Bihari Lal & Others v. State of H.P. & ors.

have prayed for dismissing the writ petition. REBUTTAL BY PETITIONER:

#4. Petitioner filed a rejoinder dated 13.03.2022, reiterating that the judgment in case of Jai Singh (supra) has attained finality and it is not a judgment in personam. 4(i). It is contended that the application of two criteria’s overlapped each other, which has resulted in anomalous situation by granting the work charged status from date of completion of 10 years of continuous service for those who were engaged on

01.01.1993 and had rendered continuous service during 1993] whereas the junior daily wagers who were engaged on or after 01.01.1994 and had rendered continuous service of 240 days during 1994 were granted work charged status from the date of completion of after eight years continuous service w.e.f. 01.01.2002 i.e. from an earlier date before the petitioners. - 5 - Thus, the action of granting work charged status to petitioners from a subsequent later date [i.e. 01.01.2003] while granting work charged status junior incumbents earlier date [01.01.2002] is arbitrary, illegal and unsustainable.

#5. Heard Ms. Babita Chauhan, learned vice counsel for the petitioner as well as Mr. Gobind Korla, Learned Additional Advocate General, respondents and have gone through the case records. 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 petitioners herein are entitled for work charged status from the date of completion of eight years of continuous daily waged service [rendered from 01.01.1993 to

31.12.2000] w.e.f. 01.01.2002, instead of granting the same w.e.f. 01.01.2003 in terms of orders dated

28.03.2008, Annexure R-I, for the following reasons: ANAMOLOUS POSITION OF PETITIONERS VIS-À- VIS-JUNIOR DAILY WAGERS: 6(i). The petitioners who were engaged on daily - 6 - wage basis during the year 1993 and had completed more than 240 days in a calendar year as on

31.12.1993 and had continued thereafter were conferred work charge status from the date of completion of 10 years continuous service as per orders dated 28.3.2008 [Annexure R-I] by the State Authorities in terms of the judgments of Hon’ble Supreme Court in Mool Raj Upadhyaya Versus State of Himachal Pradesh and Ors., 1994 Supp(2) SCC 316, reiterated in the case of State of Himachal Pradesh versus Gehar Singh (2007) 12 SCC 43. On the other hand, the daily wagers who were engaged subsequently i.e. on or after 01.01.1994 and were admittedly junior were granted the work charge status from the date of completion of 8 years continuous service w.e.f. 01.01.2002. Existence of two policies for conferment of work charged status [10 years vis-a-vis 8 years] has led to an anomalous position whereby, the petitioners- senior who were engaged on 01.01.1993 and had completed 240 days during the year 1993 were - 7 - conferred work charge status from the date of completion of 10 years continuous service w.e.f.

01.01.2003, whereas, the junior incumbents who were engaged during the year 1994 and had completed 240 days during 1994 were conferred work charge status from an earlier date i.e. the date of completion of 08 years continuous service w.e.f. 01.01.2002. The application of existing Policy and Subsequent Policy for conferment of work charge- status has overlapped each other resulting anomalous situation. To illustrate the petitioners senior(s) who were engaged on daily waged service since 01.01.1993 were conferred Work Charged Status from the date of completion of 10 years w.e.f.

01.01.2003 [Annexure R-I] whereas, junior incumbents who were engaged on daily wage service on or after [since 01.01.1994] were conferred Work Charged Status w.e.f. 01.01.2002 i.e. prior petitioners. Conferment of Work Charged Status in running pay scale to juniors prior in time and over and above the petitioners-seniors herein reveals total - 8 - unreasonableness, unfairness and arbitrariness in state action. In order to remove an anomalous situation arising due to overlapping of two different policies, at one point of time, the subsequent policy which turns out to be beneficial to an employee has to be applied/invoked. Benefits arising–accruing from subsequent policy, devolving better benefits has to be extended so as to advance substantial as well as equitable justice so that the petitioners-seniors are at least placed at par or better placed than juniors in terms of service condition, including pay. Petitioners- seniors cannot be put to a disadvantageous position by giving them less pay vis-à-vis junior daily wages who have been conferred work charged status earlier due to subsequent modified policy. Thus, an anomalous situation resulting in invidious discrimination, whereby, the petitioners despite being senior fit and eligible were granted work charge status from a later date from 01.01.2003 whereas junior daily wagers were conferred work charge status from earlier date w.e.f. 01.01.2002, - 9 - needs to be interdicted and interfered with, so as to extend benefits in spirit of Articles 14 & 16 of the Constitution of India. 6(ii). Plea of the State Authorities that the petitioners were engaged in 1993 and have rendered 240 days service during 1993 and had rendered continuous service thereafter were to conferred work charge status after 10 years continuous service in terms of the mandate of the Hon’ble Supreme Court, Mool Raj Upadhyaya (supra) and therefore, petitioners cannot be conferred work charge status from the date of completion of 8 years continuous service, in terms of the judgment in the case of Gauri Dutt [i.e. CWP No.778 of 2006] and Rakesh Kumar [i.e. CWP No.2375 of 2010]. The above plea of State Authorities is not tenable, for the reason, that firstly, the judgments in cases of Gauri Dutt & Rakesh Kumar supra, nowhere dealt with a situation, as in this case, where senior daily waged incumbent alike the petitioners were conferred work charge status after 10 years of - 10 - daily wage service [from 1993 to 31.12.2002] w.e.f.

01.01.2003 whereas the junior incumbents engaged in the year 1994 were conferred work charge status after 8 years w.e.f. 01.01.2002; secondly, once an anomalous situation has crept in due application and/or overlapping of two criteria’s-policies [10 years vis-à-vis 8 years], providing for conferring work charged status to petitioners-seniors w.e.f.

01.01.2003 while conferring the work charge status from an earlier date to the juniors i.e. from the date of completion of 08 years service w.e.f. 01.01.2002 then, in such a situation, the policies and the application of law, in [Mool Raj Upadhayaya vis-à- vis Rakesh Kumar and Gauri Dutt [supra] has to be interpreted so as to advance the cause of justice and not to result in an anomalous situation causing prejudice to the petitioners-seniors, by denying them higher status and other service benefits over and above or at par with juniors; thirdly, a harmonious, purposive and benevolent construction has to be carved out so that petitioners-seniors are not put - 11 - to disadvantageous position vis-à-vis a junior incumbent; fourthly, conferment of work charge status to the petitioners-seniors from a later/subsequent date violates the principle of seniority-cum-fitness which is the core principle for granting such status; fifthly, the action of granting work charged status from a later date to the petitioners-seniors viz-a-viz juniors who have been granted this status from an earlier date amounts to treating ‘equals as unequals; sixthly, the State action amounts invidious and hostile discrimination when, nothing adversarial regarding the eligibility or seniority has been pointed out against the petitioners; seventhly, the State action amounts to carving out a class within one homogeneous class of daily wagers seeking work charged status on completion of 08 years continuous service; eighthly, once an existing policy [of 10 years] is replaced or modified by a subsequent policy [of 08 years] at one point of time then in such an eventuality, the benefit of subsequent policy, which is beneficial to an employee is to be extended alike the petitioners; ninthly, when, - 12 - an identical issue stands decided by a Co-ordinate Bench of this Court, in CWPOA No.1633 of 2019, in Re: Nandini Thakur versus State of Himachal Pradesh and Others, decided on 13.05.2021; and lastly, the judgment in case of Nandini Thakur is stated to have been implemented and the operative part reads as under: “6. A Division Bench of this High Court in CWP No.2735 of 2010, titled as Rakesh Kumar v. State of H.P. & others, decided on 28.7.2010, has held that till the new scheme, if introduced, comes into being, the old scheme shall be force, and employees, till introduction of new scheme, shall be entitled for benefits of previous scheme. In other words, on introduction of new scheme, employees shall be entitled for benefits of new scheme, particularly when subsequent scheme is more beneficial to the employees than the old scheme. The employees, who are governed by old scheme, but are also governed under new scheme devolving benefits better than earlier scheme, are definitely entitled for benefits of the latest scheme. applicability him/her.

#7. An employee, eligible for getting benefit under two Policies, shall be entitled for benefit of the Policy which is more beneficial On notification/circulation/ adoption of new Policy, an employee is to be governed by new Policy. Undoubtedly, benefits extended to an employee by the judgment passed by the Court, in present case by the Supreme Court in Mool Raj Upadhyaya’s case, cannot be taken away by any decision/policy of the Government, but, at the same time, an - 13 - employee cannot be excluded extension of benefits of subsequent policy/decision of the Government which is more beneficial than the benefits available to the employee for judgment of the Court. An employee cannot be relegated to disadvantageous position under the garb of old policy or judgment of the Court by debarring him from benefits of more beneficial policy framed by the State Government subsequently. entitled

#8. One example, may be elaborating the aforesaid discussion more clearly. Benefits of Mool Raj Upadhyaya’s case are available to an employee appointed before 1.1.1994 on daily-wage basis, who has completed service of minimum 240 days in a calendar year. An employee appointed on or after 1.1.1994 shall be governed by subsequent policy. Say an employee is appointed on daily-wage basis on 1.1.1993 and another on 1.1.1994. First employee completes ten years of service with 240 days in each calendar year as on 31.12.2003 and he, as per Mool Raj Upadhyaya’s policy, will be, thus, work-charged status/regularization on completion of ten years service, w.e.f. 1.1.2004. The other employee appointed on 1.1.1994 shall not be entitled for benefit of Mool Raj Upadhyaya’s introduction/framing of subsequent policy in the year 2000, he would be entitled under subsequent Policy for work-charge status/regularization on completion of eight years, with continuous service of minimum 240 days in each calendar year, on 1.1.2002. In case, benefit of subsequent policy is not extended to the employees entitled for benefit of Mool Raj Upadhyaya’s case policy, then it shall cause miscarriage of justice, as senior daily-wage employees would be entitled for work-charge status or regularization at a later point of time than his juniors. Therefore, irrespective of the fact that employee is governed under Mool Raj - 14 - Upadhyaya’s case, such employee shall be entitled for benefits of subsequent policy, if it is not taking away the benefits of earlier policy and is more beneficial to the concerned employee.

#15. Petitioner has completed eight years service in higher grade in September/December 2001. Therefore, regularization of petitioner vide Order dated 10.1.2003 (Annexure P-2), w.e.f. date of actual joining of the post, was rightly corrected vide Order (Annexure P-3) w.e.f. dated 25.3.2008 1.1.2002, as prior to that date petitioner had completed eight years continuous service in the higher grade with 240 days in each calendar year and was entitled for benefit of Regularization Policy of the State framed/notified in the year 2000. for her

#17. Though petitioner would have been entitled regularization on completion of eight years service in September 2001, after taking into account her 92 days service as Complaint Attendant in the year 1992 with subsequent period of her service on the same post but it has neither been claimed nor argued by and on behalf of petitioner and otherwise also there is not much difference between September 2001 and January 2002.

#18. In view of above discussion, I find that not only the impugned Office Order dated 25.10.2012 (Annexure P-6) but the reasons assigned by the respondents-State, in the reply, for justifying the said order, are also misconceived and not tenable. Therefore, order dated 25.10.2012 (Annexure P-6) is quashed and Office Order dated 25.3.2008 read with Order dated 10.1.2003 maintained. Petitioner shall be entitled for all consequential benefits accordingly.” In facts of instant case, once the juniors [who were engaged during year 1994] were conferred - 15 - work charge status from the date of completion of eight years of continuous service w.e.f. 01.01.2002 then, the petitioners-seniors are also entitled for work charge status from 01.01.2002 the date it was granted juniors so as to ensure fairness, reasonableness in State action in the teeth of Articles 14 & 16 of the Constitution of India. Delayed or belated conferment of work charged status to the petitioners-seniors while granting work charged status from earlier to the juniors shall certainly result in giving less pay to the petitioners-seniors and higher pay to the juniors. Even due to belated grant of work charge status. The petitioners would be granted seniority and other service benefits from a later date viz-a-viz juniors. Thus, once the application of two overlapping criterias has led to anomalous situation, by granting work charge status earlier to juniors and from a subsequent-later date to petitioners; and amounts to rendering the principle of seniority-cum- fitness otiose and nugatory, when, nothing adverse exists revealing unfitness of petitioners. Moreover, - 16 - such an artificial distinction is palpably violative of Articles 14 & 16 of the Constitution of India. Accordingly, petitioners are held entitled for work charge status w.e.f. 01.01.2002 i.e. the date it was conferred to the juniors i.e. from the date of completion of 8 years continuous service [instead of

01.01.2003], so as to avoid anomalous position, occurring due to application/overlapping of two different criterions for conferment of work charged status, as in this case. 6(iii). Even the issue, as to whether daily wage workers who were covered by the judgment case of Mool Raj Upadhyaya Vs. State of Himachal Pradesh and Others 1994 Supp (2) SCC 316 and those daily wagers who were extended benefit of work charge status in terms of the judgment of this Court in Rakesh Kumar & Others versus State of Himachal Pradesh [CWP No.273 of 2010] decided on 28.07.2010, on completion of eight years service, became the subject matter in CWP No.3111 of 2016 [State of Himachal Pradesh versus Ashwani - 17 - Kumar] which has been affirmed by the Hon’ble Supreme Court in Civil Appeal No.5753 of 2019, titled as State of Himachal Pradesh versus Ashwani Kumar, vide order dated 27.09.2017, has been reiterated by granting work charged status from the date of completion of eight years of continuous daily waged service by the Hon’ble Supreme Court, in Civil Appeal No.1595 of 2025, titled as The State of Himachal Pradesh versus Surajmani & Anr., decided on 06.02.2025, which reads as under:- “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 216 titled as State of H.P. and Ors. Vs. Sh. 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. & 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 - 18 -

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 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 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.”

#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 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 to be Upadhyaya's (Supra) case has - 19 - modified, had approached this Court by filing an Interlocutory 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 contentions urged, pleas advanced and arguments put forth today before us were the urged/raised in the said application. ones which were Though Mr. Vivek Tarıkha, 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 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, impugned order has observed that the State cannot adopt pick and choose policy. the High Court application

#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 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 the date of completion of 8 years of service. However, we hold that the relief in the present appeals will be limited to - 20 - notional benefits as explained 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.” The rights accruing to a daily wager for conferment of work charged status in case of Mool Raj Upadhyaya on completion of 10 years continuous daily wage service viz-a-viz the rights of daily wagers for conferment of work charged status after issuance of subsequent-modified policies on completion of 08 years continuous daily wage service as in case of Ashwani Kumar supra, stands reaffirmed Surajmani’s case [SLP(C) 23016 of 2023, decided on

06.02.2025] by approving the grant of work charge status from the date of completion of 8 years of continuance service. However such conferment shall be on notional basis as per the mandate in Paras 3 and 4 in case of Ashwani Kumar, which stands upheld in Paras 7 and 10 of the judgment in Surajmani’s case. Accordingly, the petitioners-seniors herein, who were engaged on 01.01.1993 and had rendered 08 years continuous service on 31.12.2001 - 21 - are held entitled for Work Charged Status from

01.01.2002 i.e. the date such status was given to juniors, so as to avoid the charge of discrimination and to ensure fairness and non-arbitrariness in State action in respect of the petitioners-seniors vis-à-vis juniors, in facts-situation of instant case. CONCLUSION AND DIRECTIONS:

#7. In view of the above discussion and for the reasons recorded hereinabove, the instant petition is allowed, in the following terms:- (i) Respondents-State Authorities directed to confer work charge status to the petitioners-seniors w.e.f 01.01.2002 i.e. the date of completion of 8 years of continuous daily wage service [instead of 01.01.2003 granted earlier vide Order dated 28.3.2008 Annexure R-1]; with pay fixation etc. with all consequential benefits; (ii). Respondents-State Authorities mandated to confer work charge status to petitioners from the date of completion of eight years of continuous service w.e.f.

01.01.2002 notionally, terms of [Paras 6, 8 & 10] of the judgment of the Hon’ble Supreme Court in Civil Appeal - 22 - No.1595 of 2025, in Re: The State of Himachal Pradesh & Ors. Versus Surajmani & anr. as referred to above; (iii). Needless to say that actual monetary benefits, if any, shall accrue for a period of three years preceding the date of filing of writ petition [filed on 02.09.2020] as per the mandate of law in Union of India versus Tarsem Singh (2008) 8 SCC 648; Shiv Dass versus Union of India and Others; (2007) 9 SCC 274; State of Madhya Pradesh and Others versus Yogendra Shrivastava (2010) 12 SCC 538 and Asger Ibrahim Amin Versus Life Insurance Corporation India (2016) 13 SCC 797, followed Rushibhai Jagdishchandra Pathak versus Bhavnagar Municipal Corporation CA No.4134 of 2022 [2022 SCC Online SC 641] decided on

18.5.2022; (iv) Parties to bear respective costs. In aforesaid terms, the instant petition allowed pending miscellaneous application(s), if any, shall also stand disposed of. (Ranjan Sharma) Judge February 28, 2025 (Shivender)