IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP (T ) No.7016 of 2008. Date of Decision: 19.10.2010 Sh.Mehar Singh …Petitioner. Versus. State of H.P. and others …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Petitioner(s): Ms.Kiran Dhiman, Advocate vice Mr.Onkar Jairath, Advocate. For the Respondent(s): Mr.Rajesh Mandhotra, Dy.A.G. Deepak Gupta, J.(oral) The petitioner had filed this O.A. before the erstwhile H.P. State Administrative Tribunal. On abolition of the Tribunal this case has been transferred to this Court in terms of the Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008. The admitted facts are that the petitioner was engaged as daily-waged Patwari in the respondent Department and has completed 10 years of service with minimum 240 days in each calendar year on 30.4.1996. According to the petitioner, in view of the scheme of regularization approved by the Apex Court in Mool Raj Upadhyaya vs. State of H.P. and others, 1994 Supp. (2) SCC 316, the petitioner 2 was eligible for regularization of his services w.e.f. 1.1.1997 on completion of 10 years service i.e. 240 days in each calendar year. The stand of the respondents is that the petitioner was appointed as daily-wage Patwari and the Recruitment and Promotion rules for the post of Patwari lay down that one of the essential qualifications for appointment to the post of Patwari is that the candidate should have passed the Patwar Circle Examination. It is only on this ground that the petition is opposed. The Apex Court in Mool Raj Upadhyaya’s case (supra) approved the scheme which reads as follows: "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 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." 3 The scheme as formulated clearly lays down that the daily wage/muster roll employees, whether skilled or unskilled, shall be appointed as work charged employees on the date they complete 10 years of continuous service and shall be placed in the time scale of pay applicable to the corresponding lowest grade in the Government. The scheme as formulated does not lay down that an employee should have to pass a departmental examination even if prescribed. Obviously, the scheme as approved in Mool Raj Upadhyaya’s case was an exception to the normal rule that the employment should be made strictly as per the Recruitment and Promotion Rules. If the Recruitment and Promotion Rules were to be followed then obviously no person could have been appointed as Patwari unless he had already passed the ‘Patwar examination’. Passing of the said examination is a pre-requisite to employment. It is not disputed that the petitioner fulfils the other educational qualifications prescribed under the Rules. He was appointed as Patwari as far back as in the year 1986 without insisting that he should have passed the ‘Patwar Circle Examination’. He continued to work as such and in terms of the judgment of the Apex Court in Mool Raj Upadhyaya’s case he was eligible to be granted work charged status on completion of 10 years continuous service. A Division Bench of this Court in Gauri Dutt & others vs. State of H.P. , Latest HLJ 2008 (HP) 366, has clearly held that 4 the benefit of Mool Raj Upadhyaya’s case would be available to all employees of the State of H.P. irrespective of the Department in which they work. No material has been placed on record by the Department to show that the petitioner was ever given a notice that he should clear the ‘Patwar Circle Examination’ before his case can be considered for regularization. In fact the reply in this case was filed after the petitioner had retired. At this stage it cannot be expected that he should clear the ‘Patwar Circle Examination’. In view of the above discussion, this petition is allowed and the respondents are directed to grant work-charged status to the petitioner on completion of his 10 years service with 240 days in each calendar year from the date of appointment. The respondents shall also thereafter take this service into consideration for working out the period eligible for grant of pension in terms of law laid down by this Court in State of H.P. and others vs. Sarab Dayal, Latest HLJ 2007 (HP) 1292. The monetary benefits due and payable to the petitioner and pensionary benefits if due and payable shall be paid to him latest by 31st May, 2011 along with interest @ 6% p.a.. In case the benefits are not paid by the said date the petitioner shall be entitled to claim interest @ 12% p.a. No costs. October 19, 2010 ( Deepak Gupta ) PV Judge.