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2022 Supreme(HP) 290
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CHANDER BHUSAN BAROWALIA, J.
SHIV RAJ S/O SHRI GAJAN SINGH – Petitioner
Versus
STATE OF HIMACHAL PRADESH – Respondent
Civil Writ Petition (Original Application) No. 1286 of 2019
Decided On : 01-07-2022
Advocate Appeared:
For the Petitioner: AJAY SHANDIL.
For the Respondents: SHIV PAL MANHANS, YUDHVIR SINGH THAKUR, BHUPINDER THAKUR.
Point of Law: Where if an employee has rendered service on daily waged basis on 2 separate posts in lower and higher scales, can employee be given benefit of the service rendered by him in lower scale and be regularized in higher scale by combining the two services after 10 years.
Headnote:
Employment and Service matter - Work charge/regularization - Grant of work charge and consequential benefits - Petitioner was engaged, as daily waged Mortar Mate with the respondents-department, w.e.f. January, 1989. Though, from initial date of engagement of petitioner he worked as Mortar Mate, however, during October, 1989 to November, 1990, his designation has been shown as Chowkidar and Beldar, i.e. Class-IV posts, but w.e.f. December, 1990 to 13.03.2000, he again worked as Class-III on different posts and lastly the respondents have regularized his services, vide office letter, as Beldar, instead of Mortar Mate/Plumber - Impugned office order is quashed and set aside and the respondents are directed to grant work charge status to petitioner on post of Plumber w.e.f. 01.01.2000 alongwith all consequential benefits.
Finding of the Court:
Undertaking/option given by the petitioner is concerned, the same cannot be taken against the petitioner, as the State should act as model employer and anything which takes away the legally accrued rights of an employee, is not binding upon an employee, as the same will be in violation of the service law. Otherwise also, simply on the basis of undertaking/option given by the petitioner, the petitioner cannot be denied the relief to which he is legally entitled - Admittedly, w.e.f. October, 1989 to November, 1990 the petitioner worked on a post in lower scale and his services qua that period are not to be taken into consideration for calculating the requisite years, but if his entire service as Class-III employee is considered, he has completed 10 years that too without any break and with 240 days in every calender year.
Result: Petition disposed of.
ORDER :
1. The petitioner was engaged, as daily waged Mortar Mate with respondents-department, w.e.f. January, 1989. Though, from the initial date of engagement of the petitioner he worked as Mortar Mate, however, during October, 1989 to November, 1990, his designation has been shown as Chowkidar and Beldar, i.e. Class-IV posts, but w.e.f. December, 1990 to 13.03.2000, he again worked as Class-III on different posts and lastly the respondents have regularized his services, vide office letter dated 26.04.2000, w.e.f. 01.04.1998, as Beldar, instead of Mortar Mate/Plumber.
2. The petitioner has represented to the authorities for grant of work charge/regularization on the higher posts, i.e. Mortar Mate/Work Inspector/Plumber, instead of Beldar, but, the authorities did not accede to the request of the petitioner. Accordingly, he filed original application before the erstwhile Tribunal, which was registered as OA No. 1786/2000. During the pendency of aforesaid case, the officers of the department pressurized the petitioner and also assured him that they are considering his case for grant of higher status from back date, thus, the applicant withdrew his application. However, despite assurance given by the respondents, they have not fulfilled their promise. The petitioner has also made repeated representations to the respondents for grant of work charge status on the higher post, but the respondents have not considered his case. Consequently, the petitioner filed a civil writ petition before this Court, which was registered as CWP No. 5105/2010 and was disposed of with a direction to respondent No. 2 to examine the matter in the light of the decision in Gauri Dutt and Others vs. State of H.P. within a period of two months from the date of production of copy of the judgment.
3. In view of the directions passed by this Court, the petitioner has submitted copy of judgment to respondent No. 2. However, the respondents vide office order dated 29.04.2011 regularized the services of the petitioner w.e.f. 04.01.2006, instead of 01.01.2000 as per Mool Raj Upadhaya and Gauri Dutt’s case. In the said office order it has also been mentioned that the earlier appointment as Beldar w.e.f. 01.04.1998 shall now stands withdrawn and the excess pay so drawn by him w.e.f. 01.04.1998 as regular Beldar minus wages of Plumber for the said period is liable to be recovered in accordance with law from him after re-fixing the pay as Plumber.
4. Against the aforesaid order, the petitioner again preferred a petition before this Court, being CWP No. 3413/2011, which was later on transferred to erstwhile Tribunal and registered as T.A. No. 3935/2015 and vide order dated 17.11.2015 stands allowed. The respondents were directed to consider the case of the petitioner for regularization as Plumber w.e.f. 01.01.2000 with all consequential benefits.
5. The respondents challenged the order passed by the learned Tribunal before this Court by filing CWP No. 469 of 2016, which was disposed of vide order dated 01.06.2017 by observing that impugned judgment/order dated 17.11.2015, passed by H.P. Administrative Tribunal, Shimla in T.A. No. 3935 of 2015, titled as Shiv Raj Singh vs. State of H.P. and Others, is to the effect that there is no adjudication of rights of the parties and the only direction being, consideration of the petitioner’s case in terms of the policies framed by the State, as also directions issued by this Court in case titled as Gauri Dutt and Others vs. State of H.P.
6. After passing of judgment dated 01.06.2017, the respondents vide office order 06.11.2017, rejected the case of the petitioner for grant of work charge status as Plumber w.e.f. 01.01.2000, constraining the petitioner to file the instant case.
7. The respondents in reply to the petition have averred that the petitioner was afforded due opportunity of personal hearing on 15.07.2017 and in view of the detailed factual position, as well as the gravity of law, the claim of the petitioner was considered a
