State of Hp and Others Vs Jogi Ram

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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LPA No. 407 of 2024

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Date of Decision: April 2, 2025

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State of H.P & others …Appellants Versus Jogi Ram ..Respondent.

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Coram:

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The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. The Hon’ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting?¹ Yes For the Appellants: Mr.Anup Rattan, Advocate General, alongwith Mr.Arsh Rattan, Deputy Advocate General. For the Respondent: Ms.Babita, Advocate.

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Vivek Singh Thakur, J.

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Appellants-State by way of this appeal has assailed judgment dated 03.01.2024 passed by learned Single Judge, in CWP No.5920 of 2021, titled as Jogi Ram vs. State of H.P. and others, whereby after considering judgment dated 28.07.2010 passed in CWP No.2735 of 2010, titled as Rakesh Kumar vs. State of H.P. and others, and judgment dated 10.05.2018 passed in CWP No.3111 of 2016, titled as State of H.P. and others vs. Ashwani Kumar, respondents have been directed to grant Work Charge status to the petitioner from the date he had completed 8 years of service on daily wage basis, but restricting the 1 Whether reporters of the local papers may be allowed to see the judgment?

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financial benefits of such conferment of Work Charge status from 3 years prior to filing of the petition.

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The parties are being referred as per their status in the writ petition.

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In the petition, principal and only argument to deny the Work Charge status to the petitioner was pressed by taking a plea that Department of Panchayati Raj has no Work Charge establishment.

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Learned Single Judge has observed that no other contention was raised or urged.

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In this appeal also main and only ground taken to assail the aforesaid judgment is that Panchayati Raj Department has no Work Charge establishment and, therefore, Work Charge status cannot be conferred upon the respondent on completion of 8 years of daily wage service.

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Issue regarding conferment of Work Charge status on completion of 8 years in the Department having no Work Charge establishment is no longer res integra as it stands settled in various judgments of this High Court, some of which were assailed by the State in the Supreme Court by filing SLPs, which were dismissed by the Supreme Court.

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For justifying the denial of work-charge status to the petitioners on completion of 8 years, learned counsel for the respondent-State has referred to judgments of the Supreme Court in State of Rajasthan vs Kunji Raman, (1997) 2 SCC 517; Jaswant Singh & Ors. vs Union of India & Ors, (1979) 4 SCC 440;

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State of Maharashtra vs Purshottam & Ors., (1996) 9 SCC 266 ; and judgment dated 28.07.2010 of the High Court passed in CWP No.2735 of 2010, titled Rakesh Kumar & Ors. vs State of HP .

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Plea has also been taken on behalf of respondentsState that in view of judgment in Jaswant Singh and others vs. Union of India and others, (1979) 4 SCC 440 , petitioner is not entitled for the claim to confer work charge status upon him on completion of requisite number of years as the University was and is not having any work charge establishment.

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Term “work-charge”, in Jaswant Singh & Ors. vs Union of India & Ors, (1979) 4 SCC 440; State of Maharashtra vs. Purshotam and other (1996) 9 SCC 266; and State of Rajasthan vs. Kunji Raman (1997) 2 SCC 517 , is in different context, whereas this term, in Himachal Pradesh, is used in different context. A person, working on daily-waged basis, before his regularization, is granted work-charged status on completion of specified number of years as daily-wager and effect thereof is that thereafter non-completion of 240 days in a calendar year would not result into his ouster from the service or debar him from getting the benefit of length of service for that particular year. Normally, work-charged status is conferred upon a dailywager, on accrual of his right for regularization, on completion of prescribed period of service, but non regularization is for want of regular vacancy in the department or for any other just and valid reason. Therefore, it is a period interregnum daily-wage service and regularization, which is altogether different form the

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temporary establishment of work-charge, as discussed in the judgment of the Apex Court relied upon by the State and, for practice in Himachal Pradesh, work-charged status is not conferred upon the person employed in a project but upon such daily-wage workers, who are to be continued after particular length of service for availability of work but without regularization for want of creation of post by Government for his regularization/ regular appointment. Therefore, work is always available in such cases and the charge of a daily-wager is created thereon to avoid his disengagement for reasons upon which a daily-wager can be dispensed with from service.

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In the given facts and circumstances of present case, judgment relied upon by the respondents pronounced in Jaswant Singh’s case, Purshotam’s case and in Kunji Raman’s case (supra), are neither relevant nor applicable.

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On conferment of work-charged status, sword of disengagement, hanging on the neck of workmen, is removed on completion of specified period of daily-waged service, as thereafter instead of daily-wage, the employee would get regular pay-scale and would be entitled to other consequential benefits for which a daily-waged employee is not entitled.

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For the purpose of adjudication of present case, Policy formulated by the respondents-State and approved by the Supreme Court of India in Mool Raj Upadhyaya v. State of H.P. & others, 1994 Supp (2) SCC 316 further explained in Gauri Dutt & others v. State of H.P., Latest HLJ 2008 (HP) 366, and

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Regularization Policy framed and circulated by the respondentsState in the year 2000, shall be relevant.

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Policy approved by the Supreme Court in Mool Raj Upadhyaya’s case reads as under:

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“4. Taking into consideration the facts and circumstances of the case, we modify the said scheme by substituting paragraphs 1 to 4 of the same by the following paragraphs:

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"(1) Daily-wage/muster-roll workers, whether skilled or unskilled, who have completed 10 years or more of continuous service with a minimum of 240 days in a calendar year on 31-12-1993, shall be appointed as work-charged employees with effect from 1-1-1994 and shall be put in the time-scale of pay applicable to the corresponding lowest grade in the government;

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(2) daily-wage/muster-roll workers, whether skilled or unskilled, who have not completed 10 years of continuous service with a minimum of 240 days in a calendar year on 31-12-1993, shall be appointed as work-charged employees with effect from the date they complete the said period of 10 years of service and on such appointment they shall be put in the time-scale of pay applicable to the lowest grade in the government;

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(3) daily-wage/muster-roll workers, whether skilled or unskilled who have not completed 10 years of service with a minimum of 240 days in a calendar year on 31-12-1993, shall be paid daily wages at the rates prescribed by the government of Himachal Pradesh from time to time for daily-wage employees falling in Class III and Class IV till they are appointed as work-charged employees in accordance with paragraph 2;

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(4) daily-wage/muster-roll workers shall be regularised in a phased manner on the basis of seniority-cum-suitability including physical fitness. On regularisation they shall be put in the minimum of the time-scale payable to the corresponding lowest grade applicable to the government and would be entitled to all other benefits available to regular government servants of the corresponding grade."

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Right of regularization/work-charge status of a DailyWage Worker, where the worker/employee has rendered service, on daily-wage basis, on different posts in lower and higher grades, has been explained in Gauri Dutt’s case, as under:

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“18. The last question raises some interesting points. There have been instances where some employee has worked as beldar for some time and thereafter he has been engaged in a higher scale as mate or supervisor etc. The Tribunal in most of these cases has directed that the employee should be granted work charge status in the higher post on completion of 10 years of service after combining the service rendered in the lower scale and the higher scale. The State is aggrieved by these directions. According to the learned Advocate General the State has offered work charge status to these employees on completion of 10 years of combined service in the lower of the two scales and the State cannot be directed to grant work charge status in the higher scale. On the other hand, it is contended on behalf of the employees that since the employees are already working in the higher scale, it would not be fair and equitable to grant them work charge status in the lower scale.

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We have considered the arguments from all angles. We are of the view that the employee cannot be given the benefit of combining service rendered in both the scales and be granted work charge status in the higher scale. We do, however, feel that at times it may be inequitable to grant the employee work charge status in the lower scale without giving him an option in this regard. We are giving two examples to illustrate two extreme positions. In example (i) we will deal an employee (A) who joined service on 1.1.1990. He works in the lower scale of beldar from 1.1.1991 to 31.12.1999. He is thereafter posted as Supervisor in the higher scale. Should he be granted work charge status as beldar or as Supervisor w.e.f. 1.1.2001? The other example is converse. Supposing employee (B) has worked as beldar w.e.f. 1.1.1991 to 31.12.1991 and from 1.1.1992 he has worked as Supervisor. From which date should we grant him work charge status and in what scale? It is obvious that in the first case

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the employee would not mind being granted work charge status even in the lower scale after 10 years w.e.f. 1.1.2000 since grant of work charge status would mean that he would get regular scale of pay. But should the employee be granted work charge status in the higher scale? We cannot agree with this preposition.

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After considering all the pros and cons and keeping in view the fact that various anomalous situations may arise we are of the considered view that when an employee completes 10 years of continuous service combined in two scales, an option should be given to the employee to either accept work charge status in the lower scale or he may continue to work on daily rated basis in the higher scale and claim work charge status in the higher scale on completion of 10 years of continuous service in the said scale. In the examples given above, employee (A) may prefer to accept work charge status w.e.f. 1.1.2001 even in the lower scale of beldar because otherwise he may have to wait for 9 years before he is granted work charge status. On the other hand, employee (B) in the second example may prefer to delay the grant of work charge status by one year so that he can get work charge status in the higher scale. We feel that in each case the choice should be left to the employee. However, if the employee on being given a chance to exercise his option does not convey his option within 30 days, he shall be granted work charge status in the lower scale by combining the service rendered in both the scales. This answers the fourth question.”

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Relevant operative portion of orders dated 3.4.2000 and 6.5.2000, issued by Government of Himachal Pradesh, notifying and circulating terms for regularization of daily-wage workers in the year 2000, on completion of eight years continuous service, are as under:

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Order dated 3.4.2000:

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“……………….

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In partial modification of this Department letter of even number dated 8^th July, 1999 on the above subject, I am directed to say that the

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Government has now decided that the Daily Waged/Contingent Paid workers in all Departments including Public Works and Irrigation and Public Health Department (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 31-03-2000 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 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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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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Other terms and conditions like fulfillment of essential qualification as prescribed in R&P Rules, etc. etc. as laid down in this department letter dated 8^th July, 1999, as referred to above, shall continue to be operative.

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

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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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Order dated 6.5.2000:

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“……………..

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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 otherwise 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 31-03-2000 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 terms and conditions for such regularization shall be governed as per Annexure -‘A’.”

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A Division Bench of this High Court in CWP No.2735 of 2010, titled as Rakesh Kumar v. State of H.P. & others, decided on 28.7.2010, has held that till the new scheme, if introduced, comes into being, the old scheme shall be in force, and employees, till introduction of new scheme, shall be entitled for benefits of previous scheme. In other words, on introduction of new scheme, employees shall be entitled for benefits of new scheme, particularly when applicability of subsequent scheme is more beneficial to the employees than the old scheme. The employees, who are governed by old scheme, but are also governed under new scheme devolving benefits better than earlier scheme, are definitely entitled for benefits of the latest scheme.

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With respect to ground taken by the respondents-Department that Department is not having work-charged establishment and, thus, benefit of period of service as a work-charged employee cannot be extended to the petitioners, it is apt to record that in Mool Raj Upadhyaya’s case an affidavit was filed by the Chief Secretary to the Government of Himachal Pradesh, formulating a Scheme for granting work-charged status to all daily-waged employees, serving in the State of Himachal Pradesh, in all Departments, irrespective of the fact that Department is/was having work-charged establishment or not.

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In Gauri Dutt’s case , it has been held that the scheme formulated in Mool Raj Upadhaya’s case is applicable to daily-waged employees working in any department of the state of Himachal Pradesh and the employees, who are not governed by the directions given in Mool Raj Upadhaya’s case , shall be governed by a Scheme framed by the State in this regard and it has also been observed that granting of work-charged status would mean that an employee would get regular scale of pay.

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Upholding the order passed by the erstwhile H.P. State Administrative Tribunal, a Division Bench of this Court, vide judgment dated 10.5.2018, in CWP No.3111 of 2016 , titled as State of Himachal Pradesh v. Ashwani Kumar , has pronounced that work-charged establishment is not a pre-requisite for conferment of work-charged status nor conversion of work-charged employee into regular employee would make such establishment non-existent.

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Civil Appeal No.5753 of 2019, titled as State of H.P. vs. Ashwani Kumar, preferred by the State in Ashwani Kumar’s case has been dismissed by the Supreme Court on 22.07.2019. Similarly, SLP (C) No. 8830-8869 of 2011 preferred by the State in Rakesh Kumar’s case also stands dismissed by the Supreme Court on 15.01.2015.

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In response to plea that work-charged establishment does not exist in the respondent-Department, learned counsel for the petitioners has also referred pronouncements of this High Court in cases CWPOA No. 5748 of 2019 , titled Man Singh Vs. The State of Himachal Pradesh and others ; CWPOA No. 52 of 2019, titled Beli Ram Vs. State of Himachal Pradesh and another; CWPOA No. 5566 of 2019, titled as Reema Devi Vs. State of H.P. and others; and CWPOA No. 5660 of 2019, titled Ghanshyam Thakur Vs. State of Himachal Pradesh and others; LPA No.151 of 2021, titled State of HP Vs. Beli Ram, decided on 09.08.2023; CWPOA No.5554 of 2019, titled Daulat Ram vs. State of HP and others; CWPOA No.6468 of 2020 titled Uggam Ram vs. State of HP and others decided on 09.11.2023; and CWPOA No.6151 of 2020 titled Rashid Mohammed vs. State of HP and others decided on 13.06.2024; wherein similar plea of respondent-State did not find favour of the Court.

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According to pronouncement in Mool Raj Upadhyaya’s case , clarified in Gauri Dutt’s case, work charge status was to be conferred irrespective of existence of work charge establishment. The said fact has not been considered in Rakesh Ku-

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mar’s case. In fact, in Rakesh Kumar’s case , this issue was not adjudicated but without considering Mool Raj’s case and without assigning any reason, a passing observation was made. Whereas this issue has been adjudicated and decided in subsequent judgment in Ashwani Kumar’s case. Therefore, observations made on this issue in Rakesh Kumar’s case are not binding especially when Civil Appeal in Ashwani Kumar’s case has been dismissed by Supreme Court. Therefore, abolition or non-existence of workcharge establishment in the respondent-Department has no effect on the rights of petitioner for conferment of work-charged status after completion of 8 years in terms of Policy of the Government as well as verdict of Rakesh Kumar’s case.

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For conferment of work-charged status, workcharged establishment in the Department is not prerequisite. The same has also been affirmed by the Principal Division Bench of this Court in judgment dated 9.8.2023 passed in LPA No. 151 of 2021, titled State of H.P. & another Vs. Beli Ram.

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The aforesaid principle has also been affirmed in CWPOA No.6710 of 2020, titled as Ram Singh & others vs. State of H.P. & others, decided on 08.09.2023; CWPOA No.6614 of 2020, titled as Ram Singh vs. State of H.P. & others, decided on 23.11.2023; CWPOA No.6217 of 2020, titled as Pawan Kumar vs. State of Himachal Pradesh & others; and CWPOA No.7497 of 2020, titled as Pritam Singh vs. State of H.P. & others , decided on 29.07.2024 .

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In view of above exposition of law, we do not find any illegality, irregularity or perversity in the impugned judgment and, therefore, no ground is made out for interference.

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We consider it fit to record that State is preferring the appeals despite dismissal of their similar appeals in identical matters. Such conduct is not in consonance with the Litigation Policy adopted by the State of H.P. which is causing wasting the time and energy of the State as well as the Court.

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State is agitating the issue repeatedly which has been settled up till the Supreme Court by filing appeals and thereby, apart from subjecting the poor litigant to unwarranted litigation and unnecessary expense, also wasting the time of the Court and also loss to public exchequer. Earlier also a large number of appeals/petitions on the similar issue have been decided, but the State is not mending its mentality.

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The Supreme Court in Special Leave to Appeal (C) No(s).3398/2024, titled as State of Rajasthan and ors. V. Gopal Bijhawat , decided on 16.2.2024, had imposed costs of `10,00,000/on the State for having harassed a poor litigant for having engaged him in protracted litigation denying him fruits of his litigation.

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In Special Leave Petition (Civil) Diary No(s).30326 of 2023, titled as The Special Land Acquisition Officer v. Vithal Rao, decided on 6.9.2023, the Supreme Court had imposed costs of `5,00,000/- and had categorically observed that just because Officers of the State do not have to pay for litigation from their

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pocket does not mean that they can harass individuals by forcing them into uncalled for litigation.

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In CWP No.1314 of 2016, titled as Nigma Devi v. State of Himachal Pradesh and others, decided on 30.8.2022, this High Court had directed the State to pay compensation of `20,00,000/- to the petitioner therein and had ordered that the said amount shall be recovered from the erring Officers/officials on pro-rata basis.

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In view of above and conduct of the appellants-State exemplary cost is required to be imposed upon the State. Hence cost of `40,000/- is imposed upon the appellants-State, payable to the H.P. State Legal Services Authority, on or before 30.04.2025.

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Appeal is dismissed in aforesaid terms, so also pending applications, if any.

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Copy be sent to H.P. State Legal Services Authority.

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(Vivek Singh Thakur), Judge.

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(Ranjan Sharma), Judge.

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April 2, 2025 (Purohit)

State of Hp and Others v. Jogi Ram

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State of Hp and Others v. Jogi Ram

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