IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 6549 of 2008 Judgment reserved on 11.8.2010 Date of decision: 18.8.2010. Ravinder Kumar ….. Petitioner. Vs. State of H.P. and another …. Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Kuldip Singh, Judge. For the Petitioner : Mr. M.L.Sharma , Advocate. For the Respondents : Mr. R.K.Sharma, Sr. Additional Advocate General. Justice Kuldip Singh, Judge The petitioner has filed the petition for a direction to the respondents to regularise his service as Complaint Attendant in work charged/ regular pay scale with all consequential benefits. 2. The case of the petitioner is that after completing his matriculation he was employed as daily waged Beldar in the respondent department on 1.7.1986 and was posted as such under Medical College Sub Division No.III, Shimla. He was assigned the clerical work in the Sub Division from the very beginning. He was required to attend complaints in the reception in the Medical College where the respondent is required to provide maintenance services to the residents and offices. The petitioner was paid the daily rates of Beldar. He had no other option but to accept the same even though, he was discharging the duties of Class-III employee in the department till 30.9.1993. The petitioner w.e.f. 2 1.10.1993 was issued Muster-roll of Complaint Attendant which is a Class-III post and since then petitioner has been discharging the duties of Complaint Attendant and getting wages of Class-III daily waged employee continuously without any interruption. The petitioner had completed 10 years continuous service with 240 days in each calendar year in the year 1996. The period of illness of petitioner was regularised under the Industrial Disputes Act, 1947 (for short ‘Act’). The petitioner is entitled to regularization in the department on completion of 10 years continuous service in accordance with Mool Raj Upadhyaya vs. State of Himachal Pradesh and Ors. 1994 Supp.(2) SCC 316. The respondents have regularised many employees on higher posts although, they were initially engaged as Beldars. He has given the particulars of such persons in para 3 of the petition. The petitioner is also entitled to regularization as Complaint Attendant in the department. The action of the respondents in not regularizing the services of the petitioner as Complaint Attendant is wrong, illegal and arbitrary. In these circumstances, the petition has been filed. 3. The petition was contested by the respondents by filing reply. They have taken the stand that the petitioner joined the department as daily waged Beldar. He worked in the department in different capacities w.e.f. 1.7.1986 to September, 1993 as daily waged Beldar. He worked as Complaint Attendant w.e.f. 1.10.1993 to 20.3.2000. The case of the petitioner could not be considered for promotion earlier due to break in continuity in the year 1992 as he could not complete 240 days in the said year. He was given the benefit of illness period under Section 25 (B) of the Act. On completion of 9 years of continuous service with 240 days, his case was considered and he was offered the post of work charged 3 Beldar on 21.3.2000 w.e.f. 1.4.1998. The petitioner accepted the offer without protest and he joined as such on 21.3.2000 as work charged Beldar. The petitioner has been regularised in accordance with law as daily waged Beldar. The respondents have prayed for dismissal of the petition. 4. The learned counsel for the petitioner has relied Division Bench judgment dated 17.7.2009 in CWP (T) No. 13708 of 2008 Devinder Chauhan Vs. State of H.P. & Ors. In that case, the petitioner had prayed regularization as Complaint Attendant/Receptionist w.e.f. 4.1.2006. The petitioner in that case was initially appointed as Beldar in January, 1992 and continued to work as such till February 1994, thereafter he was given the work of Complaint Attendant/Receptionist. The Division Bench after applying Gauri Dutt & Ors. Vs. State of H.P. Latest HLJ 2008 (HP) 366 observed that in case an employee wants to be granted work charge status or be regularised in the higher scale, he shall not be entitled to count his service in the lower scale. 5. In the present case, the petitioner had worked as Beldar from 1.7.1986 to 30.9.1993 and thereafter w.e.f. 1.10.1993 the petitioner had been working as Complaint Attendant. The petitioner was given work charged status on 21.3.2000 w.e.f. 1.4.1998 as Beldar. The petitioner is entitled to work charged status as Beldar or Complaint Attendant as per his option in accordance with Gauri Dutt (supra). The respondents are directed to obtain the option of the petitioner within one month from today whether he is to be given work charged status as Beldar or Complaint Attendant. In case the petitioner gives an option then he is to be given work charged status as Beldar or Complaint Attendant in accordance with Gauri Dutt (supra) within another three months. In case the petitioner 4 fails to convey his option within 30 days as directed by the respondents, it shall be deemed that the work charged status of Beldar was validly given to petitioner w.e.f. 1.4.1998. The petition stands disposed of in above terms, so also the pending applications, if any. (Justice Kurian Joseph), Chief Justice August 18, 2010 (Justice Kuldip Singh), (GR) Judge.