1 2025:HHC:21671-DB IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 515 of 2016 Date of Decision : 03.07.2025 ________________________________________________________ State of H.P & others …..Petitioners Versus Shyam Lal …Respondent ________________________________________________________ Coram: The Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice. The Hon’ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting?1 __________________________________________________ For the Petitioners: Mr. Gobind Korla, Additional Advocate General. For the Respondent: Mr. Daleep Singh Kaith, Advocate. G.S. Sandhawalia , Chief Justice (Oral) The order dated 07.09.2015 (Anneuxre P-1) passed in Original Application No. 1817 of 2015 by the erstwhile State Administrative Tribunal, (for short ‘the Tribunal’) is the subject matter of challenge in this writ petition, whereby the Original Application filed by the applicant-respondent herein, was allowed and the respondents were directed to confer work-charge status 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 on the applicant on completion of 8 years’ regular service w.e.f. 01.01.2002 instead of 25.11.2008 , which had been initially granted to him. Resultantly, all consequential benefits were also directed to be granted to the applicant. 2. It is pertinent to notice that the order was passed by the Tribunal by dispensing with the filing of reply from the State, which is not justified, as each case has to be decided in a peculiar facts and circumstances of the pleadings as such, which have to be admitted or denied on the basis of the record. The order has been passed by the Tribunal in a cursory manner, therefore, the same cannot be sustained, in any manner. However, the rights of a Class-IV employee have to be protected, keeping in view the principles laid down in the policy of regularization and the latest judgment of the Apex Court in Civil Appeal No. 1595/2025, The State of HP & others Vs. Surajmani and another, decided on 06.02.2025. 3. It is a matter of record that the applicant was appointed as a daily wage Beldar in Irrigation and 3 Public Health Department, Rampur Bushsher on 01.01.1994. 4. It was the case of the petitioner/applicant before the Tribunal that due to breaks given in his service in the year 1996 to 1998, his seniority was counted from 1999 onward and he was deprived of getting work charge status from due date i.e. 01.01.2002, on completion of 8 years of service. 5. Reliance has been placed by the Tribunal upon the judgment dated 14.12.2009, passed by this Court in CWP No. 4498 of 2009, titled as Ravi Kumar Vs. State of Himachal Pradesh & another, wherein it has been held that the employer should not give artificial breaks to deprive a workman from getting the status of regular/work charge employee and as the petitioner had worked uninterruptedly w.e.f. 1999 to 2008 and there was only shortage of few days in completion of 240 days in the years 1999, 2000 and 2001, therefore, the regularization of the service of the petitioner should have been done from 01.01.2002 but the services of the petitioner were regularized w.e.f. 25.11.2008, i.e. after the delay of more than six years. 4 6. As noticed above, reply to the Original Application was not allowed to be filed by the respondents-State, by the Tribunal. However, they have filed year-wise Mandays’ Chart, (Annexure P-3), in the writ petition, which reads as under:- Sr.No. Year Mandays Remarks 1 1994 261 2 1995 172 3. 1996 121 4. 1997 154 01/94 to 05/94 beldar 06/94 to 08/94 Msson 09/94 to 12/94 beldar 01/95 to 12/96 Masson 5. 1998 104 6. 1999 290 7. 2000 316 8. 2001 361 9. 2002 365 10. 2003 259 Regularized on 25/11/2008 11. 2004 352 12. 2005 359 13. 2006 365 14 2007 365 15. 2008 325 7. From the perusal of the aforesaid Mandays Chart, it would be clear that the petitioner did not complete 240 days in the years 1995, 1996, 1997 & 1998. Therefore, it was in such circumstances, his regularization was done w.e.f. 25.11.2008. The 5 petitioner had not chosen to challenge the same. Even when the Original Application was filed before the Tribunal, the order of regularization of the services of the petitioner had not been appended and only on the basis of the judgment in Ravi Kumar’s case (supra) and Rakesh Kumar vs. State of HP and others (CWP No. 2735 of 2010), decided on 28.7.2010, the benefit as such had been granted to the petitioner. 8. It is a matter of record that there is Regularization Policy dated 09.09.2008, issued by the State Government, which provides that the cut-off date is to be seen from 31.03.2008, whereby on completing eight years’ continuous service, the minimum 240 days in every calender year, the regularization has to be done. The relevant part reads as under:- “In continuation of this Department letter No. PER (AP)-C-B(2)-1/2006 -Vol. 11 dated 18th June, 2007, I am directed to say that the matter regarding liberalizing the policy of regularisation of Daily Waged Workers in all the Departments had been engaging the attention of the Government for sometime past. 6 After careful consideration, the Government has now decided that the Daily Waged workers in all the Departments, including Public Works and Irrigation & Public Health Departments, who have completed 8 years years of continuous service (with a minimum of 240 days in a calendar year except where specified otherwise for the tribal areas) as on 31.3.2008 may be regularised only against vacant posts in various departments. No new post for this purpose will be created. Completion of required years of service makes such daily wager eligible for consideration to be regularised. Regularisation in all cases will be from prospective effect i.e. after the date the order of regularisation is issued after completion of codal formalities. The regularisation will be subject to the observation of the following terms and conditions.” 9. On perusal of the Mandays Chart, it is clear that on account of lack of 240 days in the years 1995, 1996, 1997 & 1998, the regularization was done w.e.f. 25.11.2008. However, if the period of eight years is seen from page No. 99, i.e. Muster Roll, to confer the benefit as such on completing eight years’ service on 31.12.2006, the benefit of regularization should have been given from 01.01.2007 in the facts and circumstances of the case. 7 10. It is settled principle of law that regularization is one time measure to be issued by the State for the purpose of protecting the employees. The law has been laid down by the Constitutional Bench in Secretary, State Of Karnataka And others Vs. Umadevi and others, 2006 (4) SCC 1, and therefore, the entitlement as such of regularization is only on the basis of a policy and the employee cannot ask for the benefit beyond the same, which is a concession given by the State which binds both the State and the employee and, therefore, re-variance in terms of the policy cannot be ordered by the Courts. In such circumstances, we are of the considered opinion that the order passed by the Tribunal is liable to modified in the facts and circumstances of the case and the regularization is to be done w.e.f.01.01.2007 11. In view of the judgment dated 06.02.2025 passed by the Apex Court, supra, only notional benefits have to be granted for the purpose of regularization. Paras 5 to 12 of the aforesaid judgment, reads as under:- 8 “5.The workers who had been regularised in service in the Public Health Department under various schemes announced by the State Government from time to time but had not been granted the status of "work-charged" had approached the High Court of Himachal Pradesh in CWP No. 2735 of 2010 titled as Rakesh Kumar and Ors. Vs. State of Himachal Pradesh and Ors. which came to be disposed of on 28.07.2010 by opining as under: "6. The simple question is whether the delay defeats justice? In analyzing the above issue, it has to be borne in mind that the petitioners are only class-IV workers (Beldars). The schemes announced by the Government clearly provided that the department concerned should consider the workmen concerned for bringing them on the work- charged category. So, there is an obligation cast on the department to consider the cases of the daily waged workmen for conferment of the work- charged status, being on a work-charged establishment, on completion of the required number of years in terms of the policy. At the best, the petitioners can only be denied the interest on the eligible benefits and not the benefits as such, which accrued on them as per the policy and under which policy, the department was bound to confer the status, subject to the workmen satisfying the required conditions. 9 7. In the above circumstances, these Writ Petitions are disposed of directing the respondents to consider the case(s) of the petitioners herein for conferment of work- charged status, subject to their eligibility in terms of the policy dated 3.4.2000 and as explained in 6.5.2000 policy, as extracted above. Needful in this regard shall be done within a period of three months from the date of production of the copy of this judgment by the respective petitioners. Needless to say that the question of conferment of work- charged status does not arise in case the establishment ceases to be a work charged establishment and hence, the conferment of the status will not arise after the abolition of the work-charged status of the establishment”. 6. The aforesaid order came to be affirmed by this Court in Special leave Petition (Civil) No. 33570 of 2010 and all connected matters were disposed of on 15.01.2015. Later, certain workers who had been engaged on daily wage basis in Public Works Department of Himachal Pradesh, after having Completed eight years of continuous service prayed for Conferment of work-charged status by filing O.A. No. 412 of 2016 before the H.P. State Administrative Tribunal. Their prayer was allowed by the Tribunal vide order dated 30.06.2016. Upon challenging the same by the State in Civil Writ Petition No. 3111 of 2016 titled as State of H.P. and Ors. Vs. Sh. 10 Ashwani Kumar the High Court, relying upon its judgment in Civil Writ Petition No. 4489 of 2009 titled as Ravi Kumar Vs. State of H.P. and Ors., decided on 14.12.2009, maintained the order of the Tribunal. The order of the High Court in Ashwani Kumar (Supra) has also been affirmed by this Court in Civil Appeal No. 5753 of 2019 titled as State of H.P. and Ors. Vs. Ashwani Kumar by order dated 22.07.2019, wherein this Court observed as under: "3. We are not disturbing the finding of the Tribunal, which was affirmed by the High Court, with respect to the conferral of the status of the work charge from 01.01.2003. However, as regularization has been made only in the year 2006, obviously, notional benefit could have to be granted as the petition was initially filed in the year 2013. 4. Thus, we make the modification that the respondent would be entitled only for notional benefits of the order passed by the Central Administrative Tribunal. Accordingly, with the aforesaid modification in the order of the Central Administrative Tribunal and the High Court, the appeal is disposed of." 7. In this factual scenario, when we consider the arguments advanced by the learned counsel appearing for the respective parties, it would not detain us for too long to brush aside the contention of the learned senior counsel and learned Advocate 11 General appearing for the State of Himachal Pradesh. Inasmuch as the issue involved in these appeals has been laid to rest by this Court in the case of Mool Raj Upadhyaya (Supra). That apart, this Court, while examining a similar plea in Ashwani Kumar's (Supra) case in Civil Appeal No. 5753 of 2019 disposed of on 22.07.2019, has specifically addressed this issue by arriving at a conclusion that the order of the Tribunal directing conferment of 'work charge status' on completion of eight (08) years of service, did not suffer from any infirmity and it was reiterated order of the Tribunal was just and proper. 8. However, in order to allay the apprehension of the State as expressed thereunder and to safeguard the interest of the State which otherwise would have burdened the exchequer with extra benefits being conferred on the employees who had not been regularly appointed, this Court has, as a succor to the State, restricted the claim or, in other words, modified the order of the Tribunal as affirmed by the High Court by arriving at a conclusion that the petitioners/appellants therein would be entitled to the notional benefits of the order passed by the Tribunal and accordingly disposed of the said appeal. 9. It would not be out of context to refer at this juncture itself that the State, in its wisdom, having felt that the subsequent schemes having been formulated and implemented, would alter the situation and, therefore, order dated 12.04.1994 passed in Mool Raj Upadhyaya's (Supra) case has to be modified, had approached this Court by filing an Interlocutory 12 Application being IA No. 3 in the year 2005 in the aforesaid Mool Raj Upadhyaya's case, i.e., Writ Petition (Civil) No. 787 of 1987. A perusal of the said application and the averments made thereunder would clearly indicate that the very same contentions urged, pleas advanced and arguments put forth today before us were the ones which were urged/raised in the said application. Though Mr. Vivek Tankha, learned senior counsel appearing for the State would fairly submit that the said application was withdrawn on the ground of subsequent schemes having been formulated and implemented by the State of Himachal Pradesh, but we are unable to accept the said proposition howsoever attractive it may be, for the simple reason that the said application was dismissed simpliciter as withdrawn. Yet another factor which sways our mind to reject the contention raised by the learned senior counsel appearing for the State would be the fact that the State having accepted the judgment of Ashwani Kumar (Supra), has implemented the same and it is in this background, the High Court in the impugned order has observed that the State cannot adopt pick and choose policy. 10. For the cumulative reasons aforestated, we are of the considered view that the dicta laid down by this Court vide order dated 22.07.2019 in Ashwani Kumar's (Supra) case which is based on the judgment of Mool Raj Upadhyaya (Supra) holds the field and would also be applicable to the Respondents herein who had approached the Tribunal or the High Court seeking similar relief. As such, the Respondents shall be entitled for grant of 'work-charged' status from 13 the date of completion of 8 years of service. However, we hold that the relief in the present appeals will be limited to notional benefits as explained in paragraph 3 and 4 of Ashwani Kumar's (Supra) case in Civil Appeal No(s). 5753 of 2019 and the present appeals stand disposed of accordingly with no order as to costs. 11. We also make it explicitly clear that the State in its endeavour of implementing the orders of the Tribunal, High Court or this Court, if having paid the amounts in excess, would be at liberty to take such steps as it deems fit without insisting for one time recovery. 12. It is further underscored that this judgment would necessarily be a judgment in rem and the State shall hence forth not take recourse to employing personnel as daily wagers but shall make appointments only in accordance with law, as enumerated in the case of Secretary, State of Karnataka Vs. Uma Devi [(2006) 4 SCC 1].” 12. Accordingly, the State shall take into account all these aspects and modify the order of regularization, and grant the benefits as per the law laid down in Suraj Mani’ case (supra), w.e.f. 01.01.2007. 14 13. Accordingly, the petition is disposed of alongwith pending application(s), if any. (G.S. Sandhawalia) Chief Justice. July 03, 2025 (Ranjan Sharma) (hemlata) Judge.