Pinju Ram vs State of H.P.

Justice Kurian Joseph, C.J.—The writ petitioners are aggrieved since they have not been granted the benefit of daily wage status with all consequential benefits w.e.f. 27.2.2004, since according to them they had completed ten years of part time service as Revenue Chowkidars on or before 31.12.2003. The contention of the State is that the status is to be conferred only prospectively, meaning thereby that the benefits would accrue to such employees only from the actual date, the order is passed granting them the daily wage status. Since there was serious confusion with regard to the above position, it is seen during the pendency of the writ petitions and contempt matters, that the Government has issued another clarification dated 22nd September, 2011, the text of which reads as follows:-

In supersession of this Department letter and Corrigendum No. Rev.D(F)1-1/2003, dated 30.09.2010 and 5.10.2010 respectively on the subject cited above, I am directed to say that the matter with respect to Revenue Chowkidars is further clarified as under:-

That the amount of wages to daily waged Revenue Chowkidars shall be paid from the date they have actually been appointed and working as full time daily wager in the department.

Since the Revenue Chowkidars have worked as Part Time prior to their conversions into daily wagers, therefore, they are not entitled to any financial benefits like arrear etc. Attention is also invited to Hon''ble High Court judgment dated 21.4.2011 passed in a CWP No. 2192/2011 titled as Moti Singh Vs. State and ors. Where direction has been issued that "in case the petitioner is granted daily waged status retrospectively, he shall not be entitled to any consequential monetary benefit.

Seniority to these daily waged Revenue Chowkidars may be granted from the date of completion of 10 years as Part Time workers.

All the Revenue Chowkidars working in the department may be brought in surplus pool maintained in the Finance Department for their deployment in different departments against vacant posts so that their services could be utilized in a proper way. All the Deputy Commissioners will send complete particulars in this regard to the Pr. Secretary (Finance) to the Government of Himachal Pradesh under intimation to this department.

In addition, complete details in respect of left out Part Time Revenue Chowkidars in the Department may be sent to this department so that their cases may be considered for bringing them on daily wages basis.

Allocation of budget amounting to Rs. 1.52 Crore for the payment of wages of 373 Revenue Chowkidars has already been made and conveyed to all the Deputy Commissioners vide letter No. Rev.C. (C) 1-1/2007-Pt.II dated 12th September, 2011.

You are, therefore, requested to kindly take further necessary action in the matter accordingly.

Since the Court was not happy with the way the cases of poor part time workers have been dealt with, on 29th June, 2012 the following order was passed in COPC No. 164 of 2012:-

The policy of the Government with regard to conferment of daily wager status to part timers was announced on 27.2.2004. It is stated therein that all the part time Class-IV employees, who had completed 10 years of continuous service as on 31.12.2003, would be made daily wagers. It was also clarified in the said order that the conversion to daily wager status will be only prospective. It is shocking, if not unfortunate that this expression "prospective effect" has been understood as the date on which the daily wager status is given. In other words, if the Deputy Commissioner or the authority competent to give the daily wager status does not act for 5 years or 6 years also and then after an order is passed by the Court, according to the Government it should be taken that the effect of the conferment of daily wager status to be the date when the order is passed. Since the Court finds it difficult to digest this situation, further clarification was sought from the Government. Now, the Government has issued another Notification dated 22nd September, 2011, wherein it is clarified that the Revenue Chowkidars, who have completed 10 years of part time service, will be treated as daily wagers and they would also be entitled to seniority as daily wager from the date of completion of 10 years as part timers, necessarily to mean as on 31.12.2003 or thereafter. However, it is further clarified that the financial benefits like arrears etc. would be granted only with effect from the actual date of passing of the orders regarding conversion of part timers into full timers. Reliance has also been placed on the judgment dated 21st April, 2011 in CWP No. 2192 of 2011 titled Moti Singh vs. State of H.P and others. It was a case where a part timer, who was made daily wager w.e.f. 1.1.2007, claimed that he would be entitled to have the status w.e.f. 1.1.2004 and the writ petition was filed in the year 2011. It was in that context it was clarified by this Court, he having actually earned the daily wager status from 2007, yet having not raised any dispute with regard to the retrospective date of conferment of the daily wager status for over around 4 years, that even if he is granted daily wager status from the date he claimed, the effect would be only notional. That is not the factual situation at all in all these cases. Despite the clear intention of the Government in the policy dated 27.2.2004 to confer daily wager status prospectively i.e. w.e.f 27.2.2004 in case the part timers who had completed 10 years of service as on 31.12.2003, years and years have been taken and it required a poor part timer to file a writ petition and thereafter a contempt petition before this Court to get his daily wager status fixed w.e.f. the date of completion of 10 years as on 31.12.2003 or thereafter. Since all the petitioners apparently have completed 10 years of daily wager status as on 31.12.2003, they are entitled to the date of 27.2.2004. The entitlement for conferment of daily wager status w.e.f. 27.2.2004 has been crystallized by the order dated 27th February, 2004 and in case there is any delay on the part of an officer concerned in passing the orders regarding the conversion from part timer to full timer for whatever reason may be, why should an under-privileged, apparently uneducated and coming from a lower strata of the society, be put to any disadvantage? Would it not amount to granting premium for laches and lapses on the part of a Controlling officer? It is on this question that the conscience of the Court is shaken.

Learned Additional Advocate General points out that these employees have not actually worked as daily wager till the orders are passed, pursuant to the directions issued by this Court. Again the question is whose fault it is. The Government having issued a direction to confer the daily wager status on all part timers who had completed 10 years service as on 31.12.2003 w.e.f. the date of order namely 27.2.2004, if some officer for some veiled motive, in case has delayed the passing of the actual order, why should a poor employee be made to suffer the consequences, particularly when the employee, as we have already indicated above, apparently comes from such a poor background. It is submitted that in any case the benefits may be limited at least to three years prior to the date of the filing of the writ petition.

Learned Additional Advocate General seeks two weeks time to file an affidavit.

Learned Additional Advocate General has brought to the notice of this Court that though the Government had taken the policy decision to confer daily wage status to part time workers on 27th February, 2004, it was not actually intended to be made applicable to the Revenue Chowkidars, since the stand of the Government was that their work is only casual and that their wages are to be paid from the funds of Panchayat. It is seen that the said stand was not appreciated by the Tribunal mainly because such a stand was not taken in the reply filed by the Government in the Tribunal in O.A. No. 824 of 2002, filed by Mehar Singh and others. The Tribunal recorded a categoric finding on the stand taken by the State that Revenue Chowkidars were also to be treated as part timers and hence, covered by the policy, dated 27th February, 2004. That order, dated 27.6.2006 of the Tribunal was challenged before this Court in CWP No. 281 of 2007, leading to the decision dated 12th April, 2007. It will be profitable to extract two paragraphs from the said judgment of this Court, dated 12th April, 2007 in CWP No. 281 of 2007:-

The State has challenged this order before us. From the reply filed before the Tribunal, it is apparent that the State did not dispute the fact that the petitioners were part time employees of the State. In fact, before the Tribunal when the applications were seeking parity of scales with the regular Chowkidars/ Peons, the State specifically took the plea that the applicants were only part time employees and could not be paid the same scale of pay as is being paid to the regular employees.

It is the State which has taken a policy decision vide letter dated 27th April, 2004 to give appointments on daily wages to all Part Time Class IV employees who have completed 10 years service on 31.12.2003. This policy has not been modified. The applicants are squarely covered under this policy. All that the Tribunal has done is to direct the State Government to implement its own policy/instructions. There is no error in the order of the Tribunal. The writ petition is dismissed. No orders as to costs.

1 3. It is not in dispute that SLPs filed by the State had been dismissed. Thus there cannot be any dispute or quarrel with regard to the entitlement of the Revenue Chowkidars for treatment as part timers.

Then the question is, what should be the consequential monetary benefits, pursuant to the conferment of daily wage status in compliance with the judgments of this Court. The stand of the State in letter, dated 22nd September, 2007, referred to above, is that those persons would be getting daily wage status from the date of completion of ten years as part time workers. There is still ambiguity in that regard. The question of status of daily wager can be granted only as on 27th February, 2004, even if a part timer had completed more than ten years prior to 31st December, 2003, since the policy itself was introduced in the year 2004. Therefore, it is made clear that even for the purpose of seniority, the daily wage Chowkidars who have completed ten years prior to 31st December, 2003, will get the date only as 27th February, 2004 and in the case of who completed ten years thereafter will get the respective dates on completion of that period. The inter se seniority will depend on the date of original engagement as part timer and in case there are more than one joining on the same date, the elder in age will be the senior.

Though the learned counsel for the petitioners vehemently contended that the Government itself having introduced the policy for conferment of daily wage status to those part timers who completed ten years, such Revenue Chowkidars who have completed ten years of part time service as on 27th February, 2004, should be granted all consequential benefits, the fact remains that the Government itself was compelled to treat Revenue Chowkidars as part timers only pursuant to the developments which we have referred to above in Mehar Singh''s case. We find that Moti Singh and others, referred to by the Government, in the order dated 22nd September, 2011 and in our order dated 26th September, 2012 the daily wagers'' status has been conferred w.e.f. January, 2007. Therefore, we are of the view that it would only be just, proper, reasonable and equitable to extend a similar treatment to the petitioners herein as well. As we have observed in our order, dated 29th June, 2012, unless such an equitable treatment is given to the poor part timers, who had completed decades of part time service, it would be highly unjust even amounting to granting premium to arbitrariness on the part of Controlling Officers who were otherwise duty bound to grant the daily wage status in the case of part time Revenue Chowkidars working under them in terms of the policy, dated 27th February, 2004, which admittedly had the stamp of judicial approval by orders, dated 27th June, 2006 of the Tribunal, dated 12th April, 2007 of this Court and thereafter by the apex Court. In the above circumstances, we make it clear that in the case of Revenue Chowkidars, which is a dying cadre, who have been conferred daily wage status in terms of the policy, dated 27th February, 2004, their monetary benefits consequent on the conferment of daily wage status be the order passed in the year 2010, 2011 or 2012, shall be w.e.f. 1st January, 2007. The seniority would otherwise be governed in terms of the process indicated by us hereinabove.

In order to avoid any further round of litigation for regularization of daily wage employees, it is made clear that having been conferred daily wage status they shall be treated at par with all the daily wagers in terms of the policy prevailing at the time of completion of eight years. In other words, if as per the notional conferment of daily wage status also in case a daily waged Revenue Chowkidar has completed eight years of service in 2012 and in case as per policy prevailing this year for regularization of daily wage is on completion of eight years as daily wager, in terms of such policy there shall be regularization.

Consequential benefits shall be disbursed to the petitioners within three months from the date of production of the copy of this judgment by the petitioners before the Deputy Commissioner concerned, failing which the petitioners will be entitled to interest at the rate of 9% per annum from the date of eligibility and the officer(s) responsible for the delay shall be personally liable for the same. The writ petitions are disposed of, so also the pending applications, if any.