Respondents directed to grant work charge status to petitioners on completion of 8 years services with all consequential benefits including seniority: Himachal Pradesh High Court

 Hig h C o urt of H.P on 24 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACWPOA No.420.Reserved on : 22.04.2021. Date of decision: 24.04.2021.Yashwant Singh and others .....Petitioners.VersusState of Himachal Pradesh and others .....Respondents.CoramThe Hon’ble Mr. Justice Tarlok Singh Chauhan Judge.Whether approved for reporting 1 NoFor the Petitioners :Mr. A.K. Gupta Advocate. For the Respondents:Mr. Ashok Sharma AdvocateGeneral with Mr. VinodThakur Mr. Shiv PalManhans AdditionalAdvocate Generals and Mr.Bhupinder Thakur DeputyAdvocate General.Tarlok Singh Chauhan JudgeThe instant petition has been filed for the grant offollowing relief: “That the respondents may be ordered to grant the workcharge status to the applicants from the date they have1Whether the reporters of the local papers may be allowed to see the Judgment Yes Hig h C o urt of H.P on 24 04 HCHP 2completed 8 years services with all benefits incidentalthereof.2.Since the respondents have already considered andthereafter conceded the claim of petitioner No.3 therefore thisCourt shall confine itself to the claims putforth by petitioner Nos.1 and 2.3.The petitioner No.1 was engaged as ‘beldar’ on dailywaged basis with effect from 01.11.1997 and according to him he was entitled to work charge status with effect from01.01.2006 but his services were regularized on 05.01.2010.Whereas petitioner No.2 was engaged as daily waged ‘beldar’with effect from 01.01.2000 and according to him he wasentitled to the work charge status with effect from 01.01.2008 but his services were regularized on 06.10.2010.4.The services of petitioner Nos. 1 and 2 have beenordered to be regularized after completion of 10 years insteadof 8 years and aggrieved thereby they have filed the instantpetition.5.The respondents have filed their reply wherein theyhave appended therewith mandays chart in respect of both thepetitioners which are extracted hereinbelow: Hig h C o urt of H.P on 24 04 HCHP 3“Man days of Daily wages in respect of ShriYashwant Singh S O Sh. Devi Ram BeldarSr. No. Year Man days11999922200013032001326420023085200336562004365720053658200636592007365102008366112009365122010120 upto 30 04 2010“Man days of Daily wages in respect of Shri YeshPal Kanwar S O Sh. Gaj Raj Singh BeldarSr. No. Year Man days12000822200131732002333420033655200433362005365720063658200736592008360102009365112010278 upto 05 10 20106.The claim of the petitioners has been opposed bythe respondents on the ground that this Court in CWP No. 778 Hig h C o urt of H.P on 24 04 HCHP 4of 2006 titled ‘Gauri Dutt vs. State of H.P.’ decided on29.12.2007 has categorically held that a workman is entitled towork charge status after completion of 10 years of service.7.I have heard the learned counsel for the parties andhave gone through the records of the case.8.It would be noticed from the reply filed by therespondents themselves that initially a period of 10 years ofdaily waged service was envisaged and provided for grantingwork charge status regularization in terms of the policy of theGovernment as affirmed with certain modifications in MoolRaj Upadhyaya vs. State of H.P. and others 1994 Suppand it was a dutycast on the respondents to consider the cases of the petitionersfor conferment of work charge status on completion of requirednumber of years as per the policy. Therefore the petitioners Hig h C o urt of H.P on 24 04 HCHP 6can only be denied the interest on the eligible benefits and notthe benefits as such which accrued on them as per the policyand under which policy the department was bound to conferthe status subject to the workman satisfying the requiredconditions.13.In coming to this conclusion this Court drawssupport from the judgment rendered by the learned DivisionBench of this Court in CWP No. 2735 2010 titled ‘RakeshKumar vs. State of H.P. and others decided on 28.07.2010 wherein it has been held as under: “6. The simple question is whether the delay defeatsjustice In analyzing the above issue it has to be borne inmind that the petitioners are only class IV workers(Beldars). The schemes announced by the Governmentclearly provided that the department concerned shouldconsider the workmen concerned for bringing them onthe work charged category. So there is an obligation caston the department to consider the cases of the dailywaged workmen for conferment of the work chargedstatus being on a work charged establishment oncompletion of the required number of years in terms ofthe policy. At the best the petitioners can only be deniedthe interest on the eligible benefits and not the benefitsas such which accrued on them as per the policy andunder which policy the department was bound to conferthe status subject to the workmen satisfying therequired conditions.” Hig h C o urt of H.P on 24 04 HCHP 714.The aforesaid judgment rendered by the learnedDivision Bench of this Court is otherwise binding on this Courtand it is more than settled that judicial propriety demands that abinding decision to which an attention has been drawn shouldneither be ignored nor be overlooked.15.Moreover I find that none of these judgments dealswith the dispute of the instant kind. Babu Ram’s case(supra) pertained to the claim of seniority to the post ofForemanwith effect from 1998 while the OriginalApplication was filed in the year 2008.16.In Raj Kumar’s casethe petitioner washeld to be a fence sitter as it was after various judgmentsrendered by the Hon’ble Supreme Court that the petitionertherein had approached the Central Administrative Tribunal after10 years that too after noticing that the benefits have beengranted to the similarly situated persons as is recorded in para 2 of the judgment.17.In Bansi Ram Thakur’s casethe disputehad been raised after 21 years of his retirement.18.In Surender Kumar’s casethe petitionertherein had approached the Tribunal for appointment on Hig h C o urt of H.P on 24 04 HCHP 8compassionate ground. His claim had been rejected on05.02.2008 while the petitioner had approached the Tribunalbelatedly and in this way more than 14 years had passed sincethe sole bread earner employee had died.19.Whereas the judgment rendered by the learnedDivision Bench in Rakesh Kumar’s caseclearly dealswith the claims of daily waged workers seeking work chargestatus regularization and it is in this background that not onlyclosure of homes but deals with the identical situation regardingconferment of work charge status and the question of delayand laches has been expressly considered in that case in para 6 which has been extracted above.20.It needs to be observed that where the Court isdealing with one of fundamental rights of poor workman its roleis that of a sentinel for protection of fundamental rights of theweak and down trodden and cannot therefore easily allow itselfto be persuaded to refuse the reliefs solely on jejune ground ofdelay and laches or the like. The right seeking of benefits ofregularization of service is a right akin to a fundamental rightguaranteed to the workman. Therefore the plea of delay shouldnot come in the way of granting relief to the workman more Hig h C o urt of H.P on 24 04 HCHP 9particularly when the Court is of the opinion that it is theinaction of the respondents that has formed basis of such delay.21.This issue otherwise is no longer res integra in viewof the similar reiteration of law made in the judgments renderedby this Court in CWP No. 2415 2012 titled ‘Mathu Ram vs.Municipal Corporation and others’ decided on 31.07.2014 CWP No. 7140 2012 titled ‘Gian Singh vs. State of H.P. andothers’ decided on 24.09.2014CWPOA No.1245 2019 titled ‘Tilak Chandvs.State of H.P. and others’ decided on 27.02.2020 CWPOANo. 5566 2019 titled ‘Smt. Reema Devi vs. State of H.P.and others’ decided on 03.09.2020 and CWPOA No.5660 2019 titled ‘Ghanshyam Thakur vs. State of HimachalPradesh and others’ decided o 09.11.2020.22.Now when the benefits have been given to thesimilarly situated employees the petitioners cannot bediscriminated against or else it will be a case of invidiousdiscrimination.23.Reference in this regard can conveniently be made toa fairly recent judgment of the Hon’ble Supreme Court renderedby Hon’ble Three Judges’ Bench in Civil Appeal No.9412 of2019 titled ‘Siraj Ahmad vs. State of Uttar Pradesh and Hig h C o urt of H.P on 24 04 HCHP 10another’ decided on 13.12.2019 wherein it was observed asunder: “23. We further fail to appreciate as to how the sameHigh Court could have considered the case of twoemployees differently when they were similarlycircumstanced. It is not in dispute that the presentappellant as well as Rajendra Prasad Dwivedi wereselected through the same selection process though theirorders of appointment differs. It will be appropriate torefer to the observation made by the Allahabad HighCourt in Writ Petition No. 34296 in the case ofRajendra Prasad Dwivedi vs. State of U.P. which readsthus: “Upon perusal of the Government Orders dated26th of August 1992 as well as 11th of March 1994 I find force in the submission of thepetitioner therefore I am of the view that as soonas the petitioner obtained the qualification of AMIEin 1993 he became eligible for promotion to thepost of Assistant Engineer. Though only gaining thequalification does not create right of promotion butI am of the view that if thereafter any promotionhas been given to others particularly junior to thepetitioner the petitioner is liable to be consideredfor promotion from the said date alongwithconsequential benefits. In light of the law laid down by the Hon ble SupremeCourt in the case referred to herein above I herebyalso observe that the fact that the petitioner wasnot confirmed in the service shall not come in theway of the petitioner s promotion as an impedimentand the petitioners services even on ad hoc basison the post of Junior Engineer shall be taken intoconsideration for the purpose of promotion to thehigher post. Accordingly a direction is issued to therespondents to consider the petitioner s case forpromotion to the higher post from the date of Hig h C o urt of H.P on 24 04 HCHP 11promotion of his junior within two months afterreceipt of a certified copy of this order”24. The above judgment of the learned Single Judge dated09.11.2011 was carried in appeal before the divisionbench of the said court. The division bench of theAllahabad High Court in Special Appeal No. 712 inState of U.P. Vs. R. P. Dwivedi in its Order dated13.02.2014 observed thus: “On due consideration of rival submissions we findconsiderable force in the arguments of respondent.The condition of length of ten years service wasrelaxed. The respondent though appointed on ad hoc basis as Junior Engineer on 24.02.1987 hadobtained the degree of AMIE on 10.10.1993 beforeSri Sunil Dutt Sharma and Sri Sajid Hasan whopassed the examination in 1994. As the vacancieswere available and the private respondent wasqualified to be considered for promotion in 1993 he should have been considered even prior to theaforesaid persons. ....”25. The State had also carried the said matter by way ofSpecial Leave Petition CivilNo. 13830314before this court. The SLP also came to be dismissed on12.01.2015. The state thereafter preferred a ReviewPetition seeking review of the Judgment of divisionbench in the case of State of U.P. vs. Rajendra PrasadDwivedi by way of Review Petition No. 1815. Thesaid Review Petition is also dismissed. 26. The only ground on which the High Court has refusedto consider the case of the appellant is that in the case ofRajendra Prasad Dwivedi the court had not considered Hig h C o urt of H.P on 24 04 HCHP 12the issue with regard to nonconcurrence of the U.P. PublicService Commission. At the cost of repetition asdiscussed herein above the appointment of the appellantat the most can be considered as irregular and not illegal.27. It is to be noted that the appellant has obtained theBachelor of Sciencedegree in the year1987 and though Rajendra Prasad Dwivedi had obtainedthe A.M.I.E. in 1993 taking into consideration that SunilDutt Sharma and Sajid Hasan had obtained the degree ofA.M.I.E. in 1994 the said Rajendra Prasad Dwivedi washeld to be entitled for promotion on 18.01.1995 i.e. thedate on which the said Sajid Hasan and Sunil DuttSharma were promoted as Assistant Engineer from JuniorEngineer. We fail to appreciate the approach of the HighCourt in denying the promotion to the appellant when allthe other three i.e. namely Rajendra Prasad Dwivedi Sajid Hasan and Sunil Dutt Sharma were appointed in theyear 1987 through the same selection process andthough Rajendra Prasad Dwivedi had obtained thedegree in 1993 and Sajid Hasan and Sunil Dutt Sharmahad obtained the same in 1994 whereas the appellanthad obtained the said degree in 1987.”24.Lastly and more importantly the respondents Statehas itself issued a notification dated 07.01.2020 to the Engineer in Chief I&PH wherein after considering the judgment renderedby this Court in Rakesh Kumar’s caseit has beenobserved as under: “From: The Secretary(IPH) to the Hig h C o urt of H.P on 24 04 HCHP 13Government of Himachal Pradesh.ToThe Engineer in Chief I&PH Department Jal Shakti Bhawan Tutikandi Shimla 171005.Dated Shimla 171002 the 7th Jan. 2020.Subject:O.A. No. 1077 2017 Titled All Himachal Pradesh HPPWD IPH & Contract WorkersUnion Vs. State of H.P.Sir I am directed to refer to your letter No. IPH SE III D W Court Case Rakesh Kumar Vo1. VII 2018 5191dated 5.11.2019 on the subject cited above and to saythat the matter was taken up with the FinanceDepartment who have advised as under: Examined in consultation with F.D.byany of the applicant(s) in said O.As cannot beoverruled. Therefore IPH Department isrequired to contest the order dated9.07.2019 of erstwhile HPAT in higherappellate Court on the grounds thatregularization of all 816 daily wagers oncompletion of 08 years daily waged service is Hig h C o urt of H.P on 24 04 HCHP 14not possible being contrary to“Regularization Policy” of the StateGovernment which specifically provides thatregularization shall be from prospectiveeffect and it will be against the availablevacant post. However I&PH Department mayconsider to agree before the higherappellate court to confer work charge statusto all class III daily waged persons oncompletion of 08 years daily waged service(with minimum 240 days in each calenderyear prior to 31.05.2006 i.e. conversion ofwork charged staff Class III into regularestablishment of I&PH Department based onRakesh Kumar’s case subject to the conditionthat financial benefits to theApplicants Petitioners who have filed OAs Writpetitions in the HPAT High Court shall berestricted to 03 years prior to the date offiling of such OAs Writ petitions in the Courtsin terms of F.D.’s letter N.FinB(7) 16 98 IIIdated 15.12.2011 andNon applicants Non petitioners i.e. who havenot filed any O.A. Writ petition shall begranted financial benefits on notional basis as has been done in the case of Class IVemployees of I&PH Department.In addition it may however be ensuredspecifically that this sanction of F.D. forconferment of work charged status in thesaid Department shall be last concurrence ofF.D. and no such case would be entertainedby F.D. in future. You are therefore requested to take furtheraction in the matter as per the advice ofFinance Department under intimation to thisDepartment.”25.In view of the foregoing discussion and for thereasons stated above I find merit in this petition and the sameis accordingly allowed. The respondents are directed to grant Hig h C o urt of H.P on 24 04 HCHP 15work charge status to the petitioners on completion of 8 yearsservices with all consequential benefits including seniority etc.However the actual monetary benefits shall be limited to aperiod of three years prior to the date of filing of the petition i.e.16.09.2016. Pending application if any also stands disposed of. 24th April 2021.Judge 

Summary: The right seeking of benefits of regularization of service is a right akin to a fundamental right guaranteed to the workman. This was said in the case of Yashwant Singh And Others v State Of Himachal Pradesh And Others [CWPOA No.46 of 2020] by Justice Tarlok Singh Chauhan in the High Court of Himachal Pradesh at Shimla The facts of the case are that petitioner No.1 was engaged as ‘beldar’ on daily waged basis with effect from 01.11.1997 and, according to him, he was entitled to work charge status with effect from 01.01.2006, but his services were regularized on 05.01.2010. Whereas, petitioner No.2 was engaged as daily waged ‘beldar’ with effect from 01.01.2000 and, according to him, he was entitled to the work charge status with effect from 01.01.2008, but his services were regularized on 06.10.2010. 4. The services of petitioner Nos. 1 and 2 have been ordered to be regularized after completion of 10 years instead of 8 years and aggrieved thereby, they have filed the instant petition. The respondents opposed the claim of the petitioners on the ground that this Court in  Gauri Dutt v State of HP [CWP No. 778 of 2006] decided categorically held that a workman is entitled to work charge status after completion of 10 years of service. Secondly, it was contended that instant petition is clearly time barred and is, therefore, liable to be dismissed on this ground alone. After hearing the learned counsels and going through the records of the case, the Court opined that, “It is not in dispute that the petitioners No.1 and 2 had completed 240 days of their service in each calendar year and, therefore, their services were required to be regularized as per the policy that was prevalent as on the date of consideration of their cases for regularization. Indisputably, the policy in vogue on the date of consideration clearly providing for regularization of services of daily waged workers, who had continuously worked for 8 years and, therefore, the respondents could not have illegally and arbitrarily regularized the services of petitioners No.1 and 2 on 05.01.2010 and 06.10.2010, respectively i.e. on completion of 10 years of service”. Furthermore, the Court said that “It needs to be observed that where the Court is dealing with one of fundamental rights of poor workman, its role is that of a sentinel for protection of fundamental rights of the weak and down-trodden and cannot, therefore, easily allow itself to be persuaded to refuse the reliefs solely on jejune ground of delay and laches or the like. The right seeking of benefits of regularization of service is a right akin to a fundamental right guaranteed to the workman. Therefore, the plea of delay should not come in the way of granting relief to the workman, more particularly, when the Court is of the opinion that it is the inaction of the respondents that has formed basis of such delay”. Hence, the Court finds merit in the petition and is allowed. Click here to read judgment