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2006 DIGILAW 26 (HP)

NAND LAL v. STATE OF H. P.

2006-01-13

M.R.VERMA

body2006
JUDGMENT M.R. Verma, J. (Retd.) Chairman - Since it was stated that common questions of law based on identical facts are involved in all these original applications, therefore, arguments were jointly heard in all these applications and these are being dealt with-as per their merits by this common order. 2. At the very outset of the arguments the learned Deputy Advocate General submitted that Civil Appeal Nos. 3595/3612 of 1999 is pending before the Honble Apex Court wherein similar questions as may arise for consideration in these original applications are involved and a Contempt Petition arising out of non-implementation of the orders passed by this Tribunal has also not been finally disposed of by the Apex court in view of the pendency of Civil Appeal titled State of Karnataka v. Uma Devi and others. Therefore, in view of the pendency of aforesaid matters all the matters claiming relief on the basis of judgment in Mool Raj Upadhayayas case may be stayed till the above Civil Appeals and Contempt Petition are disposed of by the Apex Court. 3. We have heard the learned Deputy Advocate General and learned Counsel for the applicants on this preliminary submission. It is admitted position that proceedings in any of the matters in hand have not been stayed by the Honble Supreme Court. It is also not in dispute that in the aforesaid cases the validity of the judgment delivered by the Honble Apex Court in Moot Raj Upadhayayas case has not been called in question. The question as formulated for consideration in aforesaid appeals are whether the employees appointed dehors the rules can be made permanent or could be directed to be regularised or absorbed in service and how for the appointments made dehors the service rules or in breach of statutory provisions contained in the act or rules can be recognised by the Courts and accorded judicial approval. In most of the cases in hand neither the question of regularising the applicants on permanent basis or confirming them as is done in case of regularly appointed employees nor regularisation or absorption in regular service has been claimed. In most of the cases in hand the claim is for giving work charge status to the applicants as per the judgment rendered by the Honble Supreme Court in Mool Raj Upadhayaya v. State of H.P. and others, 1994(2) SLR 377. In most of the cases in hand the claim is for giving work charge status to the applicants as per the judgment rendered by the Honble Supreme Court in Mool Raj Upadhayaya v. State of H.P. and others, 1994(2) SLR 377. It may be pointed out that regularisation of services as permanent, confirmation in service, to absorb in service are the acts with which the grant of "work charged status" cannot be equated. Therefore, in the absence of any stay order or suspension of the operation of the judgment in Mool Raj Upadhayayas case (supra), the further proceedings in these original applications cannot be ordered to be stayed. The submission to stay further proceedings in these cases is therefore, not allowed. 4. We have also heard the learned Counsel for the applicants and the learned Deputy Advocate General on merits. 5. It may be pointed out that at the time of arguments it has jointly been argued that these cases being those of daily wagers the applicants are entitled to and are to be given work charge status as claimed on the basis of Mool Raj Upadhayayas case. O. Nos. 776, 778 and 779 of 2005 6. In these original applications the relief has been claimed by the applicants not on the basis of judgment rendered by the Honble Apex court in Mool Raj Upadhayayas case but on the basis of a policy framed by the State Government vide letter dated August 29, 2002. Thus the relief having not been claimed on the basis of aforesaid judgment but on the basis of latest policy on which no arguments were addressed at the time of arguments, the aforesaid original applications are to be delinked from the bunch of these cases for re-hearing as per the claim based on the aforesaid policy. O.A. No. 968 of 1997 7. In this original application the applicant has called in question the order of the respondents giving him the status of work charged Pipeline man and has claimed that he should be given the status of work charge Fitter Grade-I as he was entitled to. 8. It is not in dispute that the applicant was given the work charged status as Pipeline man as per orders issued by the respondents and pursuant to such orders the applicant joined his, duties on February 3, 1995. 8. It is not in dispute that the applicant was given the work charged status as Pipeline man as per orders issued by the respondents and pursuant to such orders the applicant joined his, duties on February 3, 1995. Thus the cause of action had accrued to « the applicant to institute the presence original application at the time of his receiving the order giving him work charged status as Pipeline man pursuant to which he joined on February 3, 1995. The applicant or the respondents have not disclosed as to when the said order was passed and served on the applicant. Even if it is assumed that the said order was received by the applicant on the date of his joining i.e. February 3, 1995 even when the period of limitation to institute the present application stated running on February 3, 1995. The present application has been filed on May 20, 1997 i.e. after more than two years of the applicant joining as work charged Pipeline man. No reason whatsoever has been explained either in the original application against para No. 5 of the application and no application for condonation of delay showing any sufficient cause for such condonation has been filed. Thus the application having not been filed within one year of the accrual of the cause of action to the applicant, this application deserves to be dismissed as barred by limitation. OA No. 2166/1997 9. In this original application the applicant was given the work charged status of Helper and the joined as such on January 6, 1995. He claims that he should have been given the work charged status as Pump Operator instead of Helper. In this case also the applicant or the respondents have not disclosed as to when the order giving work charges status to the applicant as aforesaid was passed and served on the applicant. In any case limitation started running against the applicant to fife the present original application was filed on November 19, 1997 i.e. after more than two years and 10 months whereas the original application ought to have been filed within one year of the accrual of cause of action. This applicant neither in the original application against para 5 concerning limitation nor by filing a separate application has shown any sufficient cause for condoning the delay in filing the original application which is clearly time barred. This applicant neither in the original application against para 5 concerning limitation nor by filing a separate application has shown any sufficient cause for condoning the delay in filing the original application which is clearly time barred. Accordingly this application also deserves to be dismissed as barred by time. O.A. No. 1241/1997 10. In this original application the applicant claims that her case is squarely covered by the judgment in Mool Raj Upadhayayas case and she deserves to be given work charge states or her services deserve to-be regularised on completion of continuous service of 10 years-with 240 days in each calender year. 11. Her claim has been disputed by the respondents on the ground that as per Annexure R/1 the applicant had not completed 10 years continuous service with 240 days in each calendar year because she did not work for minimum 240 days in a calendar year prior to 1989. However, after 1989 till 1996 i.e. she had worked for the required days but has thereby completed only 8 years of continuous service by the time the present application has been filed. Therefore, the application is not maintainable. 12. It is also the case of respondents that with a view to show that the applicant had continuously worked for 10 years with minimum 240 days in each calendar year she had forged the muster rolls, photocopies whereof have been placed on record which reveal cuttings and manipulations of the name of the worker, and his particulars. The applicant has not filed any counter to the averments made in the reply filed by the respondents. 13. It is clearly evident from the aforesaid uncontroverted averments in the reply of the respondents that at the time of filing of the original application the applicant in fact had not worked for 10 years with minimum 240 days in a calendar year and to fortify her claim, the muster rolls have been forged. In these circumstances the applicant is not entitled to the relief claimed and her original application deserves to be dismissed with costs. O.A. Nos. 25/2005, 718/95, 738/97, 1886/05, 1894/05 AND 1473/95 14. In these original applications the applicants have claimed the relief on the basis of Mool Raj Upadhayayas case (supra). It is not in dispute that all these applicants in these applications had been working with the respondents prior to January 1, 1994. O.A. Nos. 25/2005, 718/95, 738/97, 1886/05, 1894/05 AND 1473/95 14. In these original applications the applicants have claimed the relief on the basis of Mool Raj Upadhayayas case (supra). It is not in dispute that all these applicants in these applications had been working with the respondents prior to January 1, 1994. It is also not in dispute that with the passage of time they have completed 10 years continuous service with minimum 240 days in each calendar year. In OA Nos. 738/97 and 1473/95 the respondents have admitted the claim of the applicants and had averred to give the work charge states to the applications therein from the date of completion of the requisite period of serviced. 15. In OA No. 1473/95 the applicant has admittedly completed his 10 years continuous service with minimum 240 days in each calendar year on December 31, 1994 and is to be given the work charged status on and w.e.f. January 1, 1995 whereas the applicant in OA 738/97 has admittedly completed such service on December 31, 1996 and is entitled to be given the work charge status w.e.f January 1, 1997 as is the admitted case of the respondents. 16. As already stated herein above since all the applicants had been serving as daily wagers from different years before January 1, 1994 and the operation of judgment passed by the Honble Apex Court in Mool Raj Upadhayayas case has not been suspended/ reviewed/revised nor the proceedings in these cases have been stayed, therefore, these applicants are also entitled for being given the work charged status from the dates they completed 10 years continuous service with minimum 240 days in each calendar year. 17. The grant of such status to the applicants has been disputed for the respondents on the ground that in 2002 a fresh policy has been formulated by the State Government, therefore, action is to be taken as per such policy. Be it stated that such cases which are covered by the judgment of the Honble Apex Court in Mool Raj Upadhayayas case cannot be governed by a policy which may be subsequently framed by the State Government particularly when reframed policy does not carry the approval of Apex Court and deprives the applicants of such benefits which have accrued to them by virtue of the judgment of Mool Raj Upadhayayas case (supra). The said judgment as per the policy laid down therein in fact declares the rights to have the work charged status to all such daily wagers who had been in service before January 1, 1994. Therefore, the policy now framed cannot have the effect of over-riding the judgment in Mool Raj Upadhayayas case. On the contrary the policy now framed by the Government will govern only those cases which are covered under such policy and not the cases covered under the decision in Mool Raj Upadhayayas case. The new policy though has reduced the continuous period of service from 10 to 8 years but provides for regularisation of services (which expression means to give regular appointment as against giving status as workcharged employee), only if the posts are available. Thus in view of the later part of the policy now formulated, many hundreds of employees can be deprived of the benefit which accrued to them in view of the decision in Mool Raj Upadhayayas case and thereby lead to utter discrimination of the daily wagers who have not been given the status of workcharged employee as yet as against such employees who have already been given the workcharged status as per the decision in Mool Raj Upadhayayas case though they are similarly situate and qualify the same terms and conditions for getting the workcharged status. The applicants in these original applications are therefore entitled to the status of workcharged employees from the date when they completed the requisite term of service as daily wagers. 18. For the reasons and conclusions herein above OA Nos. 776/05, 778/05 and 779/05 are ordered to be de-linked from this bunch of cases and are ordered to be listed for re-hearing. OA Nos. 968/97 and 216/97 are dismissed as barred by time. OA 1241/97 being devoid of any merit and substance and being based of manipulated facts is dismissed with nominal costs quantified in the sum of Rs. 1000/- in view of the status of the applicant. In the remaining original applications the respondents are directed to given workcharged status to the applicants within six months of the date of this order as follows : OA No. Name of the applicant Date from which workcharged status is to be given as per clause 1 of the decision in Mool Raj Upadhayayas case. In the remaining original applications the respondents are directed to given workcharged status to the applicants within six months of the date of this order as follows : OA No. Name of the applicant Date from which workcharged status is to be given as per clause 1 of the decision in Mool Raj Upadhayayas case. 25/2005 Nand Lal 1.1.2003 718/95 Man Chand 1.1.1994 738/94 Manohar Lal 1.1.1997 1886/05 Jeet Ram 1.1.2005 1894/05 Krishan Singh 1.1.2004 1473/05 Hem Raj Sharma 1.1.1995 The arrears as payable to the applicants by virtue of giving them the workcharged status as aforesaid to be paid to them within three months of grant of workcharged status. 19. The original applications other than OA Nos. 776, 778 and 779 of 2005 are finally disposed of in terms of the above orders.