1. Petitioner has approached this Court seeking following relief:-
"(a) That order of rejection vide Annexure A/6 be set aside and it be declared that the applicant had completed 240 days in calender year 1994;
(b) That the respondents be directed to grant work charge status to the applicant immediately on completion of eight (8) years' daily waged period on 01.01.2001.
(c) That the impugned order of retirement vide Annexure- A/3 dated 03.10.2009 be set aside and the respondents be directed to consider the applicant to be retired at the age of 60 years on notional basis and the benefits of two years' service w.e.f. 01-11-2009 to 31-10-2011 be given to him and the applicant be considered to be retired on 21-10-2011 at the age of 60 years and a fresh order of retirement w.e.f. 31-10-2011 be issued to the applicant.
(d) That the respondents be directed to consider the applicant a deemed employee in actual service of the respondents w.e.f. 01-11-2009 till 31-10-2011.
(e) That the respondents be directed to grant pension to the applicant as per CCS (Pension) Rules 1972 along with the arrears of payment, gratuity, seniority and pension as per prevalent law and policy w.e.f. 01-11-2011 on actual basis."
2. Petition was filed in the year 2019 as OA (M) No. 179 of 2019 before the Erstwhile H.P. State Administrative Tribunal and on abolition of Erstwhile Tribunal, it has been transferred to this Court and has been registered as CWPOA No. 7482 of 2020.
3. Despite granting numerous opportunities, reply has not been filed and ultimately on 2.9.2024 the right to file reply was closed.
4. Learned Advocate General, on the basis of documents supplied by the Department, has submitted that Mandays Chart, placed on record with petition, as Annexure A, is correct as it is the same as the documents supplied by the Executive Engineer, PWD, Dharampur Division, District Mandi to the Office of Advocate General. The documents were supplied to the Office of Advocate General along with proposed reply, which was never filed.
5. Perusal of Mandays Chart indicates that petitioner was engaged in the year 1992 but in the year 1992 he worked only for 140 days as he was engaged in the month of July, 1992. Since 1993 onwards, petitioner had worked for more than 240 days in each calendar year till 2006. Petitioner has been regularized w.e.f.12th January, 2007 vide Office Order dated 12.01.2007, Annexure A-2
6. It has been submitted by learned Advocate General that claim of petitioner for his regularization from 1.1.2001 is not maintainable because petitioner was covered under the Policy formulated by the State and approved by the Supreme Court in Mool Raj Upadhayaya vs. State of HP and others reported in 1994 Supp (2) SCC 316, which provides conferment of work charge status/regularization after completion of 10 years regular service with 240 days in each calendar year and therefore, petitioner would be entitled for work charge status at the most from 1.1.2003 and not prior to that.
7. Learned counsel for petitioner has submitted that prior to completion of 10 years, the subsequent Policy of the State was formulated by the State which was notified in 1998, 1999, 2000 and 2001 whereby benefit of work charge status/regularization was decided to be conferred on daily wagers after completion of 8 years and for formulation of the Policy more beneficial to the petitioner, he is entitled for benefit of subsequent Policy.
8. The prayer has been opposed by learned Advocate General on the ground that once the petitioner is covered under the Policy formulated in case of Mool Raj Upadhayay's case petitioner is not entitled for benefit of subsequent Policy and further that in the subsequent Policy, there is actual cut off date whereafter, persons completing 8 years of daily waged service are to be conferred for work charge status/benefit of regularization subject to availability of vacancy.
9. For the purpose of adjudication of present case, Policy formulated by the respondents-State and approved by the Supreme Court of India in Mool Raj Upadhyaya v. State of H.P. & others, 1994 Supp (2) SCC 316 further explained in Gauri Dutt & others v. State of H.P., Latest HLJ 2008 (HP) 366, and Regularization Policy framed and circulated by the respondents-State in the year 2000, shall be relevant.
10. Policy approved by the Supreme Court in Mool Raj Upadhyaya's case reads as under:
"4. Taking into consideration the facts and circumstances of the case, we modify the said scheme by substituting paragraphs 1 to 4 of the same by the following paragraphs:
"(1) Daily-wage/muster-roll workers, whether skilled or unskilled, who have completed 10 years or more of continuous service with a minimum of 240 days in a calendar year on 31-12-1993, shall be appointed as work- charged employees with effect from 1-1-1994 and shall be put in the time- scale of pay applicable to the corresponding lowest grade in the government;
(2) daily-wage/muster-roll workers, whether skilled or unskilled, who have not completed 10 years of continuous service with a minimum of 240 days in a calendar year on 31-12-1993, shall be appointed as work-charged employees with effect from the date they complete the said period of 10 years of service and on such appointment they shall be put in the time-scale of pay applicable to the lowest grade in the government;
(3) daily-wage/muster-roll workers, whether skilled or unskilled who have not completed 10 years of service with a minimum of 240 days in a calendar year on 31-12-1993, shall be paid daily wages at the rates prescribed by the government of Himachal Pradesh from time to time for daily-wage employees falling in Class III and Class IV till they are appointed as work-charged employees in accordance with paragraph 2;
(4) daily-wage/muster-roll workers shall be regularised in a phased manner on the basis of seniority-cum-suitability including physical fitness. On regularisation they shall be put in the minimum of the time-scale payable to the corresponding lowest grade applicable to the government and would be entitled to all other benefits available to regular government servants of the corresponding grade."
11. Relevant operative portion of orders dated 3.4.2000 and 6.5.2000, issued by Government of Himachal Pradesh, notifying and circulating terms for regularization of daily-wage workers in the year 2000, on completion of eight years continuous service, are as under:
Order dated 3.4.2000:
"...................
In partial modification of this Department letter of even number dated 8 th July, 1999 on the above subject, I am directed to say that the Government has now decided that the Daily Waged/Contingent Paid workers in all Departments including Public Works and Irrigation and Public Health Department (other than work-charged categories)/Boards/Corporations/Universities, etc. who have completed 8 years of continuous service (with a minimum of 240 days in a calendar year) as on 31-03-2000 will be eligible for regularization. It has further been decided that completion of required years of service makes such daily wager/contingent paid worker eligible for consideration to be regularized and regularization in all cases will be from prospective effect i.e. from the date the order of regularization is issued after completion of codal formalities.
2. In view of the above decision and in order to avoid any litigation and also any hardship to daily wagers departments shall do the regularization based on seniority and they will ensure that senior persons are regularized first rather than regularizing junior persons first.
3. Other terms and conditions like fulfillment of essential qualification as prescribed in R&P Rules, etc. etc. as laid down in this department letter dated 8 th July, 1999, as referred to above, shall continue to be operative.
4. These instructions may kindly be brought to the notice of all concerned for strict compliance.
5. These instructions have been issued with the prior approval of the Finance Department obtained vide their Dy. No. 852 dated 23-03-2000."
Order dated 6.5.2000:
".................
2. During the process of regularization of daily wagers,various issues and problems relating to these workers concerning their regularization have been brought to the notice of the Government. The Government in order to avoid such confusion or problems has decided to streamline the existing procedure/ instructions in order to bring uniformity of procedure in various departments of the Government. It has, therefore, been decided that henceforth:
(i) Daily Waged/Contingent Paid Workers who have completed required years of continuous service (with a minimum of 240 days in a calendar year except where specified otherwise for the tribal areas) which as per latest instructions issued vide this Department letter of even number dated 3-4- 2000 is 8 years as on 31-03-2000 shall be eligible for regularization. However, in Departments/Corporations/Boards, where the system of the work charge categories also exists, eligible daily wagers will be considered first for bringing them on the work charge category instead of regularization. Such eligible daily waged workers/contingent paid workers will be considered for regularization against vacant posts or by creation of fresh posts and in both these events prior approval of Finance Department will be required as per their letter No.Fin-1-C(7)-1/99 dated 24.12.1999. The terms and conditions for such regularization shall be governed as per Annexure -'A'."
12. A Division Bench of this High Court in CWP No. 2735 of 2010, titled as Rakesh Kumar v. State of H.P. & others, decided on 28.7.2010, has held that till the new scheme, if introduced, comes into being, the old scheme shall be in force, and employees, till introduction of new scheme, shall be entitled for benefits of previous scheme. In other words, on introduction of new scheme, employees shall be entitled for benefits of new scheme, particularly when applicability of subsequent scheme is more beneficial to the employees than the old scheme. The employees, who are governed by old scheme, but are also governed under new scheme devolving benefits better than earlier scheme, are definitely entitled for benefits of the latest scheme.
13. An employee, eligible for getting benefit under two Policies, shall be entitled for benefit of the Policy which is more beneficial to him/her. On notification/circulation/adoption of new Policy, an employee is to be governed by new Policy. Undoubtedly, benefits extended to an employee by the judgment passed by the Court, in present case by the Supreme Court in Mool Raj Upadhyaya's case, cannot be taken away by any decision/policy of the Government, but, at the same time, an employee cannot be excluded from extension of benefits of subsequent policy/decision of the Government which is more beneficial than the benefits available to the employee for judgment of the Court. An employee cannot be relegated to disadvantageous position under the garb of old policy or judgment of the Court by An employee, eligible for getting benefit under two Policies, shall be entitled for benefit of the Policy which is more beneficial to him/her. On notification/circulation/adoption of new Policy, an employee is to be governed by new Policy. Undoubtedly, benefits extended to an employee by the judgment passed by the Court, in present case by the Supreme Court in Mool Raj Upadhyaya's case, cannot be taken away by any decision/policy of the Government, but, at the same time, an employee cannot be excluded from extension of benefits of subsequent policy/decision of the Government which is more beneficial than the benefits available to the employee for judgment of the Court. An employee cannot be relegated to disadvantageous position under the garb of old policy or judgment of the Court by debarring him from benefits of more beneficial policy framed by the State Government subsequently.
14. One example, may be elaborating the aforesaid discussion more clearly. Benefits of Mool Raj Upadhyaya's case are available to an employee appointed before 1.1.1994 on daily-wage basis, who has completed service of minimum 240 days in a calendar year. An employee appointed on or after 1.1.1994 shall be governed by subsequent policy. Say an employee is appointed on daily-wage basis on 1.1.1993 and another on 1.1.1994. First employee completes ten years of service with 240 days in each calendar year as on 31.12.2003 and he, as per Mool Raj Upadhyaya's policy, will be, thus, entitled for work-charged status/regularization on completion of ten years service, w.e.f. 1.1.2004. The other employee appointed on 1.1.1994 shall not be entitled for benefit of Mool Raj Upadhyaya's case but on introduction/framing of subsequent policy in the year 2000, he would be entitled under subsequent Policy for work-charge status/regularization on completion of eight years, with continuous service of minimum 240 days in each calendar year, on 1.1.2002. In case, benefit of subsequent policy is not extended to the employees entitled for benefit of Mool Raj Upadhyaya's case policy, then it shall cause miscarriage of justice, as senior daily-wage employees would be entitled for work-charge status or regularization at a later point of time than his juniors. Therefore, irrespective of the fact that employee is governed under Mool Raj Upadhyaya's case, such employee shall be entitled for benefits of subsequent policy, if it is not taking away the benefits of earlier policy and is more beneficial to the concerned employee.
15. Therefore, where an employee is covered under two schemes of the Government, employee shall be entitled for a claim more beneficial to him. In the present case, before acquiring 10 years of service, as required under scheme formulated in Mool Raj Upadhayaya's case, petitioner had completed 8 years service in the year 2000 and as per Policy of the State, subsequent to the Policy of Mool Raj Upadhayaya's case, the State had provided conferment of work charge status, on completion of 8 years service, vide Regularization Policy in the year 2000, terms whereof have been circulated in two orders 03.04.2000 and 06.05.2000 quoted supra.
16. Similar view has been taken in judgment dated 13.05.2021 in CWPOA No. 1633 of 2019 titled Nandini Thakur vs State of HP and in judgment dated 09.11.2023 in CWPOA No. 6468 of 2020 titled Uggam Ram vs State of HP.
17. In Gauri Dutt's case, it has been held that the scheme formulated in Mool Raj Upadhaya's case is applicable todaily-waged employees working in any department of the state of Himachal Pradesh and the employees, who are not governed by the directions given in Mool Raj Upadhaya's case, shall be governed by a Scheme framed by the State in this regard and it has also been observed that granting of work-charged status would mean that an employee would get regular scale of pay.
18. Term "work-charge", in Himachal Pradesh, is used in different context. A person, working on daily-waged basis, before his regularization, is granted work-charged status on completion of specified number of years as daily-wager and effect thereof is that thereafter non-completion of 240 days in a calendar year would not result into his ouster from the service or debar him from getting the benefit of length of service for that particular year. Normally, work- charged status is conferred upon a daily-wager, on accrual of his right for regularization, on completion of prescribed period of service, but for non-regularization is for want of regular vacancy in the department or for any other just and valid reason. Therefore, it is a period interregnum daily-wage service and regularization, which is altogether different form the temporary establishment of work-charge, as discussed in the judgment of the Apex Court relied upon by the State and, for practice in Himachal Pradesh, work-charged status is not conferred upon the person employed in a project but upon such daily- wage workers, who are to be continued after particular length of service for availability of work but without regularization for want of creation of post by Government for his regularization/regular appointment. Therefore, work is always available in such cases and the charge of a daily-wager is created thereon to avoid his disengagement for reasons upon which a daily-wager can be dispensed with from service.
19. On conferment of work-charged status, sword of disengagement, hanging on the neck of workmen, is removed on completion of specified period of daily-waged service, as thereafter instead of daily-wage, the employee would get regular pay-scale and would be entitled to other consequential benefits for which a daily- waged employee is not entitled.
20. Learned Advocate General has also stated that for delay and latches on the part of petitioner, petitioner is not entitled for relief claimed or at least monetary relief extended to him deserves to be restricted for 3 years from the date of filing of petition.
21. To substantiate the plea regarding the restriction of arrears of monetary benefits for 3 years from the date of filing of petition, learned Advocate General has referred the pronouncement of the Supreme Court passed in Jai Dev Gupta vs. State of Himachal Pradesh, reported in (1997)11 SCC 13.
22. To rebut the plea raised on behalf of respondent- Department regarding delay and laches, learned counsel for the petitioner has referred pronouncements of this High Court in CWPOA No. 5748 of 2019, titled Man Singh Vs. The State of H.P. and others, CWPOA No. 5554 of 2019, titled Daulat Ram vs. State of HP and others, CWPOA No. 5660 of 2019, titled Ghanshyam Thakur Vs. State of Himachal Pradesh and others, and CWPOA No. 46 of 2020, titled as Yashwant Singh and others Vs. State of Himachal Pradesh and others. In these cases similar plea of the State was not accepted by the Court.
23. In the light of above referred pronouncements plea of respondents-Department to oust the petitioner on the ground of delay and laches, in our opinion, in present case is not sustainable. Petitioner is a Beldar and belongs to a lowest rank in his class. As per Policy, a duty was cast on the respondents to consider the cases of eligible workmen for conferment of work charge status on completion of required number of years as per Policy. Therefore, it does not lie in the mouth of respondents that petition is liable to be dismissed or benefits are to be restricted for delay and laches. Petitioner is eligible for benefits under the Policy and in consonance with pronouncements of the Courts.
24. The issue in this regard also stands settled in the judgment of Rakesh Kumar's case, wherein it has been observed as under:-
"6. The simple question is whether the delay defeats justice In analyzing the above issue, it has to be borne in mind that the petitioners are only class-IV workers (Beldars). The schemes announced by the Government clearly provided that the department concerned should consider the workmen concerned for bringing them on the work-charged category. So, there is an obligation cast on the department to consider the cases of the daily waged workmen for conferment of the workcharged status, being on a work-charged establishment, on completion of the required number of years in terms of the policy. At the best, the petitioners can only be denied the interest on the eligible benefits and not the benefits as such, which accrued on them as per the policy and under which policy, the department was found to confer the status, subject to the workmen satisfying the required conditions."
25. It was duty of the respondents-State to confer Work Charge status upon the petitioner and for lapse on the part of respondents, petitioner, who belongs to the lowest rank of hierarchy in the service cannot be made to suffer, and in numerous similar cases it has also been held that for dereliction of duty on the part of concerned officer, petitioner cannot be made to suffer and, thus, prayer of learned Additional Advocate General is rejected.
26. For delayed extension of benefits, arising out of the Policy of the State, the petitioner cannot be deprived from consequential benefits from the due date, as implementation of Policy is the duty of the State through its Officers, being custodian of rights of citizens.
27. In CWPOA No. 5286 of 2020, titled as Mohinder Singh vs. State of H.P. & others, this High Court has observed as under:-
"2. The decision to grant benefit to individuals like the petitioner in terms of judgment passed by this Court, in CWP No. 2735 of 2010 titled Rakesh Kumar Vs. State of H.P. alongwith connected matters decided on 28.07.2010, was taken vide letter dated 08.06.2015 i.e. Annexure A5. Subsequently, the respondents implemented the decision in Rakesh Kumar's case and as a consequence thereof, the date of regularization of the petitioner was changed to 01.01.2005, as is evident from Annexure R3 dated 01.08.2015.
.........
7. From a perusal of records, it is clearly evident that sole ground for non grant of benefits to the petitioner is based on the reason that the petitioner had not filed a case seeking the benefits of Rakesh Kumar's case stated supra. At the outset, it is made clear that no other ground is available to the State to defend its action as it is a well settled principle of law that reasons are not like wine which mature over a period of time. As has been held in AIR 1978, Supreme Court, 851 titled Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others. Relevant extract is reproduced herein below:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by addition grounds later brought out. We may here draw attention to the observations of Bose J. In Gordhandas Bhanji (AIR 1952 SC 16) (at. p.18):
"Public orders publicly made, in exercise of a statutory authority can not be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older."
8. A perusal of Rakesh Kumar's case stated supra reflects that the same is a decision, which touches upon a policy matter, scheme of regularization. Rakesh Kumar's case is a judgment in rem with intention to give benefits to all similarly situated persons, whether they approached the Court or not. The same casts an obligation upon the authorities to themselves extend the benefits thereof to all similarly situated persons. A perusal of Annexure A5, letter dated 08.06.2015, reflects the respondents authorities of their own had also decided to extend the benefits of Rakesh Kumar's case to all.
9. In Rakesh Kumar's case, there is no direction of the Court to restrict the consequential benefits, including monetary benefits, for three years prior to filing of the petition. It has been observed in Rakesh Kumar's case that for delay in approaching the Court, the petitioner, at the most, can be denied interest on delayed payment, but shall not be denied arrears of wages and other financial benefits for which he is entitled, like others, from the date of regularization/ conferment of Work Charge status. Therefore, restriction of payment of consequential benefits for only three years prior to filing of the Writ Petition is not sustainable.
10. Even otherwise, when a particular set of employees is given relief by the Court, other identical situated persons need to be treated alike by extending that benefit, and not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India.
11. Plea of the respondents with respect to delay and laches is also not legally sustainable. The distinction between operation of delay and laches to judgments delivered in rem and in personam is lucidly captured in State of UP Vs. Arvind Kumar Shrivastva 2015 (1) SCC Page 347 followed in 2021 Vol. 13 SCC Page 225. Relevant extract wherein is being reproduced hereinbelow:-
"22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
However, this principle is subject to well recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fencesitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India, (1997) 6 SCC 721). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
(Emphasis supplied)
12. Present case is covered by Paras 22.1 and 22.3 of Arvind Kumar Shrivastva's case supra and, therefore, claim of the petitioner does not suffer either from delay and laches or acquiescence.
13. Where the Court has not restricted the benefits for specific period, any guidelines, instructions, circular etc issued by Department or executive decision of any other authority cannot restrict such benefit as it would amount to modification of order of Court by an authority having no jurisdiction to do so"
28. Similar view has been taken by this High Court in CWPOA NO.5741 of 2020, titled as Dhanveer Singh vs. State of H.P. & others, decided on 29.08.2023.
29. In CWPOA No. 2343 of 2020, titled as Vikram Singh vs. Himachal Road Transport Corporation, and other connected matters, decided on 09.11.2023, this High Court has observed as under:-
"23. In so far as the plea of limitation/delay and laches is concerned, the same is also liable to be rejected. As has already been stated supra, the plea of petitioners is based on discrimination which is violative of Article 14 of the Constitution of India. In this regard, it would be appropriate to refer to the decision of the Hon'ble Supreme Court in K. Thimmappa and others vs. Chairman, Central Board of Directors, State Bank of India and another, 2001 (2) SCC 259, wherein, it has been categorically laid down that if there is an infraction of Article 14 of the Constitution of India then petition cannot be dismissed on the ground of delay and laches.
... ... ...
25. For delayed regularization, petitioners cannot be blamed as the same was to be done by the respondent- Corporation. In this regard, reliance is placed on the decision of a Co-ordinate Bench of this Court in CWP No. 2735 of 2010, titled as Rakesh Kumar vs. State of HP and others alongwith connected matters decided on 28.07.2010."
30. It is also apt to record that Special Leave to Appeal (C) No. 5806 of 2024, titled Himachal Road Transport Corporation & Others vs. Vikram Singh & others, laying challenge to the decision in Vikram Singh's case (supra), was dismissed by the Supreme Court of India on 15.03.2024.
31. Affirming State of U.P. vs. Arvind Kumar Srivastava,(2015) 1 SCC 347, Supreme Court of India in Chairman/Managing Director, Uttar Pradesh Power Corporation Limited and others vs. Ram Gopal, (2021) 13 SCC 225, has observed as under:-
"13. We may hasten to add that these principles may not, however, apply to judgments which are delivered in rem. The State and its instrumentalities are expected In such category of cases to themselves extend the benefit of a judicial pronouncement to all similarly placed employees without forcing each person to individually knock the doors of courts. This distinction between operation of delay and laches to judgments delivered in rem and in personam, is lucidly captured in State of U.P. vs. Arvind Kumar Srivastava. ... ... ..."
32. In the facts and attending circumstances of present case, in terms of judgment reported in 1996 (5) SCC 54, titled as Shangrila Food Products Limited and another vs. Life Insurance Corporation of India and another, in order to do complete and substantial justice inter se the parties while exercising writ jurisdiction, the benefit of Rakesh Kumar's stated supra needs to be extended to the petitioner for the reasons stated herein below:-
"11. It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief........ .... "
33. Present case is squarely covered by Paras-22.1 and 22.3 of the judgment in Arvind Kumar Srivastava's case, because judgment in Rakesh Kumar's case was judgment in rem with intention to give benefit to all similarly situated persons whether they approached the Court or not. In such a situation obligation is cast upon the authorities to extend the benefit to all similarly situated persons. Therefore, in given facts and circumstances, petitioner would not be treated fence-sitter and laches and delay or acquiescence would not be a valid ground to dismiss his claim.
34. Similar benefits have been extended to similarly situated employees. Thus, petitioner cannot be discriminated on the ground of delay and laches, particularly when it was duty of respondents to extend such benefits to the petitioner. State should act as a model employer and should extend benefits of its Policies to all eligible persons, in consonance with pronouncements of the Court(s) which have attained finality, without any discrimination particularly when identical objections have already been overruled by the Courts and such pronouncements have attained finality. Thus claim of the petitioner cannot be refuted only on the ground of delay and laches and for joining on regularization without protest.
35. Though, law of Limitation is not applicable, however principle of delay and laches is attracted for adjudication of a petition under Article 226 of the Constitution of India. The petitioner may be ousted for delay and laches in appropriate case. For otherwise strong merit in the case, in order to prevent exploitation of victims for omission and commission on the part of mighty State, taking into consideration the circumstances of the petition and incapability of petitioner to approach the Court invariably, delay and laches may be ignored for adjudication of issue raised in the Writ Petition on merits. Therefore, we are of the considered view that petitioner, in present petition, is not liable to be ousted on the ground of delay and laches.
36. Regarding regularization of the petitioner from prospective dates of passing of order after issuance of fresh Policy of the Government and withholding regularization/ grant of work-charged status to the petitioner for want of time gap between two Policies, learned counsel for the petitioner has referred pronouncement of this Court in CWP No. 2415 of 2012, titled as Mathu Ram Vs. Municipal Corporation and others, decided on 31.7.2014.
37. Judgment of Single Bench passed in Mathu Ram's case has been affirmed by a Division Bench in LPA No. 44 of 2015, titled as Municipal Corporation, Shimla & others vs. Mathu Ram, decided on 13.10.2015.
38. Conclusion of verdict of Mathu Ram's and Rakesh Kumar's cases, with respect to gap between issuance/formulation of two policies, is that previous policy/scheme shall remain in force till issuance/ formulation/introduction of subsequent policy/scheme, but cut of date for completion of requisite number of years shall be redundant in subsequent years and benefit of policy/scheme shall be extended to employees immediately on completion of continuous service for requisite number of years with minimum prescribed number of working days in each calendar year. In case regularization is not possible for want of availability of vacancy, the work-charge status has to be conferred upon daily wage employee on completion of requisite number of years prescribed in the Policy/Scheme.
39. Despite having bestowed status of custodian of rights of its citizens, State or its functionaries invariably are adopting exploitative method in the field of public employment to avoid its liabilities, depriving the persons employed from their just claims and benefits by making initial appointments on temporary basis, i.e. contract, adhoc, tenure, daily-wage etc., in order to shirk from its responsibility and delay the conferment of work-charge status or extension of benefits of regularization Policy of the State by not notifying Policies in this regard in future. Present case is also an example of such practice.
40. The Supreme Court in Special Leave to Appeal (c) No(s).3398/2024, titled as State of Rajasthan and ors. V. Gopal Bijhawat, decided on 16.2.2024, had imposed costs on the State for having harassed a poor litigant for having engaged him in protracted litigation denying him fruits of his litigation.
41. In Special Leave Petition (Civil) Diary No(s).30326 of 2023, titled as The Special Land Acquisition Officer v. Vithal Rao, decided on 6.9.2023, the Supreme Court had imposed costs and had categorically observed that just because Officers of the State do not have to pay for litigation from their pocket does not mean that they can harass individuals by forcing them into uncalled for litigation.
42. In CWP No. 1314 of 2016, titled as Nigma Devi v. State of Himachal Pradesh and others, decided on 30.8.2022, this High Court had directed the State to pay compensation of Rs. 20,00,000/- to the petitioner therein and had ordered that the said amount shall be recovered from the erring Officers/officials on pro-rata basis.
43. Judgments rendered by this Division Bench in CWPOA No. 6151 of 2020 titled Rashid Mohammed vs. State of HP decided on 13th June, 2024 and CWPOA No. 7497 of 2020 titled Pritam Singh vs. State of HP are also relevant to substantiate the claim of the petitioner.
44. In view of pronouncements of the Supreme Court in Arvind Kumar Srivastava's case as well as this High Court in CWPOA No. 7502 of 2020, titled as Nagender vs State of HP decided on 14.08.2024 and CWPOA No. 7497 of 2020 titled Pritam Singh vs. State of HP decided on 29.07.2024, we are of the considered view that in present matter, petitioner is entitled for all consequential benefits without restriction of 3 years. Therefore, prayer for restricting the arrears is rejected. However, for delay no interest is being granted on arrears at this stage. But for further delay in extending the benefit to the petitioner within time stipulated hereinafter, petitioner shall be entitled for interest also.
45. In view of aforesaid discussion, respondents are directed to pass an appropriate order on or before 15th November, 2024 to confer work charge status/regularization upon the petitioner from 1.1.2001, on which date he had completed 8 years of continuous service as daily wage worker with 240 days in each calendar year along with all consequential benefits including benefits of pension etc. Arrears of the consequential benefits be extended to the petitioner on or before 31st January, 2025, failing which petitioner shall also be entitled for interest thereon, at the rate of 5% per annum from the date of filing of the petition, till final payment and in that eventuality, interest after payment of the same to the petitioner, shall be recovered from erring official(s)/officer(s) responsible for causing delay and after receiving it shall be deposited in the Treasury, within four weeks thereafter.
46. Petition is allowed and disposed of in aforesaid terms along with pending miscellaneous application(s), if any.
