Himachal Pradesh High Court

Shiv Kumar vs State Of H.P. & Ors on 27 February, 2025

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP Nos.7744 and 8074 of 2024

Decided on: 27th February, 2025 _________________________________________________________________

1. CWP No. 7744 of 2024

Shiv Kumar ....Petitioner

Versus State of H.P. & Ors. ...Respondents _________________________________________________________________

2. CWP No. 8074 of 2024

Pawan Kumar ....Petitioner

Versus State of H.P. & Ors. ...Respondents _________________________________________________________________ Coram Ms. Justice Jyotsna Rewal Dua 1Whether approved for reporting?

_________________________________________________________________ For the petitioners: Ms. Shipra Thakur, Advocate vice Mr. Vasu Sood, Advocate.

For the respondents: Mr. L. N. Sharma, Additional Advocate General.

Jyotsna Rewal Dua, Judge

These two writ petitions raise common questions

of law, hence, are taken up together for decision. For

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

convenience, facts from CWP No. 7744 of 2024 (Shiv Kumar

Vs. State of HP and Ors.) are being referred to hereinafter.

2. The case set-up by the petitioner is that: -

2(i) Petitioner was engaged as daily rated worker on

muster roll in the respondent-Forest Department in the year

2006. He served as such till the year 2015. Thereafter, his

employment status was altered on 'bill basis'. Petitioner

continues to serve in the respondent-Forest Department on

'bill basis'.

2(ii) Petitioner has rendered over 240 working days in

each calendar year of his service.

Petitioner's grievance is that the respondents have

till date not regularized his service.

3. Respondents in their reply have refuted the

factual assertions of the petitioner. According to the

respondents, petitioner was engaged as Mazdur to carry out

seasonal forestry work in the year 2012 and not in the year

2006; Petitioner eversince 2012 has been executing the work

as Mazdur in the Department, but on bill basis and for

seasonal forestry works; Petitioner never completed 240

days of continuous service in any calendar year; Forest

Department does not engage any labour either on muster roll

basis or by any other means; The works are to be carried

out on bill basis and such payment is made as per the work

carried out on scheduled rates. Such payment is not on daily

wage basis.

Respondents have denied the claim of the

petitioners for regularization. According to the respondents,

petitioners were not working against any sanctioned post;

they were engaged on bill basis, therefore, their services

cannot be regularized.

4. Heard learned counsel for the parties and

considered the case file.

4(i). In Pyare Lal Vs. State of HP & Ors.2,

respondents' contention for denying regularization to the

petitioner therein, on the ground of his engagement being on

bill basis was turned down. Engagement on bill basis was

held to be not a determinative factor. Respondents were

directed to consider the case of the petitioner, therein, for

regularization in terms of the State policy after taking into

consideration the period for which the petitioner therein had

worked with the respondents irrespective of the manner in

CWP No. 1529 of 2020, decided on 08.08.2023

which he was paid. Relevant paras from the decision are as

under: -

"6. In the case in hand, the respondents have submitted that the petitioner has not worked for 240 days in any calendar year. They have not submitted the mandays charge, showing the engagement of the petitioner per year since 2010. The only material placed on record is the details provided in Annexure R-3, which leads to no conclusion, as from this document, it cannot be inferred that for how many days, the petitioner has worked in a particular year.

7. As regards the contention of the respondents that the petitioner has been engaged on bill basis will not be the determining factor. In Vikram Singh vs. State of H.P. & others, CWPOA No. 6748 of 2019, decided on 22.7.2022, this Court had examined the implication of payment of hourly basis to a workman vis-à-vis his entitlement for regularization on the basis of his continuous service as daily wager. It has been held that the relevance would be attached to the total working period irrespective of the manner in which the payment was made by the employer.

8. In light of above discussion, the petition is allowed with direction to the respondents to consider the case of the petitioner for regularization in terms of the policy of the State Government by taking into consideration the entire period after January, 2010 for which the petitioner has worked with the respondents irrespective of the manner in which he was paid. The entire exercise in terms of this order including the passing of final order shall be completed by respondent No.3 within a period of two months from the date when a copy of this order is

submitted before such authority. Pending applications, if any, also stand disposed of."

Office order dated 24.06.2024 placed on record as

Annexure R-5, reflects that the respondents implemented the

above decision and considered the period of service rendered

by the petitioner, therein, on bill basis, for the purpose of his

claim for regularization of services. The claim was though

rejected eventually on the ground that the petitioner, therein,

was found to have not completed 240 days during the years

in question.

4(ii) In Ram Singh Vs. State of Himachal Pradesh

and Others3, it was held that distinction being created by

the respondents between a daily waged and a bill based

worker is violative of Article 14 of the Constitution of India.

That there was no intelligible differentia between a daily

waged and bill based worker. The right of regularization in

terms of the policy of the State Government cannot be denied

on the count that nomenclature of the service is not that of a

daily wager, but a bill based worker. Paras appropriate to

context go as under:-

"5. It is not in dispute that the petitioner is serving with the respondents-Department since 2015

CWP No. 789 of 2024 decided on 04.07.2024

continuously by putting in more than 240 days in each calendar. It appears that in order to deny such kind of workmen, the benefits of regularization, respondent-State has come with the nomenclature of "bill basis" but, fact of the matter still remains that be it a daily wager or a bill basis worker, he is serving the Department regularly putting in more than 240 days in each calendar. It could be disputed before the Court that at the time when the writ petition was filed in terms of the policy of the State Government in vogue, right of regularization accrued upon a person post completion of 5 years of continuous service. Said policy dated 22.04.2020 on the subject regularization of daily waged workers/contingent paid workers is on record appended with the rejoinder as Annexure P-8.

6. This Court of the considered view that the distinction, which is now being created by the respondents-Department between a daily wage worker and a bill base worker is violative of Article 14 of the Constitution of India. Be it a daily wage worker or a bill base worker, he is rendering the same service to the Department. Therefore, in the absence of their being any intelligible differentia between a daily wage worker and bill base worker, the classification that has been made by the Department cannot pass the touch stone of Article 14 of the Constitution of India. The right of regularization in terms of the policy of the State Government dated 22.04.2020, cannot be denied to the petitioner simply on the count that now his nomenclature is not that of a daily wager, but a bill worker. In case, the petitioner fulfills the criteria of regularization made in Annexure P-8, then, he also

has a right to be conferred regularization and the same cannot be defeated simply on the basis of the nomenclature that now stands assigned to him by the respondent."

Similar is the ratio of the decision in Neter Singh

Vs. State of Himachal Pradesh & Ors.4.

In view of above legal position, which has been

accepted by the respondent-Forest Department, mere

nomenclature of engagement as on bill basis instead of

working on daily wage basis, cannot be taken against the

claim of the petitioners to be considered for regularization of

their services in accordance with the applicable policy. The

aforesaid legal position has been accepted by the respondents

and implemented as well in Pyare Lal's2 case. However,

comprehensive data about the number of days served by the

petitioners in the respondent-Forest Department is not