Dismissed

The Chief Executive Officer Himurja and Others v. Gurbachan Singh

Himachal Pradesh HC13 May 2024LPA/176/2022

Case brief

AI extract

What is this about?

In this Letters Patent Appeal against a writ order, a Division Bench dismissed the appeal affirming the lower court's view that a daily wager employee completing eight years of service (240 days/year) is entitled to work charge status and regularization under Government policies, upholding prior High Court precedents.

What did the court decide?

They uphold the lower court's order directing the State to grant work charge status and regularization benefits to the petitioner.

The Chief Executive Officer Himurja… — Pension and Retirement Benefits | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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LPA No.176 of 2022 Decided on: 13.05.2024

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The Chief Executive Officer, Himurja & others

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....Appellants

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Versus Gurbachan Singh and others

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…Respondents

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Coram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge The Hon’ble Mr. Justice Sushil Kukreja, Judge

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Whether approved for reporting?¹

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For the appellants : Mr. Vivek Singh Thakur, Advocate. For the respondents: Mr. Vikas Rajput, Advocate, for respondent No.1. Mr. Anup Rattan, Advocate General with Mr. Yash W. Chauhan, Senior Additional Advocate General, Mr. Ramakant Sharma, Mr. Navlesh Verma, Ms. Sharmila Patial, Additional Advocates General and Mr. Raj Negi, Deputy Advocate General, for respondent No.2/State. Ms. Sunita Sharma, Senior Advocate with Mr. Dhanajay Sharma, Advocate, for respondent No.3.

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Sushil Kukreja, Judge (Oral)

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The instant Letters Patent Appeal has been preferred

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by the appellants against the impugned order dated 15.09.2020

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passed by the learned writ Court, whereby the writ petition filed by

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

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the respondent No.1-petitioner (hereinafter referred to as the petitioner) was allowed and respondent No.2 (appellant No.1 herein) was directed to grant work charge status to the petitioner from the date he had completed eight years of continuous service in the department and thereafter regularize his services in terms of the policy framed by the Government alongwith consequential benefits.

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Feeling aggrieved and dissatisfied, the appellantsrespondents No.2 to 4 (hereinafter referred to as the respondents) preferred the instant appeal against the aforesaid impugned order.

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We have heard learned counsel for the appellantsrespondents as well as learned counsel for respondent No.1petitioner, learned Additional Advocate General for the proforma respondent and learned Senior Counsel for respondent No.3HPSEBL and also carefully gone through the record of the case.

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The petitioner had preferred the writ petition for grant of the following substantive reliefs:-

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“(i) That respondents may kindly be directed to regularize the services of the applicant w.e.f. March, 2012 i.e. on completion of eight years of service on daily wager basis. Or in alternate work charge status may kindly be given to applicant on completion of eight years of service on daily wager basis.

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(ii) That applicant may be given all consequence benefit like seniority, pay fixation, arrears etc.”

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From the perusal of the material available on record, it has become clear that the petitioner was appointed as Chowkidar on daily wage basis in the month of February, 2004 by a selection committee constituted by the Resident Commissioner, Pangi at Killar, District Chamba, HP (proforma respondent herein). It is not in dispute that the petitioner had been regularly working in the department/respondent No.2 since the year 2004 and he had completed 240 days in each calendar year without there being any break during this period.

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The perusal of record makes it clear that that besides maintaining the record of the services rendered by the petitioner, respondent No.2 had also been paying salary to him on receipt of budget from the Directorate (Himurja), Himachal Pradesh, Shimla from time to time. The case of respondent No.2 is that the petitioner was not on its roll as he was appointed by the Resident Commissioner, Pangi. However, the learned writ Court has rightly observed that since all the administrative actions including appointments in tribal areas are usually made by the Resident Commissioner of the area, as such, respondent No.2, in whose direct control the petitioner had been regularly working for the last more than 16 years, cannot be allowed to defeat the claim of the

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petitioner on the ground that he was appointed by respondent No.1 and his case is required to be considered by it for regularization. With a view to mitigate the hardship usually faced by the daily wage workers and to remove the unfair labour practices, the State Government has been issuing policies for regularization of daily wage workers from time to time. In CWP No.2735 of 2010 , titled as Rakesh Kumar Vs. State of HP and others, decided on 28^th July, 2010 , while taking note of the policies for regularization of daily wage workers issued by the Government from time to time, a Division Bench of this Court has held that the daily wage workers, who have completed eight years service with 240 days in each calendar year, shall be eligible for regularization and which judgment has attained finality. The relevant portion of the judgment is reproduced as under:-

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“2. The only reference to be made for analyzing the grievance of the petitioners is two orders of the Government. One order is dated 3.4.2000 and other is dated 6.5.2000. Order dated 3.4.2000, reads as follows:

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“In partial modification of this Department letter of even number dated 8th July, 1999 on the above subject, I am directed to say that the Government has now decided that the Daily Waged/Contingent Paid workers in all the Departments including Public Works and Irrigation and Public Health Departments (other than work-charged categories) /Boards/Corporations/Universities, etc. who have completed 8 years of continuous service (with a minimum of 240 days in a calendar year) as on 31-032000 will be eligible for regularization. It has further been decided that completion of required years of service makes such daily wager/contingent paid worker eligible

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for consideration to be regularized and regularization in all cases will be from prospective effect i.e. from the date the order of regularization is issued after completion of codal formalities.

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2. In view of the above decision and in order to avoid any litigation and also any hardship to daily wagers departments shall do the regularization based on seniority and they will ensure that senior persons are regularized first rather than regularizing junior persons first.

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3. Other terms and conditions like fulfillment of essential qualification as prescribed in R&P Rules, etc. etc. as laid down in this department letter of 8th July, 1999, as referred to above, shall continue to be operative.

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4. These instructions may kindly be brought to the notice of all concerned for strict compliance.

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5. These instructions have been issued with the prior approval of the Finance Department obtained vide their Dy. No. 852 dated 23-03- 2000.”

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3. Order dated 6.5.2000, to the extent relevant, reads as follows:

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“2. During the process of regularization of daily wagers, various issues and problems relating to these workers concerning their regularization have been brought to the notice of the Government. The Government in order to avoid such confusion or problems has decided to streamline the existing procedure/instructions in order to bring uniformity of procedure in various Departments of the Government. It has, therefore, been decided that henceforth:

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(i) Daily Waged/Contingent Paid Workers who have completed required years of continuous service (with a minimum of 240 days in a calendar year except where specified other wise for the tribal areas) which as per latest instructions issued vide this Department letter of even number dated 3-4-2000 is 8 years as on 31-032000 shall be eligible for regularization. However, in Departments/Corporations/Boards, where the system of the work charge categories also exists, eligible daily wagers will be considered first for bringing them on the work charge category instead of regularization. Such eligible daily waged workers/contingent paid workers will be considered for regularization against vacant posts or by creation of fresh posts and in both these events prior approval of Finance Department will be required as per their letter No. Fin-1-C(7)-1/99 dated 24-12-1999. The

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terms and conditions for such regularization shall be governed as per Annexure –‘A’.”

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4. This scheme was in force till a new scheme introduced on 9th June, 2006. The contention of the petitioners is that on completion of 8 years service, as per the scheme extracted above, they are liable to be granted the work-charged status being on a work charged establishment.”

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The petitioner had also prayed for grant of work charge

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status from the date he completed eight years service. In Rakesh Kumar’s case (supra), the Division Bench of this Court has further held that 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. Relevant portion of the judgment reads as under:-

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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 the status, subject to the workmen satisfying the required conditions.”

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Subsequently, Division Bench of this Court in CWP

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No.3111 of 2016, titled State of HP and Ors. Vs. Ashwani Kumar ,

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decided on 10.05.2018, has held that work charge establishment

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is not a pre-requisite for conferment of work charge status. The said judgment in Ashwani Kumar’s case (supra) has been upheld by the Hon’ble Supreme Court. The relevant portion of the judgment reads as under:-

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“6. 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 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 prerequisite for conferment of work charge 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 classIV 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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In view of the above discussion and the law laid down,

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the learned writ Court has committed no error while allowing the writ petition filed by the petitioner and there is no merit in the instant appeal, as such, the same is dismissed accordingly, leaving the parties to bear their own costs.

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Pending miscellaneous application(s), if any, shall also

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stand disposed of.

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(Tarlok Singh Chauhan) Judge

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(Sushil Kukreja)

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May 13, 2024 Judge

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