Allowed

Nand Lal v. State of Hp

Himachal Pradesh HC2 Nov 2023CWPOA/6809/2020

Case brief

AI extract

What is this about?

High Court held a daily wage worker entitled to work charge status upon eight years of service, ruling that absence of a work charge establishment or department-specific communication do not bar conferment and denying relief to similarly situated employees violates Article 14.

What did the court decide?

Respondents directed to grant work charge status from Jan 1, 2001, with consequential benefits restricted to three years prior to filing.

Nand Lal Vs State of Hp — Pension and Retirement Benefits | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CWPOA No: 6809 of 2020 Decided on: 02.11.2023

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Nand Lal ...Petitioner

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Versus

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State of Himachal Pradesh & Ors

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,,.Respondents

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Coram

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HON'BLE MR. JUSTICE RANJAN SHARMA, JUDGE

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WHETHER APPROVED FOR REPORTING? Yes

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For the petitioner : Mr. D.K. Khanna, Advocate. For the respondents : Mr. Rajan Kahol, Additional Advocate General.

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Ranjan Sharma, (Oral)

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Petitioner, Nand Lal, who served as a Daily

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Wage Worker and was regularized thereafter has filed the

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instant petition, seeking the following reliefs:-

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“7(i) That the respondents be directed to grant regularization of the service to the applicant after completion of 8 years of service w.e.f.01-03-2000 instead of 10.10.2007 or any other date which this Hon’ble Court may deem fit with all consequential benefits including seniority, continuity, annual increments, earned leave and all other consequential benefits including arrears accruing thereon on this account.

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7(ii). That the respondents may be directed to grant work-charge status to the applicants after 8 years of service w.e.f. 01.03.2000 with all consequential benefits including seniority, continuity, annual increments, earned leave and all other consequential benefits including arrears accruing thereon on this account.”

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FACTUAL MATRIX:

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2. Case of the petitioner, as submitted by learned

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counsel for the petitioner is that, he is working as Daily Wage Worker in Pangi Forest Division at Killar, District Chamba, H.P. i.e. tribal area from the year 1993, which is borne out from the mandays of

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the petitioner, as in Annexure R-IV hereinbelow.

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Sr. No.	Name of Regular/Daily wager	Address	Manday	s Chart	Remarks
3.	Nand Lal,	Village &	1993	165	Regularized
	Forest Worker	P.O. Purthi, Tehsil	1994 1995	201 176	as Forest Worker
		Pangi,	1996	200
		District	1997	188
		Chamba,	1998	228
		H.P.	1999	261
			2000	229
			2001	212
			2002	228
			2003	210
			2004	202
			2005	180
			2006	194

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2(i) Learned counsel for the petitioner submits

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that since the petitioner had worked on Daily Wage Basis in the tribal area and has rendered a minimum of 160 days in each calendar year [as per mandays, Annexure R-IV] and has completed eight years of continuous service as on 31.12.2000, therefore, the petitioner is eligible to be considered for grant of work charge status from the date of completion of eight years of continuous service w.e.f. 01.01.2001. Though the respondents have granted regularization to the petitioner on 10.10.2007, Annexure R-I, yet the petitioner is entitled to be granted the Work Charged Status w.e.f. 01.01.2001 till day, and the denial has resulted in depriving the petitioner of the higher status, higher pay scale, higher pay w.e.f. 01.01.2001 till regularization on 10.10.2007 and thereafter revised retiral benefits till day.

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STAND OF STATE AUTHORITIES IN REPLY :

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3. The respondents-State have filed a reply, stating that the petitioner was engaged as casual labourer in the year 1993 and he has been regularized by Respondent-Department, as per Government Policy

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vide DFO Pangi letter No.PF/2271,dated 10.10.2007,

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on the post of Forest Worker as per Annexure R-1. It is submitted that on the basis of regularization the petitioner joined his services on 12.10.2007 also. Learned Additional Advocate General submits that regularization on completion of eight years service is not automatic but the same is subject to availability of post on the basis of seniority-cum fitness besides other parameters. So far as the claim for conferment of Work Charged Status is concerned, it is averred

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that in the Forest Department, there is no work charge establishment/category and therefore, the claim is not tenable. It is further averred that the Work Charged Status cannot be given when, there is no work charge establishment in the Forest Department. It is further averred that the Work Charge Status was admissible in PWD and IPH departments in terms of the judgments in Mool Raj Upadhayaya 1994 [Supp

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(2) SCC 316] and the judgments in CWP 2735 of 2010 Rakesh Kumar versus State , against which SLP(C) No. 33570 of 2010 filed by State Authorities was also dismissed. Reply further states that Work

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Charged benefit granted in PWD and IPH Departments also stood abolished, in case of Class-III Workers in 2001 and in case of Class-IV Workers in the year 2005 and therefore as per the communication dated 24.09.2015, Annexure R-III , the State Government had taken a decision decided that the Forest Department does not have a Work Charge Establishment and in these circumstances, the claim for conferment of work charge status was not tenable and therefore, the State Authorities have prayed for dismissal of the writ

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petition.

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4. REBUTTAL BY PETITIONER-REJOINDER:

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The petitioner filed a rejoinder denying the

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averments contained in the reply, reiterating his claim for Work Charge Status w.e.f. the date of completion of eight years continuous service w.e.f. 01.01.2001, on the same analogy, on which, the Work

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Charged Status has been extended to other daily wagers of all departments, including PWD, IPH and Forest Department. It was averred that the Work Charge Status was denied, just to deprive the petitioner of the pensionary benefits, when, the Work-Charged

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service is countable for pension etc. During the course of hearing, the learned counsel for the petitioner submits

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that as per the mandate of law, in case of Mool

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Raj Upadhayaya and the policy dated 8.7.1999 and 6.5.2000 which remained in force till issuance

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of new policy on 09.06.2006, the work charge status was liable to be conferred on completion of 8 years of continuous service. Learned counsel further submits

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that as per mandate of law in the case of Mool

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Raj Upadhayaya, the work charge status was to be conferred on daily wagers in all departments therefore, the Government decision dated 24.09.2015, (Annexure R-

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III), in Forest Department that no work charge cadre

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exists is an attempt to overreach and defeat the mandate of law, in case of Mool Raj Upadhayaya and Ashwini Kumar which have attained finality and by vehemently submitting that Annexure R-III, dated 24.09.2015 cannot apply retrospectively, so as to deprive the petitioner of benefits w.e.f. 01.01.2001. .

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5. Heard Mr. D.K. Khanna, Learned Counsel for the petitioner and Mr. Rajan Kahol, Learned

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Additional Advocate General for the respondents.

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ANALYSIS OF CLAIM:

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6. In the instant case, the petitioner was engaged

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in the year 1993 and since 1993 he has completed eight years of continuous service on 31.03.2000 and therefore, the petitioner is entitled for conferment of work charge status w.e.f. 1.1.2001.

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DECISION FOR CONFERRING WORK CHARGE

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STATUS IN RESPONDENT STATE :

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6(i) Notably, once the petitioner had completed

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eight years of continuous service, then, the petitioner is entitled to be conferred the work charge status for which neither any sanctioned post nor any work charge establishment is required in the Respondent-

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Department. Notably, in Respondent State, the daily

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wagers and muster-roll workers who have rendered service for more than a decade or similar period were made to continue as such and were regularized, which was contingent upon the availability of vacancy and also subject to fulfilment of other parameters.

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However, in order to ameliorate this situation, the State Authorities, in recognition of their prolonged continuous service on daily wage basis, framed a

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Scheme for Betterment of daily wage and musterroll workers and this Scheme was approved by the Hon’ble Supreme Court in State of Himachal Pradesh

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versus Mool Raj Upadhayaya [1994 Supp (2) SCC 316] , providing for conferring Work Charge Status on completion of requisite continuous service [which was ten years of continuous service at the relevant time] and being a beneficial scheme, the same was made applicable to all government departments of the State.

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Even, applicability of this Scheme in all departments has been reiterated by the Division Bench of this

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Court in State of Himachal Pradesh versus Gauri

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Dutt [2008 HLJ HP 366], mandating to confer the work charge status to all the daily wage-muster roll workers, of all the departments, on completion of requisite years of continuous service, which was

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ten years, which came out to be eight years, from the year 1999 and 2000 till the issuance of the new policy in the year 2006.

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MANDATE OF LAW- PROVIDING FOR WORK CHARGE STATUS ON COMPLETION OF EIGHT

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YEARS CONTINUOUS SERVICE :

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6(ii) The claim of petitioner for conferment of Work Charge Status, carries weight, in view of the mandate of law of the Division Bench of this Court in CWP No. 2735 of 2010 titled as Rakesh Kumar versus S tate of Himachal Pradesh and Others and other connected matters, against which SLP (C) No. 33570 of 2010 titled as State of Himachal Pradesh and others versus Pritam Singh and others filed by the State Authorities was also dismissed, in the following terms.

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“6. The simple question is whether the delay defeats justice? In analyzing the above issue, it has to be borne in mind that the petitioners are only class-IV workers (Beldars). The schemes announced by the Government clearly provided that the department concerned should consider the workmen concerned for bringing them on the work-charged category. So, there is an obligation cast on the department to consider the cases of the daily waged workmen for conferment of the work-charged status, being on a work-charged establishment, on completion of the required number of years in terms of the policy. At the best, the petitioners can only be denied the interest on the eligible benefits and not the benefits as such, which accrued on them as per the policy and under which policy, the department was bound to confer

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the status, subject to the workmen satisfying

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the required conditions .”

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6(iii) The judgment in the case of Rakesh Kumar

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(supra) pronounced by the Division Bench of this Court, is otherwise binding on this Court. It is more than settled that judicial propriety demands that a binding decision to which an attention has been drawn should neither be ignored nor be overlooked, whereas, the judgment rendered by the learned Division Bench in Rakesh Kumar’s case (supra) clearly deals with the claims of daily waged workers seeking work charge status/regularization which deals with an identical situation regarding conferment of work charge status, as in the instant case.

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6(iv) It needs to be observed that while dealing with the rights of poor workman, the role of Courts is that of a sentinel for protection of fundamental/ legal rights of weak and down-trodden, which cannot be permitted to be scuttled by an employer solely on the ground of delay and laches or the like. The prayer for conferment of Work Charged Status, in terms of

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the mandate of the law in Mool Raj Upadhayaya

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and the policies framed on 8.7.1999 and then on 6.5.2000 providing for conferment of work charged status on completion of 8 years continuous service on daily wage, which remained in vogue till issuance of new policy on 9.6.2006 therefore, the fundamental right of consideration and conferment of resultant work charged status on completion of 8 years of continuous service cannot be permitted to be defeated/denied to the petitioner, merely, on plea of delay or such like pleas, more particularly, when this Court is of the opinion, that it is inaction of respondents that has formed basis of such delay in instant case also.

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6(v) In the background of the facts, referred to above, it is relevant to take note of the mandate of law in CWP No. 3111 of 2016 titled as State of Himachal Pradesh versus Ashwani Kumar , which was further upheld by the Hon’ble Apex Court also Para 6 of the judgment in Ashwani Kumar’s case (supra) reads as under:

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Having carefully perused material available on record, especially judgment rendered by this Court in Ravi Kumar v. State of H.P. and Ors, as referred herein above, which has been further upheld

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by the Hon’ble Apex Court in Special Leave to appeal (C) No. 33570//2010 titled State of HP and Ors. v. Pritam Singh and connected matters, this Court has no hesitation to conclude that there is no error in the finding recorded by the learned Tribunal that work charge establishment is not a pre-requisite for conferment of workcharge status . The Division Bench of this Court while rendering its decision in CWP No. 2735 of 2010, titled Rakesh Kumar decided on 28.7.2010, has held that regularization has no concern with the conferment of work charge status after lapse of time, rather Court in aforesaid judgment has categorically observed that while deciding the issue, it is to be borne in mind that the petitioners are only class-IV worker (Beldars) and the schemes announced by the Government, clearly provides that the department concerned should consider the workmen concerned for bringing them on the work charged category and as such, there is an obligation cast upon the department to consider the case of daily waged workman for conferment of daily work charge status , being on a work charged establishment on completion of required number of years in terms of the policy. In the aforesaid judgment, it has been specifically held that benefits which accrued on workers as per policy are required to be conferred by the department.

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6(vi). In addition to this, learned counsel for the petitioner further places reliance on the judgment

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passed by Division Bench of this Court in LPA No. 165 of 2021, titled as State of Himachal Pradesh versus Suraj Mani and others, decided on 12.1.2023. The operative part of the judgment in the case of Surajmani (supra), reads as under:

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“ 55 . Hence, the State, which is expected to act like a model employer and should have rather granted the same relief, as claimed by the respondents and other petitioners being similarly situated qua the daily wagers/petitioners who had approached this Court and decisions have already been passed in their favour, but has rather now argued that the decision given by this Court in Ashwani Kumar’s case supra did not lay down any law and the observations made therein were per incuriam. This leads to the inference that the State/Department has rather adopted a pick and choose Policy. Once, the judgment in Ashwani Kumar’s case supra has been implemented and has attained finality, then the respondents/petitioners who are similarly situated, are liable to be granted the same relief. So far as the observation made by this Court in Rakesh Kumar’s case supra to the effect that the question of conferment of work charge status did not arise in case the establishment ceases to be a work charge establishment, is concerned, the said observation had been made without there being any issue raised in this regard. The decision given in Rakesh Kumar’s case has been admittedly implemented and the petitioners have been

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granted work charge status on their completion of 8 years of service on daily wage basis. Thus, in that case there was no issue as to whether the establishment was a work charge one or not. Thus, in the present cases, the issue involved already stands settled vide judgment given by this Court in Ashwani Kumar’s case supra which has been followed by this Court time and again and, admittedly, many writ petitions have been decided in terms thereof and the said decisions have been duly implemented. Hence, the State cannot be permitted to take a pick and choose Policy. In the case of Rakesh Kumar supra, this Court had categorically held that the question of delay in the present cases is not to be taken for consideration and can be considered for denial of interest on the eligible benefits and not the benefits as such. Hence, the State cannot be permitted to re-agitate the issue which has already been settled by this Court. Rather, the State should itself grant the relief to the daily wagers by conferring work charge status on them after completion of 8 years of service in terms of their Policies and decisions of this Court.

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57 . In view of the above, the writ petitions filed by the employees are allowed and the respondents are directed to grant work charge status to the employees from the date they had completed eight years of service on daily wage basis in terms of the decision given by this Court in Ashwani Kumar’s case supra. However, benefits consequent to conferment of work charge status in terms of instant judgment

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shall be restricted to three years for the period prior to filing of petition.

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58. The Letters Patent Appeal(s), which have been filed by the respondents/ State/employer against the orders passed by learned Single Judge, including LPA No.165 of 2021, as well as writ petitions filed by the respondents/State/employer against the orders passed by the Tribunal, are dismissed with the clarification that the benefits consequent on conferment of work charge status in terms of the judgment passed by the learned Single Judge shall be restricted to three years for the period prior to filing of petition.”

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FOR GRANT OF WORK CHARGE STATUS IN THE RESPONDENT-FOREST DEPARTMENT WORK CHARGE ESTABLISHMENT NOT A PRE-REQUISITE

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6(vii) While adjudicating a similar matter, the Division Bench of this Court granted Work Charged Status to the daily wagers of Forest Department, in CWPOA No. 6710 of 2020 , Ram Singh versus

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State of Himachal Pradesh , decided on 08.09.2023, as

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under:

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Petitioners, namely, Ram Singh and Dola Ram alongwith one Keshav Ram, had approached this High Court by way of filing CWP No.9191 of 2012-J, seeking benefit of judgment dated 3.12.2012, passed in CWP No.2735 of 2010, titled Rakesh Kumar vs. State of H.P & others , decided by Division Bench of this High Court.

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It is undisputed that Rakesh Kumar’s judgment has attained finality. In sequel to order dated 3.12.2012, passed in CWP No.9191/2012-J, case of the petitioners was considered and rejected by the respondents vide order dated 14.1.2016, passed by Principal Chief Conservator of Forests (HoFF), Himachal Pradesh, Shimla, on the ground that Forest Department was not work charge establishment and, hence, cases of the petitioners were not covered by judgment in Rakesh Kumar’s case, and, therefore, petitioners were held to be not entitled for conferment of work charge status.

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The issue involved for adjudication in resent matter is no longer res integra . It is now well settled that for conferment of work charged status, work-charged establishment in the Department is not prerequisite.

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It is undisputed that in Mool Raj Upadhyaya Vs. State of Himachal Pradesh, 1994 Supp. (2) SCC 316 , affidavit was filed by 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/or was having work-charged establishment or not. In judgment dated 10.5.2018 rendered by Division Bench of this Court in CWP No. 3111 of 2016, titled as State of Himachal Pradesh Vs. Ashwani

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Kumar, upholding the order passed by erstwhile H.P. State Administrative Tribunal, it has been propounded that work-charged establishment is not a pre-requisite for conferment of work-charge status nor conversion of work-charged employee into regular employee would make such establishment non-existent. Therefore abolition of work-charge establishment in the respondent-Department w.e.f. 12.12.2005 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.

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Undoubtedly, a daily wager shall only be regularized against available vacancy. However, for conferring work-charged status availability of vacancies is irrelevant . It is a status to be conferred upon daily-wager on completion of requisite period of service as daily-wager, in terms of Policy , in absence of regular vacancy, so as to safe guard the interest of dailywager regarding his right to be regularized on completion of specific years on daily wages with requisite number of working days in each calendar year, so that after crossing a bar, a daily wager may not be ousted to deprive him from regularization by discontinuing his services being daily-wager and for that purpose there is no need of any work charged establishment in the Department, as work-charge status is to be

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conferred upon daily wager. Government has power to create or abolish work-charge establishment. In case claim of the workmen for regularization in terms of Policy is to be deferred for want of approval of the Government, availability of the vacancy or for any other action to be performed on the part of State or Department, then conferment of work charge status on a daily waged cannot be denied for want of work-charge establishment in the Department.

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The same has also been affirmed by the Principal Division Bench of this Court in judgment dated 9.8.2023 passed in No. 151 of 2021 , titled State of H.P. & another Vs. Beli Ram in following paras:-

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“14) The learned Single Judge also rejected the plea of the appellants that the Department of Rural Development is not a workcharged establishment and benefit of period of service as a workcharged employee cannot be extended to the respondent, by placing reliance on the judgment of the Supreme Court in Mool Raj Upadhyaya vs. State of H.P. & others, 1994 Supp. (2) SCC 316.

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1. The learned Single Judge held that a Division Bench of this Court in a judgment dt. 10.05.2018 in CWP No. 3111 of 2016, titled State of Himachal Pradesh Vs. Ashwani Kumar had held that work charged establishment is a pre-requisite for conferment of work charged status, nor conversion of work-charged employee into regular employee would make such establishment non-existent.

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1. The learned Single Judge further directed that in view of the judgment of the Hon’ble Supreme Court in Sunder Singh’s case (supra), the respondent was also entitled to treat daily-wage service of five years equal to one year of regular service for pension; and if on that basis, service was more than eight years but less than 10 years, his service would be reckoned as ten years. He therefore directed the appellants to extend all permissible benefits to the respondent.

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1. The learned Single Judge has noticed that “work charged” status in State of HP is not for working in a temporary establishment of work charge or for person employed in a project, but it is a status conferred in said State upon such daily wagers, who are to be continued after particular length of service for availability of work, but without regularization for want of creation of a post by Government for his regularization/regular appointment. This is not disputed by the learned Additional Advocate General.

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SLP preferred against it was dismissed by the Supreme Court. The decision in Kesar Chand (4 Supra) was also approved by the Supreme Court in Dakshin Haryana Bijli Vitran Nigam vs. Bachan Singh, (2009) 14 SCC 793, Punjab SEB vs. Narata Singh, (2010) 4 SCC 317 and Prem Singh vs. State of Uttar Pradesh and others, (2019) 10 SCC 516.

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1. But the above decisions Prem Singh (7 Supra) were not noticed by the Supreme in Uday Pratap Thakur (3 supra) cited by the learned Additional Advocate General.

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1. In Prem Singh (7 Supra) it was held:

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“34. ….…services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non-pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.”

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Having regard to the above observations, the entire service rendered as work charged has to be counted for purposes of pension.”

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In view of above settled position, rejection of claim of petitioners on the ground that Forest Department is not a work charged establishment, is quashed and set aside and respondents are directed to extend benefits of Rakesh Kumar’s judgment to the petitioners by conferring work-charged status upon Ram Singh from 1.1.2003 and upon Dola Ram from 1.4.2006 on completion of 8 years of daily waged service with 240 days in each calendar year with all consequential benefits.

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Needless to say, as already settled and also observed in order dated 8.3.2018 passed by the Supreme Court in Civil Appeal No. 6309 of 2017, titled Sunder Singh vs. The State of H.P. and others , entire service of the petitioners as workcharged employee is also to be counted for the purpose of pension.

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DENIAL OF WORK CHARGE STATUS BASED ON COMMUNICATION DATED 24.09.2015 (ANNEXURE R-III) - UNTENABLE

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6(viii) In addition to above, the claim of petitioner

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for conferment of Work Charge Status from the date of completion of eight years continuous service w.e.f.

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01.01.2001 has merit, in view of judgment of the Coordinate Bench of this Court, in CWPOA No. 6807 of 2020, titled as Devi Singh versus. State of Himachal Pradesh, decided on 07.10.2023, directing the State Authorities-Respondents to confer grant work charge status to a daily wager of the same forest division from the date he completed eight years of daily wage service w.e.f. 01.02.2001, with all consequential benefits in the following terms:-

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“Petitioner herein, who was engaged as a causal labourer at Pangi Forest Division in the year 1994, though had completed more than eight years daily wage service with 240 days in each calendar year in the year 2001, but his services were regularized in the Forests Department vide DFO letter No. 2283, dated 10.10.2007 (Annexure A-1), against the post of Forest Worker. Since number of juniors of petitioner as detailed in para 3 of the petition were regularized alongwith the petitioner, he repeatedly requested respondents to regularize his services from the date he completed his 8 years service after the date of his initial appointment. As per petitioner, he was required to be regularized against the post in question with effect from 1.9.2001 on the basis of judgment passed by this court in Rakesh Kumar v. State of HP and Ors , CWP No. 2735 of 2010, wherein it came to be observed that

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there is obligation cast upon department to consider regularization of daily wage workers as per policy, as per which, the Department is bound to confer work charge status upon the daily wage workers satisfying the required condition of daily wage services. Since the petitioner was not granted work charge status after his having completed 8 years of service and he was regularized with effect from 10.10.2007, he approached erstwhile Himachal Pradesh Administrative by way of OA No. 1901 of 2019, which now on account of abolishment of Himachal Pradesh Administrative Tribunal has been transferred to this Court and re-registered as CWPOA No. 6807 of 2020, praying therein for issuing a direction to the respondents for conferment of work charge status with effect 1.9.2001.

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Pursuant to the notices issued in the instant proceedings, respondents have filed reply , wherein facts as have been taken note herein above, have not been disputed rather stand admitted. It has been stated in the reply that the petitioner was engaged as casual labourer in the year 1994 but his services were rightly regularized against the post of Forest Worker with effect from 10.10.2007. It has been further averred in the reply that the prayer made by the petitioner for conferment of work charge status cannot be accepted for the reason that there is no work charge establishment in the Forests Department and concept of work charge status is different from that permanent

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establishment of Government Departments . It has been further stated by the respondents that the services of the petitioner were regularized in terms of judgment rendered by Hon'ble Apex Court in Mool Raj Upadhayaya , wherein, in terms of judgment, daily wagers could only be regularized after his /her having completed 10 years daily wage services with 240 days in each calendar year. Respondents have stated in the reply that wages and allowance of work charged employees used to be charged in the Public Works Department and Irrigation and Public Health Department and persons were granted benefit of aforesaid decision of Government because the departments had work charge establishment whereas there is no work charge establishment in the Forests Department and there is no occasion to grant work charge status to the petitioner from the date he completed 8 years daily wage service.

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Having heard learned counsel for the parties and perused the material available on record. this court finds that the prayer made by petitioner for conferment of work charge status from date of completion of 8 years has been rejected on the ground that there is no work charge establishment in the Forests Department. However, material available on record clearly reveals that the respondent granted similar benefits to other persons namely Dhani Ram and Narayan Dass, on the basis of direction issued by this court in CWP Nos. 4094 of 2010 and 4095 of 2010 dated 27.7.2010, whereby direction was issued to consider representations

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of petitioner within ten weeks in terms of Mool Raj Upadhayaya v. State of Himachal Pradesh and Gauri Dutt v. State of Himachal Pradesh .

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Since in the case of Reema Devi supra, similar plea was set up by the respondents to defeat the claim of late Het Ram, that there is no work charge establishment in the Forests Department and this court having taken note of various judgments passed by this court, held Het Ram entitled for grant of work charge status from date of completion of 8 years of service .

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In CWP No. 3111 of 2016, titled State of Himachal Pradesh v. Ashwani Kumar , which was further upheld by Hon'ble Apex Court, this court categorically ruled that cessation of work charge establishment if any, has to do nothing with conferment of work charge status and work charge establishment is not a prerequisite for conferment of work charge status . Aforesaid view taken by this court in Ashwani Kumar , passed by Division Bench was further upheld by Hon'ble Apex Court.

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Recently, Hon’ble Division Bench of this Court in LPA No.165 of 2021, titled as State of Himachal Pradesh & Others vs. Surajmani and Another , decided on 12.1.2023, alongwith connected matters, has held as under:

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“57 In view of the above, the writ petitions filed by the employees are allowed and the respondents are directed to grant work charge status to the employees

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from the date they had completed eight years of service on daily wage basis in terms of the decision given by this Court in Ashwani Kumar’s case supra. However, benefits consequent to conferment of work charge status in terms of instant judgment shall be restricted to three years for the period prior to filing of petition.”

¶169

Judgment of this court in Reema Devi was laid challenge by way of LPA No. 160 of 2021, before Division Bench of this court, but same was dismissed as a result of which mandate contained in Reema Devi has attained finality.

¶170

11.During the course of arguments, Mr. Vishal Panwar, learned Additional Advocate General placed heavy reliance upon communication dated 24.9.2015 Annexure R-III issued by Additional Secretary (Forests) to the Government of Himachal Pradesh to state that in terms of judgment passed by Hon'ble Apex Court in Jaswant Singh and others v. Union of India and others , (1979) 4 SCC 440, Forests Department is not a work charge establishment but such plea of him deserve outright rejection in view of categorical finding returned by Division Bench in LPA No. 160 of 2021 in State of Himachal Pradesh v. Reema Devi , wherein it has been held as under:

¶171

“6. Late Shri Het Ram, husband of respondent herein was engaged as daily wage Class-IV employee in the Forest Division

¶172

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¶174

Karsog, District Mandi, H.P., in 1994. His services were regularized w.e.f. 11.09.2007. Late Shri Het Ram, by way of CWP No.980/2013, approached this Court for relief of grant of work charge status in his favour from the date he had completed eight years of daily wage service. CWP No. 980 of 2013 was decided by this Court on 04.03.2013 with a direction to the respondent to consider the case of the petitioner in terms of judgment passed by this Court in Rakesh Kumar vs. State of H.P. & others, CWP No.2735 of 2010. Vide order dated 17.11.2015, the Divisional Forest Officer, Karsog Forest Division, rejected the case of late Shri Het Ram in following terms:“ Whereas, Government of Himachal Pradesh vide its letter No. Fin (Pen) A (3) dated 18/2010 dated 10.07.2015 asked the Pr. Chief Conservator of Forests (HoFF), HP to determine “whether HP Forest Department has work charge establishment or not.”

¶175

Whereas, the Principal Chief Conservator of Forests (HoFF), HP Shimla -1 constituted a committee vide office order No.605/2015(EIII) dated 3.9.2015 to deliberate and determine “Whether HP Forest Department is a work charge establishment in terms of Hon'ble Apex Court Judgment in Jaswant Singh & Ors. Vs. Union of India & Ors. (1979) 4SCC 440 p 456 or not?” The Committee after due diligence and deliberations submitted its report with the recommendation that “The HP Forest Department is not a work charged establishment” and the Govt. of HP has accepted and ratified the recommendations

¶176

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¶178

of the committee as conveyed by Addl. Chief Secretary (Forests) to the Govt. of HP vide letter No. FFE-A (B) 17-37/2015 dated 24.09.2015. Now therefore, taking into consideration that the Forests Department is not a work charged establishment, the claim of the petitioner for conferment of work charge status on completion of 8 years of service, in terms of Hon'ble High Court order dated 28.07.2010 passed in CWP No. 2735/2010- titled as Rakesh Kumar Vs. State of HP & Ors., which has been relief upon by the Hon’ble HP High Court in its judgment dated 4.3.2013 in CWP No. 980/ 2013- titled as Het Ram Vs State of HP & Ors is hereby considered and rejected because the regularization policy of the Govt. dated 3.4.200 and 6.5.2000 nor the judgment of Hon'ble HP High Court dated 28.07.2010 in CWP No. 2735 of 2010-titled as Rakesh Kumar Vs. State of HP is applicable in this particular case to the extent of grant of work charge status. Accordingly claim is disposed of as not admitted.”

¶179

Thus, the Divisional Forest Officer, Karsog Forest Division, had rested his decision on the report of an internal committee of appellants' department declaring that H.P. Forests Department was not a work charge establishment . Shri Het Ram had died on 24.03.2014 i.e. before the passing of the aforesaid rejection order dated 17.11.2015.

¶180

After filing of O.A. No. 3109 of 2015, the Division Bench of this Court passed judgment in CWP No.3111 of 2016, titled State of H.P. & Ors. vs. Ashwani Kumar on 10.05.2018 and upheld the order passed by the H.P. State Administrative Tribunal dated 23.06.2014 in O.A. No. 412 of 2016, in the following manner:-

¶181

¶182

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¶183

“6. Having carefully perused material available on record, especially judgment rendered by this Court in Ravi Kumar v. State of H.P. & Ors., as referred herein above, which has been further upheld by the Hon'ble Apex Court in Special Leave to Appeal (C) No. 33570/2010, titled State of HP & Ors. v. Pritam Singh and connected matters, this Court has no hesitation to conclude that there is no error in the finding recorded by the learned Tribunal that work charge establishment is not a prerequisite for conferment of work charge status. The Division Bench of this Court while rendered its decision in CWP No. 2735 of 2010, titled Rakesh Kumar decided on 28.07.2010, has held that regularization has no concern with the conferment of work charge status after lapse of time, rather Court in aforesaid judgment has categorically observed that while deciding the issue, it is to be borne in mind that the petitioners are only class-IV worker (Beldars) and the schemes announced by the Government, clearly provides that the department concerned should consider the workmen concerned for bringing them on the work charged category and as such, there is an obligation cast upon the department to consider the case of daily waged workman for conferment of daily work charge status, being on a work charged establishment on completion of required number of years in terms of the policy. In the aforesaid judgment, it has been specifically held that benefits which accrued on workers as per policy are required to be conferred by the department.” The aforesaid findings rendered by this Court were upheld by the Hon'ble Apex Court.

¶184

It is in light of aforesaid findings that the impugned judgment has been passed. In the facts of the case Ashwani Kumar (supra), the employer had resisted the claim of employee on the ground that HPPWD had ceased to be a work charge establishment for Class-III

¶185

¶186

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¶187

employees w.e.f. 01.04.2011 and for Class-IV employees w.e.f. 19.08.2005 and thus, the petitioner therein, who had not completed 8 years' service on or before abolition of work charge establishment was not entitled for grant of status of work charge employee. Hence, the Division Bench of this Court while deciding Ashwani Kumar's case (supra) had held that the work charge establishment is not a prerequisite for conferment of work charge status.”

¶188

Consequently in view of detailed discussion made supra and law taken into consideration, this court finds merit in the petition and accordingly same is allowed and respondents are directed to grant work charge status to the petitioner from the date he completed 8 years of daily wage services, 1.9.2001 alongwith all consequential benefits.

¶189

6(ix). Further, the issue regarding conferment of work charge status on completion of 8 years of

¶190

continuous service is no longer res integra in view of the similar reiteration of law made in the judgments rendered by this Court in CWP No. 2415 of 2012 , titled ‘Mathu Ram vs. Municipal Corporation and others’ , decided on 31.07.2014 and CWPOA No. 5566 of 2019 titled ‘Smt. Reema Devi vs. State of Himachal Pradesh and others’ decided on 03.09.2020 mandating that work charge establishment is not pre-requisite for conferring work charge status, as

under:-

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“4. The Division Bench of this Court vide judgment dated 10.5.2018 passed in CWP No. 3111 of 2016, titled State of HP and Ors. v. Ashwani Kumar, has categorically held that work charge establishment is not a pre-requisite for conferment of work charge status. Besides above, in the aforesaid judgment, Division Bench of this Court has specifically observed that while deciding the issue, it is to be borne in mind that the petitioners are only class-IV worker i.e. Beldars and the schemes announced by the Government, clearly provides that the department concerned should consider the workmen concerned for bringing them on the work charged category and as such, there is an obligation cast upon the department to consider the case of daily waged workman for conferment of work charge status, on completion of required number of years in terms of the policy. Otherwise also, issue in question stands settled in CWP No. 4489 of 2009, titled Ravi Kumar v. State of H.P. and Ors, decided on 14.12.2009, which has been further upheld by the Hon’ble Apex Court in Special Leave to appeal (C) No. 33570//2010 titled State of HP and Ors. v. Pritam Singh and connected matters. Apart from above, decision rendered by this Court in CWP No. 3301/2016, Narotam Singh v. HPSEBL

¶195

¶196

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¶197

and Ors is also based upon the decision rendered by the Hon’ble Apex Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation (1990) 1 SCC 361, as well as judgment rendered by this Court in CWP No. 9970 of 2012 titled Laxmi Devi v. State of H.P. and Ors. Leaving everything aside, aforesaid judgment rendered by this Court in Ashwani Kumar’s case (supra) has been upheld by the Hon’ble Apex Court.

¶198

Consequently, in view of the above, present petition is allowed and office order dated 17.11.2015 (Annexure A-6/P6), is quashed and set-aside. Respondents are directed to grant work charge status to the late husband of the petitioner from the date he had completed eight years of regular service in the department i.e. 1.1.2002, alongwith all consequential benefits. In the aforesaid terms, present petition stands disposed of, so also pending applications, if any.”

¶199

DENIAL OF WORK CHARGE STATUS TO PETITIONER WHEN GRANTED TO OTHERS ON COMPLETION OF 8 YEARS CONTINUOUS SERVICE IN OTHER GOVT DEPARTMENTS:

¶200

6(x). This Court cannot ignore the fact that Respondent-State had conferred work charge status to many similar and even junior daily wagers in all Government Departments and on same anology in

¶201

¶202

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¶203

almost all the Boards-Corporation by adopting the State Government Policies in terms of the mandate

¶204

of law in Rakesh Kumar, Ashwani Kumar, Reema Devi and Surajmani ’ s case (supra) from the date of completion of 8 years of continuous service. Accordingly, this Court finds no reason as to why the petitioner should be singled out by treating him unequally from other similar situated persons.

¶205

DENIAL OF WORK CHARGE STATUS TO PETITIONER WHEN GRANTED TO SIMILAR AND JUNIORS ON COMPLETION OF 8 YEARS CONTINUOUS SERVICE IN THE RESPONDENT FOREST DEPARTMENT:

¶206

6(xi). Notably the benefit of conferment of Work Charge Status from completing eight years continuous service in the Respondent-Forest Department by virtue

¶207

of the judgments in case of Ram Singh, Devi and Devi Singh and even otherwise to many similar and juniors, then, the petitioner cannot be denied similar benefits, leading towards discrimination and invidious discrimination.

¶208

6(xii). The inaction of State Authorities in denying the work charge status to the petitioner of the law of Hon’ble Supreme Court in State of Uttar Pradesh

¶209

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¶211

and Others versus Arvind Kumar and Others,

¶212

(2015) 1 SCC 347, whereby it has been held that if particular set of employees has been granted relief by Courts then, all identical and similarly placed persons should be treated alike by extending the same benefit and not doing so, would amount to discrimination under Article 14 of the Constitution of India in the following terms:-

¶213

“22 The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:

¶214

22.1 The Normal rule is that when a particular

¶215

set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit . Not doing so would amount to discrimination and would

¶216

be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as

¶217

the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal

¶218

rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

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22.2 xxx xxx xxx

22.3 However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not . With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.

¶223

6(xiii). Reference in this regard can conveniently be made to a judgment of the Hon’ble Supreme Court rendered by Hon’ble three Judge Bench in Siraj Ahmad vs. State of Uttar Pradesh and another

¶224

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¶226

2019 (17) Scale 626, wherein it was observed as

¶227

under:-

¶228

“23. We further fail to appreciate as to how the same High Court could have considered the case of two employees differently when they were similarly circumstances . It is not in dispute that the present appellant as well as Rajendra Prasad Dwivedi were selected through the same selection process though their orders of appointment differs.

¶229

It is to be noted that the appellant has obtained the Bachelor of Science (Engineering) degree in the year 1987 and though Rajendra Prasad Dwivedi had obtained the A.M.I.E. in 1993, taking into consideration that Sunil Dutt Sharma and Sajid Hasan had obtained the degree of A.M.I.E. in 1994, the said Rajendra Prasad Dwivedi was held to be entitled for promotion on 18.01.1995 i.e. the date on which the said Sajid Hasan and Sunil Dutt Sharma were promoted as Assistant Engineer from Junior Engineer. We fail to appreciate the approach of the High Court in denying the promotion to the appellant when all the other three i.e. namely Rajendra Prasad Dwivedi, Sajid Hasan and Sunil Dutt Sharma were appointed in the year 1987 through the same selection process and though Rajendra Prasad Dwivedi had obtained the degree in 1993 and Sajid Hasan and Sunil Dutt Sharma

¶230

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¶232

had obtained the same in 1994 whereas the appellant had obtained the said degree in 1987.”

¶233

7. Given as above, this Court is of the

¶234

considered view, that action of the State Authorities -Respondents in denying the consideration and the resultant conferment of Work-Charge Status to the petitioner from the date of completion of eight years of continuous daily waged service w.e.f. 01.01.2001, on the basis of the communication dated 24.09.2015 (Annexure R-III), that the Forest Department is not a work-charge establishment, does not passes the test of judicial scrutiny for the reasons , that firstly, the concept of conferring the Work Charge Status, to daily wagers and muster-roll workers originated in peculiar fact-situation, where these workers even after having rendered prolonged service for more than a decade or for similar period continued as such awaiting regularization, which was contingent upon, a fortuitous event i.e. availability or creation of a vacancy and also fulfilment of other parameters like seniority, fitness etc, due to which many such workers

¶235

were forced to retire while being a daily wager or

¶236

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¶238

muster-roll worker. However, in order to ameliorate

¶239

such a situation, the State Authorities, in recognition of their prolonged continuous service on daily wage basis, framed a Scheme for Betterment of daily wage and muster-roll workers, applicable in all the departments, which was approved by the Hon’ble Supreme Court in the case of Mool Raj Upadhayaya

¶240

[1994 Supp (2) SCC 316] , providing for conferring the Work Charge Status on completion of ten years of continuous service and the Division Bench of this Court in State of Himachal Pradesh versus Gauri Dutt [2008 HLJ HP 366], mandated to confer the work charge status to all daily wage-muster roll workers working in all departments, on completion of requisite years of continuous service, which came out to be eight years, from the year 1999 and 2000 till the issuance of the new policy in the year 2006 ; and secondly, the Division Bench of this Court in Rakesh Kumar versus State of H.P. [CWP No. 2735 of 2010] upheld in SLP(C) No.33570 of 2010 on 15.01.2015; directed the State Authorities to confer work charge status on completion of eight

¶241

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¶243

years continuous service and when, this principle

¶244

was again reiterated by the Division Bench of this Court in Ashwani Kumar Versus State of Himachal Pradesh [CWP No.3111 of 2016], upheld in SLP(C) No 10930 of 2019] mandating that the Work Charge Establishment is not a pre-requisite for conferment of work charge status to a daily waged employee on completion of requisite service [10 years or 8 years as per applicable policy]; and thirdly, even in case of State of Himachal Pradesh versus Reema

¶245

Devi [LPA No.160 of 2021, decided on 23.05.2022] conferment of work charged status to her deceased husband, Het Ram, a daily wager in Forest Department,

¶246

on completion of 8 years of daily waged service, was upheld, after disapproving the stand of the State Forest Authorities that such status cannot be conferred for want of work charge establishment in the Forest Department; and fourthly, the Division Bench of this Court in case of Ram Singh and Ors versus State of H.P. and Ors. [CWPOA No.6710 of 2020, decided on 8.9.2023] has held in case relating to Forest Department that the work charge establishment

¶247

¶248

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¶249

is not a pre-requisite for conferment of work-charge status; fifthly, similar dictum of law, in case of Devi Singh versus State of Himachal Pradesh and Others [CWPOA No.6807 of 2020, decided on 7.10.2023] as in case of Reema Devi and Ram Singh (supra); sixthly, when, the right acquired by the petitioner to be conferred the work charge status on completion of 8 years of continuous daily wage service w.e.f. 01.01.2001 could not be negated merely on the basis of Communication dated 24.09.2015 [Annexure R-III]; and seventhly, this communication dated 24.09.2015 being an executive order cannot operate retrospectively so as to defeat the object and the intent of the State Authorities for conferring work charge status to daily wagers on completion of requisite daily wage service [which was initially 10 years continuous service which was reduced to 8 years continuous service from 1999 to 2006]; and eighthly, this communication dated 24.09.2015 could not negate or render the mandate of the judgments in the cases of Mool Raj Upadhayaya, Gauri Dutt, Rakesh Kumar, Ashwani Kumar, Reema Devi, Ram Singh

¶250

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¶252

and Devi Singh (supra) as inoperative and nugatory ; and ninethly, the right for conferment of work charged status acquired by the petitioner from 01.01.2001 cannot be permitted to be nullified by a decision of 2015 [Annexure R-III supra]; and tenthly, once the State Authorities have conferred work charge status on hundreds of daily wagers on completion of 8 years continuous service in other government departments including the Respondent-Forest Department then, this Court extends similar benefit to the petitioner; and eleventhly, the denial or non-conferment of work charge status to the petitioner shall result in invidious discrimination by treating the petitioner as unequal vis-à-vis other similar and even junior incumbents who have been granted work charge status on completion of 8 years continuous service, without there being any necessity of a work charge establishment as mandated by the law referred to above, which is certainly violative of Articles 14 & 16 of Constitution of India; and lastly, the denial of work charge status to petitioner from 01.01.2001 shall result in depriving the petitioner of the higher

¶253

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¶255

status, higher pay scale, higher pay fixation and other service benefits and benefit of counting of said service for other retiral benefits, on retirement is a recurring loss till day.

¶256

8. As a sequel to the above, this Court is of the considered view, that the petitioner deserves to be conferred the work charge status from the date of completion of 8 years of continuous daily wager service from 01.01.2001 notionally but since the petitioner has filed the instant petition [OA No 1902 of 2019 on 08.05.2019], therefore, the actual monetary benefits shall accrue to the petitioner for a period of three years prior to the filing of O.A. No.1902 of 2019 i.e. w.e.f. 8.5.2016, in view of the mandate of law in Union of India versus Tarsem Singh (2008) 8 SCC 648; Shiv Dass versus Union of India and Others; (2007) 9 SCC 274; State of Madhya Pradesh and Others versus Yogendra Shrivastava (2010) 12 SCC 538 and Asger Ibrahim Amin Versus Life Insurance Corporation of India (2016) 13 SCC 797, followed in Rushibhai Jagdishchandra Pathak versus Bhavnagar Municipal Corporation CA No.

¶257

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¶259

4134 of 2022 [2022 SCC Online S C 641] decided on 18.5.2022, but with all consequential benefits

¶260

thereafter.

¶261

CONCLUSION AND DIRECTIONS:

¶262

9. In view of the above discussion and for the reasons, stated hereinabove, the instant writ

¶263

petition is allowed , in the following terms:-

¶264

i) Respondents are directed to grant work charge status, upon consideration, to the petitioner from the date of completion of 8 years of continuous service w.e.f. 1.1.2001 with all service benefits accruing therefrom; ii) Consequent upon grant of work charge status, the respondents shall grant all admissible service benefits to the petitioner from 01.01.2001 notionally ; and iii) Actual monetary arrears shall accrue w.e.f. 08.05.2016 {i.e. for three years preceding filing of instant petition}, and benefit of this service for all retiral benefits alongwith arrears; within a period of two months from the date of receipt of certified/downloaded copy of this judgment; failing which respondents shall be liable for interest

¶265

43 ( 2023:HHC:14797 ) @ 6% per annum, thereafter till realization.

¶266

iv) Parties shall bear their respective costs.

¶267

In aforesaid terms, the instant writ petition

¶268

is allowed and all pending miscellaneous application(s),

¶269

if any, shall also stand disposed of.

¶270

(Ranjan Sharma) Judge

¶271

November 2, 2023 (himani)

Nand Lal v. State of Hp

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Nand Lal v. State of Hp

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