2024:HHC:15697-DB IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 8571 of 2022 Date of Decision:5.8.2025 _______________________________________________________ Shobha Ram …….Petitioner Versus State of Himachal Pradesh & others … Respondents ______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Ms. Saroj, Advocate vice Mr. Daleep Singh Kaith, Advocate. For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General and Mr. Ravi Chauhan, Deputy Advocate General. _______________________________________________________ Sandeep Sharma, Judge(oral): By way of instant petition, petitioner has prayed for following main reliefs: “(a) That the respondents be directed to regularize the petitioner w.e.f. 01.01.2001 after completion of 10 years of service alongwith all consequential benefits as per the judgment passed by the Hon’ble Apex Court in Mool Raj Upadhayaya’s case as well as 10 years regularization policy of State of H.P. (b) That the petitioner be granted the benefit of seniority and arrears from the date of regularization i.e. 01.01.2001 and the arrear be paid to the petitioner along with upto date interest @12% per annum and further prayed that the case of the petitioner may kindly be considered for the grant of pensionary benefits etc. 1Whether the reporters of the local papers may be allowed to see the judgment? 2 2024:HHC:15697-DB (c) That in alternative, the respondent may kindly be directed to condone the artificial and frictional breaks given to the petitioner for the year 1991, 1996, 1998 and 1999 and the same can be condoned as per the judgment passed by this Hon’ble Court in CWP No….. of titled as Ravi Kumar V/s State of Himachal Pradesh and Ors. and Judgment passed by the Hon’ble Apex Court in Abdul Kadir’s case. Moreover, the respondent department has not properly maintained the service record of the petitioner and some of the muster rolls of the petitioner have been misplaced. Meaning thereby the break was given to the petitioner due to the reason that proper service record of the petitioner is not available with the respondent department. Further prayed that earlier order of regularization of the petitioner dated 10.10.2007 is required to be modified in the interest of justice.” 2. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Ms. Saroj, learned counsel for the petitioner, is that though petitioner herein, who was engaged on daily wage basis in the year 1991, ought to have been regularized w.e.f. 1.1.2001, when he had completed 10 years of service on daily wage basis, but respondents regularized him in the year 2007 under regularization policy dated 18.6.2007, which provided for regularization of daily wage workers, who had completed eight years continuous service with minimum of 240 days in each calendar year as on 31.3.2006. Besides above, it is also claimed by the petitioner that he ought to have been conferred work charge status in terms of judgment dated 28.7.2010, passed in CWP No. 3 2024:HHC:15697-DB 2735 of 2010, titled Rakesh Kumar v. State of Himachal Pradesh and Ors., on his having completed eight years of service in the year 1999. 3. Pleadings adduced on record by the respective parties reveal that in the year 1991, petitioner was engaged as daily wage Beldar in the IPH (now Jal Shakti Vibhag) at Section Dansa, Division Rampur-Bushahr, District Shimla, Himachal Pradesh. Though in terms of judgment passed by the Hon’ble Apex Court in Mool Raj Upadhaya’s case, services of the petitioner ought to have been regularized after his having completed ten years daily wage service with 240 days in each calendar year, but in the case at hand, his services came to be regularized w.e.f. 10.10.2007. Similarly, petitioner had completed eight years service from the date of his initial appointment in the year 1991, but yet was granted work charge status in light of Rakesh Kumar w.e.f. 1.1.2005. Reply filed by the respondents though clearly suggests that petitioner was initially engaged in the year 1991, but since in that year, he did not complete 240 days and he worked for only 216 days, afore year was not taken into consideration while counting ten years daily wage service for the purpose of regularization as well as grant of work charge status. As per respondents, petitioner completed 240 days in each calendar year w.e.f. 1992 to 1995. Thereafter, again, he completed less than 240 days i.e. 100 days in the year 1996, as is evident from the 4 2024:HHC:15697-DB proceedings of screening committee (Annexure R2). As per respondents, petitioner started working continuously as Beldar with 240 days in each calendar year w.e.f. 1997 onwards and accordingly, thereafter respondents taking note of the petitioner’s having completed eight years service with 240 days in each calendar year as on 31.12.2004, proceeded to grant him work charge status in terms of Rakesh Kumar, judgment w.e.f. 1.1.2005, case of the petitioner for regularization also came to be considered in terms of policy of regularization framed and issued by the government on 18.6.2007. 4. The claim of the petitioner with regard to regularization after his having completed 10 years service from the date of his initial appointment in the year 1991 and conferment of work charge status, after his having completed service in the year 1991, has been attempted to be refuted by the respondents on the ground that w.e.f. 1991 till year 1996, petitioner never worked for 240 days in each calendar year and as such, afore period was not taken into consideration while calculating the daily wage service of the petitioner with 240 days in each calendar year for the purpose of regularization and confirmation of work charge status. 5. As per reply filed by the respondents, petitioner was engaged in the year 1991 and during this year, he had only worked for 216 days, meaning thereby, there was a shortfall of 24 days, but it 5 2024:HHC:15697-DB is not understood that once respondents have themselves admitted in their reply that petitioner has worked w.e.f. 1992 to 1995 with 240 days in each calendar year, why such period was not taken into consideration for calculating the daily wage period for the purpose of regularization and conferment of work charge status. Again in the year 1996, petitioner has been shown to have worked for 100 days and thereafter, he has been shown to have completed 240 days in each calendar year w.e.f. 1997 till conferment of work charge status till 2005 and thereafter regularization w.e.f 10.10.2007. 6. Having taken note of the aforesaid fact, this Court is persuaded to agree with Ms. Saroj, learned counsel for the petitioner that though petitioner was always available for work, but he was purposely not permitted to complete 240 days in each calendar year so that subsequently, he could not claim regularization. Once petitioner could work for 216 days in 1991 and thereafter w.e.f. 1992 to 1995, he continuously worked for 240 days in each calendar year, there was otherwise no occasion for him to not work for 240 days in the year 1996, where he has been shown to have worked for only 100 days. It appears that respondents purposely gave frictional breaks to the petitioner to prevent his regularization after his having completed 10 years service. To demonstrate that petitioner had only worked for 100 days in the year 1996, respondents placed on record proceedings 6 2024:HHC:15697-DB of screening committee, but same cannot be substitute to the mandays chart, wherein presence of daily wage employee is recorded. Minutes of screening committee are prepared by Member of the committee, may be on the basis of record made available by the respondents. In case mandays chart pertaining to years 1991- 1996 was available with the department, they ought to have produced the same in the instant proceedings. 7. Petitioner has produced record prepared by the department for regularization of those daily wage workers, who have completed seven years service as on 31.12.2006, wherein, in respect of IPH Division Rampur, petitioner has been shown to have worked for 216 days in the year 1991, 350 days in 1992, 298 days in 1993, 322 days in 1994, 344 days in 1995, 100 days in 1996, 264 days in 1997, 0 days in the years 1998 &1999, 363 days in 2000, 330 days in 2001, 362 days each in 2002 & 2003, 360 days in 2004 and 365 days each in 2005 and 2006. 8. 8. Though as per record prepared by the respondents for regularization as detailed herein, petitioner herein has been shown to have not worked for even single day in 1998 and 1999, but information received by the petitioner vide communication dated 6.10.2022 (Annexure P-3) under RTI Act, clearly reveals that 7 2024:HHC:15697-DB petitioner has worked for 204 days in the year 1998 and 315 days in the year 1999. 9. Having perused aforesaid documents prepared by the department for regularization of daily wage employees, who had completed seven year service as on 31.12.2002, which information is received by the petitioner under RTI, this Court is fully convinced that petitioner had actually worked for 240 days in each calendar year continuously w.e.f. 1991 till his regularization, but yet he was purposely given frictional breaks to stop him from claiming regularization subsequently. 10. Question with regard to condonation of short breaks also came to be considered by the Division Bench of this Court in CWP No. 4367 of 2009, decided on 1.12.2009, wherein Division Bench of this Court drawing strength from the judgment passed by Hon'ble Apex Court in Mohd. Abdul Kadir and another vs. Director General of Police, Assam and others (2009)6 SCC 611, wherein issue with regard to artificial breaks stands duly settled, categorically held that in light of law laid down by the Hon'ble Apex Court, respondents ought to have condoned the shortage of few days, while calculating 240 days in a particular calendar year. 11. Since Hon’ble Principal Division Bench of this Court vide judgment dated 14.5.2025, passed in LPA No. 79 of 2025, Shobha 8 2024:HHC:15697-DB Ram v. State of Himachal Pradesh and Ors., thereby remanding case at hand for fresh hearing, has already rejected claim of the respondents that present petition is barred by delay and laches, this Court has no reason to go into the aforesaid aspect of the matter. 12. Though, having taken note of the document placed on record received by the petitioner under Right to Information Act, this Court is fully convinced that petitioner had worked for 240 days in the year, 1995, but yet placing reliance upon the claim of the respondents that petitioner had worked 235 days in the year, 1995, coupled with the fact that in subsequent years w.e.f. 1996 till 2003 petitioner had worked for more than 240 days in each calendar year, this Court sees reason to presume and believe that five days frictional breaks was purposely given by the respondents in the year, 1995 to prevent petitioner from regularization. 13. It is quite apparent from the perusal of the afore judgment that same is based upon the judgment passed by the Hon’ble Apex Court in Mohd. Abdul (supra), wherein practice of giving artificial breaks from time to time and reappointing the same staff, has been held to be contrary to the service jurisprudence, relevant paras of the aforementioned judgment, are being reproduced herein below:- “16. We may next consider the challenge to the procedure of annual termination and reappointment introduced by the circular dated 17.3.1995. The PIF Scheme and PIF Additional Scheme were 9 2024:HHC:15697-DB introduced by Government of India. The scheme does not contemplate or require such periodical termination and re- appointment. Only ex-servicemen are eligible to be selected under the scheme and that too after undergoing regular selection process under the Scheme. They joined the scheme being under the impression that they will be continued as long as the PIF Additional Scheme was continued. The artificial annual breaks and reappointments were introduced by the state agency entrusted with the operation of the Scheme. This Court has always frowned upon artificial breaks in service. 17. When the ad-hoc appointment is under a scheme and is in accordance with the selection process prescribed by the scheme, there is no reason why those appointed under the scheme should not be continued as long as the scheme continues. Ad-hoc appointments under schemes are normally coterminus with the scheme (subject of course to earlier termination either on medical or disciplinary grounds, or for unsatisfactory service or on attainment of normal age of retirement). Irrespective of the length of their ad hoc service or the scheme, they will not be entitled to regularization nor to the security of tenure and service benefits available to the regular employees. In this background, particularly in view of the continuing Scheme, the ex- serviceman employed after undergoing selection process, need not be subjected to the agony, anxiety, humiliation and vicissitudes of annual termination and reengagement, merely because their appointment is termed as ad hoc appointments. 18. We are therefore of the view that the learned Single Judge was justified in observing that the process of termination and re- appointment every year should be avoided and the appellants should be continued as long as the Scheme continues, but purely on ad hoc and temporary basis, co- terminus with the scheme. The circular dated 17.3.1995 directing artificial breaks by annual terminations followed by fresh appointment, being contrary to the PIF Additional Scheme and contrary to the principles of service jurisprudence, is liable to be is quashed.” 10 2024:HHC:15697-DB 14. After having taken note of the documents, particularly qua year, 1995, this Court finds force in the arguments of learned counsel representing the petitioner that the artificial breaks were given by the respondents solely with a view to stop him from completing 240 days in every year so that prayer, if any, for regularization, is not made by the petitioner. 15. During proceedings of the case, it is also brought to our notice that SLP(C) bearing No. 21833 of 2010 having been preferred by the respondents against the similar judgment passed by the Division Bench of this Court in CWP No. (T) No. 1807 of 2009, titled Satish Kumar v. State of HP and Ors. and SLP (Civil) No. 20740 of 2008 titled Sarvjeet v. State of H.P. and Ors, stand dismissed and as such, judgment passed by the Division Bench of this Court in CWP No. 4367 of 2009, wherein directions were issued to respondents to condone the shortage of few days in a particular year while calculating 240 days, has attained finality. Learned Additional Advocate General, was not able to dispute the factum as brought to the notice of this court with regard to dismissal of the aforesaid SLP preferred by the respondents-State. 16. Moreover, Hon'ble Apex Court in Civil Appeal No.1595 of 2025 titled as State of Himachal Pradesh and others vs. Surajmani and others decided on 06.02.2025, has held that daily 11 2024:HHC:15697-DB wage employee shall be entitled to work charge status on completion of eight years continuous service with a minimum of 240 days in each calendar years. 17. Consequently, in view of the above, this Court finds merit in the present petition and accordingly same is allowed and petitioner is held entitled to regularization w.e.f. 1.1.2001 when he completed ten years of daily wage service from the date of his initial appointment as daily wage worker i.e. 1991, along with all consequential benefits. In the aforesaid terms, present petition is disposed of alongwith pending applications, if any. (Sandeep Sharma), Judge August 5, 2025 Manjit