Gian Singh vs State of H.P.

Tarlok Singh Chauhan, J.—The petitioner has approached this Court for grant of following relief''s:

"(a) That the respondents may very kindly be commanded to act in accordance with law and regularise the services of the petitioner w.e.f. 1.1.2000 or in the alternative w.e.f. 1.4.2000, with all consequential benefits of pay, seniority and fixation of pension.

(b) That respondents may also very kindly be directed to pay arrears of pay to the petitioner till the age of 60 years as respondents have retired him from service at the age of 58 years.

(c) That directions may be given to the respondents to calculate and pay the arrears with interest @ 9% per annum.

(d) That directions may be given to the respondents to submit the case of the petitioner for pension and then to release pension in accordance with law, to secure the ends of law and justice."

Undisputedly, the petitioner was appointed as daily wager on 1.1.1992 and had worked continuously without any break and completed 240 days of uninterrupted service and 8 years of regular service as on 31.12.1999. The respondents vide letter dated 26.9.2005 conveyed approval for regularisation of 1642 daily waged workers, who had completed 8 years or more daily wages continuous service as on 31.3.2000 with a minimum of 240 days in each calendar year. The petitioner claimed regularisation of his services in terms of this letter.

The respondents filed reply to the petition and the claim of the petitioner was sought to be defeated by making the following averments in para-2 of the preliminary objections:

"2. That the petitioner was engaged as daily waged beldar w.e.f. 1.1.1992 and completed 10 years service with minimum 240 days in each calendar year as on 31.12.2001 but he could not be made regular due to non availability of sanctioned vacant post in his cadre on the basis of his seniority. It is worth to mention here that as per the policy of the Government conveyed by the Principal Secretary (PW) to the Govt. of H.P. vide his letter No. PBW(A)13(6)13/2002 dated 26.9.2005 and further circulated by Engineer-in-Chief, HPPWD, Shimla vide letter No. PWE-133-11/ES-III-8675-97 dated 24.10.2005 Annexure (R-1), the daily wages workers who have completed 8 years or more continuous service as on 31.3.2000 were to be regularized on the basis of seniority from prospective effect. Consequent upon this, the petitioner was regularised w.e.f. 31.12.2005 as no benefit of regularisation was given retrospectively in the above stated policy. Moreover, the judgment of Hon''ble Supreme Court of India in case Sh. Mool Raj Upadhaya vs. State and others dated 19.4.1994 and Civil Appeal No. 1037/2007 titled as State of H.P. and other vs. Gehar Singh and others was under consideration of H.P. Govt. Therefore, 7842 tenure posts were created and approval for the same was conveyed vide Engineer-in-Chief, HPPWD, Shimla letter No. PWE-133-11/2008 ES-III-16400-16500 dated 25.2.2008 for the payment of arrears for regularisation of eligible candidates retrospectively for giving work charged status from due dates to those daily waged/Muster-roll workers who have completed 10 years continuous service with minimum of 240 days in each calendar years upto 31.12.1999, 31.12.2000, 31.12.2001, 31.12.2002 and 31.12.2003. Copy of letter dated 25.02.2008 is annexed as Annexure R-II. Since the petitioner had completed 10 years of regular service with minimum of 240 days in each calendar year on 31.12.2001, hence as per Govt. decision stated above he was regularised retrospectively w.e.f. 1.1.2002 and the payment of all arrears for the period w.e.f. 01.01.2002 to 30.12.2005 was duly made to him. It is further submitted that as per the policy of Govt. issued vide notification No. Fin-(C)A(3)3/98-Shimla dated 10.5.2001, the incumbents who have joined on or after 10.5.2001 will have to be retired after attaining the age of 58 years. The copy of notification is attached as Annexure R-III. Accordingly, the petitioner has rightly been retired from Govt. service on 31.8.2010 after attaining the age of superannuation i.e. 58 years. So far as consequential benefits are concerned, all have already been given to him. Therefore, the petition is baseless and not maintainable, hence deserves to be dismissed."

I have heard Mr. Ajay Sharma, learned counsel for the petitioner and Mr. Virender Kumar Verma, learned Additional Advocate General for the respondents and have also gone through the records carefully.

It is not even disputed by the respondents that the petitioner had completed requisite 8 years of service as on 31.12.1999 and the only justification for denying the claim of regularisation to the petitioner is based upon letter dated 25.2.2008. Even as per the respondents, the services of the petitioner have in fact been regularised on the basis of the instructions issued on 26.9.2005 which was circulated to the respondent-Department on 24.10.2005 wherein para-1 reads as follows:

"The Principal Secretary (PW) to the Govt. of H.P. vide letter No. PBW(A)13(6)13/2002 dated 26.09.2005 has conveyed approval of the Government for the regularisation of 1642 daily waged workers of various categories against vacant posts who have completed 8 years or more daily wages continuous service as on 31.03.2000 with a minimum of 240 days in each calendar year in pursuance to the instructions issued by the Department of Personal letter No. PER (AP)-C-B(2)-2/97-Vol-IV dated 06.05.2000 and F.D''s instructions vide letter No. Fin.-1-C-(7)-1/99 dated 29.08.2002 from prospective effect subject to fulfillment of all codal formalities specified in the ibid letter of D.O.P."

In so far as the letter dated 25.2.2008 which has been heavily relied upon by the respondents is concerned, it would be seen that the same does not even make a reference to the letter dated 26.9.2005 and has been issued in an entirely different context.

There is no justification or reasonable explanation offered by the respondents as to why the services of the petitioner were regularised on 1.1.2002 after completion of alleged 10 years of continuous service when admittedly the policy issued vide letter dated 26.9.2005 and circulated on 24.10.2005 (Annexure R-I) clearly provided for regularisation of services of all the daily wagers, who had completed 8 years or more daily wages continuous service as on 31.3.2000 with minimum of 240 days in each calendar year. Accordingly, the petitioner is entitled to be regularised w.e.f. 1.1.2000 i.e. the date when he had completed 8 years of continuous service.

Once the petitioner is held entitled to the regularisation w.e.f. 1.1.2000, then the petitioner was entitled to continue in service till the age of 60 years as the petitioner is deemed to have been engaged prior to 2001 and his case is squarely covered by the policy of the State Government issued vide order dated 22.2.2010. This issue otherwise, is no longer res-integra in view of the decision rendered by a co-ordinate Bench of this Court (Justice Sanjay Karol,) in CWP No. 1837 of 2012 decided on 21.8.2014 titled Tara Chand vs. State of H.P. and others, wherein the office order dated 22.2.2010 was considered in detail and thereafter it was held as under:

"2. Petitioner was engaged as a daily wage worker in the year 1991. His services were regularized w.e.f. 01.09.2006, by the Divisional Forest Officer, Wildlife Division Kullu, District Kullu, H.P., vide office order dated 11.09.2006. Respondents did not consider the petitioner''s case for regularization in the light of decision rendered by the apex Court in Mool Raj Upadhyaya Vs. State of H.P. and Others, as also this Court in Gauri Dutt and others Versus State of H.P., Latest HLJ 2008 (HP) 366 as such vide judgment dated 03.05.2011 rendered in CWP No. 2360 of 2011, titled as Tara Chand Versus State of H.P. and others, State was directed to consider the petitioner''s case, in accordance with law. Pursuant thereto, vide order dated 26.09.2011 (Annexure P-1) now petitioner''s case stands considered and respondents have granted him work charge status with effect from 01.01.2001.

In the light of such development, petitioner is legally entitled to continue to serve the State up to the age of 60 years. Policy so communicated vide order dated 22.02.2010 (Annexure P-7), which reads as under is evidently clear and squarely applicable:-

"No. PER (AP)-C-B(2)-1/2006-Vol.-VIII Government of Himachal Pradesh, Department of Personnel (AP-III) Dated Shimla-171 002 22nd February, 2010.

From

The Secretary (Personnel) to the Government of Himachal Pradesh.

To

All the F.C./Principal Secretaries/Secretaries to the Government of Himachal Pradesh, Shimla-171002.

All Divisional Commissioners in Himachal Pradesh.

All Heads of Departments in Himachal Pradesh.

All Deputy Commissioners in Himachal Pradesh.

Subject:-Age limit for disengagement of a daily wager.

Sir,

I am directed to say that consequent upon amendment in Rule-56 of the Fundamental Rules vide Government of Himachal Pradesh, Finance (Regulations) Department Notification No. Fin (C) A (3)-3/98 dated 10th May, 2001, the issue of fixing the age of disengagement of a daily wager in all the departments had also been engaging the attention of the Government for sometime past. After careful consideration, the Government has now decided that the people who are engaged on daily wages they will also be governed by the same set of age restriction of disengagement as is applicable to regular Government employees. As such, the Class-IV daily wager engaged prior to 2001 i.e. when said notification of limiting the age of Class-IV Employees was reduced from 60 to 58 years will cease to be in the employment at the age of 60 years and no daily wager deployed after the reduction of the age limit in 2001 will be retained after attaining the age of 58 years. Similarly, all Class-III and above employees if working on daily wage will cease to be employed at the age of 58 years. There should be no ambiguity in this matter and all departments are to follow this age restriction.

The policy regarding regularization of daily waged persons remain as circulated vide this office letter No. PER (AP)-C-B(2)-1/2006-Vol.-VII (Loose-2), dated 28.8.2009.

The above instructions may kindly be brought to the notice of all concerned for strict compliance.

Yours faithfully, Sd/- Deputy Secretary (Personnel) to the Government of Himachal Pradesh"

(Emphasis supplied)

The question of applicability of Fundamental Rules, 2001, so amended on 10.05.2001 (Annexure P-3) would not arise. It applies only to those employees who stand appointed on or after the date of amendment of Rules, which was so done in the year 2001. In the instant case, work charge status stands accorded to the petitioner with effect from 01.01.2001, date prior to the amendment of Rules. In fact, the issue is no longer res integra and squarely covered by the decision rendered by this Court in LPA No. 196 of 2010, titled as Bar Chand Versus State of H.P. & Others, operative portion of which reads as under:-

"3. The learned Single Judge took the view that since the petitioner has been regularized in service after 2001, he is entitled to continue only up to 58 years. But as clearly stated in the circular, no distinction whatsoever is made as to regular service. In fact the expression used is daily wager engaged prior to 2001. Admittedly, the petitioner was engaged as Beldar in 1994. The restriction up to the age of 58 years would apply only in the case of those engaged on daily wages after 2001 when the retirement age was reduced to 58 years. In view of the above circumstances, we set aside the judgment of the learned Single Judge, allow the writ petition with the direction that the petitioner shall be permitted to continue up to the age of 60 years. He shall be engaged forthwith with continuity of service at any rate within a period of one week from the date of production of copy of this judgment. It is made clear that the period during which the petitioner was kept out of service shall be treated as duty for all purposes except the actual wages. In other words, there shall be continuity of service for all purposes except the actual wages since the petitioner has not actually worked during the period.

As far as regularization is concerned, in case any person engaged on daily wages after the petitioner has been regularized before the petitioner, he shall also be regularized with effect from the date. In any case, in view of the judgment in Rakesh Kumar Vs. State of H.P. (CWP No. 2735 of 2010), the petitioner shall be first conferred work charge status. The consequential benefits shall be disbursed to the petitioner within two months."

In light of the aforesaid discussion, the writ petition is allowed and the respondents are directed to regularise the services of the petitioner w.e.f. 1.1.2000 with all consequential benefits of pay, seniority and fixation of pension and since the petitioner has now crossed the age of superannuation i.e. 60 years, hence he shall be deemed to be in service and consequently, the respondents are directed to take all consequential action including disbursement of monetary benefits in accordance with law within a period of three months from the date of production of copy of this order.