - - -

365 324 363 362 363 364 359 90 - - -

Artificial 1999 2000 2001 2002 2003 2004 2005 2006 2007 breaks year-

        wise


    Number of       85      217          173       155       154        145     154    157     212
      days





                 2024:HHC:8283           - 22 -      REPORTABLE

41. Undoubtedly, issues involved and pleadings

in present matters are similar to the cases in

Keshav Ram, Ashwani Kumar, Dharam Chand and

Ravi Kumar, referred supra, therefore, reasoning assigned

in those judgments for allowing the petitions, are also

applicable mutatis mutandis for all intents and purposes in

the present matters, as also submitted and admitted by

learned counsel for petitioner(s) and learned Additional/

Deputy Advocates General.

42. Similar petition, being CWPOA No.7438 of

2020, titled Gopal Singh Versus State of HP & others

along with connected matters, have also been allowed by