IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 9624 of 2008 (OA No. 2565 / 2003) Judgment reserved on: 2.7.2010 Date of decision: July 5, 2010. Dinesh Nandan …Petitioner. Versus State of H.P.& Others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. Naresh Kaul, Advocate. For Respondents : Mr. P.K.Sharma,. Addl. A.G. with Mrs. Shubh Mahajan, Dy. A.G. Kuldip Singh, Judge The petitioner has prayed for a direction to the respondents to give him work charged status w.e.f. 1.9.1999 as Electrician Grade-I with all consequential benefits such as salary, seniority etc.. It has also been prayed that respondents may be directed to regularize the services of the petitioner w.e.f. 1.1.1999 / 1.4.1999 on completion of nine years service by petitioner as Electrician Grade-I as per policy of the Government with all consequential benefits. 2. The further case of the petitioner is that he is Graduate having two years Electrician diploma (ITI). He was engaged as Electrician on 1.9.1989. Lateron the grading of Electricians was 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 done and petitioner was every time given wages meant for Electrician Grade-I. The respondent No.5 in letter dated 13.10.1998 Annexure A-2 addressed to respondent No.4 has stated that petitioner was engaged in the year 1989 as Electrician Grade-I. The petitioner has completed 10 years of continuous service with 240 days in each calendar year and he is entitled to work charged status as Electrician Grade-I w.e.f. 1.9.1999 in accordance with the decision of the Supreme Court in Mool Raj Upadhyaya Vs. State of Himachal Pradesh, 1994 Supp. (2) SCC 316. The petitioner has been regularized as Electrician Grade-II vide office order dated 5.12.2002 Annexure A-3 which order deserves to be corrected/rectified by the order of the Court. 3. The respondents No.1 to 5 have filed the reply and contested the petition in which preliminary objection of estoppel has been taken. It has been pleaded that petitioner was offered appointment as work-charged Electrician by Superintending Engineer, IPH Circle, Nurpur vide letter dated 5.12.2003 (sic 5.12.2002) in terms of the Government policy, the petitioner accepted the offer and joined on 7.12.2002. Therefore, petitioner is estopped from claiming work charged status or regularization as Electrician Grade-I. On merits, it has been submitted that the petitioner has been regularized after completion of 8 years of continuous service with minimum of 240 in each calendar year as on 31.3.2000. The respondents have prayed for dismissal of the writ petition. 4. I have heard the learned counsel for the parties. The respondents have placed on record mandays chart Annexure R-I of 3 petitioner from 1990 to 1998. The perusal of Annexure R-1 indicates that the petitioner was engaged as Electrician in the year 1990 and he completed 240 days in each calendar year from 1990 to 1998. The letter dated 13.10.1998 Annexure A-2 reveals that petitioner was engaged as Electrician Grade-I in the year 1989. In the reply filed by respondents No.1 to 5 they have not taken the stand that letter dated 13.10.1998 Annexure A-2 is factually incorrect nor they have stated that the petitioner was not engaged as Electrician Grade-I in the year 1989. The petitioner has specifically pleaded that whenever wages were revised, he was given increased wages of Electrician Grade-I. This stand of the petitioner has also not been denied by the respondents in the reply. 5. The respondents in the reply have not stated that the petitioner was initially engaged as Electrician Grade-II. In the mandays chart Annexure R-1 petitioenr has been shown as Electrician. It has not been explained by the respondents on what basis they have regularized the petitioner as Electrician Grade-II vide office order dated 5.12.2002 Annexure A-3. This is more so, when in Annexure A-2 respondent No.5 has clearly stated that petitioner was engaged as Electrician Grade-I in the year 1989. In the facts and circumstances which have come on record, it can be safely concluded that the petitioner was engaged as Electrician Grade-I in the year 1989. 6. The learned Additional Advocate General has submitted that petitioner was engaged as Electrician and therefore, as per Mool Raj Upadhyaya (supra) he was to be placed in lowest grade of Electrician which is Electrician Grade-II and therefore, no 4 fault can be found when the petitioner was regularized as Electrician Grade-II vide office order dated 5.12.2002 (Annexure A-3). It has also been submitted that the petitioner was offered regular appointment of Electrician Grade-II vide office order dated 5.12.2002 Annexure A-3 which he has accepted, therefore, the petitioner is estopped from claiming work charged status or regularization as Electrician Grade-I. 7. In Mool Raj Upadhyaya, 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 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 5 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 regularized in a phased manner on the basis of seniority-cum- suitability including physical fitness. On regularization 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.” 8. In Mool Raj Upadhyaya (supra) no doubt, the Supreme Court has observed that work charged employee after appointment shall be put in the time scale of pay applicable to the corresponding lowest grade in the Government. It has been held above that petitioner was engaged as Electrician Grade-I in the year 1989, therefore, petitioner is entitled to time scale of pay of Electrician Grade-I of lowest grade applicable in the Government after his appointment on work charged establishment and not time scale of lowest grade applicable in Government to Electrician Grade-II. It has not been pointed out that Electrician Grade-I and Electrician Grade-II are in same pay scale. In any case once the petitioner has established that he was appointed as Electrician Grade-I in the year 1989, therefore, he is entitled to pay scale of Electrician Grade-I on attaining work charged status of Electrician Grade-I. 9. There is substance in the submission of the learned counsel for the petitioner that petitioner had no bargaining power. The Department offered regular post of Electrician Grade-II to petitioner vide Annexure A-3. The petitioner was not in a position to 6 refuse the offer. The consequences of refusal of offer were obvious. Therefore, respondents cannot be permitted to contend that merely because petitioner had accepted office order dated 5.12.2002, therefore, he is debarred from projecting his case of Electrician Grade-I. The point in issue is whether petitioner was engaged as Electrician Grade-I or not. It has already been held above that petitioner was engaged as Electrician Grade-I in the year 1989. Therefore, contention of learned Additional Advocate General that petitioner is estopped from pleading his case that he was engaged as Electrician Grade-I and he is not entitled to work charged status of Electrician Grade-I and regularization as Electrician Grade-I is rejected. 10. It has been submitted by the learned Additional Advocate General that once the petitioner has been regularized vide office order dated 5.12.2002, he is not entitled to work charged status as claimed by him. There is no force in this submission of the learned Additional Advocate General. The work charged status and regularization are different status. After work charged status the workman/employee is entitled to benefits flowing from that status. It has already been noticed above that petitioner was engaged as Electrician Grade-I in the year 1989, but he has been regularized as Electrician Grade-II vide office order dated 5.12.2002 Annexure A-3. In State of H.P. and others Vs. Gehar Singh (2007) 12 SCC 43, on 23.10.2003 the Tribunal had directed the appellants therein to grant work-charged status to the respondents therein w.e.f. 1.1.2000 with all consequential benefits without any further delay. Despite that direction the appellants therein regularized the services 7 of the respondents therein w.e.f. 1.1.2003. The State of Himachal Pradesh filed writ petition and contended that the regularization policy dated 6.5.2000 barred retrospective regularization and accordingly prayed for quashing of the order passed by the Tribunal. This Court dismissed the writ petition which was challenged before the Apex Court and the Apex 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 Mool Raj Upadhyaya envisages two stages in regularizing 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 on31.12.1993, daily –wage/muster roll workers were to be appointed as work-charged employees with effect from 1.1.1994. Thereafter, they were to be regularized in the second stage in a phased manner on the basis of seniority-cum- suitability including physical fitness. Even while challenging the direction given by the Himachal Pradesh Administrative Tribunal on 23.10.2003, the State of Himachal Pradesh made out a case that the respondents were claiming regularization of their services with effect from 1.4.1998. it was also urged that it had been brought to the notice of the Tribunal that the respondents were daily-wage workers and as per the instructions dated 6.5.2000, they were entitled for work-charged status only as and when the posts were sanctioned by the State Government in a phased manner strictly on the basis of seniority.” 11. The respondents No.1 to 5 have not contested the claim of the petitioner that petitioner had completed 10 years continuous service with 240 days in each calendar year. It has already been held that 8 petitioner was engaged as Electrician Grade-I in the year 1989, therefore, petitioner is entitled to work charged status as Electrician Grade-I on completion of 10 years service with 240 days in each calendar year in accordance with the directions given by the Supreme Court in Mool Raj Upadhyaya (supra). Thereafter, the petitioner is entitled to regularization as Electrician Grade-I as per the policy of the State Government which was prevalent at the relevant time, hence office order dated 5.12.2003 Annexure A-3 is not sustainable. 12. No other point was urged. 13. In view of the above discussion, the petition is allowed, office order dated 5.12.2002 Annexure A-3 is quashed. The respondents No.1 to 5 are directed to give work charged status to the petitioner as Electrician Grade-I as per Mool Raj Upadhyaya (supra) on completion of 10 years service with 240 days in each calendar year after 1.9.1989 and thereafter regularize the petitioner as Electrician Grade-I in accordance with the policy of the State Government which was prevalent at the relevant time with all consequential benefits such as seniority, pay etc. and needful be done in two months from today. The petition stands disposed of with above directions. No costs. ( Kuldip Singh ), July 5, 2010, Judge. (GR)