Bhagat Ram And Others Vs State Of Himachal Pradesh And Others

Vivek Singh Thakur, J

1. 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.

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 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 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 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 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 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-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 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 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 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, 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 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, 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 along with consequential benefits w.e.f. 01.01.2005.

 (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 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.

 (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.

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

32. Petitioner in this petition was engaged as 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.

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.

 (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.

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

38. Petitioner in this petition was engaged as 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.

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 this High Court, vide judgment dated 22nd August, 2024.

43. Accordingly, in view of aforesaid discussion, respondents are directed to condone all respective break period of petitioners with effect from their initial appointment the year indicated [supra] till the year they were allowed to complete 240 days in each calendar year and count their service from the initial date of engagement the year indicated in relevant case for continuity in service, seniority and confirming the work charge status/regularization of service from the date of completion of 8 years with effect from their initial appointment along with consequential benefits. The amount, if already paid, shall be adjusted against the arrears payable to petitioner.

Petitions stand disposed of accordingly including all pending miscellaneous application(s), if any.