IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 5922 of 2008 (OA 2382/07) Date of Decision : May 26, 2010 Sh. Prem Singh Petitioner Versus State of H.P. and others Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Onkar Jairath, Advocate, for the petitioner. For the respondents : Mr. R. K. Sharma, Senior Addl. Advocate General with Mr. P. M. Negi, Dy. A.G. for the respondents. Sanjay Karol, J. (Oral) The petitioner has prayed for the following reliefs: (i) That the respondents be directed to give work charge status to the applicant from the month of the year, 1998, when the applicant completes 10 years of service as daily wager. (ii) That the respondents be also directed to pay all the consequential benefits like arrears of salary and seniority from the year 1998 to till January, 2007 with interest. (iii) That any other writ, order or direction as this Hon’ble Court may deem just and proper in the facts and circumstances of the case may also be issued and justice be done. Whether reports of Local Papers may be allowed to see the judgment? 2 2. Question relating to regularisation of daily wagers/contingent workers, according work charged status to daily rated employees stand settled by the Apex Court in Mool Raj Upadhyaya versus State of H.P. and others, 1994 Supp.(2) SCC 316 and State of H.P. and others versus Gehar Singh, (2007) 12 SCC 43. 3. The Division Bench of this Court in Gauri Dutt and others versus State of H.P., Latest HLJ 2008 (HP) 366 had the occasion to minutely examine the ratio of law laid down therein. This Court observed as under:- “6. The scheme was finally considered by the Supreme Court in Mool Raj Upadhyaya’s case supra in the light of various affidavits filed before it. The Apex Court approved the scheme with certain modifications and paras 1 to 4 of the scheme, as proposed by the State of Himachal Pradesh, were substituted by the following:- “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 December 21, 1993, shall be appointed as work charged employees with effect from January 1, 1994 and shall be put in the time scale of pay applicable to the corresponding lowest grade in the Government; 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 December 31, 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 appointed they shall be put in the time scale of pay applicable to the lowest grade in the Government; 3 3. 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 December 31, 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; 4. Daily-wage/Muster Roll Workers shall be regularized in a phased manner on the basis of seniority-cum-suitability including physical fitness. On regularization 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.” “7. The Supreme Court directed that the scheme, as modified, shall be implemented w.e.f. January 1, 1994. There was no dispute in respect of the employees who had completed 10 years or more of continuous service with a minimum of 240 days in each calendar year as on 31st December, 1993. The State Government complied with this part of the order and most of these employees were put on work charged basis w.e.f. 1.1.1994. The State of Himachal Pradesh kept creating posts to comply with the directions of the Apex Court on daily rated basis. Various orders were issued for regularization of daily waged contingent workers.” “8. Thereafter on 6th May, 2000 the State of Himachal Pradesh issued fresh policy for regularization of daily waged contingent workers. Even in respect of those employees who had not completed 10 years of service as on 31.12.1993, but had completed at least one year of service prior to 31.12.1993, there is no dispute that they are also entitled to be placed on work charged basis on completion of 10 years. Though the State of H.P. had initially taken the stand that 4 these employees would be governed by the subsequent policy framed by the State of H.P. on 6th May, 2000 relating to regularization of daily waged/contingent paid workers, this stand of the State was rejected by the Supreme Court in State of H.P. Vs. Gehar Singh reported in Latest HLJ 2006 (SC) 363 wherein the Apex Court held as follows:- “9. x x x x x x x x x x x. The Scheme as referred to in the case of Mool Raj Upadhyaya envisages two stages in regularizing the services of the Daily Wage/Muster Roll workers. In the first stage, after completion of 10 years or more continuous service with a minimum of 240 days in a calendar year on 31st December, 1993, Daily Wage/Muster Roll workers were to be appointed as work-charged employees with effect from Ist January, 1994. Thereafter they were to be regularized in the second stage in a phased manner on the basis of seniority cum suitability including physically fitness. Even while challenging the direction given by the Himachal Pradesh Administrative Tribunal on 23rd October, 2003, the State of Himachal Pradesh made out a case that the respondents were claiming regularization of their services with effect from Ist April, 1998. It was also urged that it had been brought to the notice of the Tribunal that the respondents were daily waged workers and as per the instructions dated 6th May, 2000, they were entitled for work charged status only as and when the posts were sanctioned by the State Government in a phased manner strictly on the basis of seniority. The aforesaid case made out by the State of Himachal Pradesh before the High Court was a clear departure from the directions given in Mool Raj Upadhyaya’s case. The respondents had only claimed the benefit of the Betterment Scheme which was placed before this Court in Mool Raj Upadhyaya’s case and had prayed for work charged status from Ist January, 2000, 5 before the Tribunal whereas the change in policy was brought about on 6th May, 2000. It is on that basis that the Tribunal directed that the respondents be given work charged status with effect from 1st January, 2000. Notwithstanding the fact that the services of the respondents have been regularized with effect from 1st January, 2003 and they have joined their posts from that date without protest, they cannot, in our view, be denied the benefits as directed to be given to them by the Tribunal and affirmed by the High Court which had already accrued to them under the Scheme which was approved in Mool Raj Upadhyaya’s case.” “11. A perusal of the scheme, as prepared by the State of H.P. and submitted to the apex Court in Mool Raj Upadhyaya’s case clearly shows that the scheme only dealt with those employees who had completed 10 years or more continuous service with a minimum 240 days in each calendar year. The State had proposed that those who had completed 10 years or more of such service as on 31.12.1991 will be treated as monthly rated employees on consolidated fixed pay without allowances. The State had also proposed that those employees who had completed 10 years of continuous service as on 31.12.1987 would be appointed on work charged basis in a phased manner. The third category was of employees who had completed 20 years of continuous service as on 31.12.1992 and the State had proposed that they be regularized from 1.12.1993. Para 4 of the scheme, as proposed by the State, envisaged that in the event of any anomaly between the wages prescribed for monthly rated employees and the wages as prescribed by the government under the Minimum Wages Act the employee would be entitled to the higher of the two wages.” 6 “12. The Apex Court did not accept the scheme as proposed by the State of Himachal Pradesh and modified it. Under Clause (1) of the scheme, as modified, all the employees who had completed 10 or more years of continuous service with a minimum of 240 days in a calendar year as on 31.12.1993 were to be appointed as work charged employees w.e.f. 1.1.1994. Para 2 of the scheme, as approved by the Apex Court, provides that those who had not completed 10 years of continuous service as on 31.12.1993 shall be appointed as work charged on completion of said period of 10 years. It is apparent from a reading of para 2 that para 2 contemplates that an employee to be covered under para 2 must have completed at least one year i.e. 240 days of service prior to 31.12.1993. Para 3 of the scheme relates to the payment of wages with which we are not concerned. Para 4 of the scheme, as modified by the Apex Court, provides that regularization of daily paid/Muster Roll workers shall be done in a phased manner on the basis of seniority-cum-suitability. No further direction was issued by the Apex Court for granting work charged status to any other employees.” “13. We have considered both the schemes and find that the dispute before the Apex Court was in respect of the employees who had joined services much before 31.12.1993. None of the schemes dealt with employees engaged thereafter, except that under para 4 of the scheme as amended general directions were issued for regularization of all daily waged muster roll workers in a phased manner. Para 1 of the approved scheme deals only with employees who had completed 10 years of service as on 31.12.1993. Para 2 of the scheme deals with employees who had not completed 10 years of service as on 31.12.1993. However, we are of the firm opinion that para 2 relates only to employees who had at least served for one year prior to 31.12.1993. This scheme was a one time scheme dealing with employees who had 7 rendered sufficient service upto 31.12.1993. We are not in agreement with the learned counsel for the employees that this scheme applies to daily waged employees engaged thereafter. The only portion of the scheme which may relate to such employees is para 4 which relates to regularization of all daily waged/muster roll workers. Paras 1 & 2 of the scheme relate to the workers specified in those paragraphs.” “14. The dispute before the Apex Court was in respect of regularization of services of the employees who had approached it. No doubt, the Apex Court widened the scope of the dispute and passed general directions in respect of all employees who were working on daily waged basis with the State of Himachal Pradesh. However, the scheme, as approved by the Supreme Court in Mool Raj Upadhayaya’s case clearly indicates that this was a one time scheme and it was not a continuing scheme as urged by the workmen. The Apex Court while modifying the scheme has kept in consideration the financial burden which may be incurred by the State Government and, therefore, in fact directed that the State should not be burdened with financial obligation prior to January, 1994 and the scheme would be brought into operation only w.e.f. January 1, 1994.” “15. The scheme does not deal with future contingencies. We cannot read into the judgment of the Supreme Court or in the scheme as approved by the Supreme Court anything more than what is stated in it. As per our reading of the scheme the same only applies to employees who had either completed 10 years of continuous service as on 31.12.1993 or the employees who had rendered one or more years’ of service, but had not completed 10 years of service as on 31.12.1993. This scheme does not apply to those employees who had not completed even one year of service as on 31.12.1993 or who were employed thereafter. The first question is answered accordingly.” 8 4. There is no dispute that the petitioner was engaged as a Baildar on daily wage basis in January, 1992. There is also no dispute that in the year 1992 he had completed 298 days of service. This is evident from Annexure R-II filed by the respondents/state. For adjudication of the controversy in issue, the number of days for which the petitioner had worked are reproduced as under: Date of engagement: Jan-1992. Year wise Mandays: 1992 298 1993 132 1994 0 1995 0 1996 252 1997 314 1998 365 1999 359 2000 366 2001 365 2002 359 2003 363 2004 364 2005 365 2006 363 2007 19 5. There is also no dispute that in terms of order dated 19.1.2007 respondent was offered a post of Beldar work charge converted into regular dying cadre class IV category. 6. There is also no dispute that the petitioner filed OA No. 1803 of 1995 before the erstwhile Himachal Pradesh Administrative Tribunal at Shimla in which the following order was passed on 21.11.2000: 9 “The learned counsel for the applicant states that in compliance to the orders passed on January 11, 1996 the applicant has already been reengaged in January 1996. The only prayer that he makes at present is that the services of the applicant may not be terminated except in due process of law and that the period between dis-engagement and re-engagement be counted for seniority. In view of above facts and circumstances of the case the prayer is allowed. The respondents are directed not to terminate the services of the applicant except in due process of law. The respondents are further directed that the period between dis- engagement and re-engagement of the applicant shall be counted for his seniority. The applicant will not be entitled for any back wages. With the aforesaid observations and directions the application stands disposed of finally.” 7. It is in this background that petitioner has prayed for according work charged status from the year 1998. However during the course of hearing, Mr. Onkar Jairath, learned Counsel for the petitioner has restricted the claim w.e.f. 1.1.2002 i.e. on the completion of ten years. 8. A bare perusal of the man days chart shows that petitioner had neither completed 240 days in the year 1993 nor had he worked for a single day in the years 1994 and 1995. But however, keeping in view the decision rendered by the Tribunal which undoubtedly has attained finality, it is not open for the State to contend that the benefit cannot be granted to the petitioner. The order passed by the 10 Tribunal is evidently clear. The period between his dis-engagement and re-engagement was to be counted for the benefit of seniority. In this background petition needs to be allowed. The petitioner squarely falls within the scheme formulated by the State Government as upheld by the Apex Court in Mool Raj Upadhyaya (supra). He is deemed to have completed 240 days prior to 31.12.1993. As such the respondents are directed to take consequential action within a period of twelve weeks from the date of receipt of the certified copy of the order. It is clarified that all consequential monetary benefits shall be afforded to the petitioner within this period, failing which, thereafter he shall be entitled to interest @ 9 % per annum. 9. With the aforesaid observations the present petition stands disposed of. (Sanjay Karol), Judge. May 26, 2010 (PK)