IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 27 of 2006. Date of decision: 17.8.2009 State of H.P & Ors. …. Petitioners Versus Sh.Neelmani ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice V.K.Ahuja, J. Whether approved for reporting ? No For the petitioners: Shri R.M.Bisht, Dy.Advocate General. For the respondent: Sh.Dushyant Dadwal, Advocate. _____________________________________________________ Deepak Gupta, J.(Oral) This writ petition by the State is directed against the order of the H.P State Administrative Tribunal whereby the Original Application filed by the respondent herein was allowed and the State was directed to regularize the services of the applicant as Complaint Attendant. Briefly stated the facts of the case are that the respondent started working as daily waged Beldar with the State on 21.1.1987. He worked as Beldar for 240 days in the calendar year 1987. In the next year, he worked as Beldar till 20.11.1988 and thereafter as Complaint Attendant w.e.f. 21.11.1988. In the calendar year 1989, he worked as Complaint Attendant. However, in the year 1990 he worked for 181 days as Complaint Attendant and 150 days as Beldar. In the year 1991, 1992 and 1993 he 2 worked only as Beldar. In the calendar year 1994 he worked as Beldar till 20.11.1994. With effect from 21.11.1994 he worked as Complaint Attendant and admittedly thereafter he continuously worked as Complaint Attendant. The State issued an office order on 19th December, 2002 directing the regularization of the respondent as Beldar. The respondent filed the Original Application before the learned Tribunal praying that the order dated 19th December, 2002 be modified and she be designated as Complaint Attendant or he may be retrospectively regularized as Beldar w.e.f 1.1.1997 with all consequential benefits. The Tribunal has allowed the Original Application and has directed that the applicant be regularized as Complaint Attendant. This order is under challenge before us. This Court in Gauri Dutt and others versus State of H.P Latest HLJ 2008(1) HP 366 decided a number of questions of law. Questions No. 1, 2 and 4 are relevant for our purpose and read as follows:- “1. Whether the scheme of putting the workers on work charged basis as approved by the Apex Court in Mool Raj Upadhyaya’s case is applicable to those daily waged employees who had not completed minimum of 240 days of service in a calendar year as on 31st December, 1993? 3 2. If the answer to the first question is in the negative, what will be the process of regularization of services of those employees who had not completed 240 days of service in a calendar year as on 31st December, 1993 or had joined service after 1st January, 1994? 3. xxx xxx xxx xxx 4. Whether if an employee has rendered service on daily waged basis on 2 separate posts in lower and higher scales, can the employee be given benefit of the service rendered by him in the lower scale and be regularized in the higher scale by combining the two services after 10 years?” We had answered question No.1 by holding that the Scheme approved in Mool Raj Upadhaya’s case is applicable only to those employees who had completed at least one year of continuous service as on 31.12.1993. We had answered the second question by observing that the employees who had not completed one year as on 31.12.1993 or had joined thereafter were covered by other schemes framed by the State Government in this behalf after Mool Raj Upadhaya’s case. We had specifically approved the scheme framed on dated 6th May, 2000. As far as last question is concerned, we had held as follows:- “After considering all the pros and cons and keeping in view the fact that various anomalous situations may arise we are of the considered view that 4 when an employee completes 10 years of continuous service combined in two scales, an option should be given to the employee to either accept work charge status in the lower scale or he may continue to work on daily rated basis in the higher scale and claim work charge status in the higher scale of completion of 10 years of continuous service in the said scale.” In the present case, the respondent admittedly joined prior to 1.1.1993 and had worked as Complaint Attendant in the year 1989 but thereafter had again joined as Beldar and as on 1.1.1994 was only entitled for regularization as Beldar if Mool Raj Upadhaya’s judgment is to be followed. The service rendered by the respondent as Beldar could not be taken into consideration for regularizing him as Complaint Attendant. It may be true that the case of the respondent is a hard one since after having worked as Complaint Attendant for almost one year and six months he was again asked to work as Beldar. But once the respondent agreed to work as Beldar, he cannot claim that he should be regularized as Complaint Attendant. We have clearly held in Gauri Dutt’s case that if the employee wants to be regularized on work charge status in the higher scale, he can claim the same only after the said employee has rendered continuous service of eight/ten years in the said scale. 5 Now we have been informed that eight years service is required but there is a caveat in the scheme that there should be a vacant post and only if a post exists then the employee can be regularized. We are unable to uphold the direction of the learned Tribunal directing the State to regularize the respondent as a Complaint Attendant. We are clearly of the view that in view of what we had held in Gauri Dutt’s case, an option should be given to the employee as to whether she/he would like to be regularized as Beldar or wants to be regularized as Complaint Attendant in which event his regularization/grant of work charge status will be governed not by the scheme framed in Mool Raj Upadhaya’s case but by the scheme of 2000 and/or subsequent schemes of regularization framed by the Government in this behalf. In view of above discussion, we allow the writ petition and quash the order of the learned Tribunal. We direct that the petitioner shall give a clear-cut option to the respondent as to whether he wants to be regularized as Beldar or Complaint Attendant within six weeks from today. In case the respondent opts to be regularized as 6 Beldar, he will have to be regularized w.e.f. 1.1.1997 on which date he had completed 10 years uninterrupted service having 240 days or more in each calendar year both in the lower scale of Baldar and in the higher scale of Enquiry Attendant. In case, he opts to be regularized as Complaint Attendant then the order regularising him as Beldar shall be withdrawn and his case for regularization as Complaint Attendant shall be considered by the petitioners in accordance with the existing policy of regularization followed by the State Government in respect of daily waged employees. The decision in this regard shall be taken within three months from the date of exercising the option and in case the respondent is ordered to be regularized in the higher scale, he shall be paid his arrear etc. within two months thereafter. The writ petition is disposed of in the aforesaid terms. No order as to costs. ( Deepak Gupta ) Judge August 17, 2009 (V.K.Ahuja) (m) Judge