JUDGMENT Dharam Chand Chaudhary, J. (Oral) Aggrieved by the order dated 6.7.2007, Annexure P-3, whereby he has been regularized as Cleaner, the petitioner has approached this Court by filing the present writ petition for quashing the same, allegedly being not legally nor factually sustainable. 2. The record reveals that no doubt the petitioner was engaged on daily wage basis in the year 1994, however, in what capacity, is the bone of contention in the present lis. While the case of the petitioner is that he was engaged as a driver on daily wage basis in April, 1994 and continuing as such till date and hence he should have been regularized as driver, on completion of 8 years of service on daily wage basis, i.e. w.e.f. April, 2002, at the same time, the respondents have come forward with the version that the petitioner initially was engaged as Cleaner on daily wage basis in the month of February, 1994 and continued as such till 15.12.2001. It is w.e.f. 16.12.2001, he was engaged as driver on daily wage basis against a post of driver lying vacant in Karsog Forest Division, Distt. Mandi and as such, he has been rightly regularized as Cleaner vide impugned order Annexure P-3, in view of the Policy dated 9.6.2006 Annexure R-1, (wrongly mentioned as Annexure R-3 in the reply). 3. The claims and counter claims as laid down by both sides have to be weighed in the light of the given facts and circumstances of this case and also the material available on record, as well as the settled legal principles applicable to a situation like the one in the present case. 4. The petitioner has placed reliance on Annexure P-2, Man Days Chart, issued by Divisional Forest Officer, Mandi Forest Division, Mandi. In the heading of this document, the petitioner has been shown to be engaged initially as Cleaner in the year 1994 and continued as such up to 15.12.2001. A handwritten foot note duly signed by Divisional Forest Officer, Karsog Forest Division, reveals that the petitioner was engaged as driver on daily wage basis w.e.f. 17.12.2001 onwards and completed 15 days as such up to 31.12.2001 and 355 days in the year 2002. A handwritten foot note duly signed by Divisional Forest Officer, Karsog Forest Division, reveals that the petitioner was engaged as driver on daily wage basis w.e.f. 17.12.2001 onwards and completed 15 days as such up to 31.12.2001 and 355 days in the year 2002. As per Annexure P-1 (colly) dated 28.9.2006, 12.1.2007, 1.2.2007, 7.3.2007, 9.3.2007 and 17.3.2007, the petitioner has been shown to be working as driver on daily wage basis and rightly so, because as per the case of the respondents, he was engaged on daily wage basis as driver against a post lying vacant in Karsog Forest Division from 17.12.2001 onwards. Annexure P-1, however, is not suggestive of the fact that the petitioner was working as driver even prior to 15.12.2001 also. No doubt the 1st Column of Annexure P-2 is “Name of Clearner-cum-Driver”, however, on the basis thereof it can not be believed by any stretch of imagination that the petitioner was working as Driver right from his initial engagement because had it been so there should have been plenty of record in the nature of Annexure P-1(Colly) pertaining to the period prior to 15.12.2001 also suggesting that he was working as Driver right from his initial engagement and not as cleaner. The extract of Log Book, Annexure P-4 (Colly) and the Travelling Expenses Claim Bill which pertains to the year 2010 also reveal that the petitioner is even now also discharging the duties of a driver irrespective of his having been regularized vide impugned order Annexure P-3 as Cleaner. The material brought on record by the petitioner, however, does not substantiate his claim that he has been working as driver right from his initial engagement, i.e. April, 1994 onwards till date on daily wage basis. The fact however, the fact remains that the petitioner is working as driver on daily wage basis after 15.12.2001 in Karsog Forest Division against a vacant post of driver. 5. The present being a case of engagement of the petitioner initially as a daily waged cleaner since February 1994 and subsequently as driver from 17.12.2001 onwards, the same is not covered by the judgment of the Hon’ble Apex Court in Mool Raj Upadhyaya vs. State of H.P. & Others, 1994 Supp (2) SCC 316, where a cut of date qua engagement of worker on daily wage basis was 31.12.1993. 6. 6. A Division Bench of this Court in Gauri Dutt & others v. State of H.P. Latest HLJ (HP) 366, while discussing the law laid down by the Hon’ble Apex Court in Mool Raj Upadhyaya’s case cited supra has observed as under:- “The scheme does not deal with future contingencies. We cannot read into the judgment of the Supreme Court or in the scheme as approved by the Supreme Court anything more than what is stated in it. As per our reading of the scheme the same only applies to employees who had either completed 10 years of continuous service as on 31.12.1993 or the employees who had rendered one or more years’ of service, but had not completed 10 years of service as on 31.12.1993. This scheme does not apply to those employees who had not completed even one year of service as on 31.12.1993 or who were employed thereafter. The first question is answered accordingly. Under para 4 of the scheme the State was under an obligation to regularize all daily waged/muster roll workers whether they had joined prior to 31.12.1993 or thereafter. The State has framed a scheme in this behalf on 6th May, 2000. In our opinion those employees who are not governed by the direction given in Mool Raj Upadhyaya’s case as set out by us above, shall be governed by the scheme of 2000. The second question is answered accordingly.” 7. The above legal position clearly indicates that the cases of those daily waged/ muster roll workers, engaged as such after 31.12.1993, are to be considered for regularization in a phased manner on the basis of seniority-cum-suitability, including physical fitness, obviously on completion of 8 years of service. 8. Now coming to the question of regularization of the petitioner and against what post? He was to complete 8 years continuous service, with minimum 240 days in each calendar year as cleaner, in February, 2002. However, well before that he was engaged as driver on daily wage basis on and w.e.f. 17.12.2001. The maximum period up to February, 2002 pertains to his engagement on daily waged basis as Cleaner and it is only for a period over 2 months that he worked as driver. Any how, the present was a case where the petitioner had worked during the above period against two posts, i.e. Cleaner and Driver, carrying lower and higher pay scale. Any how, the present was a case where the petitioner had worked during the above period against two posts, i.e. Cleaner and Driver, carrying lower and higher pay scale. Such a situation came to be considered by a Division Bench of this Court in Gauri Dutt’s case, cited supra, wherein after taking into consideration all pros and cons, it is held as under: “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 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. 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 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.” 9. The case of the petitioner was thus required to be considered for regularization in accordance with the above legal position and also the policy(ies) framed by the Government from time to time. This answers the fourth question.” 9. The case of the petitioner was thus required to be considered for regularization in accordance with the above legal position and also the policy(ies) framed by the Government from time to time. In the event of the option given to him, he would have opted either to be regularized as cleaner by combining his service rendered in lower and higher pay scales or continued as driver on daily waged basis till he completed 8 years of service as such i.e. December, 2009. He has, however, not been given any such option and to the contrary, has been regularized against the post of Cleaner, carrying lesser pay scale, which in my considered opinion, has resulted in miscarriage of justice to the petitioner. 10. The impugned order, thus, being legally and factually unsustainable deserves to be quashed and set aside. The petitioner, no doubt, has failed to prove that he had been working as a driver right from his initial engagement i.e. February 1994, and as such he is not entitled to claim the wages of driver at the rates prevalent during the period from February 1994 to 16.12.2001. However, he has been working as driver on daily waged basis w.e.f. 17.12.2001 continuously and as such, should have been paid the wages at such rates prevalent during the period from 16.12.2001 till his regularization on the completion of 8 years continuous service with 240 days. In view of there being no stage left for his regularization as Cleaner, the petitioner was required to have been considered for being regularized as driver, in terms of the policy circulated vide circular No. PER(AP)-C-B(2)-1/2006-Vol.VIII, dated 7th May, 2010 because he had already completed the 8 years continuous and uninterrupted service on Daily waged basis with minimum 240 days in each calendar year well before the cut of date i.e. 31.3.2010 because he had been engaged and working as Driver against a vacant post w.e.f. 17.12.2001. 11. Admittedly, the petitioner was engaged as driver on daily waged basis in Karsog Forest Division against a vacant post on 17.12.2001 and working as such continuously and without any break till date. Not only this, but he is holder of a valid and effective driving licence, a copy whereof has also been placed on record. 11. Admittedly, the petitioner was engaged as driver on daily waged basis in Karsog Forest Division against a vacant post on 17.12.2001 and working as such continuously and without any break till date. Not only this, but he is holder of a valid and effective driving licence, a copy whereof has also been placed on record. Thus, he is eligible for being regularized as driver on the completion of 8 years continuous service on daily waged basis i.e. on 16.12.2009. He, however, has not been regularized and made to suffer for no fault on his part. 12. Therefore, this Court is of the considered view that in his case the regularization of the services of the petitioner as driver would be retrospectively i.e. on and w.e.f. 17.12.2009 and not prospectively i.e. from the date of issuance of order of regularization as contemplated under the Policy in question. Besides, the petitioner shall also be entitled to the wages as payable to a driver on daily wage basis right from his initial engagement i.e. 17.12.2001 till his regularization and thereafter to be placed at the minimum of the time scale of pay, payable to the corresponding lowest grade in the Government Departments with all consequential benefits. 13. In view of the foregoing reasons, this petition succeeds and the same is accordingly allowed. Consequently, there shall be a direction to the respondents to pay the wages of driver to the petitioner w.e.f. 17.12.2001 till 16.12.2009, and thereafter to regularize him as driver retrospectively with all consequential benefits. The arrears, on account of monetary benefits, be released to the petitioner within three months from the date of production of a copy of this judgment before the 3rd respondents, by the petitioner. 14. This writ petition stands disposed of accordingly, so also the pending application(s).