Research › Search › Judgment

Himachal Pradesh High Court · body

2020 DIGILAW 448 (HP)

BHAGAT RAM v. STATE OF HIMACHAL PRADESH

2020-07-17

SANDEEP SHARMA

body2020
JUDGMENT : Sandeep Sharma, J. 1. Being aggrieved with the inaction of the respondents, whereby they failed to regularize the services of the petitioner on completion of eight years of services, in terms of letter (Annexure P-1), where it stands clearly stipulated that handicapped with disability of more than 40% would be regularized on completion of eight years of service, petitioner has approached this Court in the instant proceedings. 2. Before ascertaining correctness of the claim, as has been made by the petitioner, certain undisputed facts, which may be relevant for the adjudication of the present petition are that petitioner was engaged in the respondent Department as daily wage Chowkidar in August, 1992. In nutshell, the grouse of the petitioner is that since he had completed eight years of service on 1.1.2001, with 240 days in each calendar year, respondents ought to have regularized his services with effect from 1.1.2001 with all consequential benefits in terms of letter dated 22.5.1999 (Annexure P-1). Perusal of aforesaid communication reveals that Government of Himachal Pradesh, decided in principle that all the daily waged workers of work charge categories are to be regularized with effect from 1.4.1998, who are having more than 40% disability and have completed 8 years of continuous service with 240 days in each financial year, as on 31.3.1998 and as such, Registrar, HPPWD directed all the Superintending Engineers in PWD to prepare seniority lists of such daily waged workers, enabling Department to take steps for creation of required number of posts. As per petitioner, he was entitled for regularisation of services on completion of eight years of service in terms of aforesaid clarificatory instructions issued by the respondents. Petitioner claimed that he is suffering from permanent disability to the extent of 100% as is evident from annexure P-3 and as such, entitled for the benefit of being regularized on completion of eight years of services in terms of instructions contained in communication dated 22.5.1999 (Annexure P-1). Averments contained in petition reveal that the petitioner was regularized with effect from January, 2004 as a consequence of which, petitioner has been deprived of benefit of serving upto the age of 60 years, had the respondents regularized him on completion of eight years of service, petitioner would have been entitled to work upto the age of 60 years. Averments contained in petition reveal that the petitioner was regularized with effect from January, 2004 as a consequence of which, petitioner has been deprived of benefit of serving upto the age of 60 years, had the respondents regularized him on completion of eight years of service, petitioner would have been entitled to work upto the age of 60 years. In the aforesaid background, petitioner approached erstwhile Himachal Pradesh Administrative Tribunal by way of OA No. 712 of 2005, which now stands transferred to this Court and re-registered as CWPOA No. 296 of 2019, with following main reliefs: "(a) To issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the respondent department to regularize the petitioner wef 01/01/2001 with all the consequential benefits." 3. Having heard learned counsel for the parties and perused the reply filed by the respondents, this Court finds that though the petitioner was engaged with the respondents in October, 1992 on daily wage basis but he had not completed 240 days in the year 1992. Man days chart placed on record clearly reveals that in the year 1992, petitioner had only worked for 92 days, however, as per policy of the Government, dated 6.5.2000, whereby decision was taken to regularize the services of the daily waged workers, who had completed 8 years of continuous service with 240 days in each calendar year as on 31.3.2000, services of the petitioner were regularized initially as work charge Chowkidar vide communication dated 11.1.2007 (Annexure P-2). Pursuant to aforesaid conferment of work charge status, petitioner joined on 17.1.2007 without there being any protest, as is evident from joining report placed on record as Annexure R-3. It also emerges from the reply filed by the respondents that subsequently, pursuant to directions issued by the Hon'ble Apex Court in celebrated case of Mool Raj Upadhyay, services of all the daily wage workers who had completed 10 years of continuous service as on 31.12.1993 or employees who had completed one or more years of service but not completed 10 years of service as on 31.12.1993, were regularized on completion of ten years of service with 240 days in each calendar year. In compliance to aforesaid judgment passed by Hon'ble Apex Court in Mool Raj Upadhyay, Government vide communication No. Fin-F(4)-1/2006 dated 20.2.2008, approved re-fixation of the payment of the work charged brought into regular establishment working under the Division who had completed 10 years or more of continuous service with a minimum of 240 days in non-tribal area and 180 days in tribal area in each calendar year as on 31.12.1999, 31.17.2000, 31.12.2001, 31.12.2002 and 31.12.2003 as daily waged worker. 4. In light of aforesaid instructions/directions, services of the petitioner were regularized retrospectively on completion of ten years of service as Chowkiar with effect from 1.1.2003 vide letter dated 10.3.2008 (Annexure P-4). Reply further reveals that a sum of Rs. 1,62,532/- was also credited into his GPF account on account of payment of arrears with effect from 1.1.2003. 5. Having carefully perused communication dated 22.5.1999 (annexure P-1), this Court finds substantial force in the argument of learned Additional Advocate General that otherwise also, no benefit, if any, can be extended to the petitioner in light of instructions contained in the communication dated 22.5.1999, because bare perusal of the same clearly reveals that services of daily waged workers working in work charge categories, having more than 40% disability were to be regularized with effect from 1.1.1998, subject to their having completed eight years of continuous service with 240 days in each calendar year as on 31.3.1998. 6. As per aforesaid communication, the daily waged workers of work charged categories having more than 40% disability and having completed eight years of continuous services with 240 days in financial years as on 31.3.1998, were to be regularized with effect from 1.1.1998. However, as per man day's chart of the petitioner, placed on record by the respondents (Annexure R-1) clearly revels that the petitioner had only worked for 92 days in the year 1992 as such, he cannot claim any benefit in terms of instructions contained in the communication dated 22.5.1999 (Annexure P-1), wherein it has been specifically provided that the daily wage workers of work charge categories having more than 40% disability and who have completed eight years of continuous service with 240 days in each calendar year as on 31.3.1998, shall be regularized with effect from 1.4.1998. Though, in the case at hand, services of the petitioner were subsequently regularized vide communication dated 11.10.2007 in terms of Policy framed by the Government on 6.5.2000, but subsequently, Department, having taken note of the judgment rendered by Hon'ble Apex Court in Mool Raj Upadhyay's case, regularized services of the petitioner retrospectively on completion of ten years of service as Chowkidar with effect from 1.1.2003 vide communication dated 10.3.2008 (Annexure R-4). After having accepted aforesaid order of regularisation with effect from 1.1.2003, petitioner also received Rs.1,62,532/- on account of arrears as such, he cannot be allowed to claim at this stage that the Department has fallen in grave error by not regularizing his services with effect from 1.4.1998 in terms of instructions dated 22.5.1999 (Annexure P-1), which are otherwise not applicable in the case of the petitioner, as discussed herein above. 7. Reply filed by the respondents reveals that in January, 2007, when services of the petitioner were regularized against vacant post in the Department, he produced medical fitness certificate dated 18.1.2007 duly issued by Sr. Medical Officer, Chamba, counter signed by Medial Superintendent, Regional Hospital, Chamba, perusal whereof reveals that at that time, petitioner was not having any disease or infirmity. Though, in the case at hand, petitioner has placed physical handicap certificate (Annexure P-3) suggestive of the fact that he has 100% permanent disability on account of amputation of left forearm but, such certificate was never produced by him before the respondents at the time of his regularisation in the year 2007. 8. In the case at hand, petitioner who was initially appointed in October, 1992 was otherwise to be regularized after completion of ten years of services in terms of policy of Government dated 6.5.2000. Though, in the case at hand, Man days chart placed on record by the respondents reveals that the petitioner had worked for 92 days in 1992, but even then his services were regularized with effect from 1.1.2003 in March, 2008, qua which he has already received all the arrears on account of consequential benefits. 9. Since, for the reasons stated herein above, petitioner could not be offered appointment after having completed 8 years of service in terms of communication dated 22.5.1999 (Annexure P-1), respondents rightly regularized services of the petitioner with effect from 1.1.2003 by extending benefit of judgment rendered by Hon'ble Apex Court in Mool Raj Upadhyay's case. 9. Since, for the reasons stated herein above, petitioner could not be offered appointment after having completed 8 years of service in terms of communication dated 22.5.1999 (Annexure P-1), respondents rightly regularized services of the petitioner with effect from 1.1.2003 by extending benefit of judgment rendered by Hon'ble Apex Court in Mool Raj Upadhyay's case. Moreover this Court finds that services of the petitioner were regularized with effect from 1.1.2003 in March, 2008, but petition at hand seeking therein regularisation with effect from 2001, came to be filed in the year 2012 i.e. after an inordinate delay of four years, as such, otherwise also, petition is hit by delay and laches. 10. Their Lordships of the Hon'ble Supreme Court in Oriental Aroma Chemical Industries Ltd. V. Gujarat Industrial Development Corporation and another, (2010) 5 SCC 459 have held that the liberal approach should be adopted in condoning the delay of short duration and stricter approach in cases of inordinate delay. Their Lordships have held as under: "14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. 29. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate Collector, Land Acquisition, Anantnag v. Mst. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCC 107 , N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106 . In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay G. Ramegowda v. Spl. Land Acquisition Officer, (1988) 2 SCC 142 , State of Haryana v. Chandra Mani, (1996) 3 SCC 132 , State of U.P. v. Harish Chandra, (1996) 9 SCC 309 , State of Bihar v. Ratan Lal Sahu, (1996) 10 SCC 635 , State of Nagaland v. Lipok Ao, (2005) 3 SCC 752 and State (NCT of Delhi) v. Ahmed Jaan, (2008) 14 SCC 582 ." 11. Their Lordships of the Hon'ble Supreme Court in Lanka Venkateshwarlu Vs. State of Andhra Pradesh and others, (2011) 4 SCC 363 have held that liberal approach in considering sufficiency of cause for delay should not override substantial law of limitation, especially when court finds no justification for delay. Their Lordships have held as under: "19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition, Anantnag & Ors. Vs. Katiji & Ors. (1987) 2 SCC 107 . 29. This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition, Anantnag & Ors. Vs. Katiji & Ors. (1987) 2 SCC 107 . 29. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (supra), as follows:- "25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation." "26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly." 26. Having recorded the aforesaid conclusions, the High Court proceeded to condone the delay. In our opinion, such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay. 27. This is especially so in view of the remarks made by the High Court about the delay being caused by the inefficiency and ineptitude of the government pleaders. 28. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. 27. This is especially so in view of the remarks made by the High Court about the delay being caused by the inefficiency and ineptitude of the government pleaders. 28. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. 29. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers." 12. In view of the detailed discussion and analysis made herein above, present petition is dismissed being devoid of merit, alongwith all pending applications.