Ram Bahadur vs State of Himachal Pradesh

Justice Sanjay Karol, J.—It is stated at the Bar that matter in issue is squarely covered by the decision rendered by the Division Bench of this Court in CWP No. 9441 of 2011 titled as Shiv Kumari versus The State of H.P. alongwith other connected matters, decided on 27th April, 2012 (copy taken on record), wherein the following observations were made:-

The issue raised in these cases pertains to conferment of work charge status/regularization of Nepali citizens. It is the case of the petitioners that the matter has been considered by this Court leading to common judgment dated 9.11.2011 in CWP No. 5702 of 2011 titled Dal Bahadur vs. State of H.P. and others and other connected cases, wherein it has been held as follows:-

6.What emerges from the averments contained in the petitions is that in CWP Nos.5702/2011, 5706/2011, 5971/2011, 5971/2011, 5974/2011, 5975/2011 and 5995/2011 had been continuously working and had completed more than 8 years service upto 31.3.2004. Petitioner in CWP No. 5705/2011 is in continuous service since 1994. These petitioners have also completed 240 days in a block of 12 calendar months. The cut-off date prescribed for regularization, as per averments contained in the reply to CWP No. 5702/2011 as well as in the impugned orders, is 31.3.2004. In other words, the petitioners were required to complete 8 years service upto 31.3.2004. The amendment in the Rules called "Himachal Pradesh Public Works Department Recruitment and Promotion (First Amendment) Rules, 2004" has been made on 3.7.2004 whereby Rule 14 has been substituted requiring that a candidate for appointment to any service or post must be a citizen of India. The State has taken a decision to convert the work charge posts to regular posts in the month of August, 2005, but the cut-ff date for completion of 8 years service is 31.3.2004. The amendment carried out in the Recruitment and Promotion Rules notified on 3.7.2004 in the Gazette will apply prospectively and shall not take away the accrued/vested rights of the petitioners to be considered for regularization after completion of minimum service of 8 years as on 31.3.2004. It has come in the reply that the petitioners were eligible to be considered for regularization, however, their cases have not been considered only on the ground that they are not citizens of India. Moreover, when the petitioners were engaged, no such condition was imposed. The respondents have also over-looked the ratio of judgment rendered by this Court in Man Singh''s case (supra) after taking into consideration the resolution passed by the Central Government on 1.3.1977, the office memorandum dated 10.5.1978 and letter dated 16.7.2009 addressed by the Secretary (Agriculture) to the Government of Himachal Pradesh to the Director of Agriculture, whereby it has been laid down that as far as Nepalese citizens are concerned, only eligibility certificates are required. In normal circumstances since the petitioners have been engaged after 31.12.1993, they could only be conferred with work charge status. However, in the instant case, respondent-State has taken a conscious decision to convert work charge posts in regular posts in the month of August, 2005. The cut-off date provided was 31.3.2004. All the petitioners had already completed 8 years of service with 240 days in each calendar year before 31.3.2004. Thus, now the petitioners have to be accorded regular status and not work charge status after the conversion of work charge posts in regular posts with a cut-off date of 31.3.2004. This will apply prospectively. Decision dated 31.12.2005 will cover the cases of all the daily wagers, who have completed 8 years of continuous service as on 31.3.2004 for conferment of regular status. In the case in hand, the amendment to the Recruitment and Promotion Rules requiring the candidates to be Indian citizens has only been carried on 3.7.2004.

Accordingly, in view of the observations and discussions made hereinabove, all the petitions are allowed. Impugned Annexures dated 30.6.2010 and 19.11.2010, respectively are quashed and set aside. Respondents are directed to accord regular status to the petitioners since they have completed 8 years of service with 240 days in each calendar year on or before 31.3.2004, within a period of 8 weeks, after the production of certified copy of this judgment by the petitioners. Pending application(s), if any, also stands disposed of. No costs.

Learned Advocate General has made available a communication from the Special Secretary(PW) dated 25th April, 2012, which is taken on record and read as follows:-

In continuation to this department letter of even number dated 12th March, 2012, on the subject noted above, I am directed to make a request that in the instant matter, as earlier requested vide above mentioned letter, a policy decision needs to be arrived after due consultation with the advisory departments in the Government and thereafter putting up the issue before the competent authority. This process was started in time and has been partly completed also but the final orders of the competent authority could not be obtained within the time given earlier. The matter is being processed on priority to obtain the decision and it is expected that the same will be obtained shortly. I am accordingly to request you to pray for a further time of three to four weeks from the Hon''ble Court to enable this department to process the matter and to arrive at an appropriate decision in the matter.

In the above circumstances, the appeals filed by the State and the writ petitions are disposed of with a direction to the Government to pass final orders in the matter, as referred to in the communication, as referred to above, in accordance with law within four weeks from today. Needless to say that the decision thus taken will govern the cases, which have already been rejected and which is the subject matter of some of the writ petitions. Depending on the outcome of the order thus passed by the Government, the benefits, if any, to which the individual workman is found entitled shall be disbursed within another eight weeks and if not the workman will be entitled to interest at the rate of 8%.

Since the facts are similar, directions issued in Shiv Kumari (supra) shall mutatis mutandis, also apply to the present petitioner. All consequential actions shall positively be taken within a period of three months from the date of receipt of certified copy of this judgment.

With these observations, present petition stands disposed of. Pending application(s), if any also stands disposed of.