IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 1129/2008 Reserved on: 14.5.2010 Decided on:17.5. 2010 ____________________________________________ Tarlesh Bali and others. …Petitioners. Versus State of Himachal Pradesh and others.…Respondents. ____________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1. yes. For the petitioners : Mr. Sanjeev Bhushan, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Anil Jaswal, Dy. A.G. _________________________________________________ Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that the petitioners were appointed on muster roll basis in the respondent-department. Claim of the petitioners, in a nutshell, is that respondent-department had been giving artificial/fictional breaks to them in order to prevent them from completing 240 days in a calendar year. Petitioners have made representations to the Engineer-in-Chief in the year 2005 with a specific prayer that they be issued muster roll for 1 Whether reporters of the local papers may be allowed to see the judgment? yes 2 full month instead of 18 days. Petitioners have given their dates of engagement and number of days they have been permitted to work. They have also given the details of co- workers, who had been permitted to work for complete one month. Precise case of the respondent-State is that since the petitioners have not worked for a minimum 240 days in each calendar year from 1994 to 2005, they could not be given the work charge status as per the judgment of the Hon’ble Supreme Court in Mool Raj Upadhyaya versus State of Himachal Pradesh and others, 1994 Supp (2) SCC 316. Respondent-State has also placed on record mandays’ chart of the petitioners vide Annexures R-1 and R-2. Mr. Sanjeev Bhushan has strenuously argued that action of the respondents of giving artificial/fictional breaks to his clients is illegal, arbitrary and thus violative of Articles 14 and 16 of the Constitution of India. He then contended that his clients have been discriminated against by the respondents by not permitting them to complete 240 days vis- à-vis their juniors, who had been permitted to complete 240 days in each calendar year and they have also been given the work charge status before his clients. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that the work was offered to the petitioners as and when the same was available and they 3 could not be given the work charge status since they have not completed 240 days in each calendar year. I have heard the learned counsel for the parties and have perused the pleadings meticulously. Mr. Sanjeev Bhushan has drawn the attention of the Court to Annexures R-1 and R-2. Petitioner No.1 started working with effect from 1997, petitioner No.2 from 1996, petitioner No.3 from 1996, petitioner No.4 from 1996 and petitioner No.5 started working from 1997. In the year 1997, petitioner No.1 has worked for 227 days and thereafter he has worked for 233, 215, 179, 216, 216, 216, 216, 317, 365, 306 and 31 days in the years 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008 and 2009, respectively, petitioner No.2 has worked for 35, 231, 190, 168, 208, 175, 209, 216, 214, 216, 317, 365, 366 and 31 days in the years 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008 and 2009, respectively, petitioner No.3 has worked for 128, 231, 150, 166, 188, 175, 214, 215, 214, 216, 317, 365 and 361 days in the years 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007 and 2008, respectively, petitioner No. 4 has worked for 8, 119, 179, 156, 207, 186, 214, 216, 214, 216, 317, 362 and 361 in the years 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007 and 2008, respectively and petitioner No.5 has 4 worked for 200, 232, 216, 208, 209, 212, 216, 216, 216, 317, 362 and 366 days in the years 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007 and 2008, respectively. A bare perusal of the mandays’ chart, qua the petitioners, reveals that an effort has been made by the respondents to prevent the petitioners from completing 240 days in a calendar year. The practice adopted by the respondent-State was that the petitioners were allowed to work only for 18 days in a month. This amounts to unfair labour practice. The workman, who is always ready and willing to work, cannot be permitted to be kept on tenterhooks and exploited by the State. Petitioners were directed to give details of the workmen, who had been permitted to complete 240 days in a calendar year, though junior to the petitioners, and given work charge status on 30.4.2010. Details of these workmen are placed on record by the petitioners vide Annexure A-2. Respondents have not chosen to file any reply to the application, though opportunity was granted to them. It is apparent from the details given in Annexure A-2 that the persons appointed in the years 1997 and 1999 have been given work charge status before the petitioners. In other words, these persons were offered work for 240 days and the same was denied to the petitioners though they were always ready and willing to work. 5 Their Lordships of the Hon’ble Supreme Court in Mohd. Abdul Kadir and another versus Director General of Police, Assam and others, (2009) 6 SCC 611 have held that practice of giving artificial breaks from time to time and then re-appointing the same staff is contrary to service jurisprudence. Their Lordships have held as under: “16. We may next consider the challenge to the procedure of annual termination and reappointment introduced by the circular dated 17.3.1995. The PIF Scheme and PIF Additional Scheme were introduced by Government of India. The scheme does not contemplate or require such periodical termination and re-appointment. Only ex-servicemen are eligible to be selected under the scheme and that too after undergoing regular selection process under the Scheme. They joined the scheme being under the impression that they will be continued as long as the PIF Additional Scheme was continued. The artificial annual breaks and reappointments were introduced by the state agency entrusted with the operation of the Scheme. This Court has always frowned upon artificial breaks in service. 17. When the ad-hoc appointment is under a scheme and is in accordance with the selection process prescribed by the scheme, there is no reason why those appointed under the scheme should not be continued as long as the scheme continues. Ad-hoc appointments under schemes are normally co-terminus with the scheme (subject of course to earlier termination either on medical or disciplinary grounds, or for 6 unsatisfactory service or on attainment of normal age of retirement). Irrespective of the length of their ad hoc service or the scheme, they will not be entitled to regularization nor to the security of tenure and service benefits available to the regular employees. In this background, particularly in view of the continuing Scheme, the ex-serviceman employed after undergoing selection process, need not be subjected to the agony, anxiety, humiliation and vicissitudes of annual termination and re-engagement, merely because their appointment is termed as ad hoc appointments. 18. We are therefore of the view that the learned Single Judge was justified in observing that the process of termination and re- appointment every year should be avoided and the appellants should be continued as long as the Scheme continues, but purely on ad hoc and temporary basis, co- terminus with the scheme. The circular dated 17.3.1995 directing artificial breaks by annual terminations followed by fresh appointment, being contrary to the PIF Additional Scheme and contrary to the principles of service jurisprudence, is liable to be is quashed.” It is settled law by now as per Workmen of American Express International Banking Corporation versus Management of American Express International Banking Corporation, AIR 1986 SC 458 that Sundays and other paid holidays should be taken into account for the purpose of reckoning the total number of days on which the workman 7 could be said to have actually worked. Respondent-State has not placed any material on record to prove that Sundays and other paid holidays were taken into consideration while calculating 240 days. Accordingly, in view of the observations made hereinabove and the definitive law laid down by their Lordships of the Hon’ble Supreme Court, the petition is allowed. The action of respondents of giving artificial/fictional breaks is quashed and set aside. The artificial/fictional breaks given to the petitioners are condoned only for the purpose of seniority. No costs. (Rajiv Sharma), Judge. 17.5. 2010 *awasthi*