Sahi Ram Vs State of Hp

2025:HHC:34453

IN THE HIGH COURT OF HIMACHAL PRADESHAT SHIMLA

CWPOA No.6626 of 2020 Decided on:07.10.2025 __________________________________________________________ Sahi Ram ...Petitioner Versus State of Himachal Pradesh & Others ...Respondents

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Coram

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Hon’ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting?. No

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For the petitioner: Mr. P.D. Nanda, Advocate. For the respondents: Mr. Hemant K. Verma, Deputy Advocate General. Ranjan Sharma, Judge [Oral] Petitioner, Sahi Ram, a retired Class-IV

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[Beldar], has come up before this Court, seeking the following reliefs:

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(i). That the directions may kindly be issued to the respondents to give the regular status to the applicant w.e.f. 01.01.2003 instead of 01.01.2004 with all consequential benefits, within time bound manner, whereby modifying the Office Order dated 25.10.2025, Annexure A-2.

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(ii). That the respondents may kindly be directed to consider the case of the applicant for granting him pension and other pensionary benefits after considering him regular employee w.e.f. 01.01.2003 instead of 01.01.2004, within time bound manner.”

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

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FACTUAL MATRIX:

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2. Grievance of the petitioner is that he was initially engaged as Beldar on daily wage basis in the office of Assistant Engineer [IPH] Sub-Division Nerwa, Tehsil Chopal, District Shimla, [HP] on 26.03.1995 and he has completed 240 days in each calendar year during the year 1995 and thereafter. It is further averred that though petitioner had completed 08 years of continuous service on daily wage basis but his services were neither regularized nor was he granted work charge status by the respondents. Due to this, he filed an Original Application No.4777 of 2016, titled Sahi Ram versus State of Himachal Pradesh & Others, which was disposed of by Learned State Administrative Tribunal on 21.09.2016 [Annexure A-1], with direction to the State Authorities to consider the case of the petitioner, strictly in view of the principles laid down by this Court in CWP No.2735 of 2010, titled Rakesh Kumar versus State of H.P. & Ors. and connected matters, decided on 28.07.2010. It is averred that pursuant to these directions the Respondent-State Authorities issued

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an Office Order on 28.10.2015 [Annexure A-2], granting

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regularization/work charge status to the petitioner from the date of completion of 08 years of continuous service with 240 days w.e.f. 01.01.2004. It is averred that though the petitioner had completed 240 days during the year 1995 but the respondents have not granted the benefit of said period of service for granting regularization/work charge status and in case, the said period of 1995 is counted, therefore, the benefit is accorded the petitioner deserves to be granted regularization/work charge status w.e.f. 01.01.2003, instead of 01.01.2004 as in Annexure A-2, with all consequential benefits.

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STAND OF THE STATE AUTHORITIES IN THE REPLY AFFIDAVIT:

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3. Pursuant to the issuance of notice, the State Authorities have filed the Reply-Affidavit dated 22.07.2019 of Superintending Engineer [IPH], Circle Shimla-9.

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3(i). Perusal of Reply-Affidavit states as per the Mandays Chart, [Annexure R-1], that the petitioner was engaged as Beldar on daily wage basis on 26.03.1995 and he worked as such up to 20.10.1995 but he left the job at his own on 21.10.1995 and the petitioner

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had completed 204 days during the year 1995 up to 20.10.1995. It is further averred that the petitioner returned for work w.e.f. 01.01.1996 and based on continuous service rendered thereafter, the petitioner was granted regularization/work charged status w.e.f. 01.01.2004. Reply-affidavit indicates that the petitioner is not entitled for pension under the CCS [Pension] Rules 1972 but is governed by the Contributory Pension Scheme [referred to as New Pension Scheme] in view of the fact, that he was appointed after 15.05.2003 on regular/work charge basis.

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3.(ii) . Reply-affidavit further indicates that the Original Application, seeking grant of retrospective regularization/work charge status w.e.f. 01.01.2003 has been filed after a lapse of more than 23 years by the petitioner and therefore, the petition was barred by limitation and delay and laches. In Para 6 (iii) of the Reply-Affidavit, it is averred that the petitioner is fence sitter and therefore, he is not entitled to the claim for regularization/work charge status w.e.f. 01.01.2003 and the benefit due to him w.e.f. 01.01.2004 stands

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granted by the State Authorities. Reply-affidavit further indicates that the claim for retrospective benefit by way of the instant petition is not maintainable, in view of the fact, that the rights or liabilities imposed under the Industrial Disputes Act have to be tested/examined by the Labour Court-cum-Industrial Tribunal concerned and not in writ proceedings. With these averments, the State Authorities have prayed for dismissal of the writ petition.

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REBUTTAL BY PETITIONER:

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4. Petitioner filed a rejoinder on 30.12.2023, with

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the shift in stand, by stating that, the respondents have resorted to fictional breaks from 21.10.1995 till 31.12.1995. It is averred in that fictional breaks cannot be considered as a bar for counting of said periods towards the continuous service of 240 days in a calendar year. It is averred that the Contributory Pension Scheme [referred to as New Pension Scheme] stands abolished by the State Authorities and the Old Pension Scheme has been re-introduced by the State Authorities. It is further stated that pursuant to re-introduction of the Old Pension Scheme the petitioner has also deposited

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employees share and the employers share in the Government Treasury on 28.04.2025 [Annexure A-7], so that the petitioner is granted the benefit of pension under the Old Pension Scheme which has been re-introduced by the State Authorities. In this backdrop, a prayer has been made for granting regularization/work charge status from 01.01.2003 instead of 01.01.2004, and also to grant pensionary benefits to the petitioner.

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5. Heard, Mr. P.D. Nanda, Learned Counsel for

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the petitioner as well as Mr. Hemant K. Verma, Learned Deputy Advocate General and gone have through the case records.

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ANALYSIS:

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6. Taking into account the entirety of the facts and circumstances and the material on record, this Court is of the considered view, that the claim by the petitioner for granting regularization/work charge status w.e.f. 01.01.2003 is not tenable and the same is liable to be rejected, for the following reasons:-

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SERIOUSLY DISPUTED ISSUES DISENTITLE APPELLANT FOR RELIEF IN WRIT-INSTANT PROCEEDINGS:

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6(i). Perusal of Original Application No.1238 of

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2019 [converted as CWPOA No.6626 of 2020]

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indicate that the petitioner had set up a case in the instant petition that he had worked for more than 240 days from 25.03.1995 to 31.12.1995 without break and therefore, by counting the entire Mandays of 1995, the petitioner had completed 08 years of continuous service with 240 days as on 31.12.2002 and was entitled for grant of regularization/work charge status w.e.f. 01.01.2003 but the same was granted to him w.e.f. 01.01.2004 by the respondents. Per contra a perusal of the Reply-Affidavit and the averments in Para 1 and Para 6(iv) indicate that the petitioner was initially engaged as daily waged Beldar on 21.03.1995 and had worked up to 20.09.1995 and he left the job at his own w.e.f. 21.10.1995 and did not report for work upto 31.12.1995. It is averred that he returned for work w.e.f. 1996 onwards. Perusal of rejoinder, states that the petitioner has taken a complete somersault by setting up a new case altogether that the State Authorities have given fictional breaks to the petitioner from 21.10.1995 till 31.12.1995 and these fictional breaks cannot be

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considered to be an embargo for counting this period towards 240 days of service in a calendar year during the year 1995. Material on record is inconclusive and insufficient to conclude that the petitioner had worked for 240 days during the year 1995 whereas the Mandays Chart [Annexure R-1] reveals that he had in fact worked for 204 days during 1995. Reply Affidavit states that petitioner is stated to have abandoned the job w.e.f. 21.10.1995 till 21.12.1995. In Rejoinder , a new case has been set up that he was given fictional breaks from 22.10.1995 to 31.12.1995.

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6(ii). If complex factual disputes arise, the writ court ought not to embark upon such adjudication and the petitioner may be relegated to an alternative efficacious remedy, in view of the mandate of the Hon’ble Supreme Court in A.P. Electrical Equipment Corporation vs. Tahsildar & Ors , 2025 SCC OnLine SC 447, on 27.02.2025, has held that once there are compelling reasons revealing serious dispute between the parties on a question of fact and the material/evidence on record are insufficient/ inconclusive to enable the Court to come at a definite

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conclusion then, the Court should refrain from exercising jurisdiction under Article 226 of the Constitution of India, but may relegate the petitioner to seek appropriate remedy before the appropriate forum in the following terms:

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This Court in the case of Gunwant Kaurv. Bhatinda Municipality reported in AIR 1970 SC 602 observed as follows:-

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“The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine . The High Court is not deprived of its jurisdiction to entertain a petition under Art.226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Art.226 the High Court has jurisdiction to try issues both of fact and law. Exercise of jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made, dispute sought to be agitated,

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or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.”

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In one of the recent pronouncements of this Court in State of U.P. &Anr. v. Ehsan &Anr. reported in 2023 INSC 906 , this Court observed that:-

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“28. We are conscious of the law that existence of an alternative remedy is not an absolute bar on exercise of writ jurisdiction. More so, when a writ petition has been entertained, parties have exchanged their pleadings/ affidavits and the matter has remained pending for long. In such a situation there must be a sincere effort to decide the matter on merits and not relegate the writ petitioner to the alternative remedy, unless there are compelling reasons for doing so.One such compelling reason may arise where there is a serious dispute between the parties on a question of fact and materials/evidence(s) available on record are insufficient/inconclusive to enable the Court to come to a definite conclusion.

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No doubt, in a writ proceeding between the State and a landholder, the Court can, on the basis of materials/evidence(s) placed on record, determine whether possession has been taken or not and while doing so, it may draw adverse inference against the State where the statutory mode of taking possession has not been followed State of UP vs. Hari Ram (supra)]. However, where possession is stated to have been

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taken long ago and thereis undue delay on the part of landholder in approaching the writ court, infraction of the prescribed procedure for taking possession would not be a determining factor, inasmuch as, it could be taken that the person for whose benefit the procedure existed had waived his right thereunder. In such an event, the factum of actual possession would have to be determined on the basis of materials/evidence(s) available on record and not merely by finding fault in the procedure adopted for taking possession from the land holder. And if the writ court finds it difficult to determine such question, either for insufficient/ inconclusive materials/ evidence(s) on record or because oral evidence would also be required to form a definite opinion, it may relegate the writ petitioner to a suit, if the suit is otherwise maintainable.”

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6(iii). While dealing with claim for regularization,

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where the factum of 240 days of continuous service was disputed, the Hon’ble Supreme Court in Ernakulam

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Regional Co-operative Milk Producers Union Ltd. vs. Nithu & Ors. , 2024 SCC OnLine SC 650, held in following terms:-

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“10. At the same time, in ground (A) taken by the respondents in the writ petition they have averred that all of them were in continuous service for a period of over 240 days in a period of 12 calendar months and therefore, ought to be treated as permanent workers under the provisions of ID Act. It has also been asserted that the appellant-Society herein is an

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organization covered under the provisions of the ID Act. Despite that, the respondent did not raise a dispute for it to be referred for adjudication by the State Government. Instead, while the conciliation proceedings were still pending before the District Labour Officer, who has been impleaded as respondent No. 11 herein and the same did not bear any positive result instead of seeking their remedies under the ID Act, the respondents continued to press the writ petition filed by them .

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Despite a specific plea taken by the appellant-Society in its counter affidavit filed in response to the writ petition, as pointed out by Mr. C.U. Singh, learned Senior counsel appearing for the appellant-Society, that the writ petitioners were engaged purely on a casual basis and that they were nominated from amongst the members of the Apex Cooperative Society (APCOS) and the terms and conditions of the Circulars issued by the appellant-Society had made it abundantly clear that the nominees would not have any right of permanent employment, such a plea did not find favour with the High Court. Further, the appellant-Society had specifically averred in its counter affidavit that as none of the writ petitioners had worked for over 200 days in a calendar year, even otherwise, they were not entitled to claim permanent employment.

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In our opinion, all the aforesaid questions would fall in the realm of disputed questions of fact that would have required evidence to be lead and proper assessment and adjudication before an appropriate authority which in the instant case, even as per the respondents-writ petitioners, would have been a remedy available under the ID Act. This aspect seem to have been lost sight of by the learned Single Judge as also the Division Bench. The learned Single Judge appears to have got

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swayed by the judgement in the case of Umadevi (supra) to hold that the respondents-writ petitioners had put in service for over two decades and were therefore entitled to be regularized in terms of the directions issued in the said decision, unmindful of the fact that the appellant-Society had categorically refuted the plea taken by the respondents-writ petitioners that they had put in 240 days of regular service in the past 12 months and instead, had asserted that they failed to satisfy the criteria laid down in Umadevi (supra) for purposes of regularization.

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In the instant case, the disputed questions of facts go to the very root of the matter inasmuch as the appellant-Society has questioned the plea of the respondents-writ petitioners that they have put in 240 days of continuous service in the previous 12 months and would therefore, be entitled to regularization. This aspect requires evidence and its evaluation before the proper forum.”

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6(iv). In a similar fact-situation, this Court has held that seriously disputed questions of fact,

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involving nature of employment, the period of service or other related issues on which no definite findings can be recorded in the writ proceedings and these issue could only be established by adducing oral and documentary evidence before appropriate forum and therefore, in such an eventuality, the proper course is to relegate the parties before appropriate forum. Reference may be made to the judgments passed by this Court, in Sunder

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Lal vs. Municipal Corporation , CWPOA No. 6617 of 2020, decided on 06.11.2024, and Deep Ram vs. Municipal Corporation, Shimla & Anr , CWPOA No. 6609 of 2020, decided on 07.01.2025, wherein, similar claim(s) were negated for want of proof of continuous service in view of disputed factual controversies.

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6(v). Based on the principles laid down by the Hon’ble Supreme Court in A.P. Electrical Equipment

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Corporation (supra) Nithu, Sunder Lal and Deep Ram

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(Supra) and the material on record in the instant case including Mandays Chart, [Annexure R-1] once the petitioner has set up a case that he had worked for 240 days during the year 1995; and the Reply-Affidavit vehemently negates-disputes this stating that the petitioner had abandoned the job on 21.10.1995 till 31.12.1995 and had not completed 240 days till 1995 but had in fact worked for 204 days as per Mandays Chart [Annexure R-1]; and even in rejoinder the petitioner has admitted that fictional breaks were given to him from 21.10.1995 till 31.12.1995, which negates the claim set out in the writ petition leads to disputed questions of fact; which require to be proved by adducing oral and

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documentary evidence before the Statutory Forum i.e. Labour Court-cum-Industrial Court and not in proceedings under Article 266 of the Constitution of India. In these circumstances, once the petitioner has failed to establish that he has rendered continuous service of 240 days during 1995 but had in fact worked for 204 days only, then, non- completion of continuous service of 240 days during 1995, renders the petitioner in eligible for regularization or for worked charged status w.e.f. 01.01.2003. In instant case 8 years of continuous

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service was reckonable from 1996 and was not from 1995. Thus, the claim for antedating regularization/work charge status from 01.01.2003 by counting 240 days from 1995 is not tenable in these proceedings. Despite sincere efforts, this Court is of the considered view that these seriously disputed facts, refrain this Court from arriving at a definite conclusion. The factum of petitioner having worked as Beldar for the claimed period 21.10.1995 to 31.12.1995 can only be conclusively determined by leading oral and documentary evidence, which must be tested, proved, and appreciated by competent forum established under

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the Industrial Disputes Act and not in proceedings under

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Article 226 of the Constitution of India.

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ACQUIESENCE BARS RIGHT AND REMEDY:

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7. Perusal of the material on record indicates

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that the petitioner was engaged as Beldar on 26.03.1995 and he worked up to 20.10.1995 and he left the job at his own w.e.f. 21.10.1995 till 31.12.1995 and he completed only 204 days as per the Mandays Chart [Annexure R-1] till 1995. Material on record further indicates that the petitioner returned for job w.e.f. 1996 onwards and based on the continuous service of 08 years from 1996, he was granted regularization/work charge status w.e.f. 01.01.2004. Pertinently, in case the petitioner had actually worked but had not abandoned the job [as per stand taken in reply-affidavit] then, also, the petitioner was bound to raise an industrial dispute under Section 2(k) and Section 10 of the Industrial Disputes Act, 1947, which read as under:-

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SECTION 2(k) OF INDUSTRIAL DISPUTES ACT, 1947

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(k) “industrial dispute” means any dispute or difference between employers and employers, or between employers and workmen , or between workmen and workmen, which is connected with the employment or nonemployment or the terms of employment or

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with the conditions of labour , of any person;

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SECTION 10 OF THE INDUSTRIAL DISPUTES

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ACT, 1947

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REFERENCE OF DISPUTES TO BOARDS,

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COURTS OR TRIBUNALS

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Reference of disputes to Boards, Courts or Tribunals.—(1) [Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended , it may at any time, by order in writing,—

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(a) refer the dispute to a Board for promoting a settlement thereof; or

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(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or 2

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(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or

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(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:

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Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c):]

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[Provided further that] where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this

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Act in respect of the dispute may have commenced:

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[Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.]

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( 2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, for a reference of the dispute to a Board, Court, 6 Labour Court, Tribunal or National Tribunal], the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly.

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[(2A) An order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section shall specify the period within which such Labour Court, Tribunal or National Tribunal shall submit its award on such dispute to the appropriate Government:

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Provided that where such industrial dispute is connected with an individual workman, no such period shall exceed three months:

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Provided further that where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, to the Labour Court, Tribunal or National Tribunal for extension of such period or for any other reason, and the presiding officer of such Labour Court, Tribunal or National Tribunal considers it necessary or expedient to extend such period, he may for reasons to be recorded in writing, extend such period

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by such further period as he may think fit:

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Provided also that in computing any period specified in this sub-section, the period, if any, for which the proceedings before the Labour Court, Tribunal or National Tribunal had been stayed by any injunction or order of a Civil Court shall be excluded:

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Provided also that no proceedings before a Labour Court, Tribunal or National Tribunal shall lapse merely on the ground that any period specified under this sub-section had expired without such proceedings being completed.]

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In the background of the mandate of

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Section 2(k) and Section 10 of the Industrial Disputes Act, 1947, as reproduced hereinabove, once any dispute or difference arose between the petitioner vis-à-vis the respondents in connection with employment or non-employment or the terms of employment or regarding the conditions of labour then, the petitioner was legally bound to apply to the appropriate Government for framing of a reference under Section 10(2) of the said Act. Though, the petitioner has in fact worked for 204 days during the year 1995 as per the Mandays Chart [Annexure R-1] but since he asserts to have worked for 240 days [which is denied in the replyaffidavit] by stating that the petitioner had abandoned

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the job of his own on 21.10.1995 till 31.12.1995 then, in case, the petitioner was dissatisfied then, the petitioner was bound to raise an industrial dispute by applying to the appropriate Government for framing of reference under the Industrial Disputes Act. Admittedly, the petitioner had failed to raise an “industrial dispute” since 1995 till the filing of instant Original Application No.1238 of 2019 [converted as CWPOA No.6626 of 2020 filed on 26.03.2019]. The petitioner remained silent and acquiesced in his rights and remedy therefore, the petitioner has no right to seek counting of the period of abandonment [21.10.1995 to 31.12.1995] towards continuous service of 240 days during 1995. Resultantly non-completion of 240 days disentitles the petitioner from seeking antedating of work charge status from 01.01.2003, despite having been accorded the same w.e.f. 01.01.2004. Deprecating the practice of filing belated petition claim, after having acquiesced with respect to his rights and remedies, the Hon’ble Supreme Court has held in Union of India and others vs. N.

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Murugesan and others (2022) 2 SCC 25 , as under:-

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The principles governing delay, laches, and

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acquiescence are overlapping and interconnected on many occasions. However, they have their distinct characters and distinct elements. One can say that delay is the genus to which laches and acquiescence are species. Similarly, laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not laches. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the period of limitation and create non-consideration of condonation in certain circumstances. They are bound to be applied by way of practice requiring prudence of the Court than of a strict application of law. The underlying principle governing these concepts would be one of estoppel. The question of prejudice is also an important issue to be taken note of by the Court.

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The word laches is derived from the French language meaning “remissness and slackness”. It thus involves unreasonable delay or negligence in pursuing a claim involving an equitable relief while causing prejudice to the other party. It is neglect on the part of a party to do an act which law requires while asserting a right, and therefore, must stand in the way of the party getting relief or remedy.

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Two essential factors to be seen are the length of the delay and the nature of acts done during the interval. As stated, it would also

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involve acquiescence on the part of the party approaching the Court apart from the change in position in the interregnum. Therefore, it would be unjustifiable for a Court of Equity to confer a remedy to a party who knocks its doors when his acts would indicate a waiver of such a right. By his conduct, he has put the other party in a particular position, and therefore, it would be unreasonable to facilitate a challenge before the Court. Thus, a man

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responsible for his conduct on equity is not expected to be allowed to avail a remedy.”

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While dealing with a similar fact-situation in LPA No.90 of 2022, titled Manish Sharma and Others

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versus State of Himachal Pradesh and Others, decided on 19.08.2023 and after relying upon the judgment passed by the Hon’ble Supreme Court in JT 2022 (9) SC 282, titled The State of Maharashtra

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and others Versus Greatship (India) Limited, the Hon’ble Supreme Court has mandated that the writ remedy cannot be invoked so as to by-pass statutory remedies available to a litigant.

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Based on the principle of law, in the case of

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N. Murugesan, Manish Sharma and Greatship (India)

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Limited , this Court is of the considered view, that once

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the petitioner’s has failed to invoke his statutory remedy

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under Section 10 of the Industrial Disputes Act so as to assert and establish by raising a claim for framing of reference and its adjudication by an Industrial Tribunal that he had actually worked for 240 days during 1995, which fact, is in dispute, in the Reply-Affidavit alleging the petitioner to have abandoned the job had worked for 104 days during 1995 as per [Annexure R-1], therefore, the petitioner having acquiesced in his rights/remedies from 1995 for 23 years till the filing of the present writ petition in the year 2019 then, the petitioner cannot be permitted to raise such a plea in instant proceedings after 23 years and therefore, on this ground, the present petition is without merit and is accordingly dismissed.

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SHIFT IN STAND BY PETITIONER IN WRIT PETITION VIS-À-VIS REJOINDER: INTRODUCING NEW CASE ALTOGETHER IMPERMISSIBLE:

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8. Perusal of the petition reveals that the petitioner has set up a case that though he had worked for 240 days during 1995 yet the benefit of the said period of service during 1995 has not been granted for according regularization/work charge status and in case, entire period of 1995 is counted, then the petitioner deserves to be granted regularization/work

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charge status from 01.01.2003 instead of 01.01.2004. In response to this stand taken in [CWPOA] petition, the State Authorities have set up a case that the petitioner was engaged in 26.03.1995 and had worked till 20.10.1995 and had thereafter left the job of his own on 21.10.1995 and did not report for duty till 31.12.1995 but had rejoined only in January 1996. The State Authorities have placed on record Mandays Chart [Annexure R-1] which indicates that the petitioner has actually worked for 204 days till 1995 and therefore,

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the benefit of said service of 204 days cannot be treated to be continuous service for the purposes of reckoning eligibility for grant of regularization/work charge status as is being claimed in the petition. Even a perusal of Rejoinder indicates, that the petitioner has set up a new cause of action and has taken a plea inconsistent with the plea taken with the writ petition by setting up a case that the respondents have given fictional breaks to the petitioner from 21.10.1995 till 31.12.1995. In this backdrop, this Court is of the considered view, that the shift in stand by the petitioner in the writ petition vis-à-vis the replication/rejoinder, so

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as to introduce a new cause of action and new plea altogether cannot be permitted in view of the mandate of the Hon’ble Supreme Court in Noorul Hassan versus

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Nahakpam Indrajit Singh and Others (2024) 9 SCC 353, mandating that the object and intent of replication-rejoinder is to explain or clarify the facts as pleaded in the writ petition vis-à-vis written statement of the reply. Replication or rejoinder cannot be permitted to be a substitute for an amendment so as to introduce a new cause of action or a plea inconsistent with the plea taken in the writ petition, in the following terms:

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“However, such leave is not to be granted mechanically. The Court before granting leave must consider the averments made in the plaint/election petition, the written statement and the replication. Upon consideration thereof, if the Court feels that to ensure a fair and effective trial of the issues already raised, the plaintiff/election petitioner must get opportunity to explain/clarify the facts newly raised or pleaded in the written statement, it may grant leave upon such terms as it deems fit. Further, while considering grant of leave, the Court must bear in mind that,— (a) a replication is not needed to merely traverse facts pleaded in the written statement; (b) a replication is not a substitute for an amendment; and (c) a new cause of action or plea inconsistent with the

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plea taken in original petition/plaint is not to be permitted in the replication. ”

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In view of the above discussion and the

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mandate of law and the principles laid down in the

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case of Noorul Hassan (supra) this Court is of the considered view that the petitioner has raised a new case altogether in the rejoinder-replication, which is at total variance with the case set up in the Writ Petition/Original Application. Such shift in stand by raising a new cause of action or new and inconsistent plea(s), cannot be permitted to be raised in instant petition. Moreover, the issue as to whether the petitioner had in fact worked or had abandoned the job or was given fictional breaks is to be adjudicated, tested and examined by the Statutory Form i.e. Industrial Tribunal under the Industrial Disputes Act and these seriously disputed questions of fact cannot be gone into, in present proceedings under Article 226 of the Constitution of India.

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JUDGMENT IN CASE OF RAVI KUMAR VERSUS STATE [CWP NO.4489 OF 2009] NOT APPLICABLE:

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9. Learned counsel for the petitioner contends

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that his case for counting fictional breaks period towards

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continuous service period is squarely covered by the judgment of this Court in CWP No.4489 of 2009, titled Ravi Kumar versus State of Himachal Pradesh , decided on 14.12.2009.

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Above contention of Learned Counsel for the petitioner is misconceived, for the reason, that the judgment, in the case of Ravi Kumar [Supra] is not applicable in fact-situation of instant case. Notably, the judgment in case of Ravi Kumar [supra] was based on the judgment passed by the Hon’ble Supreme Court in Mohd. Abdul Kadir and another versus Director General of Police, Assam and others, (2009) 6 SCC 611, whereby the period between termination and re-appointment was countable towards continuous service rendered by an employee in view of the Circular dated 17.03.1995 passed by the State of Assam. In the instant case, no such communication or circular has been placed on record by the writ petitioner. In absence of any such communication or circular, the judgment in the case of Mohd. Abdul Kadir, which has been relied upon in the case of Ravi Kumar (supra) for counting the period between termination till appointment

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is not applicable in instant case.

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Besides this, the larger issue as to whether the petitioner had actually worked or was given fictional breaks vis-à-vis plea of abandonment as is asserted by the respondents is to be tested and examined by Statutory Forum i.e., Industrial Tribunal. This aspect cannot be conclusively and sufficiently be determined in exercise of discretionary jurisdiction in Article 226 proceedings. Parties to the lis can only assert and establish their respective rights on the basis of evidence to be adduced by the respective parties and not in these proceedings. Accordingly, the judgment in the case of Ravi Kumar (supra) will not come to the rescue of the petitioner in these proceedings. Accordingly, the claim for benefit is turned down in these proceedings.

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PLEAS NOT RAISED IN EARLIER ROUND OF LITIGATION DISENTITLES PETITIONER FOR RAISING SAME IN PRESENT PROCEEDINGS:

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10. In earlier round of litigation, the petitioner filed an Original Application No.4777/2016, which was disposed of by the Learned State Administrative Tribunal on 21.09.2016 [Annexure A-1] whereby, the respondentsState Authorities were directed to consider the case of

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the petitioner for grant of regularization/work charge status as per the judgment in the case of Rakesh Kumar [CWP No.2375 of 2010]. Pursuant to the directions passed by Learned Tribunal on 21.09.2016, the State Authorities granted regularization/work charge status w.e.f. 01.01.2004, to the petitioner by issuing the necessary orders on 28.10.2015 [Annexure A-2]. Pertinently, in the earlier round of litigation i.e. Original Application No.4777 of 2016, once the petitioner has given up or relinquished his claim for regularization/work charge status w.e.f. 01.01.2003 [based on 240 days of continuous service during 1995]; then, relinquishment of claim, in earlier round of litigation precludes the petitioner from re-asserting or re-agitating the aforesaid claim for regularization/work charge status w.e.f. 01.01.2003, in the present petition i.e. Original Application No.1238 of 2019 [converted as CWPOA No.6626 of 2020]. Even, the principle mandated in Order 2 Rule 2 CPC disentitles the petitioner from re-asserting a claim for regularization/work charge status from 01.01.2003, based on service rendered during the year 1995. Thus, the present petition is liable

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to be dismissed, in view of the principles of Order 2 Rule

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2 against the petitioner, in instant proceedings.

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CLAIM FOR PENSION UNDER OLD PENSION SCHEME :

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11. Learned Counsel for the petitioner, upon query

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by this Court, fairly concedes that based on the grant of regularization/work charge status w.e.f. 01.01.2004, the petitioner who was earlier governed by Contributory Pension Scheme [NPS], upon re-introducing of the Old Pension Scheme in April 2023 has deposited the employers and employees share received by him, on retirement in the Government Treasury on 28.04.2025 [Annexure A-7]. Learned Counsel further submits that based on the deposit of employees and employers share in Government Treasury and the resultant option for Old Pension Scheme exercised by the petitioner the respondents have processed the claim for release of pension to the petitioner [Statement taken on Record]. Accordingly, based on the above statement, the State Authorities are directed to process the claim for pension under the Old Pension Scheme expeditiously and admissible pension be released to the petitioner in accordance with law.

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DIRECTIONS:

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In view of the above discussion and for the

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reasons recorded hereinabove, the instant petition is disposed of, in the following terms:

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(i) Claim of petitioner for regularization/work charge status w.e.f. 01.01.2003 is devoid of any merit and is rejected;

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(ii) Rendering of 204 days service and noncompletion of 240 days of continuous service during 1995 [as in Mandays Chart, Annexure R-1], disentitles the petitioner for counting of said service for Work-Charge Status w.e.f. 01.01.2003, as claimed;

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(iii) Petitioner is held entitled for grant of pension and other retiral benefits for services rendered from 01.01.2004 till superannuation and thereafter;

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(iv) Petitioner is free to seek remedy under Section 10(2) of the Industrial Disputes Act, in case, such a right/remedy, is legally tenable hereinafter.

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(v) Parties to bear their respective costs.

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In aforesaid terms, the instant petition and

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

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(Ranjan Sharma) Judge

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[Shivender]

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October 07, 2025

Sahi Ram v. State of Hp

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Sahi Ram v. State of Hp

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