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2025 DAILYLAW 3426 (HP)

Saroop Singh v. State of Himachal Pradesh

2025-11-21

Ranjan Sharma

body2025
Judgment : Ranjan Sharma, J. Petitioner, Saroop Singh, had initially filed Civil Writ Petition No.1632 of 2015 before this Court, and upon establishment of State Administrative Tribunal, the matter was transferred to Tribunal and now upon abolition of Learned Tribunal, the matter has come up before this Court, as CWPOA No.2046 of 2019, seeking the following reliefs:- “(i). That writ in the nature of mandamus may very kindly be issued, directing the respondents to give the work charge status to the petitioner with all consequential benefits as Beldar with effect from the year 2002 and when they completed their 8 years service with 240 days as per the policy of the State Government and as per ration laid down in State of H.P. Versus Gauri Dutt and in view of the ratio laid down in Rakesh Kumar Versus State of H.P. Since the petitioner was engaged by the respondent department in the year 1994 and they worked as such with the respondent department till date and the petitioner has served as daily wagers for more than 20 years and they were entitled to get the work charge status with all consequential benefits. (ii). That inquiry may be conducted regarding the difference of days contained in Mandays Chart i.e. the Mandays Chart filed in the reply bearing CWP(T) No.16345 of 2008 and Mandays Chart supplied under the Right to Information Act, 2005.” FACTUAL MATRIX: 2. Case of the petitioner as set by Learned Counsel is that the petitioner was engaged as a Daily Wage Beldar in May, 1994 with Assistant Engineer, IPH, Sub Division Nagrota Surian, District Kangra and claims to have rendered continuous service of more than 240 days for last 20 years. 2(i). It is averred that the services of the petitioner were disengaged in September, 1995 against which he filed an Original Application No.1907 of 1995 and pursuant to the orders passed in October 1995, he was re-engaged by the respondents. It is averred that the petitioner filed Civil Writ Petition (T) No.1635 of 2008, claiming regularization and the same was disposed of by this Court, on 04.05.2010 [Annexure P-1], with directions to State Authorities to consider the claim of the petitioner for regularization as per the judgment in the case of Gauri Dutt and Others versus State of Himachal Pradesh, Latesh HLJ 2008 (HP) 366. 2(ii). 2(ii). Pursuant to the directions passed by this Court on 04.05.2010 [Annexure P-1], the claim of the petitioner was rejected by Chief Engineer, IPH Dharamshala Zone on 12.05.2011 [Annexure P-2], on the ground that the claim of the petitioner was not covered as per judgment in the case of Guari Dutt (supra) and the fact that the petitioner had not completed continuous service in the year(s) 1994 and 1995 and then from 2001 to 2006 and then during 2009-2010 and thereafter in the year 2012. For non-completion of 8 years of continuous service with 240 days, the claim of the petitioner for regularization as per the Government Policy, was denied by the respondents. 2(iii). Petitioner has placed on record Mandays Chart [Annexure P-3] and had submitted a Legal Notice dated 24.06.2014 [Annexure P-5], requesting to reconsider the claim for regularization. STAND OF STATE AUTHORITIES IN REPLY- AFFIDAVIT: 3. Pursuant to the issuance of notice on 19.03.2015, the State Authorities have filed the Reply-Affidavit dated 06.07.2015 of Superintending Engineer, I&PH, Circle, Nurpur, District Kangra, Himachal Pradesh. 3(i). Perusal of the Reply-Affidavit indicates that the petitioner was engaged in the year 1994 and he has not completed 240 days in the year(s) 1994 and 1995; and then during the period from 2001 to 2007 and then during 2009-2010 and further in the year 2012. Respondents have placed on record the Mandays Chart [Annexure R-I with reply], which corroborates factum of non-completion of 240 days during the aforesaid years of service. Reply-Affidavit further indicates that though the case of the petitioner was rejected on 12.05.2011 [Annexure P-2] but, the rejection has never been assailed by the petitioner. 3(ii). Reply-Affidavit indicates that for want of completion of continuous service, the petitioner is not eligible for regularization was not tenable, in view of judgment(s) in the case of Mool Raj Upadhyaya versus State of Himachal Pradesh & Ors. 1994 Supp.(2) SCC 316, Gauri Dutt Versus State of Himachal Pradesh [LHLJ 2008 HP 366; CWP No. 778 of 2006], and Rakesh Kumar versus State of Himachal Pradesh and others alongwith connected matters, CWP No.2735 of 2010, and the policy for regularization, as applicable at relevant time. Reply-Affidavit further indicates that petitioner is not eligible for work charge status due to the non-completion of continuous 8 years of service. Reply-Affidavit further indicates that petitioner is not eligible for work charge status due to the non-completion of continuous 8 years of service. It is in this backdrop, that the claim of the petitioner was repelled with the prayer to dismiss the writ petition. REBUTTAL BY THE PETITIONER: 4. Petitioner has filed rejoinder to the reply filed by the State Authorities by asserting that the non-completion of 240 days during the years from 1994-1995, 2001 to 2007, 2009-2010 and also in the year 2012 was on account of fictional breaks given to the petitioner. Petitioner has placed reliance on the judgment passed by this Court in State of Himachal Pradesh and others Versus Manoj Singh , CWP No. 2949 of 2016, decided on 18.12.2017 [Annexure P-8] to assert that the benefit of break period granted for the purposes of continuous service then, the present petitioner may be granted the same benefit(s). 4(i). Petitioner asserted that during the pendency of the petition he stands regularized on 23.03.2018 [Annexure P-7] prospectively but after giving benefit of break period and by counting the break period towards continuous service/seniority, petitioner may be granted regularization/work charge status retrospectively from date of completion of 10 years as per judgments in the case of Mool Raj Upadhayaya and Gauri Dutt (supra) and from the date of completion of 8 years as per the judgment in the case of Rakesh Kumar (supra). It is in this backdrop, the claim has been reiterated by the petitioner. 5. Heard, Ms. Anjali Soni, Learned Counsel for the petitioner and Mr. Sumit Sharma, Learned State Counsel for the respondents-State. ANALYSIS: 6. Taking into account the entirety of the facts and circumstances and the material on record, this Court is of the considered view, that the claim of the petitioner for regularization as per the mandate in the case of Mool Raj Upadhayaya and Gauri Dutt (supra) from the date of completion of 10 years of continuous service or from the date of completion of 8 years of continuous service is not tenable, in the following terms: CLAIM FOR RETROSPECTIVE REGULARIZATION NOT TENABLE: 6(i). Perusal of material on record, including Mandays Chart [Annexure P-3 and Annexure R-I, with the Reply-Affidavit], goes on to show that the petitioner was engaged as Daily Wager initially in the year 1994 in IPH Sub Division Nagrota Surian. Perusal of material on record, including Mandays Chart [Annexure P-3 and Annexure R-I, with the Reply-Affidavit], goes on to show that the petitioner was engaged as Daily Wager initially in the year 1994 in IPH Sub Division Nagrota Surian. Petitioner had not completed 240 days of continuous service during the years 1994-1995 and then during 2001 to 2007. Even in the years 2009-2010 and 2012, the petitioner had not completed continuous service of 240 days in each of these calendar years. Perusal of the judgment in the case of Mool Raj Upadhaya and Gauri Dutt (supra) indicates that the regularization is subject to availability of posts. Nothing has been placed on record that the persons who were juniors to the petitioner were regularized by the respondents. Moreover, non- completion of 10 years of continuous service reckonable from 1994 onwards as per the Mandays Chart [Annexure P-3 and Annexure R-1 with Reply-Affidavit], disentitles the petitioner for regularization. CLAIM FOR WORK CHARGE STATUS NOT TENABLE: 6(ii). Combined reading of the Mandays Chart [Annexure P-3 and Annexure R-I with Reply-Affidavit] further negates the claim of the petitioner for work charge status, for the reason, that as per the judgment in the case of Mool Raj Upadhaya (supra), the work charge status is to be granted on the basis of 10 years of continuous service. The daily wage service of the petitioner is reckonable from 1994 onwards but, during the 10 calendar years, the petitioner has not completed 240 days in each of the aforesaid years. Non-completion of 240 days of continuous services disentitles the petitioner for work charge status as per the judgment in the case of Mool Raj Upadhaya (supra), in view of the fact that in a span of 10 years reckonable from 1994, the petitioner has not rendered 240 days of service during 1994-1995, and then from 2001 to 2003 also. For non-completion of continuous service, the claim for work charge status from the date of completion of 10 years of daily wage continuous service is not tenable. CLAIM FOR WORK CHARGE STATUS AFTER 8 YEARS NOT TENABLE: 6(iii). For non-completion of continuous service, the claim for work charge status from the date of completion of 10 years of daily wage continuous service is not tenable. CLAIM FOR WORK CHARGE STATUS AFTER 8 YEARS NOT TENABLE: 6(iii). Perusal of the Mandays Chart [Annexure P-3 and Annexure R-I with reply-affidavit] further negates the claim for work charge status from the date of completion of 8 years of continuous service, for the reason that since 1994, the petitioner has not rendered 240 days of service during 1994-1995, and then from 2001 to 2003 also. For non-completion of continuous service, the claim for work charge status from the date of completion of 8 years of daily wage continuous service is not tenable. In addition to this, even from 2003 onwards, petitioner has not completed 8 years of continuous service during the year 2001 to 2007 and even thereafter during the years 2009-2010 and 2012 and therefore, for non-completion of 240 days of continuous service; during each of the calendar years in a span of 8 years [reckonable from 1994 and reckonable from 2003 also] the claim for work charge status is not tenable. PETITIONER GRANTED WORK CHARGE STATUS BASED ON 8 YEARS CONTINUOUS SERVICE AS PER RAKESH KUMAR AND SURAJMANI: 6(iv). Mandays Chart and the averments in the writ petition and the Reply-Affidavit indicates that the petitioner has rendered continuous service with 240 days from 2013 onwards and based on 8 years of continuous service; the petitioner has been granted work charge status on 23.03.2018 [Annexure P-7] from a prospective date. Granting work charge status on 23.03.2018 [Annexure P-7] prospectively after having fulfilled the requisite 8 years of continuous service, which is a sine non qua for granting work charge status is affirmed; but the claim for work charge either on the basis of 10 years of continuous service or 8 years continuous service [reckonable on the basis of service rendered from 1994 and even from 2003 onwards] is not tenable, for want of non-completion of continuous service as aforesaid. In these circumstances, work charge status granted on 23.08.2018 is affirmed but, the claim for work charge status from an earlier date is negated, in facts of instant case. REJECTION ORDERS DATED 12.05.2011 [ANNEXURE P-2] NOT ASSAILED. 6(v). In these circumstances, work charge status granted on 23.08.2018 is affirmed but, the claim for work charge status from an earlier date is negated, in facts of instant case. REJECTION ORDERS DATED 12.05.2011 [ANNEXURE P-2] NOT ASSAILED. 6(v). Petitioner had filed petition earlier i.e. CWP-T No.16345 of 2008 which was disposed of by this Court on 04.05.2010 [Annexure P-1] leading to passing of rejection orders on 12.05.2011 [Annexure P-2]. Petitioner has not laid a challenge to the rejection order dated 12.05.2011 [Annexure P-2], disentitles the petitioner for regularization from the date of completion of 10 years or 8 years of service reckonable from 1994 onwards. Not laying a challenge to the rejection order, pre-supposes that the findings recorded in the rejection order have attained finality. In these circumstances, the claim of the petitioner for work charge status, for non-completion of 240 days, disentitles the petitioner for any relief. CHANGE IN STAND DISENTITLES PETITIONER FOR RELIEF: 6(vi). Perusal of the prayer clause reveals that the petitioner has claimed work charge status from the date of completion of 8 years of continuous service as per the judgment in the case of Rakesh Kumar (supra). Whereas, in Reply-Affidavit, the claim was denied for non-completion of 240 days of continuous service during a span of 8 years as per Mandays Chart [Annexure P-3 and Annexure R-I with reply-affidavit]. However, in Rejoinder, the petitioner has taken a complete U-Turn, by putting up a new case altogether, that non-completion of 240 days was on account of fictional breaks. In this backdrop, this Court is of the considered view, that the shift in stand by the petitioner in the writ petition vis-à-vis the replication/rejoinder, so as to introduce a new cause of action and new plea altogether cannot be permitted in view of the mandate of the Hon’ble Supreme Court in Noorul Hassan versus Nahakpam Indrajit Singh and Others (2024) 9 SCC 353 , mandating that the object and intent of replication-rejoinder is to explain or clarify the facts as pleaded in the writ petition vis-à-vis written statement of the reply. Replication or rejoinder cannot be permitted to be a substitute for an amendment, so as to introduce a new cause of action or to set up a plea inconsistent with the plea taken in the writ petition, in the following terms: “However, such leave is not to be granted mechanically. Replication or rejoinder cannot be permitted to be a substitute for an amendment, so as to introduce a new cause of action or to set up a plea inconsistent with the plea taken in the writ petition, in the following terms: “However, such leave is not to be granted mechanically. The Court before granting leave must consider the averments made in the plaint/election petition, the written statement and the replication. Upon consideration thereof, if the Court feels that to ensure a fair and effective trial of the issues already raised, the plaintiff/election petitioner must get opportunity to explain/clarify the facts newly raised or pleaded in the written statement, it may grant leave upon such terms as it deems fit. Further, while considering grant of leave, the Court must bear in mind that,—(a) a replication is not needed to merely traverse facts pleaded in the written statement; (b) a replication is not a substitute for an amendment; and (c) a new cause of action or plea inconsistent with the plea taken in original petition/plaint is not to be permitted in the replication.” In view of the above discussion and the mandate of law and the principles laid down in the case of Noorul Hassan (supra), this Court is of the considered view, that the petitioner has raised a new case altogether in the rejoinder-replication, which is at total variance with the case set up in the Writ Petition/Original Application. Such shift in stand by raising a new cause of action or new and inconsistent plea(s), cannot be permitted to be raised in instant petition. Moreover, the issue as to whether petitioner had in fact worked or had abandoned the job or was given fictional breaks is to be adjudicated, tested and examined by the Statutory Form i.e. Industrial Tribunal under the Industrial Disputes Act and these seriously disputed questions of fact cannot be gone into in present proceedings under Article 226 of the Constitution of India. Based on the above principles, this Court has declined the relief to the petitioner in Sahi Ram versus State of Himachal Pradesh and Others , CWPOA No.6626 of 2020, decided on 07.10.2025. Thus, the new plea raised in Rejoinder cannot come to the aid of the petitioner and such a plea cannot be permitted to be raised belatedly. CLAIM FOR CONDONING BREAK PERIODS TOWARDS SENORITY: 6(vii). Thus, the new plea raised in Rejoinder cannot come to the aid of the petitioner and such a plea cannot be permitted to be raised belatedly. CLAIM FOR CONDONING BREAK PERIODS TOWARDS SENORITY: 6(vii). Even, the stand put up in Rejoinder cannot be adjudicated upon in instant proceedings, for the reason, that the issue as to whether the non-completion of 240 days as per the Mandays Chart [Annexure P-3] in writ petition vis-à-vis the Mandays Chart in Reply-Affidavit [Annexure R-I] was fictional or was on account of abandonment or other reasons cannot gone into in writ proceedings. The assertion of the petitioner that the same were fictional breaks, is a matter which can be adjudicated upon in appropriate forum by way of adducing evidence. Even, a comparative reading of both the Mandays Chart [Annexure P-3 and Annexure R-I in Reply-Affidavit], reveal non-completion of 240 days from 1994-1995, from 2001 to 2007, 2009-2010 and 2012 reveal that though both these Mandays Chart(s) contain slight variation in Man-days, but even by reckoning the Mandays which are beneficial, still the non-completion of 240 days during each of the calendar years is apparently established. Accordingly, once the petitioner has not rendered continuous service with 240 days earlier during 10 years or 8 years from 1994 to 2012; therefore, the petitioner being ineligible is not entitled for work charge status, as claimed. Even reliance placed by Learned Counsel for the petitioner on the judgment passed by this Court in Manoj Kumar (supra) [Annexure P-8] will not of any assistance for the petitioner, for the reason, that in peculiar fact-situation of said case, the State Authorities have themselves admitted that the fictional breaks were given to the employee therein on account of a practice to make an employee work for 20 days in a month. Even judgment in the case of Mohd. Abdul Kadir and another versus Director General of Police, Assam and others , (2009) 6 SCC , is distinguishable and not applicable, for the reason, that in the said judgment State Government had issued a Circular in relation to its employees who were appointed, terminated and reappointed with short-breaks which were treated as fictional and were directed to be condoned. Abdul Kadir and another versus Director General of Police, Assam and others , (2009) 6 SCC , is distinguishable and not applicable, for the reason, that in the said judgment State Government had issued a Circular in relation to its employees who were appointed, terminated and reappointed with short-breaks which were treated as fictional and were directed to be condoned. In instant case, the issue as to whether the breaks were fictional or were on account of abandonment of work or for reasons attributable to the employee vis-à-vis the respondents is a matter to be examined, proved and adjudicated upon by leading evidence. Further, even if non-completion of 240 days during 10 years or during 8 years [1994-1995, 2001 to 2007, 2009-2010 and 2012] was apparent, then, the petitioner was bound to seek his remedy before the Statutory Forum under the Industrial Disputes Act which was not done. Thus, having not availed the statutory remedy, disentitles the petitioner for any relief. DIRECTIONS: 7. In view of above discussion and for the reasons recorded hereinabove, the instant petition is dismissed, in the following terms: (i) Non-completion of 240 days during a span of 10 years and non-completion of 240 days during a span of 8 years as per Annexure P-3 and Annexure R-I with reply, disentitles the petitioner for regularization and even for work charge status from the aforesaid due dates; (ii) Regularization order dated 23.03.2018 [Annexure P-7] granting regularization is upheld; (iii) Parties to bear respective costs. In aforesaid terms, the instant petition and all pending miscellaneous application(s), if any, shall stand disposed of accordingly.