IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.859 of 2003: Judgment reserved on: 17.7.2008 Date of decision: 22nd July, 2008. State of H.P. & others ..Petitioners Versus Ravinder Singh ..Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for reporting?1 No For the Petitioners: Mr. R.M.Bisht, Deputy Advocate General. For the Respondent: Mr.P.P. Chauhan, Advocate. Deepak Gupta, J. This petition by the State is directed against the judgment of the learned H.P. State Administrative Tribunal (hereinafter referred to as the Tribunal) dated June 13, 2003 passed in O.A. No.2595 of 2003 whereby the petitioner State has been directed to regularize the services of the respondent as work Inspector with all consequential benefits. Briefly stated the facts of the case are that the respondent was engaged as daily-rated beldar on 2.1.1990. He continued to work as daily-rated beldar upto 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 31.1.1994. With effect from 1.2.1994 he was engaged as daily-wage Work Inspector. The petitioner State acting in accordance with the scheme approved by the Apex Court in Moolraj Upadhayaya vs. State of H.P. and others, 1994 Supp (2) SCC 316, issued an order on 21.9.1992 whereby the respondent was offered the post of work- charge beldar. This order was passed on 21.9.1992. The respondent filed the O.A. before the learned Tribunal claiming that he should be granted the work-charge status as Work Inspector w.e.f. 31.3.1998 since he had been working on the higher post for many years. 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 3 higher scale by combining the two services after 10 years ?” 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 4 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 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 5 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 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.” Sh.P.P. Chauhan, learned counsel for the respondent contends that in view of the judgment rendered by this Court his client should be granted work- charge status of Work Inspector on completion of 10 years service after 1.2.1994 at least. We may point out that in Gauri Dutt’s case we had also held that the scheme approved in Mool Raj Upadhyaya’s case would only apply to those employees who had completed 240 days of service as on 31.12.1993. We had however clarified that those employees who were engaged after 1.1.1994 or who had not completed 240 days of service after 31.12.1993 would be governed by the new policy of the State with regard to the regularization and the scheme 6 approved in Mool Raj Upadhyaya’s case will not apply to them. In the present case the appointment as Work Inspector was not a continuation of job of beldar. This was a fresh appointment and was made after 31.12.1993. It is, therefore, obvious that the respondent can only claim benefit of his service rendered as Work Inspector under the new policy and not under the scheme as approved in Mool Raj Upadhyaya’s case. As already pointed above the respondent has already been regularized as daily- wage beldar and is working as such. In the present case, the respondent was admittedly engaged as daily wage beldar on 2.1.1990. It is not also disputed that he has completed 240 days of service both as beldar and as Work Inspector every year and 10 years were completed on 1.1.2000 and therefore he would be entitled to be regularized as work charge beldar w.e.f. 2.1.2000. However, if he wants to be regularized as Work Inspector it is only his fresh service w.e.f. 1.2.1994 that will be counted and here also the regularization shall be strictly in accordance with the fresh policy framed. It is for the respondent employee to choose what option he prefers. We have already held in 7 Gauri Dutt’s case that the option must be given to the employee in this regard. We, therefore, dispose of this petition with the direction that in case the respondent exercises his option to be regularized as Work Inspector within two months from today the State shall deal with the same in accordance with the fresh policy as held by us above. In case no option is exercised, the respondent shall be deemed to have been regularized w.e.f. 2.1.2000 with all consequential benefits. The petition is disposed of in the aforesaid terms. No order as to costs. ( Deepak Gupta ), J. July 22, 2008 ( V. K. Ahuja ), J. PV