IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1042 of 2004 Date of decision: 22nd July, 2008. State of H.P. & others ..Petitioners Versus Lekh Ram ..Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for reporting?1 No For the Petitioners.: Mr. R.M.Bisht, Deputy Advocate General. For the Respondent: None. Deepak Gupta, J. This petition by the State is directed against the order of the learned H.P. State Administrative Tribunal (hereinafter referred to as the Tribunal) dated 9.6.2004 passed in O.A. No.508 of 2003 whereby the petitioner- State has been directed to regularize the services of the respondent against the post of complaint attendant in accordance with the latest policy of the State within a period of 3 months. Briefly stated the facts of the case are that the respondent was initially engaged as daily-rated beldar in the year 1988 and continued to work as such till some 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 time in 1991. Thereafter, he was engaged as daily waged Pump attendant till the beginning of 1994. In 1994 he was put on daily wages as complaint attendant and continued as such. The petitioner in terms of the scheme approved in the case of Moolraj Upadhayaya vs. State of H.P. and others, 1994 Supp (2) SCC 316 was offered the post of work-charge beldar. He did not accept the same and filed the O.A. claiming that he should be granted work-charge status as complaint attendant. The learned Tribunal allowed the Original Application as aforesaid. Aggrieved by the said order the State has filed the present writ petition. We have heard Sh.R.M. Bisht, learned Deputy Advocate General for the State. We had dealt with certain related issues in case State of H.P. vs. Gauri Dutt, CWP No.778 of 2006. In that case we had clearly held that the scheme of granting work-charge status as approved in Mool Raj Upadhyaya’s case (supra) would be applicable to all those employees who had completed at least 240 days of service in a calendar year as on 31.12.1993. Question No.4 posed in the said petition was as follows: “4.Where if an employee has rendered service on daily waged basis on 2 separate posts in lower and higher scales, can the employee be 3 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 this question in the following terms: “The last question raises some interesting points. There have been instances where some employee has worked as beldar for some time and thereafter he has been engaged in a higher scale as mate or supervisor etc. The Tribunal in most of these cases has directed that the employee should be granted work charge status in the higher post on completion of 10 years of service after combining the service rendered in the lower scale and the higher scale. The State is aggrieved by these directions. According to the learned Advocate General the State has offered work charge status to these employees on completion of 10 years of combined service in the lower of the two scales and the State cannot be directed to grant work charge status in the higher scale. On the other hand, it is contended on behalf of the employees that since the employees are already working in the higher scale, it would not be fair and equitable to grant them work charge status in the lower scale. We have considered the arguments from all angles. We are of the view that the employee cannot be given the benefit of combining service rendered in both the scales and be granted work charge status in the higher scale. We do, however, feel that at times it may be inequitable to grant the employee work charge status in the lower scale 4 without giving him an option in this regard. We are giving two examples to illustrate two extreme positions. In example (i) we will deal an employee (A) who joined service on 1.1.1990. He works in the lower scale of beldar from 1.1.1991 to 31.12.1999. He is thereafter posted as Supervisor in the higher scale. Should he be granted work charge status as beldar or as Supervisor w.e.f. 1.1.2001? The other example is converse. Supposing employee (B) has worked as beldar w.e.f. 1.1.1991 to 31.12.1991 and from 1.1.1992 he has worked as Supervisor. From which date should we grant him work charge status and in what scale? It is obvious that in the first case the employee would not mind being granted work charge status even in the lower scale after 10 years w.e.f. 1.1.2000 since grant of work charge status would mean that he would get regular scale of pay. But should the employee be granted work charge status in the higher scale ? We cannot agree with this preposition. 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 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 on completion of 10 years of continuous service in the said scale. In the examples given above, employee (A) may prefer to accept work charge status w.e.f. 1.1.2001 even in the lower scale of beldar because otherwise he may 5 have to wait for 9 years before he is granted work charge status. On the other hand, employee (B) in the second example may prefer to delay the grant of work charge status by one year so that he can get work charge status in the higher scale. We feel that in each case 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 charge status in the lower scale by combining the service rendered in both the scales. This answers the fourth question.” The scheme approved in Mool Raj Upadhyaya’s case clearly provides that a daily-waged worker who has worked continuously for a period of 10 years with 240 days in each calendar year is to be regularized/appointed in the corresponding lowest cadre. It is thus obvious and we have held so in Gauri Dutt’s case (supra) that where an employee works in two different posts he can combine the service rendered in both the posts only if he wants to seek regularization in the lowest post. In case he wants to seek regularization in the higher post he must show continuous service of 10 years in higher post. In the present case, the respondent has been working since 1988 continuously as beldar and later as pump attendant and complaint attendant. It is not 6 disputed that he has worked more than 240 days in each year. The respondent would be entitled to be regularized as beldar w.e.f. 1.1.1998. However, if he wants his regularization as pump attendant, only the service rendered from the date he joined as pump attendant will be counted. Admittedly, the respondent had completed more than 240 days of service as pump attendant prior to 31.12.1993. Therefore, in terms of our judgment in Gauri Dutt’s case he can claim work charge status as pump attendant on completion of 10 years service from the date he was initially engaged as pump attendant. However, as far as the post of complaint attendant is concerned, the respondent had not worked as complaint attendant prior to 31.12.1993. Therefore, in accordance with the judgment delivered in Gauri Dutt’s case (supra) he cannot claim work-charge status/regularization in terms of Mool Raj Upadhyaya’s case. His regularization/grant of work-charge status as complaint attendant has to be in accordance with the fresh policy of the State. Keeping in view the aforesaid discussion, we modify the order of the learned Tribunal and direct that the respondent will be given an option in the aforesaid terms. In case he exercises his option he shall be granted work-charge status in terms of his option. In case 7 he does not exercise any such option within a period of 2 months of the chance given to exercise option he shall be granted work-charge status of beldar w.e.f. 1.1.1998. Petition is disposed of in the aforesaid terms. No order as to costs. ( Deepak Gupta ), J. July 22, 2008 ( V. K. Ahuja ), J. PV