IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T)No. 11568 of 2008 Decided on : 21.03.2011 Sadhu Ram ..… Petitioner. Versus The State of Himachal Pradesh and others .. Respondents Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the Petitioner : None, though served. For the Respondents : Mr. Anil Jaswal, Dy. Advocate General. V.K.Sharma, Judge (oral). The petition has been filed on the following prayer:- “That the services of the applicant be ordered to be regularised / workcharged as Mason-II Class w.e.f 1-7-2003 by setting aside the impugned order No. PWD:EA:Appointment/2003-04-3617 dated 1- 7-2003 with arrear of pay allowances and consequential benefits.” 2. In reply, the respondents have taken the following stand vide para 1 of the preliminary submissions:- 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 “That the present petition is not maintainable as no legal fundamental right of the applicant has been infringed in any manner. However, in the present case the applicant has claimed relief in para-7 of the O.A. to the extent that service of the applicant be ordered regularised/work charted as Masson- II class w.e.f 1.7.2003 by setting aside the impugned order No. PWD:EA:Appointment/2003-04-3617 dated 1- 7-2003 with arrear of pay allowances and consequential benefits. To the same, it is submitted that respondent department upon the verdict of Hon’ble Apex Court in case of Sh. Mool Raj Upadhaya V/S State of H.P. various daily wagers working in the respondent Deptt. have been regularised/upon completion of 10 years or more continuous strictly as per availability of sanctioned post in accordance with regularization policy so approved by the Hon’ble Apex Court. In the said policy it was clearly provided that the said regularization shall be made in a phased manner on the basis of seniority-cum-suitability including physical fitness. Thereafter the said regularization process continued to remain effective till the financial year 2000 as and when the posts were sanctioned. After the year 2000 the respondent State has sanctioned various posts for the regularization of daily wagers against which workers having seniority higher to the applicant has been regularised to the post of Mason Further more the regularization cannot be claimed 3 as a matter of right, but the same is subject to the availability of sanction posts created by the Govt. of H.P. which is also barred on the principal of seniority. In the present case the applicant was engaged initially as daily waged beldar since Jan. 1991. In the year January 1991 he worked for 88 days as beldar and 238 ½ days as Mason. In the year 1992 the worked for 58 days as beldar and 232 days as Mason.Similarly he worked for 88 days as beldar in the year 1993 and for 242 days as Mason. The working days detail of applicant is annexed as Annexure R-I. As per the policy so approved by the Hon’ble Apex Court and circulated by the Govt. a copy of which is annexed herewith as Annexure R-2, vide its para 2 it is specifically provided that daily w age M/Roll workers whether skilled or un- skilled who have not completed 10 years of continuous service with a minimum of 240 days in the calendar year on December 31st/1993 shall be appointed as work charged employees w.e.f the date, they complete the said period of 10 years of service and as such appointment they shall be put in the time scale of pay applicable to the lowest grade in the Govt. The said policy has further been amended vide annexure R- 3 in which it was clearly provided that the regularization shall not be made with “retrospective effect” but from prospective effect as per the provision of para-2 of the same. Even this Hon’ble High Court of H.P. vide its judgment dt. 9.4.2003 Annexure R-4 4 has also held that the claim is maintainable only when the post is sanctioned. Needless to point out in the present case that 70 posts of work-charged beldar were sanctioned by the Govt. as 22.7.2002 which was conveyed to the Engineer-in-Chief, HP- PWD, Shimla. The said office further conveyed the sanction to replying respondent on 3.2.2003. Hence in the present case the O/O Executive Engineer, Dalhousie i.e R-3 received sanction during the July 2003 when upon the applicant vide order dt. 5.7.2003 was offered the post of work charged beldar prospectively vide Annexure R-5 as the applicant has initially worked as daily wage beldar (man days chart is annexed as Annexure R-I) upon which the applicant had also joined without any protest on 5.7.2003 vide Annexure R-6 even before accepting the offer of work charge beldar he has given an undertaking/affidavit to the Deptt. and his service may be regularised as beldar and further he will never claim for the seniority of Mason. The affidavit is annexed as Annexure R-7. Hence in these circumstances when the applicant had joined without nay protest as work charged beldar and further he had worked in two different categories therefore, his service has been rightly rgularised as work charged beldar on prospective effect in lowest rank as per standing instructions of the Govt. as annexed in Annexure R2 & R-3. Hence neither any legal or equity right of the applicant has ever been infringed in any 5 manner nor any cause of action what so ever accrued to him to file and maintain the present OA. Hence the same deserves to be dismissed in the interest of justice.” 3. In view of the above reply, in case the petitioner still has any surviving grievance, he shall be free to make a representation along with copy of this judgment to respondent No.3/competent authority within one month from today, who shall consider the same and take a final decision in the matter within next three months in accordance with law, after affording an opportunity of being heard to the petitioner/his authorized representative, if so desired. 4. The petition, as also pending CMP(s), if any, stand disposed of. (V.K. Sharma) Judge 21st March, 2011. Lsp*