IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 1108 of 2009. Decided on : 07.05.2010. Chet Ram. …..Petitioner. -Versus- State of Himachal Pradesh and others. .…Respondents. Coram: The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for Reporting?1 Yes. For the petitioner. : Mr. H.K. Paul, Advocate. For the respondents. : Mr. Anil Jaswal, Deputy Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. Rajiv Sharma, J. (Oral): Material facts necessary for adjudication of this petition are that the petitioner has worked as a Beldar w.e.f. July, 1985 to December, 1986, as a Mason for 51 days w.e.f. January, 1987 to February, 1987 and again as Beldar w.e.f. March, 1987 to December, 1987. Thereafter, he has worked as Beldar/Stone Breaker w.e.f. January, 1988 to December, 1990. He again worked as a Stone Breaker/Mason w.e.f. January, 1991 to December, 1991. He started working as Mason w.e.f. January, 1992 to December, 1992 and completed 254.50 days. He worked as 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 a Mason w.e.f. January, 1993 to December, 1993 and had only completed 233 days. Thereafter, he worked continuously as a Mason w.e.f. January, 1994 to December, 2006 and had completed 240 days in each calendar year. He has been regularized as Mason Grade-II on 29.12.2006 and joined this post on 02.01.2007. 2. Mr. H.K. Paul, learned counsel for the petitioner has argued that the petitioner ought to have been given work charge status/regularization as Mason immediately after completion of 10 years continuous service with 240 days in each calendar year, to be counted w.e.f. January, 1992 onwards. 3. Mr. Anil Jaswal, learned Deputy Advocate General has argued that since the petitioner had not completed 240 days in 1993 and joined the post of Mason Grade-II on 2.1.2007, he cannot be given work charge status from an anterior date. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. It is apparent from the Mandays chart annexed with the reply by the State that the petitioner was engaged as a Beldar in the month of July, 1985 and he has worked as a Beldar, Mason and Stone Breaker up to December, 1991. He had started working as a Mason continuously w.e.f. January, 1992 to December, 2006 and completed 240 days in each calendar year, except in 1993. He has worked only for 233 days in the year, 1993. There is 3 shortage of only 7 days. Petitioner has placed on record medical certificate issued by the competent authority to substantiate that he fell ill w.e.f. 19th April, 1993 to 2nd May, 1993. It has come in the reply that the medical certificate was supplied by the petitioner to the respondent-State only in the year, 1997 and the same could not be looked into. The Court is of the opinion that the petitioner should have supplied the medical certificate immediately in the year, 1993 or 1994. He should not have waited till 1997. However, fact of the matter is that the petitioner had worked for more than 240 days in each calendar year w.e.f. 1992 to December, 2006, except in 1993. 6. It is settled law by now as per Workmen of American Express International Banking Corporation versus Management of American Express International Banking Corporation, AIR 1986 SC 458 that Sundays and other paid holidays should be taken into account for the purpose of reckoning the total number of days on which the workman could be said to have actually worked. Respondent-State has not placed any material on record to prove that Sundays and other paid holidays were taken into consideration while calculating 240 days. 7. The respondent –State is a welfare State and should have condoned the shortage of only 7 days to enable the petitioner to seek work charge status immediately after completion of 10 years service as per 4 dicta of Mool Raj Upadhyaya versus State of H.P. others, 1994 Supplement (2) Supreme Court Cases 316. It is settled law by now that artificial breaks can occur due to illness, cessation of work etc. However, in this case, petitioner’s case for work charge status should have been considered immediately after completion of 10 years service, i.e., in 2002 after condoning the shortage of 7 days in 1993 as per Mool Raj Upadhyay’s case instead of giving him the post of Mason Grade-II in the pay scale of Rs.3120-5160/-. The action of respondents not to condone the shortage of 7 days in the year, 1993 is declared arbitrary. 8. Mr. Anil Jaswal, learned Deputy Advocate General has also argued that since the petitioner had already joined as Mason Grade-II, he is estopped from seeking the work charge status from an anterior date. There is no merit in this submission in view of the law laid down by their Lordships of the Hon’ble Supreme Court in State of Himachal Pradesh and others versus Gehar Singh, (2007) 12 SCC 43. Accordingly, in view of the observations made hereinabove, the petition is allowed. The respondents are directed to condone the shortage of 7 days in the year, 1993 to enable the petitioner to complete 240 days and thereafter consider the case of petitioner for conferring him work charge status as per Mool Raj Upadhyay’s and 5 Gehar Singh’s cases. Needful be done within a period of eight weeks from today. No costs. (Rajiv Sharma), Judge. May 07, 2010. (bhupender)