Har Devi vs State Of H.P. And Others

Jyotsna Rewal Dua, J

Respondents regularized services of the petitioner as Clerk on 28.12.2006. On that basis, she was further promoted as Junior Assistant on 02.02.2013. She retired as Senior Assistant on 08.08.2018. Her claims made before the learned Administrative Tribunal in the year 2016 & 2018 seeking retrospective regularization of her services, immediately on completion of 8 years of daily wage service were ordered to be treated as representations to be decided by the respondents. The respondents rejected petitioner’s case. Hence, she has instituted this writ petition assailing orders of rejection of her case with further prayer to direct the respondents to regularize her services, retrospectively.

Facts

2(i) Petitioner was engaged as clerk (Class -III) on daily wage basis by the HP PWD in the year 1994.

2(ii) Petitioner’s services were regularized by the State as clerk on 28.12.2006. The petitioner, at that time, did not protest against the date from which her services were regularized.

2(iii) On the basis of petitioner’s date of regularization, she was promoted as Junior Assistant on 02.02.2013.

2(iv) Petitioner filed O.A. No. 3812 of 2016 before the State Administrative Tribunal claiming regularization on completion of 8 years of daily wage service. The O.A. was disposed off on 05.09.2016 with direction to the respondents to decide petitioner’s representation. The respondents-department rejected case of the petitioner on 08.12.2016.

2(v) The petitioner filed another O.A. bearing No. 4572 of 2018. The Tribunal decided the said O.A. on 03.08.2018 by directing the respondent-department to consider petitioner’s case. The respondent- department again rejected her case on 26.12.2018.

2(vi) In the interregnum, petitioner was also promoted as Senior Assistant on 06.09.2017. She retired on 08.08.2018 on attaining the age of superannuation i.e. 58 years.

2(vii) In the instant petition filed on 24.03.2019, the petitioner has claimed regularization of her services from the date she completed 8 years of daily wage service with all incidental benefits thereof such as back wages, pension, seniority and pay fixation in light of judgment passed by the Division Bench on 10.05.2018 in CWP No. 3111 of 2016 (State of H.P. and others Vs. Ashwani Kumar). The substantive reliefs prayed by the petitioner run as under :-

“(i) That the impugned rejection orders dated 08.12.2016 & 26.12.2018 passed by respondent No. 2 vide (Annexure A-6 & Annexure A-10) may kindly be quashed and set-aside.

(ii) Respondents be directed to regularize the service of applicant from the date she completed 8 years of daily wage service with all the benefits incidental thereof such as back wages, pension, seniority and pay fixation with interest in terms of the judgment passed by the Hon’ble High Court in State of H.P. & Others versus Sh. Ashwani Kumar in CWP No. 3111 of 2016 and decided by Hon’ble High Court on 10.05.2018.

(iii) That applicant be further held entitled for the pensionary benefits.

(iv) That the arrears w.e.f. completion of 8 years with interest may also be granted in favour of the applicant.”

Learned counsel for the petitioner submitted that the petitioner is entitled for regularization of her services immediately on completion of 8 years of daily wage service. In support of such claim, reliance was placed upon a decision rendered by this Court on 28.07.2010 in CWP No. 2735 of 2010 ( Rakesh Kumar Vs. State of H.P. and other connected matters). Decision rendered in Ashwani Kumar’s case (supra) was also pressed in service. It was also submitted that on grant of claimed retrospective regularization from the date of completion of 8 years of daily wage service, the petitioner would also be entitled to all incidental benefits i.e. back wages, pension, seniority, pay fixation and interest etc.

Learned Additional Advocate General contended that petitioner belonged to Class-III Ministerial category, whereas the petitioners in the cases relied upon by her belonged to Class-IV Industrial category. The decisions in Rakesh Kumar and Ashwani Kumar’s cases (supra) are not applicable to the case of the petitioner.

We have heard learned counsel on both sides and considered the case file.

4(i) Petitioner is claiming retrospective regularization on the strength of decisions rendered in Rakesh Kumar and Ashwani Kumar’s cases (supra).

4(ii) In Rakesh Kumar and connected mattes (CWP No. 2735 of 2010), petitioners were workers (Class-IV, Beldars), who had been regularized in service as per various schemes announced by the State from time to time. Their grievance in the writ petitions was that “before regularization, they should have been granted the work charge status”. The Court held as under :-

“6. The simple question is whether the delay defeats justice? In analyzing the above issue, it has to be borne in mind that the petitioners are only class-IV workers (Beldars). The schemes announced by the Government clearly provided that the department concerned should consider the workmen concerned for bringing them on the work-charged category. So, there is an obligation cast on the department to consider the cases of the daily wage workmen for conferment of the work-charged status, being on a work-charged establishment, on completion of the required number of years in terms of the policy. At the best, the petitioners can only be denied the interest on the eligible benefits and not the benefits as such, which accrued on them as per the policy and under which policy, the department was bound to confer the status, subject to the workmen satisfying the required conditions.

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 workcharged status of the establishment.”

4(iii) In Ashwani Kumar’s case (supra), the Court in para 2 of the judgment observed as under about the status & claim of the respondent therein (original applicant):-

“Facts as emerge from the record are that the respondent, who was engaged as Beldar on daily wage basis in HP PWD, in the year 1994, after having completed eight years continuous service, prayed for conferment of work charge status in terms of norms laid down by the Government of Himachal Pradesh.x x x x x x”

In para 4 of the judgment, the Court noticed the stand of the State that the respondent therein (original applicant) had worked as Class-III Work Inspector, whereas work charge status stood already abolished on 01.04.2011 for Class-III category. The para reads as under :-

“4. In nutshell, case of the petitioner-State is that the applicant/respondent had worked as Class-III Work Inspector, whose work charge status stood already abolished on 1.4.2011. As per petitioner-State, in the class-III category, work charge status was abolished in the Public Works Department on 1.4.2011, whereas in Class-IV category, it was abolished on 19.8.2005 and as such, respondent is not entitled for grant of work charge status automatically, when especially he had not completed eight years service, on or before abolition of work charge on 1.4.2011. As per the petitioner-State, respondent was regularized rightly on 21.12.2006, in terms of the Government Regularization Policy dated 9.6.2006.”

In para 6 of the judgment, the Court held that there was no error in the finding recorded by the learned Tribunal while allowing the Original Application moved by the respondent (Ashwani Kumar). That existence of work charge establishment is not a pre-requisite for conferment of work charge status. Further reliance was placed upon Rakesh Kumar’s decision that regularization has no concern with conferment of work charge status after lapse of time. Relevant para of the judgment reads as under :-

“6. Having carefully perused material available on record, especially judgment rendered by this Court in Ravi Kumar v. State of H.P. and Ors, as referred herein above, which has been further upheld by the Hon’ble Apex Court in Special Leave to appeal (C) No. 33570//2010 titled State of HP and Ors. v. Pritam Singh and connected matters, this Court has no hesitation to conclude that there is no error in the finding recorded by the learned Tribunal that work charge establishment is not a pre-requisite for conferment of work charge status. The Division Bench of this Court while rendering its decision in CWP No. 2735 of 2010, titled Rakesh Kumar decided on 28.7.2010, has held that regularization has no concern with the conferment of work charge status after lapse of time, rather Court in aforesaid judgment has categorically observed that while deciding the issue, it is to be borne in mind that the petitioners are only class-IV worker (Beldars) and the schemes announced by the Government, clearly provides that the department concerned should consider the workmen concerned for bringing them on the work charged category and as such, there is an obligation cast upon the department to consider the case of daily wage workman for conferment of daily work charge status, being on a work charged establishment on completion of required number of years in terms of the policy. In the aforesaid judgment, it has been specifically held that benefits which accrued on workers as per policy are required to be conferred by the department.”

Civil Appeal No. 5753 of 2019 preferred by the State against the judgment dated 10.05.2018 in Ashwani Kumar’s case (supra) was disposed of by the Apex Court on 22.07.2019 with the following order :-

“1. Leave granted.

We have issued notice in this matter limited to the question of grant of back-wages. The respondent was engaged as a daily wager (Class IV) on 01.08.1994. Thereafter, he was given the post of Work Inspector in Class III that too on the daily wages basis, in view of the decision of the Government on completion of eight years of service. On 09.06.2006, regularization policy was framed and the appellant was regularized on 21.12.2006 on the temporary post of Work Inspector. Thereafter, he filed a writ petition in the High Court on 14.11.2013 seeking work charge status with effect from 01.01.2003 and other incidental benefits. The High Court, at the first instance, considered and rejected the representation of the respondent vide order dated 26.03.2014. The respondent filed another O.A. No.412 of 2016 before the Central Administrative Tribunal. The Tribunal has quashed the order and has ordered that on completion of eight years as daily wager work charge status can be conferred.

We are not disturbing the finding of the Tribunal, which was affirmed by the High Court, with respect to the conferral of the status of the work charge from 01.01.2003. However, as regularization has been made only in the year 2006, obviously, notional benefit could have to be granted as the petition was initially filed in the year 2013.

Thus, we make the modification that the respondent would be entitled only for notional benefits of the order passed by the Signature Not Verified Central Administrative Tribunal. Digitally signed by NARENDRA PRASAD Date: 2019.07.25 Accordingly, with the aforesaid modification in the order of the Central Administrative Tribunal and the High Court, the appeal is disposed of.

Pending application(s), if any, shall stand disposed of.”

4(iv) The above decisions alongwith several other pronouncements were noticed by a Division Bench of this Court in LPA No. 165 of 2021, decided on 12.01.2023 (State of H.P. and others Vs. Surajmani and others alongwith connected matters). The moot question involved in this bunch of petitions was “as to whether a daily wager is liable to be conferred work charge status after completion of eight years of service ?”. The Court held as under :-

“57. In view of the above, the writ petitions filed by the employees are allowed and the respondents are directed to grant work charge status to the employees from the date they had completed eight years of service on daily wage basis in terms of the decision given by this Court in Ashwani Kumar’s case supra. However, benefits consequent to conferment of work charge status in terms of instant judgment shall be restricted to three years for the period prior to filing of petition.”

4(v) All the above decisions pertain to conferment of work charge status on completion of eight years of service. The petitioner, however, in the instant case is not claiming work charge status. She is claiming regularization from a retrospective date. The decisions relied upon by learned counsel for the petitioner will not advance her case for retrospective regularization on completion of eight years of daily wage service. Apart from completion of requisite number of years of service in terms of applicable policy of the State, the regularization of daily wage service depends upon various other factors including availability of a sanctioned post. Regularization and work charge status are two different concepts. It would be apt to quote following elaboration of the concepts by the Supreme Court in CIVIL APPEAL NO. 3155 OF 2023 (@ SLP (C) NO. 10653 OF 2018) Uday Pratap Thakur and Anr. Versus The State of Bihar and Ors. :-

“6.2 Insofar as the submission on behalf of the appellants that their entire services rendered as work charged should be considered and/or counted for the purpose of pension / quantum of pension is concerned, the same cannot be accepted. If the same is accepted, in that case, it would tantamount to regularizing their services from the initial appointment as work charged. As per the catena of decisions of this Court, there is always a difference and distinction between a regular employee appointed on a substantive post and a work charged employee working under work charged establishment. The work charged employees are not appointed on a substantive post. They are not appointed after due process of selection and as per the recruitment rules. Therefore, the services rendered as work charged cannot be counted for the purpose of pension / quantum of pension. However, at the same time, after rendering of service as work charged for number of years and thereafter when their services have been regularized, they cannot be denied the pension on the ground that they have not completed the qualifying service for pension. That is why, the service rendered as work charged is to be counted and/or considered for the purpose of qualifying service for pension, which is provided under Rule 5(v) of the Rules, 2013.”

4(vi) The petitioner has not placed any material to show that a post was available for her regularization prior to 28.12.2006 i.e. the date on which she was actually regularized as a Clerk (Class-III). The petitioner has not placed on record any document to show that any junior to her was regularized prior in time to her regularization.

4(vii) The petitioner has claimed retrospective seniority based upon her claim of retrospective regularization. However, the fact remains that on the basis of her existing date of regularization as Clerk (28.12.2006), she was further promoted as Junior Assistant on 02.02.2013 and thereafter as Senior Assistant on 06.09.2017. Persons likely to be adversely affected by the grant of retrospective seniority to the petitioner have not been impleaded as parties to the petition.

4(viii) Petitioner did not lodge any protest at the time of regularization of her services vide order dated 28.12.2006. As noticed above, she accepted the given date of her regularization and on that basis was promoted further as Junior Assistant and thereafter as Senior Assistant. Her first ever protest was in terms of O.A. No. 3812 of 2016 i.e. after a gap of about 10 years from the date of regularization of her services.

Conclusion

Petitioner’s sole basis for claiming retrospective regularization is on the strength of judgments rendered in Rakesh Kumar and Ashwani Kumar’s cases (supra). As observed earlier, these decisions operate in different fields where the petitioners (therein) had claimed conferment of work charge status on completion of eight years of daily wage service. There was no claim of retrospective regularization whereas in the instant case, petitioner who was engaged on daily wage basis during the year 1994 and regularized against the sanctioned post on 28.12.2006 is claiming retrospective regularization of her services on completion of eight years of daily wage service. The parity placed by her for seeking the relief of retrospective regularization on the strength of decisions in Rakesh Kumar and Ashwani Kumar’s cases (supra) is misconceived. In the given facts and circumstances of the case, petitioner’s claim also suffers from unexplained delay, laches and acquiescence. Persons likely to be affected adversely with petitioner’s claim of retrospective seniority have not been impleaded as parties.

For the foregoing reasons, this writ petition is dismissed alongwith the pending applications, if any.