IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P.(T) No. 4737 of 2008 Date of decision: 23.6.2009 Sant Lal ..Petitioner Versus State of H.P. and others ..Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. Whether approved for reporting?1 For the Petitioner: Mr. S.S.Sood, Advocate For the State: Mr. R.K.Sharma, Senior Additional Advocate General. R.B. Misra, J.(Oral) According to the petitioner, he was deployed as daily wages worker in Plants Protection Centre at Chamain, Tehsil Kotkhai, District Shimla since 1984 and had rendered 240 days in each calendar year except for the year 1992. As such keeping in view the scheme of regularization, as approved by the State Government in Mool Raj Upadhyaya Vs. State of H.P. and others 1994 Supp. (2) SCC 316 the petitioner is to be given benefit of continuous service rendered by him right from October, 1984 till completion of 10 years of service. According to the petitioner, he is still working as daily wager and despite rendering service for more than 25 years, he has 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 not been regularized whereas the State Government has issued a Notification dated 7th June, 2002 to all the Head of Departments, including Corporations/Boards/Universities indicating that if a daily wager/contingent worker has completed 8 years of service in a calendar year as on 31.12.2002, he will be eligible for regularization. According to the petitioner there was a short fall of 36 days in completing 240 days in the year 1992 by virtue of disengagement of petitioner deliberately by the respondents. 2. According to the petitioner, his case is squarely covered by the judgment dated 23.4.2009, passed in CWP(T) No. 7902 of 2008 whereby the writ petitioner having deployed for 33 years and rendering 240 days in the each calendar year except in the year 1992-93, (where he had not completed 240 days) was directed to be considered by the respondents for regularization treating him that he has completed 10 years of service ignoring the short fall of days in 240 days for two years in the past. 3. Learned Senior Additional Advocate General, however, has not denied the factual aspect of the case, however, has stated that the decision of this court on 23.4.2009 in CWP(T) No. 7902 of 2008 (Mohan Lal 3 Thakur Vs. State of H.P. and others) is not to be treated as guidelines and a settled law. Mr. Sood has also invited the attention of this court to the decision of Supreme Court in State of HP and others Vs. Gehar singh (2007) 12 SCC 43, where, the decision of Mool Raj Upadhyaya has been considered and a direction was given for regularization of an employee. 4. A Scheme for Betterment(Appointment) and Regularization 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 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 4 the Hon’ble High Court of Himachal Pradesh are vacated. On appointment as work-charged employees, they shall be put in the timescale 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 regularized w.e.f. 1.4.1993 on the basis of seniority-cum-suitability including physical fitness. On regularization, they shall be put in the minimum of the timescale of pay applicable to the lowest corresponding post concerned under the Government and would be entitled to all other benefits available to regular government 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 Government 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.” 5. The aforesaid `Scheme’ fell for the consideration by Hon’ble Supreme Court in the writ petition filed by Shri Mool Raj Upadhyaya where claim was made for regularization of his service as well as for payment of salary, allowances and other benefits as were being given to the regular employee on the principle of “equal pay for equal work”. While considering the said Betterment Scheme, Supreme Court modified the same by substituting the aforesaid Paras 1 to 4 of Mool Raj Upadhyaya (supra) with the following paras: “(1) daily-wage/muster roll workers, whether skilled or unskilled, who have completed 10 years 5 of 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 timescale 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 timescale 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 Himchal 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 Para-2; (4) daily wage/muster roll workers shall be regularized 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 timescale 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.” 6. The Scheme as referred to in Mool Raj Upadhyaya supra envisages two stages in regularizing the services of daily wage/muster roll workers. In the first stage, after completion of 10 yeas or more continuous 6 service with a minimum of 240 days in a calendar year on 31.12.1993, daily wage/muster roll workers were to be appointed as work charged employees with effect from 1.1.1994. Thereafter they were to be regularized in the second stage in a phased manner on the basis of seniority-cum-suitability including physical fitness. 7. I am also of the considered view that the decision of this court in CWP(T) No. 7902 of 2008 is to be extended to the present case also. Accordingly the writ petition is allowed and a writ of mandamus is issued to the respondents to consider the case of the petitioner treating that the case of the petitioner is falling in the scheme which has been acknowledged in Mool Raj Upadhyaya’s case (supra) and treating that the petitioner has completed 10 years of service and has rendered 240 days in each calendar year except in the year 1992, wherein short fall of 30 days has to be ignored. The exercise has to be made and finalized within three months. With the above observations, the writ petition stands disposed of. June 23, 2009(K) ( R. B. Misra ), J.