IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.737 of 2001 alongwith CWP No.604 of 2003: Judgment reserved on: 17.7.2008 Date of decision: 22nd July, 2008. CWP No.737 of 2001: Ramesh Kumar Sharma …..Petitioner Versus State of H.P. and others …..Respondents CWP No.604 of 2003: State of H.P. & others ..Petitioners Versus Ramesh Kumar ..Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for reporting?1 For the State of H.P.: Mr. R.M.Bisht, Deputy Advocate General. For the Employee: Ms.Jyotsna Rewal Dua, Advocate. Deepak Gupta, J. The aforesaid two petitions are being disposed of by a common judgment since they arise out the same order of the learned H.P. State Administrative Tribunal (hereinafter referred to as the Tribunal) dated 1.6.2001 passed in O.A. No.1185 of 1998. Briefly stated the facts of the case are that the respondent employee worked as Apprentice Draftsman with the State w.e.f. 3.5.1985 to 30.4.1988. Thereafter, 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 he was engaged as Draftsman Civil on daily wages from 4.5.1988 to 31.101989. Then he worked as daily wage Supervisor w.e.f. 1.11.1989 to May, 1990. From June, 1990 to March, 1993 the employee worked as daily wage Beldar. He was again appointed as daily wage Supervisor in April, 1993 and continued as such. He filed O.A. No.1185 of 1998 before the learned tribunal praying that his services may be regularized as Work Inspector w.e.f. 30.5.1998 when he completed 10 years of service on daily wage basis. This O.A. was partly allowed and the learned Tribunal directed that the employee be regularized as Work Inspector from April, 2001 as admitted by the Department in its reply. Aggrieved by the said order, both the State as well as the Original applicant has filed the aforesaid two petitions. We have heard Ms.Jyotsna Rewal Dua, learned counsel for the employee and Sh.R.M. Bisht, learned counsel for the State. It is contended by Ms.Dua that the service rendered by the employee as Apprentice Draftsman and Draftsman Civil on daily wages as well as the service rendered as daily wage Supervisor prior to June, 1990 should also be counted and added to his service while calculating 10 years of uninterrupted service as required in terms of the scheme approved in the case of Moolraj 3 Upadhayaya vs. State of H.P. and others, 1994 Supp (2) SCC 316. On the other hand Sh.R.M. Bisht, learned Deputy Advocate General contents that 10 years uninterrupted service in the higher post only has to be counted and therefore the employee can be considered for regularization only by counting his service w.e.f. April, 1993. We may point out that it is not disputed that the employee has admittedly completed 240 days of service as daily-wage Supervisor before 31.12.1993. 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 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 ?” 4 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 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 5 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 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 6 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 question that arises in the present case is as to whether the employee can be given benefit for the period he first worked as Apprentice Draftsman, Draftsman Civil on daily wages and Daily wage Supervisor. According to us the service rendered as Apprentice Draftsman cannot be counted since this is not a service as dailywager and therefore the decision in Mool Raj Upadhyaya’s case will not apply to the period when the employee was an Apprentice in terms of the Apprentices Act, 1961. 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 7 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. As pointed out above, the employee had worked as beldar from June, 1990 to March, 1993. This was an interruption in his service as daily wage Supervisor. Therefore, his earlier service as daily-wage Supervisor cannot, in our opinion, be counted in calculating 10 years of uninterrupted service as daily wage Supervisor/Works Inspector. In view of the above discussion, we modify the order of the learned Tribunal and direct that the employee shall be granted regular work charge status w.e.f. the date he completed 10 years uninterrupted service as daily-wage Supervisor/Work Inspector i.e. from Ist April, 2003. Consequently, he is held entitled to the grant of such status w.e.f. Ist April, 2003. Both the petitions are disposed of in the aforesaid terms. No order as to costs. ( Deepak Gupta ), J. July 22, 2008 ( V. K. Ahuja ), J. PV