IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. (T) No. 7067 of 2008. Reserved on: 22.06.2011. Decided on 13.07.2011. _____________________________________________________ Jaiwanti. …Petitioner. -Versus- State of H.P. and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 __________________________________________________________ For the petitioner. : Mr. Sanjeev Bhushan, Advocate. For the respondents. : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Petitioner was engaged on daily wage basis in the year, 1984. She has continuously worked from 1984-85 till 1991-1992 and has completed 160 days in a block of twelve calendar months. It is not in dispute that in tribal areas, the workman is required to complete only 160 days. Thereafter, as per the Annexure R-1, i.e., mandays chart of the petitioner, she has been given break in 1992-1993 and 1993-1994. Petitioner has worked for 141 days in 1992-1993 and 110 days in 1993- 1994. The fact of the matter is that though the name of petitioner had already been recommended for regularization by the Divisional Forest Officer, Pangi, Forest Division at Killar on 26.05.2000, however, neither the petitioner was regularized nor 1 Whether the reporters of the local papers may be allowed to see the judgment?. - 2 - conferred work charge status and the persons junior to her were regularized. 2. Mr. Sanjeev Bhushan, learned counsel for the petitioner has strenuously argued that the respondents have given artificial/fictional breaks to the petitioner in the years 1992-1993 and 1993-1994 to prevent her from completing 10 years’ continuous service with 160 days in a block of twelve calendar months. According to him, it amounts to unfair labour practice. He then argued that four persons, namely, Amar Chand, Smt. Bhatto Devi, Shri Bir Chand and Smt. Heelo Devi, though junior to the petitioner have been regularized. 3. Mr. Vikas Rathore, learned Deputy Advocate General has vehemently argued that since the petitioner has not completed 10 years’ continuous service with 160 days in a block of twelve calendar months, her services could not be regularized. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. It is evident from Annexure R-1, mandays chart that the petitioner has worked for more than 160 days in each calendar year from 1984-1985 to 1991-1992. However, she has been permitted to work only for a period of 141 days in 1992- 1993 and 110 days in 1993-1994. 6. Mr. Sanjeev Bhushan, learned counsel for the petitioner has vehemently argued that the petitioner has been intentionally prevented by the respondents from completing 160 days in 1992-1993 and 1993-1994 to deprive her from regularization/conferment of work charge status. - 3 - 7. Mr. Vikas Rathore, learned Deputy Advocate General has strenuously argued that in the Forest Department, the workmen are engaged on availability of work and funds and are disengaged after the completion of work. According to him, even while disengaging the workman, principle of “first come last go” is followed. The Court is not satisfied with the submission of Mr. Vikas Rathore, learned Deputy Advocate General. In case there was non-availability of the funds, the junior most person was to be disengaged. It is evident from the supplementary affidavit filed by the respondent-State that four persons, namely, Amar Chand, Smt. Bhatto Devi, Shri Bir Chand and Smt. Heelo Devi, who were junior to the petitioner, have been regularized. If the persons junior to the petitioner had been permitted to complete 160 days in a block of twelve calendar months, there is no reason why the petitioner has not been permitted to complete these days in a block of twelve calendar months. The action of respondents amounts to giving fictional/artificial breaks to the petitioner in order to prevent her from completing 160 days in a block of twelve calendar months. There is shortage of 19 days in 1992-1993 and 50 days in 1993-1994 for completing 160 days. In case the persons junior to the petitioner have been permitted to work and complete 160 days in a block of twelve calendar months, on the same analogy, the petitioner was required to be permitted to complete 160 days in a block of twelve calendar months in 1992-1993 and 1993-1994. The shortage of few days could be due to cessation of work and non-availability of funds etc. also. The workman has legitimate expectation that after putting in number of years service and as per the norms - 4 - prescribed, his case will be considered for conferment of work charge status or regularization. Petitioner has started working in 1984-1985 and has worked continuously for a period of 8 years with 160 days in each calendar year. It was only in 9th and 10th years that the petitioner has been given artificial breaks. The Court is of the considered view that the action of the respondents giving artificial breaks besides amounting to unfair labour practice, was also illegal. The shortage of few days ought to have been condoned, more particularly, when the persons junior to the petitioner have been permitted to complete 160 days in a block of twelve calendar months and their services have been regularized. 8. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. The shortage of 19 days in 1992-1993 and 49 days’ in 1993-1994 is condoned. Respondents are directed to consider the case of petitioner for conferment of work charge status immediately after completion of ten years’ continuous service to be counted w.e.f. 1984 with all consequential benefits, within a period of ten weeks from the date of production of a certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma) Judge July 13, 2011. (bhupender) - 5 - - 6 - `