Narpat Ram vs State Of Himachal Pradesh And Others

Vivek Singh Thakur, J

Petitioner has approached this Court seeking following main relief(s):-

(i) That the Office order dated 08.02.2016 (Annexure A-4) may kindly be quashed and set aside.

(ii) That the respondent department may kindly be directed to consider the case of the applicants for regularization of his services on completion of 8 years continuous  service  on daily  waged basis instead of more than 11 years, with all consequential benefits.”

Admittedly, petitioner was engaged as daily waged Chowkidar w.e.f. 01.01.1999 and thereafter he continued as such till his regularization in the year 2009 (on 26.10.2009) with 240 days in each calendar year continuously.

Claim of the petitioner is that in terms of the policy of the State as explained in the various judgments including the judgment in CWP No. 3111 of 2016, titled State of Himachal Pradesh versus Ashwani Kumar, petitioner is entitled for regularization/conferment of work charge status on completion of eight years.

Claim of the petitioner has been repelled by respondents department mainly on the ground that respondents department is not having work charge establishment and, therefore, petitioner is not entitled for grant of work charge status after completion of eight years of continuous daily waged service. Further submission on behalf of respondents is that petitioner has been appointed in terms of policy of the State on vacant post after availability of the said post with prospective effect in the year 2009.

In present case, petitioner had approached the Court earlier by filing CWP No.9193 of 2012 which was decided on 4.12.2012, directing the respondents to consider the case of the petitioner for conferment of work-charge status and to extend the benefits to the petitioner in terms of judgment passed in CWP No.2735 of 2010, titled Rakesh Kumar versus State of Himachal Pradesh and Others, decided on 28.7.2010.

Respondents, after considering case of the petitioner, vide Office order dated 08.02.2016 [Annexure A-4/R-2], had rejected the claim of the petitioner on the ground that Forest Department was not a work charge establishment.

In support of the aforesaid decision, reliance has been placed by the respondents-department upon the judgment passed by the Supreme Court in Jaswant Kumar versus Union of India report in (1979) 4 SCC 440 and judgment dated 28.07.2010 of the High Court passed in CWP No.2735 of 2010, titled Rakesh Kumar & Ors. vs State of HP. After rejection of the claim, petitioner had preferred the present petition before the Erstwhile H.P. State Administrative Tribunal which was transferred to this High Court, on abolition of the Tribunal, and has been registered as CWPOA No.6758 of 2020 (present Writ Petition).

The issue with respect to conferment of work charge status by the department, which is/was not having work charge establishment, is no longer res integra and stands determined by the judgment passed in Ashwani Kumar’s, case referred supra.

Upholding the order passed by the erstwhile H.P. State Administrative Tribunal, a Division Bench of this Court, vide judgment dated 10.5.2018, passed in CWP No.3111 of 2016, titled as State of Himachal Pradesh v. Ashwani Kumar, has pronounced that work-charged establishment is not a prerequisite for conferment of work-charged status nor conversion of work-charged employee into regular employee would make such establishment non-existent.

Civil Appeal No.5753 of 2019, titled as State of H.P. vs. Ashwani Kumar, preferred by the State in Ashwani Kumar’s case has been dismissed by the Supreme Court on 22.07.2019. Similarly, SLP (C) No. 8830-8869 of 2011 preferred by the State in Rakesh Kumar’s case also stands dismissed by the Supreme Court on 15.01.2015.

It is well settled in various pronouncements of this High Court that for conferring Work Charge status on a daily waged worker on completion of requisite years, existence of work charge establishment in the Department is not necessary.

In this regard, it is apt to record that in Mool Raj Upadhyaya vs. State of H.P. and others, 1994 Supp. (2) SCC 316, an affidavit was filed by the Chief Secretary to the Government of Himachal Pradesh, formulating a Scheme for granting work-charged status to all daily-waged employees, serving in the State of Himachal Pradesh, in all Departments, irrespective of the fact that Department is/ was having work-charged establishment or not.

Term  “work-charge”,  in  Jaswant  Singh  &  Ors.  vs Union of India & Ors, (1979) 4 SCC 440; is in different context, whereas this term, in Himachal Pradesh, is used in different context. A person, working on daily-waged basis, before his regularization, is granted work-charged status on completion of specified number of years as daily-wager and effect thereof is that thereafter non-completion of 240 days in a calendar year would not result into his ouster from the service or debar him from getting the benefit of length of service for that particular year. Normally, work charged status is conferred upon a daily-wager, on accrual of his right for regularization, on completion of prescribed period of service, but non regularization is for want of regular vacancy in the department or for any other just and valid reason. Therefore, it is a period interregnum daily-wage service and regularization, which is altogether different form the temporary establishment of work-charge, as discussed in the judgment of the Apex Court relied upon by the State and, for practice in Himachal Pradesh, work-charged status is not conferred upon the person employed in a project but upon such daily-wage workers, who are to be continued after particular length of service for availability of work but without regularization for want of creation of post by Government for his regularization/ regular appointment. Therefore, work is always available in such cases and the charge of a daily wager is created thereon to avoid his disengagement for reasons upon which a daily-wager can be dispensed with from service.

Despite having bestowed status of custodian of rights of its citizens, State or its functionaries invariably are adopting exploitative method in the field of public employment to avoid its liabilities, depriving the persons employed from their just claims and benefits by making initial appointments on temporary basis, i.e. contract, adhoc, tenure, daily-wage etc., in order to shirk from its responsibility and delay the conferment of work-charge status or extension of benefits of regularization Policy of the State by not notifying Policies in this regard in future. Present case is also an example of such practice.

So far as regularization of petitioners is concerned, that may depend upon the availability of post, but for conferring work charge status, existence of post or existence of work charge establishment is not necessary and, therefore, plea on this count to deny conferment of work charge status upon the petitioners, on completion of 8 years, is also not tenable.

On conferment of work-charged status, sword of disengagement, hanging on the neck of workmen, is removed on completion of specified period of daily-waged service, as thereafter instead of daily wage, the employee would get regular pay-scale and would be entitled to other consequential benefits for which a daily-waged employee is not entitled.

In view of above, judgment in Jaswant Singh’s case is not applicable in present case.

In response to plea that work-charged establishment does not exist in the respondent-Department, learned counsel for the petitioner has also referred pronouncements of this High Court in cases CWPOA No. 5748 of 2019, titled as Man Singh Vs. The State of Himachal Pradesh and others, CWPOA No. 52 of 2019, titled Beli Ram Vs. State of Himachal Pradesh and another, CWPOA No. 5566 of 2019, titled as Reema Devi Vs. State of H.P. and others and CWPOA No. 5660 of 2019, titled as Ghanshyam Thakur Vs. State of Himachal Pradesh and others, LPA No.151 of 2021, titled State of HP vs. Beli Ram, decided on 09.08.2023, CWPOA No.5554 of 2019, titled Daulat Ram vs. State of HP and others, wherein similar plea of respondent-State did not find favour of the Court.

According to pronouncement in Mool Raj Upadhyaya’s case, clarified in Gauri Dutt and others vs. State of HP reported in Latest HLJ 2008(HP) 366, work charge status was to be conferred irrespective of existence of work charge establishment. The said fact has not been considered in judgment dated 28.07.2010, passed in CWP No. 2735 of 2010 titled as Rakesh Kumar vs. State of HP and others. In fact, in Rakesh Kumar’s case, this issue was not adjudicated but without considering Mool Raj’s case and without assigning any reason, a passing observation was made. Whereas this issue has been adjudicated and decided in subsequent judgment in Ashwani Kumar’s case. Therefore, observations made on this issue in Rakesh Kumar’s case are not binding especially when Civil Appeal in Ashwani Kumar’s case has been dismissed by Supreme Court. Therefore, abolition or non-existence of work charge establishment in the respondent-Department has no effect on the rights of petitioner for conferment of work-charged status after completion of 8 years in terms of Policy of the Government as well as verdict of Rakesh Kumar’s case.

For conferment of work-charged status, work-charged establishment in the Department is not prerequisite. The same has establishment in the Department is not prerequisite. The same has also been affirmed by the Principal Division Bench of this Court in judgment dated 9.8.2023 passed in LPA No. 151 of 2021, titled State of H.P. & another Vs. Beli Ram.

The  aforesaid  principle  has  also  been  affirmed  in CWPOA No.6710 of 2020, titled as Ram Singh & others vs. State of H.P. & others, decided on 08.09.2023; CWPOA No.6614 of 2020, titled as Ram Singh vs. State of H.P. & others, decided on 23.11.2023; and CWPOA No.6217 of 2020, titled as Pawan Kumar vs. State of Himachal Pradesh & others.

In view of above, present petition is allowed and Annexure A-4/R-2, dated 09.02.2016 is quashed and set aside.

Accordingly the respondents are directed to pass an appropriate order on or before 30.11.2024 to confer work-charge status/regularization upon the petitioner from 01.01.2007, on which date he had completed 8 years of continuous service as daily wage worker with 240 days in each calendar year along with all consequential benefits till his regularization. Arrears of the consequential benefits be extended to the petitioner on or before 31.12.2024, failing which petitioner shall also be entitled for interest thereon, at the rate of 5% per annum from the date of filing of the petition, till final payment and in that eventuality, interest after payment of the same to the petitioner, shall be recovered from erring official(s)/officer(s) responsible for causing delay and after receiving it shall be deposited in the Treasury, within four weeks thereafter.

Petition is allowed and disposed of in aforesaid terms, along with pending miscellaneous application(s), if any.