Cskhpkv Vs Bishan Dass

(2025:HHC:10431)

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

LPA No: 83 of 2025 Decided on: 11.03.2025

__________________________________________________________ Chaudhary Sarwan Kumar Himachal Pradesh Krishi Vishwavidyalaya Palampur, through its Registrar.

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.... Appellant Versus Bishan Dass ...Respondent

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Coram;

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Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice. Hon’ble Mr. Justice Ranjan Sharma, Judge. 1 Whether approved for reporting? Yes. For the appellant: Mr. Janesh Mahajan, Advocate, For the respondent: Mr. Arun Rana, Advocate.

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Per Ranjan Sharma, Judge

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Appellant-University has come up before this Court, assailing the judgement, In Re; Bishan Dass versus Chaudhary Sarwan Kumar Himachal Pradesh Krishi Vishwavidyalaya, Palampur, in CWPOA No. 5815 of 2019, dated 17.05.2024 [Annexure A-1], {referred to as the Impugned Judgement} whereby, the Learned Single Judge had directed Appellant-University to confer work charged

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status to Respondent-Employee herein, on analogy

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

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on which, it has been conferred upon another employee(s), Sarwan Kumar [ petitioner in CWP No, 1396 of 2019 decided on 12.01.2023 at Sr. No. 89

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in bunch of connected cases alongwith LPA No. 165 of 2021, In Re: State of Himachal Pradesh and others versus Surajmani and another ] .

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FACTUAL MATRIX BEFORE WRIT COURT:

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2. Respondent-Employee herein had filed

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an Original Application No. 4975 of 2015 [which upon abolition of State Administrative Tribunal was converted as CWPOA No. 5815 of 2019] with the assertion that he was engaged as a daily paid labourer in Appellant-University w.e.f. 1.1.1994 and

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was regularized in service after 14 years continuous service in terms of the applicable/adopted policy on 15.06.2007 [Annexure A-1]. Notwithstanding the regularization after 14 years, the petitioner claimed

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benefit of regularization after completion of eight years of continuous service as has been extended

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to other similar persons as mentioned in [Annexure A-2]. During the pendency of proceedings before

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the Writ Court, the Respondent-Employee herein, filed an application [CMP(T) No. 245 of 2024], with the assertion that the case of Respondent-Employee is squarely covered for conferment of work charged status from the date of completion of eight years continuous service in terms of the judgement in CWP No. 1396 of 2019 titled as CSKHPKV versus

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Sarwan Kumar decided on 12.01.2023. In the aforesaid application, it was also mentioned that the judgement in the case of Sarwan Kumar [supra]

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has been implemented by passing an office order on 16.09.2023 [in case of Sarwan Kumar] and another order dated 11.03.2024 in case of eight other similar employees [Annexure A-1], by granting work charge status from the date of completion of eight years continuous service as daily waged worker.

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2(i). It was asserted by Respondent-Employee that once work charge status has been conferred

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on Sarwan Kumar and others eight incumbents in terms of orders dated 16.09.2023 and 11.03.2024

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then, similar treatment may be extended to him

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by conferring work charge status from the date of completion of eight years continuous service whereas the denial of consideration and resultant work charged status to the respondent-employee on the analogy on which it was given to other similar incumbents was arbitrary, discriminatory, resulting in hostile discrimination and by adopting a pick and choose method has visited the RespondentEmployee of civil consequences, resulting in denial of higher status and pay fixation is recurring loss till day.

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STAND OF APPELLANT-UNIVERSITY IN WRIT PROCEEDINGS:

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3. Appellant-University filed a reply with the averments that the University adopted the State Government policy dated 08.07.1999 [Annexure R-1] vide notification dated 02.03.2000 [Annexure R-2] which provided for regularization on completion of eight years continuous service on 31.03.1999 against

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available vacant posts or by creation of posts. Reply-affidavit stated that another policy was issued by the State Government on 09.06.2006 [Annexure

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R-III], which was adopted by the University on 14.06.2007 [Annexure R-IV] providing for considering the cases of daily waged/contingent paid worker who had completed eight years continuous service as on 31.03.2004 for regularization against available vacancy and with the averments that regularization shall have prospective effect.

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3(i). Even in Para 3 and Para 6 (vii) of the Reply-Affidavit, the Appellant- University admitted that the Respondent-Employee had completed eight years of continuous service of 240 days in each calendar year as on 01.01.2002 .

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3(ii). Respondent employee herein, filed an application [CMP-T No 245 of 2024], containing averments that once the University has granted work charged status from the date of completion of 8 years of continuous daily wage service in terms of the judgement in Sarwan Kumar’s case

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and also to other similar employees, then, the Respondent herein, was entitled for similar benefit as given to others. However, the above facts, in

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the application remained unrebutted by the Appellant -University.

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IMPUGNED JUDGEMENT DATED 17.05.2024:

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4. Based on the above factual matrix,

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once the Respondent-employee [Bishan Dass] had completed eight years continuous service on daily wage basis coupled with the fact that the benefit of work charged status was extended to one Shri

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Sarwan Kumar [petitioner in CWP No 1396 of 2019, decided on 12.01.2023] and to many others, therefore, the Learned Single Judge passed the Judgment dated 17.05.2024 [referred to as Impugned

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Judgment] by directing the Appellate-University to extend same benefits to the respondent(s) herein, which have been conferred upon Sarwan Kumar, as referred to above.

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5. Heard, Learned Counsel for appellant and Learned Counsel for the respondent.

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6. Since the issue involved in the instant appeal is no longer res-integra, in view of the mandate of the Honble Supreme Court, in State

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of Himachal Pradesh & Ors versus Surajmani

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& anr, Civil Appeal No 1595 of 2025, decided on 6.2.2025, yet, at the insistence of Learned Counsel for Appellant, this Court proceeds to adjudicate the instant appeal, at this stage itself.

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GROUNDS IN INSTANT APPEAL-LPA:

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7. The Appellant-University has assailed the

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Impugned judgement dated 17.05.2024 primarily on six grounds, which are discussed, hereinbelow:-

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7(i). First contention of Learned Counsel for Appellant-University is that the issue as to whether

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work charge status is to be conferred on daily waged employees from the date of completion of eight years continuous service, in terms of the judgement in LPA No. 165 of 2021, titled as State of Himachal Pradesh & Ors versus Surajmani and another decided on 12.01.2023 has been assailed by the State Authorities in SLP and therefore, the judgement(s) in case of Surajmani has not attained finality, as yet.

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The above contention of the appellant-

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University is without any force, for the reason that the Appellant-University had filed the instant LPA on 03.09.2024. However, upon listing of the instant appeal on 11.03.2025, the SLP in case of Surajmani i.e. SLP (C) 23016 of 2023 converted as Civil Appeal No 1595 of 2025 stood decided by the Hon’ble Supreme Court on 06.02.2025, holding that the employee(s) entitled for grant of work charge status from the date of completion of eight years service, in the following terms:

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For the cumulative reasons aforestated, we are of the considered view that the dicta laid down by this Court vide order dated 22.07.2019 in Ashwani Kumar’s (Supra) case which is based on the judgment of Mool Raj Upadhyaya (Supra) holds the field and would also be applicable to the Respondents herein who had approached the Tribunal or the High Court seeking similar relief. As such, the Respondents shall be entitled for grant of ‘work-charged’ status from the date of completion of 8 years of service . However, we hold that the relief in the present appeals will be limited to notional benefits as explained in paragraph 3 and 4 of Ashwani Kumar’s (Supra) case in Civil Appeal No(s). 5753 of 2019 and the present appeals stand disposed of accordingly with no order as to costs.

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In the above backdrop, once judgement

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of this Court in LPA in the case of Surajmani’s

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(supra), stand decided by the Honble Supreme Court, in SLP(C) 23016 of 2023, converted as Civil Appeal No 1595 of 2025 decided on 6.2.2025, by mandating to grant work charged status from the date of completion of 8 years of service. Thus, once the issue regarding conferment of work-charged status stands adjudicated upon by the Hon’ble Supreme Court in case of Surajmani

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[supra], then, the contention of appellant-university cannot sustain.

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7(ii). Second contention of Appellant-University

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is that the Learned Single Judge, has relied upon the judgment in case of CSKHPKV versus Sarwan Kumar [CWP No 1396 of 2019, decided on 12.1.2023], which has been assailed by Appellant-University in SLP(C) Diary No 28840 of 2023, and the same has not attained finality as yet.

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The above contention of the AppellantUniversity, in considered view of this Court, is not tenable, for the reason, that even the SLP

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(C) No. 28840 of 2023 [Annexure A-2], filed by University in the case of Sarwan Kumar [supra] stands decided alongwith the case of Surajmani [supra] i.e. SLP(C) 23016 of 2023 converted as Civil Appeal No 1595 of 2025 on 06.02.2025; by affirming that Respondent-Employee shall be entitled for grant of work charge status from the date of completion of eight years of service. Thus, in view of the mandate of Honble Apex Court, the plea of Learned Counsel for appellant-University is misconceived.

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7(iii). Third contention of Learned Counsel for Appellant is that the University was not a work charge establishment, in terms of the judgement in case of Jaswant Singh and others versus Union of India and others, (1979) 4 SCC 440 and therefore, the direction for granting work charge employee was erroneous.

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The above contention is misconceived, for the reason, that the judgement in the case of Jaswant Singh is distinguishable on facts ; and

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even a perusal of Paras 2 and 3 of the judgement in case of Jaswant Singh [supra] indicates that the entire strength of employees was work charged

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engaged for execution of specified work in the project i.e. Beas Project ; and upon completion of work, for which they were employed, their services automatically came to an end ; and their pay and allowances was chargeable against separate head of cost of work ; and the work charged employees whose conditions of service was governed by the Award of 1974 were not entitled to any relief of payment of gratuity act nor any other retrenched benefits by the respective employer. Thus, the plea set up on the basis of Jaswant Singh’s case is devoid of any merit and is accordingly turned down, in facts of instant matter.

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On the other hand, in the instant case, it is not the case of Appellant-University that Respondent-Employee was engaged in a particular project for a particular work and/or such workproject had closed. Besides this, even, Respondent-

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Employee continued in service of Appellant(s) from 01.01.1994 till regularization on 15.06.2007 and

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is continuing as a regular employee as on day and even the conferment of work charged status from the date of completion of 8 years service, despite having been regularized from a later date, stands affirmed by the Hon’ble Supreme Court, in SLP (C) 23016 of 2023 converted as Civil Appeal No 1595 of 2025 on 06.02.2025 in the case of

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Surajmani (supra), and the connected matter in SLP (C) Diary No 28840 of 2023, in the case of

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Sarwan Kumar (supra) ; coupled with the fact that in State of Himachal Pradesh the concept of work charged status was introduced in the State so as to confer better/higher status vis-à-vis daily wager status in lieu of prolonged service rendered by incumbents [in State or its Instrumentalities, including Universities], irrespective of whether the

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work charge establishment exists or not in terms of the mandate of law laid down by the Co-ordinate

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Bench of this Court in Pritam Singh versus

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State of Himachal Pradesh, CWPOA No 7497 of

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2020, decided on 29.7.2024, in the following terms;-

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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 workcharged employee cannot be extended to the petitioner, 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 prerequisite 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

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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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Term “work-charge”, 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 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 conferred upon a daily-wager, on accrual of his right for regularization, on of prescribed period of service, but non-regularization is for want of 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 temporary establishment of workcharge, 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 post by Government for his regularization /regular appointment. Therefore, work is always available in such cases and charge of a daily wager is created thereon to avoid his disengagement for reasons which a daily-wager can be dispensed with from service.

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On conferment of work-charged status, sword of disengagement, hanging on the neck of workmen, is removed on completion

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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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In response to plea that work-charged establishment does not exist in the respondentDepartment, learned counsel for the petitioner 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 Kumar’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,

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abolition or non-existence of work charge establishment in the respondent-Department has no effect on the rights of petitioner for conferment of work-charged after completion of 8 years in terms of Policy of the Government as well verdict of Rakesh Kumar’s case.

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For conferment of work-charged status, work-charged establishment in the Department is not prerequisite. The same has also been affirmed by the Division Bench of this Court in judgment dated 9.8.2023 passed in LPA No 151 of 2021, titled as State of Himachal Pradesh versus Beli Ram also.

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reliance in the case of Jaswant Singh and the plea set-up during argument that there has to be work charge establishment for granting work charged status to daily wagers in Himachal Pradesh stands negativated in view of the mandate of the Hon’ble Supreme Court in case of Surajmani and

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Sarwan Kumar (supra) and the mandate of this Court, as referred to above.

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7(iv). Fourth contention of the Learned Counsel

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for Appellant-University is that work charge status cannot be claimed as a matter of right.

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The above contention is without any force, for the reason that, the Appellant-University

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has already conferred work charge status to its

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employees, namely Sarwan Kumar [petitioner in CWP No. 1396 of 2019 as per office order dated 16.09.2023 and also to eight other employees in terms of order dated 11.03.2024 [as is borne out

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from CMP ( T) No. 245 of 2024]. Thus, once the Appellant-University has granted work charge status

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from the date of completion of eight years’ service to some of its daily waged employees, therefore Respondent-Employee [Bishan Dass herein] being similarly placed is entitled for benefits. Negating the conferment of work charged status to the Respondent-Employee when, it has been extended to other similar persons shall certainly result in discrimination and shall tantamount to treating “equals as unequal”, which is ex-facie violative of

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Articles 14 and 16 of the Constitution of India. Even while deciding the Civil Appeal in the case of Surajmani [supra] on 06.02.2025, the Hon’ble Supreme Court has upheld the findings of this Court in Ashwini Kumar’s case that the appellants

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employer cannot adopt pick and choose policy

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while implementing a judgement, in the following

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terms:-

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It would not be out of context to refer at this juncture itself that the State, in its wisdom, having felt that the subsequent schemes having been formulated and implemented, would alter the situation and, therefore, order dated 12.04.1994 passed in Raj Upadhyaya’s (Supra) case has to be modified, had approached this by filing an Interlocutory Application being IA No. 3 in the year 2005 in the aforesaid Mool Raj Upadhyaya’s case, i.e., Writ Petition (Civil) No. 787 of 1987. A perusal of the said application and the averments made thereunder would clearly indicate that the same contentions urged, pleas advanced and arguments put forth today before us were the ones which were urged/ raised in the said application. Though Mr. Vivek Tankha, learned senior counsel appearing for the State would fairly submit that the said application was withdrawn on the ground of subsequent schemes having been formulated and implemented by the State of Himachal Pradesh, but we are unable to accept the said proposition howsoever attractive it may be, for the simple reason that the said application was dismissed simpliciter as withdrawn. Yet another factor which sways our mind to reject the contention raised by the learned senior counsel appearing for the State would be the fact the State having accepted the judgment of Ashwani Kumar (Supra), has implemented the same and it in this background, the High Court in the impugned order has observed that the State cannot adopt pick and choose policy. ”

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7(v). Fifth contention of the Learned Counsel

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for Appellant-University is that the claim for grant of work charge status suffers from delay and laches.

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The above contention cannot pass the test of judicial scrutiny, for the reason that the Hon’ble Supreme Court, has mandated in Para 12 of the judgement in case of Surajmani that this judgement would necessarily be a judgement in rem, in the following terms :-

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It is further underscored that this judgment would necessarily be a judgment in rem and the State shall hence forth not take recourse to employing personnel as daily wagers but shall make appointments only in accordance with law, as enumerated in the case of Secretary, State of Karnataka Vs. Uma Devi [(2006) 4 SCC 1].

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Surajmani [supra] is a judgement in rem, then, the State Authorities as well as the AppellantUniversity is binding on all concerned and the benefits accruing therefrom, are to be to extended to all similarly placed persons/employees, without discrimination. In such an eventuality, the State Authorities, including its instrumentalities and the

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Appellant University cannot raise the plea of delay and laches or acquiescence so as to defeat the claim/rights/benefits flowing from the mandate of the Hon’ble Supreme Court, in State of U.P versus

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Arvind Kumar Srivastava, (2015) 1 SCC 347, in the following terms :-

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22.1. Normal rule is that when a particular 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 be violative of Article 14 of the Constitution of India . This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal 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. However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and

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delays, and/or the acquiescence, would be a valid ground to dismiss claim.

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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 (1997) 6 SCC 721.”

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While negating the plea of delay and

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laches in a situation when, benefit of judgement

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in rem was denied to others while it was extended to others, the Three Judges Bench of the Honble Supreme Court has held in Chairman/Managing Director Uttar Pradesh Power Corporation Limited and Others versus Ram Gopal, (2021) 13 SCC 225, as under :-

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We may hasten to add that these principles may not, however, apply to judgments which are delivered in rem. The State and its instrumentalities are expected in such category of cases to themselves extend the of a judicial pronouncement to all

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similarly placed employees without forcing each person to individually knock the doors of courts . This distinction between operation of delay and laches to judgments delivered in rem and in personam, is lucidly captured in State of U.P. v. Arvind Kumar Srivastava , ……”

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While dealing with the issue that once a principle of law has been declared then, all similarly placed are entitled for extension of same benefits without forcing them to come to the Courts, has been mandated by the Honble Supreme Court in case of Lt. Col. Suprita Chandel versus Union of India, Civil Appeal No 1943 of 2022, decided on 09.12.2024, in the following terms:-

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It is a well settled principle of law that where a citizen aggrieved by an action of the government department has approached the court and obtained a declaration of law in his/her favour, others similarly situated ought to be extended the benefit without the need for them to go to court . [See Amrit Lal Berry vs. Collector of Central Excise, New Delhi and Others, (1975) 4 SCC 714] .

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In K. I. Shephard and Others vs. Union of India and Others, (1987) 4 SCC 431 , this Court while reinforcing the above principle held as under:-

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“19. The writ petitions and the appeals must succeed. We set aside

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impugned judgments of the Single Judge and Division Bench of the Kerala High Court and direct that each of the three transferee banks should take over the excluded employees on the same terms and conditions of employment the respective banking companies prior to amalgamation. The employees would be entitled to the benefit of continuity of service for all purposes including salary and perks throughout the period. We leave it open to the transferee banks to take such action as they consider proper against these employees in accordance with law. Some of the excluded employees have not come to court. There is no justification to penalise them for not having litigated. They too shall be entitled to the same benefits as the petitioners. ….”

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No doubt, in exceptional cases where the court has expressly prohibited the extension of the benefit to those who have not approached the court till then or in cases where a grievance in personam is redressed, the matter may acquire a different dimension, and the department may be justified in denying the relief to an individual who claims the extension of the benefit of the said judgment.

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That is not the situation here. In the submissions too, the respondents have not been able to point out any valid justification as to how the applicants who obtained the benefit from the AFT, Principal Bench in OA No. 111 of 2013 and batch are not identically situated with the appellant. Like the applicants who succeeded, the appellant was also ripe for the third chance before the amended para 4(a) of AI No. 37 of 1978 was introduced on

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20.03.2013. The Principal Bench of the AFT in OA No. 111 of 2013 after clearly holding that the applicants therein were denied the third chance directed consideration of their cases for permanent absorption by granting one-time age relaxation by considering them under the unamended policy.

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The respondent authorities their own should have extended the benefit of the judgment of AFT, Principal Bench in OA No.111 of 2013 and batch to the appellant. To illustrate, take the case of the valiant Indian soldiers bravely guarding the frontiers at Siachen or in other difficult terrain. Thoughts on conditions of service and job perquisites will be last in their mind. Will it be fair to tell them that they will not be given relief even if they are similarly situated, the judgment they seek to rely on, was passed in the case of certain applicants alone who moved court ? We think that would be a very unfair scenario. Accepting the stand of the respondents in this case would result in this Court putting its imprimatur on an unreasonable stand adopted by the authorities.

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The stand of the Department relying on the judgment of this Court in State of Maharashtra and Another vs. Chandrakant Anant Kulkarni and Others, (1981) 4 SCC 130 to contend mere reduction in chance of consideration did not result in deprivation of any right does not appeal to us. The appellant’s case is founded on the principle of discrimination. What is sauce for the goose ought to be sauce for the gander. If the applicants in O.A. No. 111 of 2013 whom we find are identically situated to the appellant were found to be eligible to be given a third chance

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promotion, because they acquired eligibility before the amendment to AI No. 37 of 1978 on 20.03.2013, we find no reason why the appellant should not be treated alike. 21. We see no delay in the appellant approaching the Tribunal. The appellant has been seeking justice from 2014 and the only delay between 2017 to 2021 after the withdrawal of the earlier applications with liberty, was due to the fact that between August, 2017 and 2019 she was posted in Arunachal Pradesh and it was during this time that the appellant made a second representation. Thereafter, the period between March, 2020 and January, 2021 was on account of Covid-19 pandemic. In any event, since a clear case of discrimination has been made out, we do not want to non-suit the appellant on the ground of delay. We say so on the special facts of this case.

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We hold that the appellant was wrongly excluded from consideration when other similarly situated officers were considered and granted permanent commission. Today, eleven years have elapsed. It will not be fair to subject her to the rigors of the 2013 parameters as she is now nearly 45 years of age. There has been no fault on the part of the appellant.

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Thus, once benefit of work charge status

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has been extended to other similarly incumbents

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[Sarwan Kumar and 6 others, in terms of the orders issued by University as mentioned above], and even the conferment of work charge status,

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now stands affirmed by the Honble Supreme Court in SLP’s decided in the cases of Surajmani and Sarwan Kumar (supra), then, the Appellants can neither deny similar benefits to the RespondentEmployee herein nor adopt a pick and choose policy. Moreover, in order to avoid the charge of hostile discrimination and to ensure parity in benefits in the spirit of Articles 14 and 16 of the Constitution of India, the Respondent-Employee was rightly held entitled for work charged status from the date of completion of 8 years’ service by the Learned Single Judge.

¶157

5(vi). Last contention of the appellant-University

¶158

is that grant of work charge status on completion of 8 years of service shall burden the University exchequer.

¶159

Before adverting to the contention of the Appellant-University, it is necessary to advert to the judgment in case of Surajmani (supra), as under:-

¶160

The aforesaid order came to be affirmed by this Court in Special Leave Petition (Civil) No. 33570 of 2010 and all

¶161

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¶162

connected matters were disposed of on 15.01.2015. Later, certain workers who had been engaged on daily wage basis in Public Works Department of Himachal Pradesh, after having completed eight years of continuous service prayed for conferment of work-charged status by filing O.A. No. 412 of 2016 before the H.P. State Administrative Tribunal. Their prayer was allowed by the Tribunal vide order dated 30.06.2016. Upon challenging the same by the State in Civil Writ Petition No. 3111 of 2016 titled as State of H.P. and Ors. Vs. Sh. Ashwani Kumar the High Court, relying upon its judgment in Civil Writ Petition No. 4489 of 2009 titled as Ravi Kumar Vs. State of H.P. Ors., decided on 14.12.2009, maintained the order of the Tribunal. of the High Court in Ashwani Kumar (Supra) has also been affirmed this Court in Civil Appeal No. 5753 of 2019 titled as State of H.P. and Ors. Vs. Ashwani Kumar by dated 22.07.2019, wherein this Court observed as under :

¶163

“3. We are not disturbing the finding of the Tribunal, which was affirmed by the High Court, with to the conferral of the status of the work charge from 01.01.2003. However, as regularization has been made only in the year 2006, obviously, notional benefit could have to be granted as the petition was initially filed in the year 2013.

¶164

Thus, we make the modification that the respondent would be entitled only for notional benefits of the order passed by the Central Administrative Tribunal. Accordingly, with the aforesaid modification in the order of the Central Administrative Tribunal and the High Court, the appeal is disposed of.”

¶165

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¶166

However, in order to allay the apprehension of the State as expressed thereunder and to safeguard the interest of the State which otherwise would have burdened the exchequer with extra benefits being conferred on the employees who had not been regularly appointed, this Court has, as a succor to the State, restricted the claim or, in other words, modified the order of the Tribunal as affirmed by the High Court by arriving at a conclusion that the petitioners/appellants therein would be entitled to the notional benefits of the order passed by the Tribunal and accordingly disposed of the said appeal .

¶167

It would not be out of context to refer at this juncture itself that the State, in its wisdom, having felt that the subsequent schemes having been formulated and implemented, would alter the situation and, therefore, order dated 12.04.1994 passed in Mool Raj Upadhyaya’s (Supra) case has to be modified, had approached this Court by filing an Interlocutory Application being IA No. 3 in the year 2005 in the aforesaid Mool Raj Upadhyaya’s case, i.e., Writ Petition (Civil) No. 787 of 1987. A perusal of the said application and the averments made thereunder would clearly indicate that the very same contentions urged, pleas advanced and arguments put forth today before us were the ones which were urged/raised in the said application. Though Mr. Vivek Tankha, learned senior counsel appearing for the State would fairly submit that the said application was withdrawn on the ground of subsequent schemes having been formulated and implemented by the State of Himachal Pradesh, but we are unable to accept the said proposition howsoever attractive it may

¶168

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be, for the simple reason that the said application was dismissed simpliciter as withdrawn. Yet another factor which sways our mind to reject the contention raised by the learned senior counsel appearing for the State would be the fact that the State having accepted the judgment of Ashwani Kumar (Supra), has implemented the same and it is in this background, the High Court in the impugned order has observed that the State cannot adopt pick and choose policy. 10. For the cumulative reasons aforestated, we are of the considered view that the dicta laid down by this Court vide order dated 22.07.2019 in Ashwani Kumar’s (Supra) case which is based on the judgment of Mool Raj Upadhyaya (Supra) holds the field and would also be applicable to the Respondents herein who had approached the Tribunal or the High Court seeking similar relief. As such, the Respondents shall be entitled for grant of ‘work-charged’ status from the date of completion of 8 years of service. However, we hold that the relief in the present appeals will be limited to notional benefits as explained in paragraph 3 and 4 of Ashwani Kumar’s (Supra) case in Civil Appeal No(s). 5753 of 2019 and the present appeals stand disposed of accordingly with no order as to costs.”

¶170

A perusal of the mandate of the Honble

¶171

Supreme Court, in the case of Surajmani (supra) as detailed above, mandates that the Respondent-

¶172

Employees in the present appeals shall be entitled for work charge status from the date of completion

¶173

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¶174

of eight years’ service. It was held that interests of State would be safeguarded by giving succor from burdening the exchequer with extra benefits

¶175

by directing that the relief in appeals shall be limited to “notional benefits as explained in Para 3 and 4 in case of Ashwani Kumar, (CA No 5753 of 2019)”, by restricting the arrears, or modifying the directions to grant work charge status with all consequential benefits. Accordingly, the benefits of work charged status was extended to Ashwini Kumar notionally from the due date, by restricting the arrears, instead of consequential benefits, as directed by the Tribunal and affirmed by the High Court. It was made clear by the Honble Supreme

¶176

Court in the case of Surajmani (supra), that if excess payments were made, then, the State would

¶177

be at liberty to recovery same without insisting for one time recovery. It was mandated that once the dicta in the case of Ashwini Kumar (supra), which was based on the judgement of Mool

¶178

Raj Upadhayaya still holds the field and would

¶179

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¶180

be applicable to the Respondent Employees, who had approached the Tribunal or the High Court for similar relief.

¶181

In above backdrop, the judgement dated 17.5.2024 passed by Learned Single Judge directing

¶182

to grant work charged status from the date of completion of eight years’ service does not suffer from any infirmity, illegality or perversity. However, as per the mandate of law in case of Surajmani

¶183

(supra), the Respondent(s)-Employee herein, shall be entitled to the relief of work charge status on “notional benefits” as has been explained and granted to Ashwini Kumar (supra), and to other similarly placed incumbents so as to “ensure parity in service and to avoid charge of discrimination”. Further, grant of work charged status retrospectively

¶184

shall involve pay fixation therefore, in such an event, restriction of three years arrears preceding

¶185

the date of filing of petition shall accrue, as has been affirmed by the Hon’ble Supreme Court in case of Ashwini Kumar (supra) and has been

¶186

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¶187

reiterated in case of Surajmani (supra) , instead of granting all consequential benefits. Such directions shall prevail in case of Respondent herein, being similarly placed, in accordance with law.

¶188

8. No other point was argued.

¶189

CONCLUSION & DIRECTIONS:

¶190

9. In view of the above discussions and for the reasons stated hereinabove, instant appeal is devoid of any merit, in the following terms :-

¶191

(i) Instant LPA No. 83 of 2025 shall stand dismissed ;

¶192

(ii) The judgement passed by Learned Single Judge in CWPOA No. 5815 of 2019 in Re: Bishan Dass versus Chaudhary Sarwan Kumar Himachal Pradesh Krishi Vishwavidyalaya, Palampur is upheld ;

¶193

(iii) Appellant-University is directed to grant work charge status to the RespondentEmployee [Bishan Dass], from the date of completion of eight years continuous service [01.01.2002] as has been extended to other similarly placed incumbents i.e. Sarwan Kumar [in CWP No 1396 of 2019] and eight others vide order dated 16.09.2023, without any discrimination, in terms of the judgement in case of Surajmani [Civil Appeal No 1595 of

¶194

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¶195

2025, decided on 06.02.2025], (supra) ;

¶196

(iv) Needless to say that notional benefits shall accrue from the due date ; and admissible consequential benefits for three years preceding the filing of writ petition, on analogy of Ashwini Kumar, shall accrue in terms of the mandate in Surajmani and Sarwan Kumar (supra) in accordance with law ;

¶197

(v). Directions herein be complied with within six weeks from today;

¶198

(v) No order as to costs.

¶199

In aforesaid terms, the Letters Patent

¶200

Appeal is dismissed and all pending miscellaneous application(s), if any, shall also stand disposed of accordingly.

¶201

(G.S. Sandhawalia) (Ranjan Sharma) Chief Justice Judge

¶202

March 11, 2025 [tm]

Cskhpkv v. Bishan Dass

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Cskhpkv v. Bishan Dass

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