IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 3723 of 2008 (OA(D) No.329/96) Judgement reserved on: 24.6.2009. Date of decision: July 15, 2009. Puran …..Petitioner. Vs. State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. Ranjan Sharma, Advocate. For the Respondents : Mr. R.K.Sharma, Senior Addl. Advocate General with Mr. A.K. Bansal, Addl. Advocate General and Mr. R.P.Singh, Asstt. Advocate General. Kuldip Singh, Judge. The OA (D) No. 329 of 1996 was filed before erstwhile H.P. Administrative Tribunal (for short, the Tribunal). The Tribunal was abolished and O.A.(D) No. 329 of 1996 was transferred to this court in view of Himachal Pradesh Administrative Tribunal (transfer of decided and pending cases and applications) Act, 2008, and was registered as CWP(T) No. 3723 of 2008. 2. The pleaded case of the petitioner is that he was engaged as Compressor Operator on daily wages in January 1983 at Himachal Pradesh Public Works Department, Sub Division, Tissa Division Churah Chamba by the respondents. He had been working Whether the reporters of the local papers may be allowed to see the Judgment? …2… as such without any break in service, but he was brought on work- charged establishment as Beldar vide order dated 29.1.1992 Annexure A-2. The petitioner at present is serving as work- charged Beldar at Himachal Pradesh Public Works Department, Sub Division, Tissa Division Chamba but again performing the duties of Compressor Operator as earlier. The petitioner has relied on certificate Annexure A-1 dated 3.6.1987 issued by Junior Engineer, Tissa Section, Himachal Pradesh Public Works Department, Tissa. 3. The petitioner had made representations against the order vide which he was made work-charged Beldar. He later on filed OA(D) No. 451 of 1995, which was disposed of by erstwhile Tribunal on 20.4.1995 and direction was given to Engineer-in-Chief, HPPWD to treat the application as representation and decide the same on merits in accordance with law. The Engineer-in-Chief rejected the claim of the petitioner for regularization as Air Compressor Operator vide order dated 24.6.1996 Annexure A-4. 4. It has been alleged in the petition that petitioner has completed his service as compressor operator for more than 240 days without any break, as such, he is entitled for regularization of his service with regular pay scale of the compressor operator alongwith the arrears of pay allowances and consequential benefits from the date of his completion of 240 days in service. 5. The respondents have contested the petition by filing reply and have taken preliminary submissions that petitioner had been working on daily wage basis in different categories, his services were regularized on 21.9.1992 after completion of ten years …3… uninterrupted service in the lowest category. The petition is barred by delay and laches. On merits, it has been submitted that petitioner had been working with the department since January 1977 on daily wage basis. He worked as Beldar with the department from January 1977 to December 1985, he worked in different categories, such as helper, chowkidar, Beldar, air compressor operator on daily wages from January 1986 to January 1992 as per Annexure R-1. The petitioner had completed ten years of uninterrupted service with 240 days in each calendar year with maximum period as Beldar, as such, he was regularized on 21.9.1992 vide Annexure R-II. The State Government has regularized the services of those daily waged labourer, who had completed ten years of continuous service in each calendar year as on 31.12.1987 and 31.12.1983 only in one category and if they had worked in different categories then in lowest category. The petitioner had not completed ten years continuous service as Air Compressor Operator, hence the question does not arise to regularize his services as Air Compressor Operator. 6. Heard and perused the record. The petitioner has prayed the relief that services of petitioner be ordered to be regularized as work-charge from the date of his completion 240 days of service on his respective post of Air Compressor Operator in regular pay scale of post with arrears of pay, allowances and consequential benefits. The learned counsel for the petitioner has relied Gauri Dutt & ors. Vs. State of H.P. Latest HLJ 2008 (HP) 366, in support of the claim of the petitioner that petitioner is entitled to work-charge status on completion of 240 days in each calendar …4… year for ten years. The simple case of the respondents is that petitioner had worked in different capacities before he was brought on work-charge establishment on 29.1.1992. The petitioner had worked maximum as Beldar in comparison to other capacities and, therefore, he was brought on work-charged establishment as Beldar vide order dated 29.1.1992. The perusal of Annexure R-1 indicates that from January 1977 to December 1985 the petitioner had worked as Beldar, from January 1986 to June 1986 and August 1986 to December 1986 he worked as Beldar, in July 1986 the petitioner had worked as Chowkidar. The petitioner from January 1987 to August 1987, November, December 1987 had worked as Helper, whereas in September 1987 and October 1987 he worked as Operator. In January 1988 he again worked as Beldar. In February 1988 he worked as Helper. The petitioner from March 1988 to December 1988 worked as Air Compressor Operator. The petitioner worked from January 1989 to May 1989 and December 1989 as Operator. The petitioner from June 1989 to November 1989 had worked as driver. The petitioner from January 1990 to December 1991 worked as Operator. 7. The petitioner has already been made work-charged Beldar vide order 29.1.2000. In Gauri Dutt (supra), the Division Bench of this Court has held that where an employee who completes ten 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 on …5… completion of ten years of continuous service in the said scale. The choice should be left to the employee. However, if the employee on being given a chance to exercise his option does not convey his option within 30 days, he shall be granted work-charged status in the lower scale by combining the service rendered in both the scales. 8. In the present case, the petitioner has already been made work-charged Beldar on 29.1.1992. The respondents have not admitted that petitioner has worked for more than ten years as Air Compressor Operator. The petitioner has also not placed on record irrefutable evidence to show that he had actually worked for more than ten years as Air Compressor Operator on 29.1.1992 when he was made work-charged Beldar. The petitioner is not satisfied with the work-charge status of Beldar, therefore, in light of Gauri Dutt (supra), the respondents are directed to take the option of the petitioner within two months from today whether he would like to accept the work-charge status of Beldar as already granted to him on 29.1.1992 or he would like to work on daily rates basis as Air Compressor Operator and shall claim work-charge status as Air Compressor Operator on completion of ten years of continuous service as Air Compressor Operator. In case, the petitioner shall not give option within 30 days from the date of service of notice seeking his option, as directed above, then his claim for work-charge status as Air Compressor Operator shall be deemed to have been waived. However, it is made clear that in that situation in case the petitioner is entitled to work-charge status as Air Compressor Operator, after 29.1.1992 under some scheme of respondent No.1 or otherwise …6… under law then the petitioner shall be entitled to work-charge status as Air Compressor Operator after 29.1.1992. The petition is disposed of in the aforesaid terms with no order as to costs. July 15, 2009. ( Kuldip Singh ), (Hem) Judge.