IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2228 of 2007. Decided on: 6.1.2010 State of H.P & Ors. …. Petitioners Versus Dina Nath` ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice V.K.Ahuja, J. Whether approved for reporting ? No. For the petitioners: Mr.R.K. Sharma, Sr.Additional Advocate General, with Mr.Rajesh Mandhotra, Deputy Advocate General. For the respondent: Ms.Sunita Sharma, Advocate. Deepak Gupta, J.(Oral) This writ petition by the State is directed against the order of the H.P State Administrative Tribunal whereby the Original Application filed by the respondent herein has been allowed and the State has been directed to grant work charge status to the applicant in the higher post by combining the service rendered by the applicant in different categories and counting the service rendered in all these posts. We had dealt with the questions which arise in this petition in Gauri Dutt and others versus State of H.P., Latest HLJ 2008(1) HP 366, wherein we had decided a number of questions of law. Questions No. 1, 2 and 4 are relevant for our purpose and read as follows:- _________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. 2 “1. Whether the scheme of putting the workers on work charged basis as approved by the Apex Court in Mool Raj Upadhyaya’s case is applicable to those daily waged employees who had not completed minimum of 240 days of service in a calendar year as on 31st December, 1993? 2. If the answer to the first question is in the negative, what will be the process of regularization of services of those employees who had not completed 240 days of service in a calendar year as on 31st December, 1993 or had joined service after 1st January, 1994? 3. xxx xxx xxx xxx 4. Whether 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?” We had answered question No.1 by holding that the Scheme approved in Mool Raj Upadhaya’s case is applicable only to those employees who had completed at least one year of continuous service as on 31.12.1993. We had answered the second question by observing that the employees who had not completed one year as on 31.12.1993 or had joined thereafter were covered by other schemes framed by the State Government in this behalf after Mool Raj Upadhaya’s case. As far as last question is concerned, we had held as follows:- “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 3 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 of completion of 10 years of continuous service in the said scale.” We have clearly held in Gauri Dutt’s case that if the employee wants to be regularized on work charge status in the higher scale, he can claim the same only after the said employee has rendered continuous service of eight/ten years in the said scale. Now we have been informed that eight years service is required but there is a caveat in the scheme that there should be a vacant post and only if a post exists then the employee can be regularized. We are clearly of the view that in view of what we had held in Gauri Dutt’s case, an option should be given to the employee as to whether she/he would like to be regularized in the lower post or wants to be in the higher post, in which event his regularization/grant of work charge status will be governed by the scheme applicable on the date taking into consideration his uninterrupted service in the higher scale. In the present case, the respondent started working on daily wages since the year 1980. Right from the year 1981, he has completed 240 days in every calendar year and he worked in different capacities of Assistant Fitter, Beldar, Blacksmith and Mason till the year 1983. From the year 1984, he has worked as Fitter till 25.5.1987, where after, he again worked as 4 Assistant Fitter. Thereafter, on 25.3.1988, he was again appointed as Fitter Grade-I and continued to work as such. In view of the above discussion, we allow the writ petition and set aside the order of the Tribunal. We direct that the petitioners shall give a clear-cut option to the respondent within 12 weeks from today as to against which post he wants to be regularized. In case he wants to be regularized in the lower post of Assistant Fitter, his entire service from 1.1.1983 shall be counted. In case he wants to be regularized against the higher post of Fitter Grade-I, then only the service from 25.3.1988 shall be counted. The Government shall take a decision within three months of the respondent exercising the option and in case any monetary dues are payable to the respondent, the same will be paid within two months thereafter. In case the respondent does not exercise any option, it will be presumed that he is satisfied by the orders already passed by the State Government. The writ petition is disposed of in the aforesaid terms. In view of the final disposal of the main petition, all the pending application(s), if any, shall also stand disposed of. ( Deepak Gupta ) Judge January 6, 2010 (V.K.Ahuja) (TILAK) Judge