IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 58 of 2010. Date of decision: 20.6.2011. Jai Kishan …..Petitioner. Vs. State of H.P. & anr. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr.J.D.Negi, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. Advocate with Mr. J.S.Rana, Asstt. A.G. Kuldip Singh, J (Oral). The petitioner has prayed a direction to the respondents to modify order dated 9.2.1999 and regularize the services of the petitioner as Mechanic instead of Helper with further direction to pay the arrears of salary to petitioner as Mechanic. 2. The facts in brief are that petitioner was engaged as Mechanic on daily wages in July 1986 in the office of Executive Engineer, Shimla Division No.2. Thereafter, the petitioner worked on the same post at Mechanical Sub Division, HPPWD Nerwa on daily wages. In the seniority list dated 4.1.1997 Annexure A-1 and the seniority list w.e.f. 1989 to 1998 Annexure A-2, the petitioner has Whether the reporters of the local papers may be allowed to see the Judgment? …2… been shown as Mechanic. The petitioner has completed 240 days in each calendar year from 1987 to 1998 and according to petitioner he has completed ten years of service on 31.12.1996. The petitioner has been wrongly regularized as Helper w.e.f. 1.1.1997 vide office order dated 9.2.1999 Annexure A-3. The petitioner has prayed his regularization as Mechanic instead of Helper. 3. No reply has been filed despite several opportunities given to the respondents. I have heard the learned counsel for the petitioner and Ms. Ruma Kaushik, Addl. Advocate General. In Annexure A-1 dated 4.1.1997, it has been stated that petitioner has worked as Mechanic from the year 1987 to 1989, in Annexure A-2 it has been stated that petitioner has worked as Mechanic from the year 1989 to 1998. The petitioner has pleaded that he was engaged on daily wages in the year 1986, but in Annexure A-1, the petitioner has been shown having worked as Mechanic in the year 1987. The petitioner has not placed any documentary evidence on record to show that he was engaged on daily wages in the year 1986 as Mechanic. 4. In Mool Raj Upadhyaya vs. State of H.P. and others 1994 Supp. (2) SCC 316, the Supreme Court has held as follows:- “Taking into consideration the facts and circumstances of the case, we modify the said scheme by substituting paragraphs 1 to 4 of the same by the following paragraphs: "(1) Daily-wage/muster-roll workers, whether skilled or unskilled, who have completed 10 years or more of continuous service …3… with a minimum of 240 days in a calendar year on 31.12.1993, shall be appointed as work-charged employees with effect from 1.1.1994 and shall be put in the time-scale of pay applicable to the corresponding lowest grade in the government; (2) daily-wage/muster-roll workers, whether skilled or unskilled, who have not completed 10 years of continuous service with a minimum of 240 days in a calendar year on 31.12.1993, shall be appointed as work-charged employees with effect from the date they complete the said period of 10 years of service and on such appointment they shall be put in the time-scale of pay applicable to the lowest grade in the government; (3 ) daily-wage/muster-roll workers, whether skilled or unskilled who have not completed 10 years of service with a minimum of 240 days in a calendar year on 31.12.1993, shall be paid daily wages at the rates prescribed by the government of Himachal Pradesh from time to time for daily-wage employees falling in Class III and Class IV till they are appointed as work-charged employees in accordance with paragraph 2; (4) daily-wage/muster-roll workers shall be regularised in a phased manner on the basis of seniority-cum-suitability including physical fitness. On regularisation they shall be put in the minimum of the time-scale payable to the corresponding lowest grade applicable to the government and would be entitled to all other benefits available to regular government servants of the corresponding grade." 5. The case of the petitioner is covered by paragraph 4(2) of the above judgement, wherein, it has been held that daily-wage/ muster-roll workers, whether skilled or unskilled, who have not …4… completed 10 years of continuous service with a minimum of 240 days in a calendar year on 31.12.1993, shall be appointed as work- charged employees with effect from the date they complete the said period of 10 years of service and on such appointment they shall be put in the time-scale of pay applicable to the lowest grade in the Government. The respondents have not explained under what circumstances they have regularized the services of the petitioner as Helper even though the petitioner was engaged as Mechanic and he worked as such as is clear from Annexures A-1 and A-2. 6. The regularization of petitioner as Helper is no hurdle for giving him work-charged status. In State of H.P. and others vs. Gehar Singh (2007) 12 SCC 43, the Supreme Court has held as follows:- “On a careful consideration of the submissions made on behalf of the respective parties, we are of the view that the High Court did not commit any error in dismissing the writ petitions filed by the State of Himachal Pradesh. The Scheme as referred to in the case of Mool Raj Upadhyaya envisages two stages in regularising the services of the Daily Wage/Muster Roll workers. In the first stage, after completion of 10 years or more continuous service with a minimum of 240 days in a calendar year on 31.12.1993, Daily Wage/Muster Roll workers were to be appointed as work-charged employees with effect from 1.1.1994. Thereafter, they were to be regularised in the second stage in a phased manner on the basis of seniority cum suitability including physically fitness………..” The Supreme Court has further held as follows:- “Notwithstanding the fact that the services of the respondents have been regularised with effect from 1.1.2003 and …5… they have joined their posts from that date without protest, they cannot, in our view, be denied the benefits as directed to be given to them by the Tribunal and affirmed by the High Court which had already accrued to them under the Scheme which was approved in Mool Raj Upadhyaya's case.” 7. The petitioner has made out a case for giving him work- charged status as per Mool Raj Upadhyaya (supra) after completing 10 years of service as Mechanic with 240 days in each calendar year. The petitioner shall be entitled to regularization as Mechanic on post available immediately after giving him work-charged status of Mechanic. 8. In view of above, the petition is allowed. The respondents are directed to consider the case of the petitioner for giving him work-charged status in view of findings recorded above within a period of six weeks from the date of supply of copy of judgement by the petitioner to the competent authority and within the same period the respondents shall release the arrears of pay, if any, after adjusting the dues already paid to the petitioner. The petitioner shall also be entitled to seniority as work-charged Mechanic with effect from the date he became due for work-charged status as Mechanic. June 20, 2011. ( Kuldip Singh ), (Hem) Judge.