IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 5324 of 2008. Decided on: 26.7.2011. ___________________________________________________________ Tulsi Ram …Petitioner. Versus State of H.P. and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. D.K. Khanna, Advocate. For the respondents : Mr. Vinod Thakur, Dy.AG. for respondents No. 1 & 2. None for respondent No.3. ___________________________________________________________ Justice V.K. Sharma, Judge (Oral). The petition has been filed on the following prayers, vide para 7 (1) to (5):- “(1) That the order dated 22nd June, 1998, Annexure P-5, may kindly be quashed and the respondents be directed to make the applicant work charged from the date on which persons junior to the applicant i.e. respondent No.3 was made work charged with effect from 1986 with all consequential benefits. (2) That the respondents be directed to produce the original muster rolls of the applicant showing number of days he has worked and other record relevant to the case. (3) That the seniority list Annexure P-6 be quashed and the respondents be directed to refix the seniority of the applicant at the proper place. (4). Any other relief which this Hon’ble Tribunal may deem fit in the facts and circumstances of the case, may be allowed in favour of the applicant. 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 (5) That as the applicant has been compelled to come to this Hon’ble Tribunal time and again due to illegal actions of the respondents, they be ordered to pay exemplary costs.” 2. In reply, respondents No. 1 & 2 have taken the following stand vide para 6 (1&2) and (3) on merits:- “6(1&2). In reply to these paras it is stated that these paras have not been correctly stated. It is wrong that the applicant is working in the department as Mate since 1967. The true position is that he came in the employment of the respondent-department as a daily waged Mate during the year 1970. The detail of his working days is annexed as R-II. However, it is also submitted that the true position has already been explained in reply to O.A. No. 552/89 as well as Annexure R-1 which is very speaking and reasoned order so passed by respondent No.2 upon the direction of this Hon’ble Tribunal in O.A. No. 552/89. Moreover, cursory perusal of the aforesaid annexure will reveal that the applicant Sh. Tulsi Ram did not complete 240 days during the year 1970 to 1981. He is in the continuous employment in the department completing 240 days only from the year 1982 onward. It is stated that during the year 1986, 19 persons (4 Mates+19 Beldars) who have been working on daily wages were given employment on work charged basis wrongly as they were not fulfilling the eligibility/criteria having not completing 240 days in each calendar year which in fact has to be made strictly on seniority basis as per the availability of the posts. Having realised this bona fide mistake after preparing the seniority list afresh, the competent authority decided to issue show cause notices to them in accordance with law, 3 so that the genuine persons who fulfil the eligibility criteria are offered appointment on work charged basis in their place which was challenged by them before this Hon’ble Tribunal in O.A. Nos. 924/91, 908/91, 909/91 & 927/91 in which status quo was ordered to be maintained by this Hon’ble Court and matter is still subjudice. 6 (3). The opening part of this para is admitted to the extent that on the direction of the Hon’ble Tribunal in M.A. 166/90, two posts of Beldar and one post of Mate were kept vacant till the final disposal of O.A. No. 552/89. Rest of the para is denied because it is not correct that inspite of the order of the Hon’ble Court representation was not decided. In fact there is delay in decision of the representation but the same has been decided vide Annexure R-II. In this regard it is further submitted that to comply the order of the Hon’ble Tribunal 2 posts were kept vacant and during the year 1990 few posts of various categories who have completed 10 years continuous service with 240 days in each calendar year. Sanction for the eligible daily waged in various categories were received in this office by name vide Engineer-in-Chief office letter No. Annexure R-III attached. Therefore, the contention of the applicant that junior person Sh. Narain Dutt s/o Sh. Govind Ram has been made work charged in fact it is stated that from the perusal of the seniority list it is revealed that though the applicant Sh. Tulsi Ram was employed in the department since 1970, but his working days during the year 1970 to 1981 are less than 240 in each calendar year, whereas the working days of Sh. Narain Dutt are more than 240 days in each calendar year since 1976 and therefore, he has rightly been made work 4 charged during the year against sanctioned post being senior to the applicant.” 3. In view of the averments set up on behalf of respondents No. 1 & 2 in para 6 (1&2) of the reply on merits, records of O.As. No. 908/91, 909/91, 924/91 and 927/91 were called for and perused. In O.A. No. 908/91, Sudama Ram & others Vs. State of H.P. and others, respondent No.3-Shri Roop Ram herein, was petitioner No.2, who according to the petitioner was junior to him as per seniority list of Mates/Beldars, Annexure R-II, wherein their names figure at Sr. No. 11 and 12, respectively. O.A. No. 908/91 was disposed of by the aforesaid Tribunal vide order dated August 28, 1995, which is as follows:- “Admittedly, the applicants 4 in number are working with the respondents on different dates and for different duration. In these circumstances they are entitled for regularization. In these circumstances the respondents are directed to consider the case of the applicants for regularization on merits in accordance with law and in light of the judgment of the apex court in Mool Raj Upadhaya Vs. State of Himachal Pradesh and others, 1994 (2) SLR 377 within a period of six months with liberty reserved to the applicants to approach this Tribunal again on the same cause of action should they still feel aggrieved, by an independent & separate application. It is clarified that the applicant who was dis- engaged and was subsequently re-engaged in the present application by the order of the court is continuously working. The break that occurred in the meanwhile due to the impugned termination order shall be taken into consideration for the purpose of counting service for regularization. However, he shall not be paid back wages. 5 The respondents are directed to pay the applicant enhanced wages w.e.f. January 1, 1994 as per judgment of the apex Court referred to above. The application is finally disposed of in terms referred to above.” 4. O.As. No. 909/91, Jai Nand & others vs. State of H.P. and others and 927/91, Surtiya & others vs. State of H.P. and others were also finally disposed of vide identical orders dated August 14, 1995 and September 27, 1995, respectively. 5. Similarly, O.A. No. 924/91, Shri Bhadroo vs. State of H.P. and others was also finally decided vide order dated 8.8.2000 in the following terms:- “The learned Additional Advocate General represents that the applicant has been treated as work-charged till his retirement and he has been paid dues as such. It is further represented that the respondents shall not recover any amount paid to the applicant while working as work-charged. In view of the aforesaid representation and undertaking, the present original application does not survive and stands disposed of accordingly.” 6. In view of the above, the petitioner herein, Shri Tulsi Ram, who is also similarly situate, is entitled for similar treatment without any discrimination. Accordingly, the petition is allowed with a direction to respondents No. 1 & 2/competent authority to consider the case of the petitioner for grant of work charged status with effect from 1986 at par with the petitioners in the aforesaid O.As. No. 908/91, 909/91, 924/91 and 927/91 within three months from the date of production of copy of this judgment by the petitioner before respondents No. 1 & 2/competent authority, after affording an opportunity of being heard to him, if so desired. Consequential benefits, if any, shall be payable within further one 6 month, failing which interest @ 6% per annum shall also be payable. 7. The petition stands disposed of in the above terms, so also pending application(s), if any. (V.K. Sharma) Judge. July 26, 2011. (cr)