IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 5752 of 2008 (OA No. 1023 of 1999) Date of decision: 9.7.2010 Keshav Ram ….. Petitioner. Vs. The Secretary IPH and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. Devinder Sharma, vice Mr. C.N. Singh, Advocate. For the Respondents : Mr. P.K. Sharma, Addl. Advocate General with Mrs. Shubh Mahajan, Dy. Advocate General, for the respondents. Kuldip Singh, J(Oral). The petitioner has prayed mainly the following reliefs in the petition:- (ii) That the respondents be directed to count the fictional breaks given in past towards the seniority of the petitioner and make payments of full wages for the said period of fictional breaks; (v) that the respondents action for giving previous artificial breaks to the petitioner till date be also declared to be null and void and the respondents be directed to consider the case of the petitioner Whether the reporters of the local papers may be allowed to see the Judgment? …2… that he has completed 240 days in the calendar year right from the date of appointment as the petitioner could not complete 240 days in a calendar year particularly in the year 1995 and 1996 due to only the artificial breaks given by the respondent department. 2. The case of the petitioner is that he was engaged as daily wager (baildar) by respondents in the year 1994 and thereafter he had been continuously working with the respondents department. The mandays chart according to petitioner is Annexure P-1. It is the case of the petitioner that the department had given artificial breaks to petitioner so that the petitioner was not in a position to complete 240 days in each calendar year and to deprive him the benefits of salary and leave of Sunday etc. 3. The respondents have contested the petition by filing reply and have submitted that petitioner had not completed 240 days since 1994 and in every year he remained willfully absent and reported for duty casually. The respondents have relied on mandays chart Annexure R-1 filed with reply. 4. I have heard learned counsel for the parties. As per Annexure R-1, the petitioner had worked for 210 days from April, 1994 to December 1994. In the years 1995, 1996, 1997, 1998, the petitioner had worked for 227,230, 229 and 227 days respectively. In the year 1999 from January, 1999 to April, 1999 he had worked for 76 days. In CWP(T) 8145 of 2008 decided on 2.6.2009 the issue of fictional breaks was considered by a co-ordinate Bench. The learned single Judge rejected the contention of the respondents in that petition that petitioner in that case himself did not report for duty. …3… The petitioner therein himself had absented from job. It was held that a person who has been working continuously will not abandon his job as projected by the State. The endeavor of such person would be to complete 240 days to earn him the benefit of regularization. In the present case also the respondents have taken the defence that petitioner remained willfully absent and reported for duty casually. It has come on record that in the year 1994 to 1998 the petitioner had completed 210 to 230 days in every year. The petitioner was not responsible for not completing 240 days every year from 1994 to 1998. There is substance in the submissions of learned counsel for the petitioner that only due to artificial breaks given by respondents, the petitioner was not allowed to complete 240 days in every year from 1994 to 1998. The petitioner upto April 1999 had worked for 76 days. It was not contended on behalf of the respondents that after April, 1999 the petitioner had not worked or he had not completed 240 days in every year including the year 1999. 5. The question of short breaks was considered by Division Bench in CWP No.4367 of 2009 decided on 1.12.2009 to the following effects:- “ Their Lordships of the Hon’ble Supreme Court in Mohd. Abdul Kadir and another vs. Director General of Police, Assam and others, (2009) 6 SCC 611 have held as under: 18. We are therefore of the view that the learned Single Judge was justified in observing that the process of termination and reappointment every year should be avoided and the appellants should be continued as long as the Scheme continues, but purely on ad hoc and temporary basis, coterminous with the Scheme. The Circular dated 17.3.1995 directing artificial breaks by annual terminations followed by fresh appointment, being contrary to the PIF Additional Scheme and contrary to the principles of service jurisprudence, is liable to be quashed”. …4… (emphasis supplied) Consequently, in view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court, the respondents ought to have condoned the shortage of few days in the years 1999, 2000 and 2001 while calculating 240 days. The petitioner has worked uninterruptedly w.e.f. 1999 to 2008. He has completed eight years of service, as prescribed under the norms laid down by the State government for conferring work charge status. Consequently, the respondents are directed to consider the case of the petitioner for granting him work charge status after condoning the shortage of few days in the years of 1999, 2000 and 2001 and by re-verifying the years/days w.e.f. 1.1.2002 till 31.12.2008. This exercise be completed by the respondents within a period of eight weeks from today”. 6. The point involved in the present case of short breaks is covered by judgments dated 2.6.2009 and 1.12.2009 noticed above. Accordingly, petition is allowed. The respondents are directed to ignore the fictional breaks given by them to the petitioner from the year 1994 as reflected in the Annexure R-1. The petitioner shall be deemed to be in continuous service from the date of his initial engagement for the period covered in Annexure R-1 and shall be entitled to all consequential benefits of continuous service of the period mentioned in Annexure R-1. No costs. July 9, 2010 ( Kuldip Singh ) (sks) Judge.