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2020 DIGILAW 665 (HP)

Daulat Ram v. State of Himachal Pradesh

2020-09-30

VIVEK SINGH THAKUR

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JUDGMENT Vivek Singh Thakur, J. - Undisputed facts in present case are that petitioner was engaged in Agricultural Department in March, 1987, as a Part Time Sweeper and continued working as such up to June, 2009, whereafter his services were converted into daily paid labourer w.e.f. 15.6.2009 with prospective effect. 2. It is also admitted fact that respondents-State had issued instructions dated 27.2.2004, which were applicable to the Agricultural Department, whereby it was circulated that it was decided by the Government that Part Time Class-IV employees who had completed continuous 10 years service on 31.12.2003 in all Departments, except Education and Ayurveda Departments, would be made daily wager subject to observance of following terms and conditions:- "1. Part-Time Class-IV employees who have completed Ten years of continuous service as on 31.12.2003 will be made daily wager, posts vacated by such part-time employees shall stand abolished. 2. The orders to this effect will be issued at the level of Head of Departments after verifying the facts. 3. The conversion of daily wager status will be with prospective effect. 4. The autonomous Boards and Corporations including the Universities are not required to follow these orders mutatismutandis but should decide the same depending on their own financial position. 5. After converting the Part-Time employees as daily wager the information should come to the Finance Department for effective monitoring to ensure that only the sanctioned posts have been converted." 3. Petitioner is claiming his conversion as daily wager w.e.f. 27.2.2004 i.e. the date of circulation of decision of Government with regard to conversion of Part Time employees, referred supra, whereby Part Time Class-IV employees, who had completed 10 years continuous service as on 31.12.2003 were directed to be made daily wager with prospective effect and, therefore, he has claimed that instead of 15.6.2009, date of his conversion as daily wager should have been 27.2.2004 with all consequential benefits. 4. In response to the petition, it is claimed by the respondent-State that conversion of petitioner as daily wager w.e.f. 15.6.2009 with prospective effect has been done in view of Government letter dated 27.2.2004 (Annexure P-1). 5. Plain reading of instructions dated 27.2.2004 makes it clear that Part Time Class-IV employees who had completed continuous 10 years service on 31.12.2003 were to be made daily wager with prospective effect. 5. Plain reading of instructions dated 27.2.2004 makes it clear that Part Time Class-IV employees who had completed continuous 10 years service on 31.12.2003 were to be made daily wager with prospective effect. Petitioner had completed his 10 years service aon Part time basis in March, 1997, therefore, he was one of the eligible Part Time Class-IV employees, who have completed their 10 years of continuous service, as on 31.12.2003 and, therefore, he was entitled for conversion of Part Time service into daily wager immediately after issuance of aforesaid circular dated 27.2.2004, as he had already completed 17 years of continuous service as Part Time Class-IV employee as on 31.12.2003. 5. Learned Deputy Advocate General, submits that in view of judgment rendered by the Apex Court in Jai Dev Gupta Vs. State of Himachal Pradesh, (1998) AIR SC 2819 , benefits should be restricted within three years before filing the petition. The judgment rendered in Jai Dev Gupta is a judgment in personam, but not in rem and further that petitioner was Part Time employee and thereafter he had served as daily wager and during that period sword of retrenchment/ disengagement was always hanging on his neck. Considering his status in the service and in the society and also in view of judgment dated 17.9.2020 passed by a co-ordinate Bench of this Court in CWPOA No. 5637 of 2019, titled Balak Ram Vs. Secretary (Forests) to the Government of Himachal Pradesh and others, I don't consider it appropriate to impose such condition in present case. Otherwise also petitioner should not suffer for omission on the part of respondent, particularly when other similarly situated persons were granted benefit from 2004 and petitioner was left for no reason. Therefore, request of learned Deputy Advocate General, is rejected out-rightly. 6. Claim of the respondents that they have converted the petitioner w.e.f. 15.6.2009 with prospective effect in consonance with letter dated 27.2.2004 is not substantiated from record, as evident from the unambiguous language of circular/letter dated 27.2.2004 (Annexure P-1), the employee with 10 years continuous part time service as on 31.12.2003 was to be converted as a daily wager. Therefore, there was no legal impediment for the respondents to not to convert the petitioner as daily wager immediately after circulation of aforesaid letter. Therefore, there was no legal impediment for the respondents to not to convert the petitioner as daily wager immediately after circulation of aforesaid letter. There is no reason to justify the action of the Department to convert the petitioner into daily wager w.e.f. 15.6.2009 instead of 27.2.2004. 7. In view of above observation claim of the petitioner is found to be justified and petition is allowed and respondents-Department is directed to convert the petitioner as daily wager w.e.f. 27.2.2004 with all consequential benefits, like arrears of wages and other benefits arising out of length of his daily wage service, including regularization etc. on or before 30th November, 2020. The petition stands disposed of in aforesaid terms.