IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 16120 of 2008 Date of Decision : August 11, 2010 Kharak Bahadur Petitioner Versus State of Himachal Pradesh and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. A. K. Gupta, Advocate, for the petitioner. For the respondents : Mr. R. K. Sharma, Senior Add. Advocate General with Mr. Ram Murti Bisht, Dy. A.G. for the respondents/State. Sanjay Karol, J. (Oral) The petitioner has prayed for the following reliefs:- “(i) That the respondents may be ordered to grant the work charged status to the applicant with effect from the date the applicant completed 18 years of service with all the benefits incidental thereof such as full back wages/arrears of pay, fixation of pay and seniority etc. (ii) That the records of the case may be summoned in the interest of justice. Whether reports of Local Papers may be allowed to see the judgment? 2 (iii) That any other relief to which the applicant may be found entitled may also be granted in favour of the applicant.” 2. Even though in the petition it has been pleaded that the petitioner was appointed as Beldar in the year 1990, but however based on the stand taken by the respondents in their reply learned counsel for the petitioner submits that the petitioner’s date of appointment be taken as August, 1994. Petitioner is a citizen of Nepal. 3. In support of his case learned counsel for the petitioner has invited my attention to the policy formulated by the State circulated vide circulars dated 3.4.2000 and 6.5.2000. In terms of the said policy such of those persons who have completed eight years of continuous service with a minimum of 240 days in a calendar year as on 31.3.2000 were to be regularised against vacant posts or by creating fresh posts. 4. On 20.7.2010 this Court had directed the Principal Secretary (PWD) to file supplementary affidavit. Such affidavit stands filed. The relevant part of the affidavit reads as under:- “5. That the office of the E-in-C, HPPWD, as per the advice of Law Deptt. has now started individual examination of each case either upon receipt of judgment of this Hon’ble Court or otherwise upon individual representation and as per above advice, in those cases where are 3 workman of Nepali origin is in continuous service with 240 days as on 31.12.1993, he is being offered work charged status from the date he completes 10 years of continuous service on “Notional Basis” and for consequential/monitory mandatory benefits, the same is being granted for the preceding 3 years to be reckoned from the date of filing of petition/raking up the claim before the Hon’ble Erstwhile Tribunal or Hon’ble High Court directly as per the law laid down by Hon’ble Apex Court in case Jai Dev Gupta Vs. State of H.P. AIR 1998 SCC P-688 as also advised by Finance Deptt. However, with respect to workmen of Nepali origin in continuous service only w.e.f. 1.1.1994 it has been decided by the Govt. that since as per the verdict of Gauri Dutt case they are not entitled for automatic work charged status being in continuous service w.e.f. 1.1.94 but shall be entitled for prospective regular status, being not covered under the law/judgment rendered by Hon’ble Apex Court in case Mool Raj Upadhaya Vs. State of H.P. dated 27.4.94. This being so because respondent PWD amended its R&P Rules in the category of beldar dated 5.5.1995 of providing work charged status to Nepali origin workman merely on the basis of eligibility certificate by deleting/substituting said provision through amendment published in Rajptra on 3.7.2004 by providing that for granting regular status incumbents should be citizen of India only. Beside this w.e.f. August, 4 2005 all the work charge posts in Class-IV category stands also abolished and converted into regular posts. Therefore, said workmen who are in continuous service w.e.f. 1.1.94 shall not be entitled for regular status as on the one hand they are not fulfilling the requisite mandatory requirement of amended R & P Rules dated 3.7.2004 by producing the certificate of citizenship of India and on the other hand as Para-4 of judgment in case of Mool Raj Upadhaya regular status is to be granted as per fulfillment of conditions prescribed in the rules subject to availability of posts. Needless to point out that after 1.1.2003 no work charge status has been granted but regular status under policy so framed by Govt. of H.P. and first such batch was regularized during the year 2006 prospectively. Therefore, in all these mattes SLPs or LPAs as the case may be are being filed against the respective impugned judgment in which Nepali citizen is in continuous service w.e.f. 1.1.94. Pursuant to this decision till now in 5 cases of Subhadra and Raj Bahadur of Kullu Circle/Division, Phool Maya and Kanta Devi of Rohru and Jubbal Division under Rohru Circle and Rattan Chand of Division No. II Shimla under 4th Circle, Shimla five LPAs stands filed before the Division Bench of this Hon’ble Court by the respective SEs of PWD in which separate application for staying of impugned judgment have also been filed annexed. These appeals are not yet listed. This being a policy decision 5 of the respondent state and as such the same is being implemented by the respondent Deptt. meticulously in letter and spirit and for granting of eligibility certificate the matter is being taken by the Head of Department i.e. E- in-C (PW) with Ministry of Home Affairs jointly of all those workmen who have been granted conditional work charge status up to 1.1.2003 respectively now subject to the receipt of eligibility certificate and birth certificate either from concerned Panchayat or in its absence age is to be certified by the Medical Board but shall not be on the basis of affidavit. 6. That in the present case, it is an admitted position that petitioner namely Kharak Bahadur was engaged by the respondent Executive Engineer w.e.f. 8/94 as per Muster Roll No. 161 Annexure R-1 but not as alleged by him since 1990. Therefore, in view of above detailed legal position/policy decision taken by respondent state submitted hereinabove, his plea to grant work charge status upon completion of 10 years daily wage service as per the law laid down by Hon’ble Apex court in case Mool Raj Upadhaya Vs. State of H.P. is neither legally sustainable nor maintainable as per the law laid down by this Hon’ble Court in Gauri Dutt case. It is specifically denied that he is in continuous service w.e.f. year 1990 as alleged by him in the petition which in reply to Para 6(1) has also been specifically denied. Therefore, the said position is reiterated to the extent that petitioner is in daily wage service 6 since 8/94 and completed 10 years continues service only on 31.12.2004 whereas prior to that on 3.7.2004 R&P Rules in the category of Beldar stands amended vide Annexure P-2. Therefore, till he does not produce citizenship of India, he as per said amended provision of R & P Rules cannot be granted regular status and for work charge status the Govt. of H.P. as submitted above has already converted all Class-IV work charge posts into regular posts vide its decision dated August, 2005. Since then till now only regular status as per regularization policy framed by the Govt. of H.P. after every year wilh particular cut of date has been granted in all the departments w.e.f. year 2006 after the date 1.1.2003. In between no work charge status or regular status has been provided in any of the category through out the respondent State including PWD. In the light of these submissions, the present petition of petitioner Kharak Bahadur or similar situated to him for granting of work charge status is neither legally sustainable nor maintainable. Accordingly in the light of this position, position as well as, as per policy decision of respondent State all identical petitions deserves to be clubbed and thereafter dismissed in the interest of justice.” 5. From the affidavit dated 4.8.2010 it is evident that w.e.f. 1.8.2005 all posts of work charged category stand abolished and converted into regular posts. Also w.e.f. 3.7.2004 the concerned 7 R&P Rules stood amended. It is the categorical stand of the State that w.e.f. 1.1.2003 no work charged status has been granted to any person. Hence prayer (i) cannot be allowed. 6. Insofar as according benefit of work charged status is concerned it could not be shown as to how the ratio of law laid down by the Apex Court in Mool Raj Upadhyaya versus State of H.P. and others, 1994 Supp.(2) SCC 316, would come to the help of the petitioner. Petitioner’s appointment is subsequent to the date fixed by the State in the policy decision with which the Apex Court was dealing with. For the very same reason no reliance can be placed on the judgment rendered by this Court in CWP(T) No. 10220 of 2008, titled as Phool Maya versus State of H.P. & others, decided on 17.3.2010, copy of which has been placed on record by the learned counsel for the petitioner. It is stated by Sh. Ram Murti Bisht, learned Dy. Advocate General that in any event the State has preferred appeal against the said decision. 7. Reliance has also been placed on the decision rendered by a Division Bench of this Court in CWP No. 2735 of 2010, titled as Rakesh Kumar versus State of H.P. and others, decided on 28.7.2010, copy of which is also taken on record. I am afraid the said decision would also not help the petitioner. It would not be correct to contend that the Court has extended the scheme till the year 2006. The Court essentially was dealing with the inordinate delay on the part of the petitioners therein to have approached the 8 Court for seeking benefits under the aforesaid schemes. Even while deciding the Court consciously and cautiously observed as under:- “7. In the above circumstances these Writ Petitions are disposed of directing the respondents to consider the case(s) of the petitioners herein for conferment of work- charged status, subject to their eligibility in terms of the policy dated 3.4.2000 and as explained in 6.5.2000 policy, as extracted above. Needful in this regard shall be done within a period of three months from the date of production of the copy of this judgment by the respective petitioners. Needless to say that the question of conferment of work-charged status does not arise in case the establishment ceases to be a work charged establishment and hence, the conferment of the status will not arise after the abolition of the work- charged status of the establishment.” 8. There is no dispute that petitioner has completed more than eight years of service. Subject to his fulfillment of certain conditions petitioner is likely to be regularised in terms of the State policy. Hence a direction is issued to the respondent/State to consider the petitioner’s case for regularisation subject to his fulfillment of all conditions. The necessary action be taken within a period of three months from the date of receipt of the certified copy of the order. 9. While taking such decision the Government shall take into account the ratio of law laid down by this Court in CWP No. 1594 of 9 2008, titled as Man Singh versus State of H.P. & others, decided on 27.7.2009. 10. With the aforesaid observations the present petition stands disposed of. (Sanjay Karol), Judge. August 11, 2010 (PK)