IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2127 of 2008 Judgment reserved on: 18.12.2009 Date of decision: 21.12.2009. Mansha Ram & Ors. …..Petitioners. Vs. State of H.P. & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioners : Mr. A.K.Gupta, Advocate. For the Respondents : Mr.A.K. Bansal, Addl. Advocate General with Mr. R.P.Singh, Asstt. Advocate General. Kuldip Singh, Judge The petitioners in the petition have prayed for quashing of Annexure P-2 dated 25.2.2008 or in the alternative prayer has been made that respondents may be directed to grant the benefit of work-charge status to all the petitioners with effect from the date they have completed 10 years of service with all consequential benefits such as pay fixation, seniority and arrears of pay. The learned counsel for the petitioners has stated that petitioners No.12,19 and 20 were engaged in the year 1996 and therefore, their cases are separate and has not pressed petition on behalf of petitioners No.12,19 and 20. Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… 2. The brief facts as per petitioners are that they were engaged as beldars in the Horticulture Department. The petitioners have given their dates of engagement and regularization in the memo of parties. The better course was that such dates should have been given in the main body of the petition but without going into the technicality it is the case of the petitioners that they were engaged and regularized as follows:- Sr. No. Petitioner Date of engagement Date of regularization 1. Mansha Ram 1.1.1991 December,2006 2. Braham Dutt Sharma 1976 31.12.1997 3. Virender Kumar 11.11.1984 30.12.1998 4. Balbir Singh 1984 30.12.1997 5. Joginder Singh 30.4.1980 July, 1997 6. Jabbar Singh 2/81 July, 1997 7. Lachhnu Ram 1.9.1981 1.1.1996 8. Dhani Ram Nov. 1977 1.1.1996 9. Chander Dev 12.9.1982 8/1998 10. Dei Ram Dec,,1983 January,1998 11. Jagat Ram 12/86 January, 1998 12. Ravi Lal 1.1.1996 January, 1998 13. Kumari Savita 7.4.1984 1.12.1997 14. Partap Singh 26.6.1986 January, 1996 15. Har Ka Bahadur 4.6.1976 1.1.1996 16. Pavitra Devi 4.6.1975 1.1.1996 17. Jaggu Ram 1.5.1981 Oct. 1997 18. Jaiwanti 1.9.1981 January, 1998 19. Jai Dutt 1.1.1996 January, 1998 20. Manoj Kumar 1.1.1997 26.12.1997 21. Surtia Ram 1976 1996 3. The further case of the petitioners is that as per Mool Raj Upadhyaya vs. The State of Himachal Pradesh and Ors. 1994 Supp (2) SCC 316, the petitioners were entitled to work-charge status from the dates they had completed 10 years of service. They were …3… not given the work-charge status instead they were regularized after more than 12-14 years and due to inaction of the respondents the petitioners have suffered in the matter of seniority, promotion, pay fixation and pension etc. The department has mis-understood the law laid down in Mool Raj Upadhyaya that the same is applicable only to the workers of PWD and IPH and not to the employees of other departments. It is clear from Annexure P-1 that the policy is applicable to all the departments and the policy was modified by the Supreme Court in Mool Raj Upadhyaya to the extent that all those daily waged workman who had completed 10 years of service upto 31.12.1993 would be given the work-charge status w.e.f. 1.1.1994 and those who shall complete 10 years of service thereafter would be brought on work charged establishment from the date they complete 10 years of service. In Gauri Dutt & Ors. Vs. State of H.P. Latest H.L.J. 2008(1 ) 366, it has been held that Mool Raj Upadhyaya is applicable to all the departments. It has also been pleaded that the Supreme Court on 27.2.2007 has held that law laid down in Mool Raj Upadhyaya is not covered by the judgment in State of Karnataka vs. Uma Devi. 4. The Government of Himachal Pradesh in February, 2008 vide Annexure P-2 has given the work-charge status to the employees of PWD and IPH upto 31.12.2003 but the employees who are serving in Department of Horticulture and similarly situated were not covered by the said notification which is discriminatory and arbitrary. The petitioners are also entitled to the work-charge status …4… with all consequential benefits in accordance with Mool Raj Upadhyaya supra. 5. The respondents have filed reply and have submitted that the Govt. of Himachal Pradesh initially framed the policy for regularization of daily paid labourers on 11.7.1995. In continuation to the said policy certain instructions for regularization of daily waged workers were issued by the State Government from time to time. The latest instructions were issued on 9.9.2008 vide Annexure R-2. The petitioners have already been regularized with the respondents department as per the policies and instructions applicable and issued from time to time. The work-charge status is not applicable to the department of respondents as per policy in vogue and therefore, the petitioners could not be allowed the work-charge status contrary to the policies and instructions issued in this behalf. It has been submitted that some cases are still pending in the High Court where the work charge-status has been allowed by the Tribunal. The notification issued in February, 2008 Annexure P-2 is applicable to HP PWD and Irrigation Department where the work-charge status exists. The work-charge status is not applicable to the respondents department and as such this notification cannot be implemented in the respondents department. The respondents have prayed for dismissal of the writ petition. 6. I have heard learned counsel for the parties. In the reply the respondents have not denied the dates of engagement and dates of regularization of the petitioners as given by them in the petition. In the reply, it has not been denied that petitioners have not …5… rendered continuous service in the department with 240 days in each calendar year. The respondents have taken the stand that work- charge status is not applicable in the department of Horticulture. The petitioners have been regularized. The notification Annexure P-2 is applicable to the HP PWD and Irrigation and Public Health Department and not the Horticulture Department. 7. It has been contended on behalf of the respondents that once the petitioners have been regularized then there is no question of giving work-charge status to the petitioners after rendering 10 years service from the dates of their engagement. The learned counsel for the petitioners has submitted that work-charge status after 10 years of continuous service has nothing to do with the regularization of the workman. He has submitted that work-charge status and regularization of a workman are two different situations. The work-charge status has some consequential benefits. 8. In Mool Raj Upadhyaya vs. The State of Himachal Pradesh and Ors (supra), the Supreme Court has directed as follows: - “4. Taking into consideration the facts and circumstances of the case, we modify the said scheme by substituting paragraphs 1 to 4 of the same by the following paragraphs: (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 31/12/1993, shall be appointed as work- charged employees with effect from 1/1/1994 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 …6… continuous service with a minimum of 240 days in a calendar year on 31/12/1993, 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 appointment they shall be put in the time-scale of pay applicable to the lowest grade in the government; (3) daily-wage/muster-roll workers, whether skilled or unskilled who have not completed 10 years of service with a minimum of 240 days in a calendar year on 31/12/1993, 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 regularised in a phased manner on the basis of seniority-cum-suitability including physical fitness. On regularisation 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." 9. It emerges from the contentions raised on behalf of the respondents that directions given in Mool Raj Upadhyaya supra are not applicable to the workman engaged in Horticulture Department. In other words the respondents intend to contend that directions in Mool Raj Upadhyaya by the Supreme court are not applicable to other departments and those directions confine only to the departments who were before the Supreme Court in Mool Raj Upadhyaya . In Gauri Dutt & Ors. Vs. State of H.P. Latest H.L.J. 2008(1) 366 precisely this very question has been answered by a Division Bench as follows:- …7… “ The State of H.P. has also raised a plea that the scheme in Mool Raj Upadhyaya’s case is only applicable to the employees of the IPH and PWD departments of the State of H.P. and is not applicable to other employees. We have already quoted para 6 of the affidavit of Mr. Subramanyam which clearly shows that the scheme, as presented by the State of H.P. to the Apex Court was to be applicable to all the daily rated employees in all the departments in H.P. In view of the affidavit of Mr. Subramanyam, the State cannot now urge that this scheme is not applicable to other departments. In answer to the third question, it is held that the scheme is applicable to all daily waged employees working in any department of State of H.P”. In the present case all the petitioners except petitioners No.12,19 and 20 were engaged prior to decision in Mool Raj Upadhyaya. The directions given by the Supreme Court in Mool Raj Upadhyaya are applicable to the department of petitioners which is clear from Gauri Dutt case supra. The respondents have not denied that after engagement of petitioners as daily wagers they continued to serve the department for 240 days in each calendar year for ten years 10. The daily-wage/muster roll workers who have completed 10 years or more of continuous service with a minimum of 240 days in a calendar year on 31.12.1993, shall be appointed as work-charged employees with effect from 1.1.1994 and shall be put in the time-scale of pay applicable to the corresponding lowest grade in the government as per para 4(1) of the Supreme Court in Mool Raj Upadhyaya and daily wage/muster roll workers who have not completed ten years of continuous service with a minimum of 240 days in a calendar year on 31.12.1993, shall be appointed as work- charged employees with effect from the date they complete the said …8… period of 10 years service and on such appointment they shall be put in the time-scale of pay applicable to the lowest grade in the government as per para-4 (2) of Supreme Court in Mool Raj Upadhyaya. 11. The regularization of the petitioners on different dates has nothing to do with their entitlement for work-charge status after completion of 10 years of service. The learned Additional Advocate General has not shown any scheme, rule or regulation which debars a workman for work-charge status on completion of ten years of continuous service, as ordered by the Supreme Court, once the workman has been regularized. The work-charge status has some consequential benefits. There is no denial of the fact that work- charge status now can be given to the petitioners only notionally as the petitioners have been regularized on different dates, but such notional work-charge status in accordance with Mool Raj Upadhyaya shall be given to the petitioners with all actual consequential service benefits permissible in law. 12. No other point was urged. 13. The result of above discussion, the petition is allowed. The respondents are directed to give notionally work-charge status to the petitioners except petitioners No.12,19 and 20 from the dates they are entitled to work-charge status as per Mool Raj Upadhyaya with all actual consequential service benefits permissible in law and such decision be taken within a reasonable time. The petition stands disposed of with above directions. December 21, 2009. ( Kuldip Singh ) (sks) Judge. …9…