IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP-T No. 2532 of 2008 Date of decision: 23rd February, 2011. Shashir Kumar …Petitioner. Versus State of Himachal Pradesh and others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No.. For the petitioner: Mr. Abhyender Gupta, Advocate vice Mr. A.K. Gupta, Advocate For the respondents: Mr. Vivek Singh Thakur, Addl. Advocate General. Deepak Gupta, J. (Oral) 1. By means of this petition the petitioner has prayed that he should be given work charge status as fitter w.e.f. 1.1.2003. 2. I have gone through the mandays chart which has been attached by the respondents as Annexure R-5 with the petition. This mandays chart shows that the petitioner was initially engaged as Beldar on daily wage basis w.e.f 9.11.1987 and worked as such till 28.2.1995 and w.e.f. 1.3.1995 he has been working as fitter. According to the respondents the petitioner was offered regular post of Beldar from 6.5.1999 in terms of the Judgement of Apex Court in case titled Mool Raj Upadhyaya 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 versus State of H.P. and others, 1994 Supp (2) SCC 316 but the petitioner insisted that he be regularized as fitter vide his communication, Annexure R-3. 3. In Gauri Dutt and Ors. versus State of H.P., Latest HLJ 2008(HP) 366 a Division Bench of this Court dealt with this matter. Question No.4 which was formulated in the said case reads as under: “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?” This question was answered by the Court in the following terms: ”18. 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 of 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 3 would not be fair and equitable to grant them work charge status in the lower scale. 19. We have considered the arguments from all angles. We are of the view that the employee cannot be given the benefit of combing 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 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 clear other example is converse. Supporting employee (B) has worked as beldar w.e.f. 1.1.1991 to 31.12.1991 and from 1.1.1992 he was 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 10years w.e.f.1.1.2000 since granted 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 the preposition. 20. 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 4 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 of 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.d 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 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 change 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.” 4. It is thus obvious that the petitioner cannot get the benefit of the service rendered as Beldar for regularization/grant of work charge status as fitter and only his service from 1st March, 1995 onward has to be counted for granting him work charge status/regularization in terms of the policy of the State Government. As per the policy of the State Government, though an employee is entitled for grant of work charge status/regularization after 8 years of service, this is only possible in case vacancy is available. The Division Bench of this Court in Gauri Dutt’s case (Supra) has specifically held that the law laid down in Mool Raj Upadhyaya’s case is not applicable in case of appointments made after 1.1.1993. Since the petitioner was appointed as fitter thereafter, he 5 cannot get the benefit of the law laid down in Mool Raj Upadhyaya’s case and has forgone his claim to be regularized as beldar. Petition is accordingly rejected with no order as to the costs. (Deepak Gupta) Judge February 23rd, 2011 (jai)