IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP Nos. 4990 of 2010-E, 4991, of 2010-E, 4992 of 2010-E, 4993 of 2010-E, 6957 2010-H & 6962 of 2010-H. Date of decision: 29.11.2011 1. CWP No. 4990 of 2010-E Mast Ram Versus State of H.P. & others 2. CWP No. 4991 of 2010-E Sher Singh Versus State of H.P. & others 3. CWP No. 4992 of 2010-E Prabhu Ram Versus State of H.P. others 4. CWP No. 4993 of 2010-E Jagdish Chand Versus State of H.P. & others 5. CWP No. 6957 of 2010-H Parma Ram Versus State of H.P. & others 6. CWP No. 6962 of 2010-H Rattan Chand Versus State of H.P. & another Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Sanjay Karol, Judge. For the Petitioner(s) : Mr. Rahul Mahajan, Advocate. For the Respondents : Mr. R.K.Bawa, A.G. with Mr. Ankush Dass Sood, Addl. A.G. Justice Kurian Joseph, C.J. (Oral) The petitioners in all these cases, who are daily waged workmen, have rendered service on various dates and according to them, in view of the decision of the Apex Court in Mool Raj Upadhaya Versus State of Himachal Pradesh, AIR 1994 Supp (2) SCC, 316, they are entitled to conferment of work charge status. No doubt, all those, who have completed 10 years of service, as on …2… 1.12.1993, are entitled to conferment of work charge status, as on 1.1.1994. However, regularization would depend on the availability of vacancy. One way to find out the availability of vacancy is to see when the juniors have been granted regularization. In the meanwhile, the State has taken steps for amendment of Rule 56 of the Fundamental Rules, w.e.f 10.5.2001 and all those, who have been appointed in regular service prior to 10.5.2001, are entitled to continue upto 60 years. The case of the petitioners is that they should have been regularized in service prior to 10.5.2001, in which case, they could have continued upto the age of 60 years. It has not been disputed that the petitioners have retired from service on completion of 58 years. They have come to this Court after a few years only and not prior to retirement. 2. Learned Counsel for the petitioners vehemently contended that in the case of several such workmen, who have been granted retrospective regularization, they have been granted the actual consequential benefits. Such people, in case, who were regularized prior to 10.5.2001 retrospectively, have been granted actual monetary benefits for a period of two years, though, they have not actually worked, without any specific orders, appropriate action should be taken. We do not find any legal and for that matter, even moral justification in awarding back wages to persons, who have not worked in the post and who have not been in service, and who had not even raked up the issue, in any case, prior to their termination from service. In case any such workmen have been granted such consequential …3… benefits, there will be a direction to the respondents to immediately take appropriate action in this regard. 3. In the above circumstances, these writ petitions are disposed of as follows: i) In case the petitioners in these cases had completed 240 days for 10 years, as on 1.12.1993, all of them shall be conferred work charge status w.e.f. 1.1.1994; ii) In case any of the petitioners had entered service prior to 1.12.1993 and in case they have completed 10 years of service with 240 days in a year, they shall be conferred work charge status on completion of such period of 10 years; iii) On such conferment of work charge status, they shall be entitled to the actual and eligible benefits on account of conferment of work charge status, since they have actually worked during the period; iv) The petitioners shall be regularized in service subject to the availability of vacancy. Needless to say that in case their juniors have been regularized in service, they shall also be entitled for regularization with effect from the date of the regularization of their juniors. But in case any junior has been wrongly granted regularization, it will certainly be open to the respondents to review the same with notice to such incumbent; v) In the case of any of the petitioners, in case their retrospective regularization is prior to 10.5.2001, they shall be deemed to notionally continue in service upto the age of 60 years. In other words, they shall not be entitled to actual wages for the …4… period between 58 and 60 years. But in such cases, the pay will be re-fixed, the pension will also be re-fixed and the differential benefits on that count, will be disbursed to them within a period of four months on production of a copy of this judgment alongwith an appropriate representation by the petitioner concerned; vi) As far as the claim regarding counting of 50% daily waged service for the purpose of pension is concerned, it is made clear that subject to finality to the decision of the case in Sarab Dayal versus State of Himachal Pradesh, now pending before this Court and subject to the same being accepted by the State and implemented, the petitioners will also be considered for benefits, if any, flowing out of that judgment and such benefits, if found eligible, shall also be disbursed within a period of another three months; 4. We make it clear that these directions are in the facts of these cases only and only these cases need be examined by the respondents for the purpose of conferment of benefits, as above. However, as far as the action for recovery is concerned, it shall be applicable to all employees, who otherwise enjoyed unmerited benefits. 5. In the affidavit filed by the Engineer-in-Chief, I & PH on 28.3.2011, it is stated that 69 workers have been paid actual wages on retrospective regularization even without any orders from the Court or any higher authority. The amount comes to `76,48,478/-, 2 workers in Shimla, 11 in Hamirpur, 13 in Dharamshala and 26 in Mandi. This situation is only of I & PH Department. In the Public …5… Works Department, it is stated that 116 workmen have been paid actual wages and retrospective regularization in one Division, namely, Dharampur. 6. There will be a direction to the Chief Secretary to conduct an enquiry as to how and why without any clarification from the Government, such amounts were paid. It shall also be inquired into as to whether such benefits have been paid on retrospective basis in other departments. Steps shall be taken to recover such amount in accordance with law from such workers and if not, recovery shall be made from the officers responsible for such irregular payment. 7. With these observations, the writ petitions stand disposed of, so also the pending application(s) if any. A copy of this judgment shall be forwarded to the Accountant General, Himachal Pradesh for appropriate follow up action. (Justice Kurian Joseph ), Chief Justice. November 29, 2011 (Justice Sanjay Karol ), (rana/hl) Judge.