High Court of Himachal Pradesh · 2010

The Hon(cid:146)ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner. : Mr. Naresh Kaul, Advocate. For the Respondents. : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. Rajiv Sharma, J. CMP(T) No.3251 of 2008. Heard. Allowed. Application stands disposed of. CWP(T) No.855 of 2008. Petitioner was engaged as Beldar in the respondent- department in the year 1987. He has worked for more than ten years and had completed 240 days in each year except 1990. He has worked for only 169 days in 1990. He was regularised vide office order dated 7.11.2002. However, thereafter his date of appointment was changed to 1.1.2000 vide office order dated 13.3.2008. 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 -

The case of the petitioner, in a nutshell, is that he was disengaged in the year 1990. He filed O.A. (D) No.248 of 1999 before the learned Himachal Pradesh Administrative Tribunal. The learned Tribunal passed the following order on 20.10.2000:- (cid:147)This Tribunal has been informed by the learned counsel for the parties that the applicants have been re- engaged now. That being so, the services of the applicants be not terminated except in accordance with law and procedure in this behalf. The period between dis-engagement and re- engagement of the applicants shall be counted towards seniority but the applicants shall not be entitled for any back wages for this period.

The case of the respondent-State, in a nutshell, is that since the petitioner has not worked for 240 days in 1990, in his case ten years period is to be counted from 1991 and not from 1987.

I have heard the learned counsel for the parties and gone through the pleadings carefully.

Petitioner was initially engaged in the year 1987. He has worked uninterruptedly from 1987 upto 2002 as per Annexure R-1 and has completed 240 days in each year except in 1990. The perusal of order dated 20.10.2000 passed by learned Tribunal as reproduced hereinabove shows that the period between disengagement and re- engagement of the petitioner was to be counted towards seniority. However, he was not held entitled to back wages. It is apparent that the petitioner could not complete 240 days after his disengagement in the year

1990. However, he was re-engaged and this period was directed to be counted towards seniority. However, Mr. Vikas Rathore, learned Deputy - 3 - Advocate General has argued that there is nothing to suggest that this period which was regularised, pertains to the year 1990. However, the fact of the matter is that the respondent-State has not placed any tangible material on record to suggest that the period directed to be counted towards seniority was not for the year 1990.

The matter is required to be considered from another angle. The respondent-State is a Welfare State. In the instant case, the petitioner had worked for more than 240 days for 16 years except in the year 1990. This could also happen due to his ill-health, cessation of work and lack of funds etc. In these circumstances, there should have been condonation of days in the year 1990 by taking pragmatic view. The petitioner has been regularised initially on 7.11.2002. Now on the basis of the instructions issued by the Principal Secretary (PW) to the Government of Himachal Pradesh, dated 18.2.2008, his date of appointment has been considered with effect from 1.1.2000. In fact, the petitioner was required to be considered for conferment of work charge status as per Mool Raj Upadhayaya(cid:146)s case immediately after completion of ten years, i.e. with effect from 1.1.1997. Mr. Vikas Rathore, learned Deputy Advocate General has also argued that the petitioner cannot claim work charge status from an anterior date once he has accepted his regularization. There is no merit in this contention also. This proposition has been settled by their Lordships of Hon(cid:146)ble Supreme Court in State of Himachal Pradesh and Others versus Gehar Singh, (2007) 12 SCC 43.