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CASE NO.: Appeal (civil)  1037 of 2007

PETITIONER: STATE OF H.P. & ORS

RESPONDENT: GEHAR SINGH

DATE OF JUDGMENT: 27/02/2007

BENCH: Dr.AR. Lakshmanan & Altamas Kabir

JUDGMENT: J U D G M E N T (Arising out of SLP (c) No.5863/2006) WITH  CIVIL APPEALS NOS.1043,1042,1041,1040,1039 and 1038/07 (Arising out of SLP (c) Nos.3538, 3540, 3580, 3647, 3818 and 5766/2006)

ALTAMAS KABIR, J.

       Leave granted in all the Special Leave Petitions.         As the appellants in all these appeals are similarly  placed, all the appeals   will   stand disposed of by this  common judgment.         The appellants are employed on a daily wage basis in the  Irrigation and Public Health Wings of the Himachal Pradesh  Public Works Department.  They are classified as Class III and  Class IV employees who are being paid their daily wages in  keeping with the minimum wages prescribed by the  Government of Himachal Pradesh from time to time.  A  number of the appellants have been employed in the aforesaid  manner for more than ten years.         A scheme for  Betterment (Appointment)  Regularisation  of Muster Roll/Daily Wage Workers in Himachal Pradesh was  prepared  by the Government of Himachal Pradesh, the salient  features whereof are reproduced hereinbelow:-

"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 as on 31.12.1991, will be  treated as monthly rated employees, on  a consolidated fixed pay without any  allowances, and an annual increment,  as para-1  Annexure-A.  They shall be  entitled to annual increment for those  months, in which they work for a   minimum of 15 working days, per  calendar month.  They shall continue to  be monthly  rated employees, till they  are appointed as work-charged  employees.

2.   All those daily rated employees whether  skilled or unskilled who had completed  10 years of continuous service with a  minimum of 240  working  days in a

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calendar year as on 31.12.1987, shall  be appointed as work charged  employees in a phased manner as soon  as the stay orders of the Hon’ble High  Court of Himachal Pradesh is vacated.   On appointment as work-charged  employees, they shall be put in the  time-scale of pay applicable to the  corresponding lowest grade in the  Government.

3.      The daily rated workers, who would have  completed 20 years of service as on  31.12.1992 shall be regularised w.e.f.  1.4.1993 on the basis of  seniority cum  suitability  including  physical fitness.   On regularisation, they shall be put in  the minimum of the time scale of pay  applicable to the lowest corresponding  post concerned under the Govt. and  would be entitled to all other benefits  available to regular Govt. servants of the  corresponding grade.

4.  In the event of any anomaly between the  wages prescribed for the Monthly Rated  Employees and that prescribed by the  Govt. from time to time under the  Minimum Wages Act, 1948, the Monthly  Rated Employees are entitled to wages,  which are higher, at any point of time,  in future."   

       The aforesaid Scheme  fell for the consideration of this  Court in the Writ Petition filed by Shri Mool Raj Upadhyaya  which was heard along with  several other writ petitions where  the relief prayed for was similar.  In all the said writ petitions  filed under Article 32 of the Constitution, the employees had  claimed regularisation of their services  as well as for payment   of salary, allowances and other benefits as were being given to  the regular employees on the principle of "equal pay for equal  work".  While considering the said betterment  scheme, this  Court modified the same by  substituting the aforesaid  paragraphs numbers  1 to 4 with 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 December 31, 1993, shall be  appointed as work-charged employees with  effect from January 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  December 31, 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 appointed they shall  be put in the time scale of pay applicable to

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the lowest grade in the Government.

3 ) 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  December 31, 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 regularization 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."                   It was directed that the Scheme, as modified, was to be  implemented with effect from  1st January, 1994 and if any  excess amount had been received by the employees on the  basis of interim orders passed by this Court, the same would  not be required to be refunded by them.         On 6th May, 2000, the State Government circulated a   fresh policy on the regularisation of Daily Wage/Contingent  Paid workers which provided that eligible daily wage  workers/contingent paid workers would be considered for  regularisation against vacant posts or by  creation of fresh  posts with the prior approval of the Finance Department and  that such regularisation in all cases would be with prospective  effect.  It was also stipulated that in future even in the Public  Works Department   and Irrigation and Public Health  Department, regularisation/bringing daily wagers  on work  charged category would also  be with prospective effect as in  other departments.         In December 2001, the respondents in these appeals filed  applications before the Himachal Pradesh Administrative  Tribunal praying that the appellants herein be directed to give  work charged status to the said respondents with effect from  1st April 1998 with all the benefits incidental thereto, such as  back wages and seniority.  The appellants herein  filed reply to  the said applications contending  that the Government of  Himachal Pradesh had formulated a policy for regularisation of  daily wage workers in a phased manner subject to the  availability of posts with  prospective effect as envisaged in the  policy  published on 6th May, 2000.  By its order dated 23rd  October, 2003, the Tribunal allowed the applications filed by  the respondents herein on the basis of the judgment of this  Court in the case of Mool Raj Upadhyaya and directed the  appellants herein to grant work-charged status to the  respondents with effect from 1st January, 2000, with all  consequential benefits, without any further delay.         Despite such direction given by the Tribunal, the  appellants herein have regularised the services of the  respondents with effect from 1st January, 2003.         On 25th May, 2004, the State of Himachal Pradesh filed a  Writ Petition contending that the regularisation policy dated  6th May, 2000, barred retrospective regularisation and  accordingly prayed for quashing of the order passed by the

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Tribunal.  The High Court however, relying on the judgment of  this Court  in the case of Mool Raj Upadhyaya (supra),  dismissed the writ petition on the ground that there was no  distinction between the facts canvassed in the writ petition  and the factual   position in Mool Raj Upadhyaya’s  case.  It  is against the  said order of the High Court that these appeals  by special leave have been filed.         At the time when the Special Leave Petitions were listed  for  admission, it was brought to the notice of this Court  that  the questions involved in these appeals were similar to those  being considered by a Constitution Bench of this Court   in  Civil Appeal Nos. 3595-3612/1999 ( Secretary, State of  Karnataka & Ors. vs. Umadevi & Ors.)   Consequently, this  Court  by order dated 10th April, 2006 directed that all these  matters be listed after judgment  was pronounced in the said  civil appeals.         It may be indicated that judgment in the said appeals   Nos. 3595-3612/1999 was pronounced by the Constitution  Bench on 10th April, 2006.          These matters have been taken up for hearing after the  decision in Umadevi’s case .  Mr J.S. Attri, learned advocate, appearing for the   Appellant-State of Himachal Pradesh, submitted that since the  respondents had prayed for regularisation of their  services,  the State Government formulated a  fresh scheme for  regularisation of the  daily wage workers in a phased manner  so that they could all be absorbed in due course of time.   He  urged that the respondents were given the benefit of such  policy in 2003 and consequently their claim that such benefit  should be given to them from 1st January, 2000, was  untenable and would involve the State Government into  making huge financial  commitments. Mr. Attri submitted that since the  services of the  respondents have been regularised,  there  was no further  cause for grievance available to the respondents.  He urged  that the State Government had formulated a fresh policy for  regularisation of all Daily Wage/Muster Roll workers in  accordance with paragraph 4 of the Scheme as substituted by  the Supreme Court in its judgment in the case of  Shri Mool  Raj Upadhyaya.  He urged that the services of the respondents  had been regularised in pursuance of the said policy with  prospective effect from the date of such regularisation. Opposing the stand taken on behalf of the appellants,  Mr. M.C. Dhingra, learned advocate, submitted that the very  basis of the arguments  advanced on behalf of  the appellant- State of Himachal Pradesh was on an erroneous   understanding of the relief  sought for by the respondents who  had at  no point of time claimed  regularisation of their  services.  Mr. Dhingra urged that in the application under  Section 19 of the Administrative Tribunals Act, 1985, the  respondents had  merely prayed for a direction upon the  appellants herein to grant them Work Charged status with  effect from  1st January, 2000 with all the consequential  benefits, in keeping  with paragraph 1 of the Scheme as  substituted by this Court in the case of Mool Raj Upadhyaya.   Since the Tribunal had understood the case of the  respondents herein in its true perspective, it had  directed the  appellants to grant Work Charged status to the respondents  herein.  The High Court also found that the matter was  squarely covered by the judgment of this Court in the case of  Mool Raj Upadhyaya and accordingly dismissed the writ  petitions filed by the appellant-State of Himachal Pradesh.   On a careful consideration of the submissions made on  behalf of the respective parties, we are of the view that the  High Court did not commit any error in dismissing the writ

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petitions filed by the State of Himachal Pradesh.  The Scheme  as referred to in the case of Mool Raj Upadhyaya  envisages   two stages in regularising the services of the Daily  Wage/Muster Roll workers.   In the first stage, after  completion of 10 years or more continuous service with a  minimum of 240 days in a calendar year on 31st December,  1993, Daily Wage/Muster Roll workers were to be appointed  as  work-charged employees with effect from 1st January,  1994.  Thereafter, they were to be regularised in the second  stage in a phased manner on the basis of seniority cum  suitability including physically fitness.   Even while  challenging the direction given  by the Himachal Pradesh  Administrative Tribunal on 23rd October, 2003, the State of  Himachal Pradesh made out a case that the respondents were  claiming regularisation of their services with effect from 1st  April, 1998.  It was also urged that it had been brought to the  notice of the Tribunal that the respondents were  daily waged  workers and as per the instructions dated 6th May, 2000, they  were entitled   for work charged status only  as and when the  posts were sanctioned by the State Government in a phased  manner strictly on the basis of seniority.   The aforesaid case made out by the State of Himachal  Pradesh before the High Court was a clear departure from the  directions given in Mool Raj Upadhyaya’s case.  The  respondents had only claimed the benefit of the Betterment  Scheme which was placed before this Court in  Mool Raj  Upadhyaya’s case and had prayed for work charged status  from 1st January, 2000, before the Tribunal whereas the  change in policy was brought  about on 6th May, 2000.  It is on  that basis that the Tribunal   directed that the respondents be  given work charged status with effect from 1st January, 2000.  Notwithstanding the fact that the services of the  respondents have been regularised with effect from 1st  January, 2003 and they have joined their posts from  that  date without protest, they cannot,  in our view, be denied the  benefits  as directed to be given to them by the Tribunal and  affirmed by the High Court which had already accrued to them  under the Scheme which was approved in Mool Raj  Upadhyaya’s case. We, therefore, see no reason to interfere with the  judgment of the High Court impugned in these appeals.  All  the appeals are accordingly dismissed without any order as to  costs.