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Himachal Pradesh High Court · body

2022 DIGILAW 409 (HP)

Vikram Singh, S/o Shri Balbhader Singh v. State of H. P. Through Its Secretary, (Horticulture)

2022-07-22

SATYEN VAIDYA

body2022
ORDER : By way of instant petition, petitioner has prayed for the following substantive reliefs:- “a) That the respondents may kindly be directed to regularize the services of the applicant after completion of 6 or 8 years as per policy of the state or if no policy is there, then to direct the respondents to formulate a policy being a model state; so the constitutional mandates provided for the welfare state be fulfilled and justice be done. b) that the respondents may kindly be directed not to give breaks to the applicant and allow him to work throughout the year. c) That the respondents may kindly be directed to grant consequential benefits such as seniority, arrears etc. and the original application may kindly be allowed with cost.” 2. The petitioner had originally filed O.A. No. 477 of 2016 before the learned H.P. State Administrative Tribunal in the year 2016 and after the abolition of the Tribunal, the Original Application of the petitioner was transferred to this Court and the same was registered as CWPOA No. 6748 of 2019. 3. The case of petitioner is that he was engaged as daily wage labourer/Contract beldar in the year 2001 in Community Fruit Processing-cum-Training Centre, Nurpur, District Kangra, H.P. He has rendered continuous service with 240 days in each calendar year from the date of his engagement till the date of filing of the petition. The respondents had regular work in Community Fruit Processing-cum-Training Centre, Nurpur, District Kangra, H.P. and petitioner has been assigned multiple works from time to time viz preparation of pickles, jams, jelly etc, to impart training to local residents, to clean and maintain the premises, attend counter sales, gardening work and duty as watchman. The working hours have been from 9.00 a.m. to 5.00 p.m. 4. Petitioner has sought relief of regularization as per the regularization policy of the Government of Himachal Pradesh. Petitioner along with his co-workers Ms. Asha Devi had represented to respondent No.2 on 23.12.2015. The grievance of the petitioner has not been redressed till date. 5. Respondents have contested the claim of the petitioner on the ground that he was engaged on hourly basis w.e.f. 19.3.2001 and he had been paid for the work performed by him on hourly basis. Petitioner was not entitled to regularization, as his engagement was not on Muster Roll basis. 5. Respondents have contested the claim of the petitioner on the ground that he was engaged on hourly basis w.e.f. 19.3.2001 and he had been paid for the work performed by him on hourly basis. Petitioner was not entitled to regularization, as his engagement was not on Muster Roll basis. The regularization policy would not be applicable in the case of petitioner, who was engaged on hourly basis. It has also been submitted that the number of hours for which petitioner has worked were converted into number of days by the Incharge, Community Fruit Processing-cum-Training Centre, Nurpur, District Kangra, H.P. unauthorizedly and had thus issued mandays chart annexed by the petitioner as Annexure A-1. 6. I have heard Mr. Arun Kumar, learned counsel for the petitioner and Mr. P.K. Bhatti, learned Additional Advocate General for the respondents and have also gone through the record carefully. 7. The fact that the petitioner has been engaged since 2001 by the respondents at Community Fruit Processing-cum- Training Centre, Nurpur, District Kangra, H.P. has not been denied by respondents. There is no denial to the contents of mandays reflected in Annexure A-1. The only contention of respondents is that the petitioner was engaged on hourly basis and not on daily basis. This distinction is clearly superfluous. Respondents with their reply have annexed the documents, reflecting working hours of the petitioner. As per these documents, petitioner has been rendering service for seven hours every day and his employment was continuous. In these circumstances, the conversion of hours into days cannot be said to be unjustified or illegal. 8. The mandays chart Annexure A-1 annexed with the petition reveals that from 2006 onwards till 2015, petitioner had worked for more than 240 days in each calendar year. Petitioner has also placed reliance on a document annexed as Annexure ‘A’, issued by the Incharge, Community Fruit Processing-cum-Training Centre, Nurpur, District Kangra, H.P. according to which, the same position continued from 2016 till 2021. 9. The claim of petitioner for regularization under regularization policy of the State, in the given circumstances, cannot be termed as unjustified. A Coordinate Bench of this Court vide judgment dated 1.12.2021 has determined an identical issue in favour of the petitioner therein. In the said case also petitioner was similarly situated, as the petitioner in the instant case. 9. The claim of petitioner for regularization under regularization policy of the State, in the given circumstances, cannot be termed as unjustified. A Coordinate Bench of this Court vide judgment dated 1.12.2021 has determined an identical issue in favour of the petitioner therein. In the said case also petitioner was similarly situated, as the petitioner in the instant case. She was also employed by respondents in Community Fruit Processing-cum-Training Centre, Nurpur, District Kangra, H.P. since 12.3.2001. Petitioner therein had also rendered continuous service of 240 days in each calendar year since 2001. She had also joined the petitioner herein in representing their case jointly to respondent No.2 vide Annexure A-2. Document Annexure ‘A’ annexed by petitioner by way of CMP-T No. 640 of 2020 on record also reflects the status of Smt. Asha Devi who was petitioner in CWPOA No. 1833 of 2020. That being so, the case of petitioner herein and the petitioner in CWPOA No. 1833 of 2020 is similar in nature. 10. In CWPOA No. 1833, the respondents had raised same objections as raised in the present case. The Coordinate Bench after perusing the official records produced by the respondents held as under:- “4. In the aforesaid documents, which are part of the record of the Government, petitioner, Smt. Asha Devi has been shown to be working as daily wager w.e.f.12.3.2001 and she has been shown to have worked for more than 240 days in the years, 2001, 2002, 2003, 2004, 2005, 2006, 2007,2008 and 2009. Though, in the aforesaid document alteration with pen has been made to make it appear that this seniority list-cum-yearwise days of engagement of daily wagers also pertains to seasonal workers, but learned Additional Advocate General was unable to dispute that all the persons named in this list were engaged on daily wage basis and if it is not then how the name of petitioner Smt. Asha Devi came to be reflected in the afore list, if she was given appointment on hourly basis. Besides above, Page No.34 of the record, as detailed hereinabove, reveals that in the years 2001 to 2015 petitioner worked for more than 240 days in a calendar year. Besides above, Page No.34 of the record, as detailed hereinabove, reveals that in the years 2001 to 2015 petitioner worked for more than 240 days in a calendar year. In this document, it has been nowhere mentioned that petitioner herein was appointed on hourly basis and as such, there appears to be merit in the claim of the petitioner that she had been working regularly on daily wages since her initial appointment in the year, 2001. At this stage, learned Additional Advocate General made available some documents to demonstrate that petitioner herein had been working on hourly basis not on daily wage basis, however, having carefully perused the aforesaid documents, which otherwise appear to be a bill raised by Incharge of Fruit Processing-cum-Training Centre, Nurpur with regard to payment of the workers, reveals that petitioner as well as other similarly situate persons had been working for 7-8 hours every day, meaning thereby they like other daily wagers were also performing duties for the whole day and not on hourly basis. Needless to say, Government servant is obliged to work for 7 to 8 hours i.e.10 to 5 PM in the government offices of State of Himachal Pradesh. Though, having carefully scrutinized the entire record, as has been taken note hereinabove, this Court is fully convinced that petitioner had been rendering her services from the date of her initial appointment till date on daily wage basis, but still if aforesaid documents i.e. bills placed on record are taken into consideration even then petitioner cannot be said to be working on hourly basis, especially when respondents have not been able to refute/dispute that petitioner had been working for 7 to 8 hours per day. 5. Faced with the aforesaid situation, Mr. Sudhir Bhatnagar, learned Additional Advocate General argued that even as per policy of regularization petitioner is/was firstly required to be converted to daily wage basis from part time and thereafter she can claim benefit of regularization. 5. Faced with the aforesaid situation, Mr. Sudhir Bhatnagar, learned Additional Advocate General argued that even as per policy of regularization petitioner is/was firstly required to be converted to daily wage basis from part time and thereafter she can claim benefit of regularization. But this Court is not impressed with the aforesaid submission made on behalf of learned Additional Advocate General, since it stands duly established on record that from the date of her initial appointment petitioner has been working on daily wage basis, there is/was no requirement if any for respondents to first convert her services from part time to daily wage so as to make her entitled for claiming benefit of regularization in terms of policy of regularization framed by the Government of Himachal Pradesh from time to time. 6. Consequently, in view of the above, this Court finds merit in the present petition and accordingly same is allowed and respondents are directed to extend the benefit of regularization to the petitioner in terms of the regularization policy framed by the Government of Himachal Pradesh in the year, 2009, from the date she had completed 8 years daily wage service with 240 days in each calendar year. The consequential/ financial benefits shall however be restricted to three years prior to filing of the Original Application No. 374 of 2016” 11. Noticeably, the Coordinate Bench, while deciding CWPOA No. 1833 of 2020 had noticed in para-3 of judgment the details of petitioner therein and other similarly situated persons in respect of mandays of each of such incumbent. The name of present petitioner is also reflected therein at Sr. No. 4 and as per that record also, petitioner was shown to have completed 240 service in each calendar year w.e.f. 2006. 12. Thus, the case of petitioner herein is squarely covered by the judgment, passed by a Coordinate Bench in CWPOA No. 1833 of 2020, decided on 1.12.2021. The reasons detailed therein shall apply mutatis-mutandis to the present case. 13. Consequently, the petition deserves to be allowed. Respondents are directed to extend the benefit of regularization to the petitioner in terms of regularization policy framed by the State Government in the year 2009 from the date of petitioner had completed eight years of service with 240 days in each calendar year. 13. Consequently, the petition deserves to be allowed. Respondents are directed to extend the benefit of regularization to the petitioner in terms of regularization policy framed by the State Government in the year 2009 from the date of petitioner had completed eight years of service with 240 days in each calendar year. Consequential/financial benefits shall, however, be restricted to three years prior to the filing of the Original Application No. 477 of 2016. Pending applications, if any also stand disposed of.