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2025 DAILYLAW 3713 (HP)

Sher Singh v. State of H. P.

2025-09-19

Ranjan Sharma

body2025
JUDGMENT : Ranjan Sharma, Judge Petitioner, Sher Singh and others, who are fourteen in numbers have initially filed OA No.747 of 2019, which upon abolition of State Administrative Tribunal stands transferred to this Court as CWPOA No.6425 of 2020, seeking the following reliefs:- “(a) That the respondents may kindly be directed to regularize the period of fictional breaks given to the applicants in their daily waged services for the purpose of completion of 240 days in each calendar year in view of the judgment passed by the Hon’ble High Court of Himachal Pradesh in CWP No.711/2010 and other tagged matters of the applicants decided on 19.06.2010. (b) That after regularization of the fictional breaks in daily waged services, the Applicants may kindly be held entitled for grant of work charge status/regularization of their service in terms of the law laid down in the judgments at Annexure A-2, A-3 and A-4 w.e.f. due date, with all consequential benefits. (c) That the daily wage services of the applicant may kindly be counted towards pension.” FACTUAL MATRIX: 2. Grievance of the petitioners is that they were initially engaged as daily wage Beldar [Class-IV] in Irrigation and Public Health Department, Sub-Division Dada Siba, Division Dehra, District Kangra [HP], during the years 1996-1998 and Respondent-Department gave them fictional breaks for a few days in each calendar year(s) during the years 1996, 1997 and 1998, so as to deprive them of the admissible benefit on completion of 240 days of continuous service in above calendar years. 2(i). It was asserted that the issue regarding condoning the fictional breaks or shortfall period after counting the said period towards 240 days of continuous service was granted by this Court in Ram Singh versus State of Himachal Pradesh [CWP No.4367 of 2009, decided on 04.06.2010], and based on the aforesaid judgment in case of Ram Singh [supra], this Court decided the writ petition(s), titled as Ramesh Lal Versus State of HP & Ors [CWP No.711 of 2010 and others] and other connected writ petitions filed by the present petitioners herein by a common judgment on 19.06.2010, by directing to consider the claim of the petitioners herein, on the analogy of the judgment in the case of Ram Singh [supra] and in case the petitioners are similarly situated then to give similar treatment to the petitioners. It is averred after condoning the shortfall- break period the benefit of work charge status from the date of completion of 8 years of continuous service may be granted in the light of the judgment in CWP No. 2735 of 2010, titled as Rakesh Kumar Versus State of H.P. & ors. along with connected matters, decided on 28.07.2010 [Annexure A-2], and the judgment, in CWP No.3111 of 2016, State of HP and Ors. Versus Ashwani Kumar, decided on 10.05.2018 [Annexure A-3], entitling the daily wagers for work charge status on completion of 8 years daily wage service, for the reason, that there is neither any requirement of work charge establishment nor availability of a post for conferring such status. In the above backdrop, the petitioners have prayed that fictional breaks of a few days during the year 1998 may kindly be condoned and thereafter the continuous service of 240 days may be counted for seniority as well as for conferment of work charge status from the date of completion of 8 years continuous service with higher pay fixation and other attendant service benefits. STAND OF STATE AUTHORITIES-RESPONDENTS: 3. Upon issuance of notice, the respondents filed Reply-Affidavit dated 05.01.2022 of Superintending Engineer, Jal Shakti Circle, Dharamshala. 3(i). Perusal of Reply-Affidavit indicates that pursuant to passing of judgment dated 19.06.2010, in case of Ramesh Lal Versus State of HP & Ors. [CWP No.711 of 2010] alongwith connected writ petitions, which included the petitioners herein [as admitted in Para-2 of Reply-Affidavit], the judgment in the case of Ramesh Lal [supra] was assailed before the Hon’ble Supreme Court of India in SLP (C) No.20726 of 2011 and other similar SLPs but all these 11 SLPs were dismissed by the Hon’ble Supreme Court on 15.01.2015. Reply- Affidavit indicated that after dismissal of SLPs, on 15.01.2015, the State Authorities filed a Review Petition i.e. R.P. No.3514 of 2015 in SLP No. 8737 of 2011, titled as State of HP versus Tarlesh Bali and other connected Review Petitions, which were also dismissed by the Hon’ble Supreme Court on 03.02.2016. After dismissal of SLPs as well as Review Petitions, the State Authorities issued a direction on 24.08.2017, Annexure R-1, to implement the judgment dated 19.06.2010, Annexure A-1, in case of Ramesh Lal and other connected petitions, which included the writ petitions filed by present petitioners also. 3(ii). After dismissal of SLPs as well as Review Petitions, the State Authorities issued a direction on 24.08.2017, Annexure R-1, to implement the judgment dated 19.06.2010, Annexure A-1, in case of Ramesh Lal and other connected petitions, which included the writ petitions filed by present petitioners also. 3(ii). Reply-Affidavit indicates that pursuant to the Government decision dated 24.08.2017, Annexure R-I, the respondents have resorted to requisite exercise and in cases of petitioners No.1 to 5, 7, 8 and 10 to 13, namely, Sher Singh, Kishore Kumar, Subhash Chand, Davinder Singh, Hem Raj, Chhotu Ram, Sudarshan Singh, Suresh Kumar, Ravinder Kumar, Kuldeep Singh and Raj Mal, the break- shortfall of few days was condoned vide order dated 01.09.2017, Annexure R-III [colly], and thereafter the benefit of work charge status was extended to them from the date of completion of 8 years continuous daily wage service to some of the petitioners No.1 to 5, 7, 8 and 10 to 13, vide orders dated 11.03.2017, in terms of applicable policies and judgment in case of Rakesh Kumar [supra]. 3(iv). Reply-Affidavit states that so far as the petitioners No.6, 9 and 14 [Prithvi Singh, Om Parkash and Des Raj] are connected, they were engaged as daily wage Beldar in the year 1998 and after condoning the break period/shortfall period, though they have completed 8 years of continuous service with 240 days on 31.12.2005, but, since the work charge establishment for Class-IV Category in Irrigation and Public Health Department ceased to exist on 12.12.2005; therefore, as per Office Orders dated 13.12.2017, 28.11.2017 and 26.12.2017, Annexure R-IV [colly] breaks-shortfall period was not condoned and resultant work charge status on completion of 8 years of continuous service was not extended to petitioners No.6, 9 and 14 by the respondents. 4. In nutshell, the case of the State Authorities- Respondents is that though the shortfall/break of few days stands condoned and work charge status stands granted from the date of completion of 8 years of daily wage service in the case of petitioners No.1 to 5, 7, 8 and 10 to 13, but similar benefit was not extendable to the petitioners No.6, 9 and 14, in view of the fact that the work charge establishment in case of Class-IV category stood abolished on 12.12.2005. Accordingly, the prayer was made for dismissing the writ petitions. 5. Heard, Mr. Shekhar Badola, vice Counsel for Mr. Parav Sharma and Mr. Accordingly, the prayer was made for dismissing the writ petitions. 5. Heard, Mr. Shekhar Badola, vice Counsel for Mr. Parav Sharma and Mr. Gobind Korla, Learned Additional Advocate General. ANALYSIS: 6. Taking into account the entirety of facts and circumstances and the material on record, this Court is of the considered view, that the action of the State Authorities in neither condoning the break period/shortfall period nor in extending the benefits of such service for conferring work charge status to petitioners No.6, 9 and 14, on the plea, that work charge establishment for Class-IV [including Beldars] ceased to exist or was abolished on 12.12.2005 and their claim was rejected vide Office Orders dated 13.12.2017 qua petitioner No.6; and orders dated 28.11.2017 qua petitioner No.9 and the orders dated 26.12.2017, Annexure R-IV [colly], is misconceived and is not tenable and does not pass the test of judicial scrutiny and is accordingly interfered with, for the following reasons:- CONCEPT OF CONFERMENT OF WORKCHARGED STATUS IN HIMACHAL PRADESH: 6. For the purpose of adjudication of present case, it is relevant to note that a Policy was formulated by the respondents-State, which was approved by the Hon’ble Supreme Court of India, in Mool Raj Upadhyaya versus State of H.P. & others, 1994 Supp (2) SCC 316, conferring the work charge status, which was approved by the Hon’ble Supreme Court in Mool Raj Upadhyaya’s case, reads as under: “4. Taking into consideration the facts and circumstances of the case, we modify the said scheme by substituting paragraphs 1 to 4 of the same by the following paragraphs: "(1) Daily-wage/muster-roll workers, whether skilled or unskilled, who have completed 10 years or more of continuous service with a minimum of 240 days in a calendar year on 31-12-1993, shall be appointed as work- charged employees with effect from 1-1-1994 and shall be put in the time-scale of pay applicable to the corresponding lowest grade in the government; (2) daily-wage/muster-roll workers, whether skilled or unskilled, who have not completed10 years of continuous service with a minimum of 240 days in a calendar year on 31-12-1993, shall be appointed as work- charged employees with effect from the date they complete the said period of 10 years of service and on such appointment they shall be put in the time-scale of pay applicable to the lowest grade in the government; (3) daily-wage/muster-roll workers, whether skilled or unskilled who have not completed 10 years of service with a minimum of 240 days in a calendar year on 31-12-1993, shall be paid daily wages at the rates prescribed by the government of Himachal Pradesh from time to time for daily-wage employees falling in Class III and Class IV till they are appointed as work-charged employees in accordance with paragraph 2; (4) daily-wage/muster-roll workers shall be regularised in a phased manner on the basis of seniority-cum-suitability including physical fitness. On regularisation they shall be put in the minimum of the time-scale payable to the corresponding lowest grade applicable to the government and would be entitled to all other benefits available to regular government servants of the corresponding grade." 6(i). Right of conferment of work-charge status after 8 years of daily wage service has been recognized in Gauri Dutt’s case [LHLJ 2008 HP 366], as under: “18. The last question raises some interesting points. There have been instances where some employee has worked as beldar for some time and thereafter he has been engaged in a higher scale as mate or supervisor etc. The Tribunal in most of these cases has directed that the employee should be granted work charge status in the higher post on completion of 10 years of service after combining the service rendered in the lower scale and the higher scale. The State is aggrieved by these directions. The Tribunal in most of these cases has directed that the employee should be granted work charge status in the higher post on completion of 10 years of service after combining the service rendered in the lower scale and the higher scale. The State is aggrieved by these directions. According to the learned Advocate General the State has offered work charge status to these employees on completion of 10 years of combined service in the lower of the two scales and the State cannot be directed to grant work charge status in the higher scale. On the other hand, it is contended on behalf of the employees that since the employees are already working in the higher scale, it would not be fair and equitable to grant them work charge status in the lower scale. 19. We have considered the arguments from all angles. We are of the view that the employee cannot be given the benefit of combining service rendered in both the scales and be granted work charge status in the higher scale. We do, however, feel that at times it may be inequitable to grant the employee work charge status in the lower scale without giving him an option in this regard. We are giving two examples to illustrate two extreme positions. In example (i) we will deal an employee (A) who joined service on 1.1.1990. He works in the lower scale of beldar from 1.1.1991 to 31.12.1999. He is thereafter posted as Supervisor in the higher scale. Should he be granted work charge status as beldar or as Supervisor w.e.f. 1.1.2001? The other example is converse. Supposing employee (B) has worked as beldar w.e.f. 1.1.1991 to 31.12.1991 and from 1.1.1992 he has worked as Supervisor. From which date should we grant him work charge status and in what scale? It is obvious that in the first case the employee would not mind being granted work charge status even in the lower scale after 10 years w.e.f. 1.1.2000 since grant of work charge status would mean that he would get regular scale of pay. But should the employee be granted work charge status in the higher scale? We cannot agree with this preposition. 20. But should the employee be granted work charge status in the higher scale? We cannot agree with this preposition. 20. After considering all the pros and cons and keeping in view the fact that various anomalous situations may arise we are of the considered view that when an employee completes 10 years of continuous service combined in two scales, an option should be given to the employee to either accept work charge status in the lower scale or he may continue to work on daily rated basis in the higher scale and claim work charge status in the higher scale on completion of 10 years of continuous service in the said scale. In the examples given above, employee (A) may prefer to accept work charge status w.e.f. 1.1.2001 even in the lower scale of beldar because otherwise he may have to wait for 9 years before he is granted work charge status. On the other hand, employee (B) in the second example may prefer to delay the grant of work charge status by one year so that he can get work charge status in the higher scale. We feel that in each case the choice should be left to the employee. However, if the employee on being given a chance to exercise his option does not convey his option within 30 days, he shall be granted work charge status in the lower scale by combining the service rendered in both the scales. This answers the fourth question.” 6(ii). With the passage of time, the concept of conferring work charged status initially on completion of 10 years of daily wage service and regularization thereafter on availability of post; which was approved by the Hon’ble Supreme Court in case of Mool Raj Upadhyaya’s underwent a change by issuing the subsequent policies on 03.04.2000, clarified on 06.05.2000 providing for conferment of work charged status on completion of 8 years of continuous daily waged service and regularization thereafter on a post, in the following terms:- “Order dated 3.4.2000: “………………. In partial modification of this Department letter of even number dated 8th July, 1999 on the above subject, I am directed to say that the Government has now decided that the Daily Waged/Contingent Paid workers in all Departments including Public Works and Irrigation and Public Health Department (other than work-charged categories)/ Boards/Corporations/Universities, etc. In partial modification of this Department letter of even number dated 8th July, 1999 on the above subject, I am directed to say that the Government has now decided that the Daily Waged/Contingent Paid workers in all Departments including Public Works and Irrigation and Public Health Department (other than work-charged categories)/ Boards/Corporations/Universities, etc. who have completed 8 years of continuous service (with a minimum of 240 days in a calendar year) as on 31-03-2000 will be eligible for regularization. It has further been decided that completion of required years of service makes such daily wager/contingent paid worker eligible for consideration to be regularized and regularization in all cases will be from prospective effect i.e. from the date the order of regularization is issued after completion of codal formalities. 2. In view of the above decision and in order to avoid any litigation and also any hardship to daily wagers departments shall do the regularization based on seniority and they will ensure that senior persons are regularized first rather than regularizing junior persons first. 3. Other terms and conditions like fulfillment of essential qualification as prescribed in R&P Rules, etc. etc. as laid down in this department letter dated 8th July, 1999, as referred to above, shall continue to be operative. 4. These instructions may kindly be brought to the notice of all concerned for strict compliance. 5. These instructions have been issued with the prior approval of the Finance Department obtained vide their Dy. No.852 dated 23-03- 2000.” Order dated 6.5.2000: “…………….. 2. During the process of regularization of daily wagers, various issues and problems relating to these workers concerning their regularization have been brought to the notice of the Government. The Government in order to avoid such confusion or problems has decided to streamline the existing procedure/instructions in order to bring uniformity of procedure in various departments of the Government. It has, therefore, been decided that henceforth: (i) Daily Waged/Contingent Paid Workers who have completed required years of continuous service (with a minimum of 240 days in a calendar year except where specified otherwise for the tribal areas) which as per latest instructions issued vide this Department letter of even number dated 3-4- 2000 is 8 years as on 31-03-2000 shall be eligible for regularization. However, in Departments/Corporations/Boards, where the system of the work charge categories also exists, eligible daily wagers will be considered first for bringing them on the work charge category instead of regularization. Such eligible daily waged workers/contingent paid workers will be considered for regularization against vacant posts or by creation of fresh posts and in both these events prior approval of Finance Department will be required as per their letter No.Fin-1-C(7)-1/99 dated 24.12.1999. The terms and conditions for such regularization shall be governed as per Annexure -‘A’.” 6(iii). The right of daily wagers for conferment of work charged status in light of subsequent policies dated 03.04.2000 and 06.05.2000 on completion of 8 years of continuous service became the bone of contention before the Division Bench of this Court in CWP No.2735 of 2010, titled as Rakesh Kumar v. State of H.P. & others, decided on 28.7.2010, mandating to confer work charge status on completion of 8 years of continuous daily wage service. Even, the judgment in the case of Rakesh Kumar was assailed in SLP (C) No. 8830-8869 of 2011, in State of H.P. vs. Rakesh Kumar, which was dismissed on 15.01.2015. MANDATE OF LAW: WORK CHARGE ESTABLISHMENT NOT NECESSERY FOR CONFERRING THE WORK-CHARGE STATUS: 7. While dealing with the claim of work charge status on completion of 8 years of daily wage service, which was granted by Learned State Administrative Tribunal, the Division Bench of this Court, vide judgment dated 10.5.2018, in CWP No.3111 of 2016, titled as State of Himachal Pradesh v. Ashwani Kumar, mandated that work-charged establishment is not a pre-requisite for conferment of work-charged status nor conversion of work-charged employee into regular employee would make such establishment non-existent. State Authorities assailed this judgment before the Hon’ble Supreme Court in Civil Appeal No.5753 of 2019, titled as State of H.P. vs. Ashwani Kumar, which was dismissed on 22.07.2019, but by modifying the relief to notional benefits. 8. State Authorities assailed this judgment before the Hon’ble Supreme Court in Civil Appeal No.5753 of 2019, titled as State of H.P. vs. Ashwani Kumar, which was dismissed on 22.07.2019, but by modifying the relief to notional benefits. 8. The claim of the petitioners No. 6, 9 and14 for condoning the break-shortfall period deserves to be accepted, for the reason, that once the State Authorities have condoned the similar break-shortfall period of few days in case of petitioners No. 1 to 5, 7, 8 and 10 to 13 vide orders dated 01.09.2017, Annexure R-III [colly] and after condoning the shortfall the work charge status has been accorded on 11.03.2017 to the aforesaid petitioners, therefore, once all the petitioners belong to one homogeneous class of daily wagers, then, the action of the State Authorities in neither condoning the shortfall of few days for counting such period towards 240 days of continuous service in case of petitioners No.6, 9 and 14, is discriminatory and the denial amounts to treating “equals as unequal.” Accordingly, the claim of petitioners No.6, 9 and 14 for condoning the shortfall of few days and in counting the entire period as continuous service and seniority as granted to other petitioners [i.e. petitioners No.1 to 5 , 7, 8 to 10 and 13] carries weight and the claim is allowed so as to ensure similar treatment to all the petitioners who had filed writ petitions alongwith the case of Ramesh Lal and were to be considered for condoning breaks as in case of Ram Singh. Thus, once benefits have been given to some petitioners, then the remaining petitioners deserve same treatment. Ordered accordingly. 8(i). In addition, once the Hon’ble Supreme Court in Civil Appeal No. 1595 of 2025, State of Himachal Pradesh & Others versus Surajmani and Another has directed the State Authorities to confer the work charge status to all daily wagers, by reiterating the mandate in case of Ashwani Kumar [supra], for conferment of work charge status, for which, neither the availability of post is a pre-requisite nor the abolition of work charge post(s), if any, shall have any effect. Notably, the daily wagers have been held entitled for work charge status from the date of completion of 8 years of continuous daily wage service to Class III and Class IV, daily wagers, in terms of the mandate of the Hon’ble Supreme Court, in the case of Surajmani [supra]. CONCLUSION: 9. Action of the State Authorities in not condoning the break period/shortfall period towards continuous service and in denying the benefit of conferment of work charge status to the petitioners No. 6, 9 and 14, vide Office Orders dated 13.12.2017, 28.11.2017 and the order dated 26.12.2017, respectively, Annexure R-IV [colly], amounts to depriving the petitioners of higher status and higher pay fixation in regular time scale, upon completion of 8 years of continuous daily waged service. Denial of work charge status to the petitioners No.6, 9 & 14 is contrary to the mandate of the Hon’ble Supreme Court in case of Mool Raj Upadhyaya, Gauri Dutt, Rakesh Kumar and Ashwani Kumar & Surajmani [supra] which entitles the daily wagers for work charge status for which, there is neither any requirement of a work charge establishment and/or work charged post or cadre. The State Authorities cannot deny work charge status on mere averments that work charge establishment in case of Class-IV [Beldar] to which petitioners No.6, 9 & 14 belonged to stood was abolished on 12.12.2005. The State Authorities cannot deny work charge status on mere averments that work charge establishment in case of Class-IV [Beldar] to which petitioners No.6, 9 & 14 belonged to stood was abolished on 12.12.2005. This plea of the State authorities cannot be invoked against petitioners No.6, 9 & 14 for the reasons, that firstly, the orders issued on 12.12.2005, allegedly abolishing work-charge establishment has not been placed on record; and secondly, mere averment in reply-affidavit cannot be the basis to curtail an accrued right to be conferred the work-charged status; and thirdly, the order dated 12.12.2005 allegedly abolition of work-charge establishment in case of Class-IV Beldar cannot be applied to the prejudice of petitioners, without placing on record, any material to establish that work charge establishment was created for Class-IV Beldar in the respondent-department, against which these petitioners were appointed; fourthly the concept of work-charge status in State of Himachal Pradesh is altogether at variance when, in respondent-State, this status was granted to daily wagers in recognition of their prolonged daily waged service by giving higher pay in regular time scale, in lieu of prolonged service and was a step to curb exploitative practice when, the works were available with the department, and fifthly, the Hon’ble Supreme Court has mandated in cases of Mool Raj Upadhyaya, Gauri Dutt, Rakesh Kumar and in the case of Ashwani Kumar that for grant of work-charge status there is no requirement of a post or a work-charge establishment/post in respondent, which stands reinforced by the Hon’ble Supreme Court in Surajmani [supra]; and sixthly, even the denial of benefit of condoning of break period or shortfall period of few days towards 240 days during the years 1998-1999 in case of petitioners No. 6, 9 and 14 is discriminatory and arbitrary, when, the State Authorities have granted similar benefits, by condoning the shortfall of few days to the other petitioners 1 to 5, 7, 8 and 10 to 13; in the instant case; and seventhly, the denial amounts to hostile discrimination, by treating equals as unequal, which in facts of this case is declared illegal, inoperative, discriminatory and is accordingly quashed and set-aside. In view of above discussion, the petitioners No.6, 9 and 14 are held entitled for condoning the break- shortfall period during the years 1996 to 1998 towards continuous service and seniority and thereafter for entitling these petitioners for work charge status in terms of mandate of law in Ashwani Kumar, which has been reinforced in the case of Surajmani [supra] from the date of completion of 8 years daily wage service notionally, with relief of notional benefits only. DIRECTIONS: 10. In view of the above discussion and for the reasons recorded hereinabove, instant writ petition, is allowed, in the following terms:- (i) Respondents-State Authorities are directed to grant work charge status to the petitioners on completion of 8 years of continuous service as Beldar [Class-IV] with due date, i.e. from the date they completed 8 years continuous service from the date of their initial engagement, on notional basis without past arrears in terms of the judgment in the case of Surajmani (supra); (ii) Office Orders dated 13.12.2017, 28.11.2017 and 26.12.2017, Annexure R-IV [colly], refusing to condone the break/shortfall period of few days during 1998-1999, when, given to remaining petitioners is discriminatory, illegal and therefore, declared inoperative for all intents and purposes; (iii) State Authorities are directed to condone short-fall of few days in case of petitioners No.6, 9 and 14, on same analogy on which shortfall has been condoned in case of remaining petitioners No.1 to 5, 7,8 and 10 to 13, who belong to same category, i.e. Class-IV [Beldar] and are working in same Division, under the respondents; (iv) Consequent upon compliance of directions No.(i) to (iii) above, the State Authorities are directed to grant work charge status from the date of completion of 8 years of continuous daily wage service, on notional basis, without any past arrears within a period of six weeks from the date of receipt of the certified/downloaded copy of this judgment; and (v) Parties to bear their own costs. In aforesaid terms, the instant petition is allowed and pending miscellaneous application(s), if any, shall stand disposed of accordingly.