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Himachal Pradesh High Court · body

2012 DIGILAW 791 (HP)

Abhiya Ram v. State of H. P

2012-11-05

R.B.MISRA, V.K.SHARMA

body2012
Judgment R.B. Misra, J. Heard. The present Letters Patent Appeal (LPA) has been preferred by the appellant/writ petitioner against the judgment dated 17th March, 2012, passed in CWP No.872 of 2009-B. The appellant has filed the writ petition with the following main prayer:- i) “That writ in the nature of mandamus may kindly be issued directing the respondents to grant all the service benefits of pay along with arrears, seniority and other incident benefits to the petitioner from the date the same has been granted to similarly placed persons and also to allow the benefits of appointment against a regular post to the petitioner w.e.f. the date the same has been allowed to similarly placed persons i.e. w.e.f. 2001.” 2. The appellant was appointed as Helper in the year 1991 in the department of HPPWD, State of Himachal Pradesh and had worked as such up to the year 1993 and while serving in the tribal area in the year 1991 he had rendered service of 221 days and for more than 240 days in the years 1992 and 1993. From the year 1994, the appellant had worked on promotional post of Air Compressor Operator, had continued to work as such till 24.10.2006 and has rendered service for more than 240 days in each calendar year. 3. Taking into consideration the pleadings and claims of the appellant/writ petitioner, as well as the rival contentions and response of the state, learned Single Judge has arrived at the finding that the case of the appellant be considered for regularization as Air Compressor Operator w.e.f. February, 1994 in the light of the observations made by the Hon’ble Supreme Court in Mool Raj Upadhaya vs. State of H.P. & another, 1994 Supp.(2) SCC 316. 4. Learned counsel for the appellant has submitted that since he has rendered his services as Helper in tribal area, therefore, for getting the status of work charge, he has to only render more than 180 days in a year. It has also been submitted by the learned counsel for the appellant that though in 1991, he has rendered 221 days and as such for that year also his case has to be considered for giving him the status of work charge employee. 5. Relying on the verdict of Gauri Dutt & Ors. Vs. It has also been submitted by the learned counsel for the appellant that though in 1991, he has rendered 221 days and as such for that year also his case has to be considered for giving him the status of work charge employee. 5. Relying on the verdict of Gauri Dutt & Ors. Vs. State of H.P., Latest HLJ 2008 (HP)366 (paras 18, 19 and 20), the learned counsel for the appellant has prayed that his case for giving him status of work charge, as Helper may be considered w.e.f. 1.1.2001, rather, considering his case for regularization as Air Compressor Operator i.e. to the higher post from February, 2004. 6. Learned counsel for the appellant has very humbly submitted that learned Single Judge has not correctly given the appellant the benefit of judgment of this Court rendered in Gauri Dutt & Ors. (supra). For convenience, the relevant paragraphs of Gauri Dutt & Ors. Case (supra) are extracted as below:- “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 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 combining service rendered in both the scales and be granted work charge status in the higher scale. 19. 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 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 10 years 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 wok 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 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. 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. 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.” 7. It has been submitted by the learned counsel for the parties that the appellant’s services as Helper from the year 1991 to 1993, if considered along with the services of the appellant rendered to the higher post of Air Compressor Operator from 1994 onwards, he may be given the status of work charge in the category of Helper. In our considered view, by clubbing his services rendered on the higher post of Air Compressor Operator, to his services rendered by him as Helper from 1991 to 1993, the appellant may be given benefit of the verdict and the observations of judgment in Gauri Dutt & Ors. case (supra). 8. In view of the specific observations in para-20 of Gauri Dutt & Ors. (Supra), the appellant has completed 10 years of service from 1991 to 2000, including three years service as helper from 1991 to 1993 and seven years of service as Air Compressor Operator from 1994 to 2000, the appellant is entitled to be given the benefit of work charge status as Helper from 1.1.2001. 9. Learned counsel for the appellant has very humbly submitted that though getting the appellant regularized to the higher post in higher scale of Air Compressor Operator shall not be in the interest of the appellant so far extending him pensionary benefits, whereas if he is given the work charge status as Helper in the lower scale from 1.1.2001, in that case, he may be entitled to the pensionary benefits. 10. In the facts and circumstances, in our considered view, the judgment of this Court rendered in Gauri Dutt & Ors. case (supra) would be a guiding factor and the appellant would is entitled to be given the work charge status as a Helper from 1.1.2001. 10. In the facts and circumstances, in our considered view, the judgment of this Court rendered in Gauri Dutt & Ors. case (supra) would be a guiding factor and the appellant would is entitled to be given the work charge status as a Helper from 1.1.2001. To this extent the judgment dated 17th March, 2012, rendered in CWP No.872 of 2009-B is modified. 11. The LPA is allowed accordingly. The pending CMP (s), if any stands disposed of.