Ashok Kumar vs State Of H.P. & Others

Vivek Singh Thakur, J

Admitted facts in present case are that petitioner was appointed as daily waged Surveyor on 1.11.1983 and in the year 1983 he served as Surveyor

for 61 days. He continued to work as daily waged Surveyor till 30.6.1987 and w.e.f. 1.7.1987 to 28.2.1988 he was engaged as daily waged Beldar.

Thereafter, from 1.3.1988 to 31.10.1989, he was engaged as daily waged Fitter, a Class-III post equivalent to the post of Surveyor. Since 1.11.1989 till

his regularization, he was engaged as daily waged Surveyor continuously. Since 1984 till his regularization vide order dated 17.12.2002, w.e.f.

31.3.2000, he served for 240 days each in every calendar year as daily waged employee, though in different capacity, i.e. Surveyor, Beldar and Fitter,

as mentioned supra.

It is also undisputed that in pursuance to the decision of Government dated 28.2.2008, taken after passing of judgment by this High Court in Gauri

Dutt and others Vs. State of Himachal Pradesh, reported in Latest HLJ 2008 (HP) 366, petitioner was regularized, immediately on completion of 10

years as Surveyor with 240 days each in every calendar year, vide order dated 18.3.2008 from retrospective date w.e.f. 1.1.2000. Thereafter

petitioner had represented to the respondent authority to take into consideration his service w.e.f. 1984 onwards as he had completed 240 days in each

calendar year continuously after 1.1.1984 till his regularization.

Feeling aggrieved by omission on the part of respondents-authority to take any decision, he had approached this High Court by filing CWP No. 8325

of 2011, which was disposed of vide order dated 11.10.2011 with direction to the respondents-authority to take appropriate action in representation

made by petitioner, which was pending consideration before the authority. In pursuance to the order passed by this High Court, representation of the

petitioner was considered by Engineer-in-Chief and was decided vide order dated 28.11.2011, whereby it was concluded by the authority that from

1.3.1988 to 31.10.1989, petitioner was engaged as daily waged Fitter and thereafter he was continued as daily waged Surveyor till his regularization

and as post of Fitter was equivalent to the post of Surveyor, service of the petitioner as Fitter w.e.f. 1.3.1988 to 31.10.1989 was also taken into

consideration for counting requisite years for his regularization as Surveyor and as such work-charge status was conferred upon the petitioner w.e.f.

1.1.1998, instead of 1.1.2000.

By way of present petition, petitioner has assailed order dated 28.11.2011, claiming that his entire service w.e.f. 1.1.1984, since when he has been

working as daily waged Surveyor, Beldar and Fitter, with 240 days in each calendar year, is required to be taken into consideration for the purpose of

conferring work -charge status upon him and/or regularization of his service.

To substantiate plea taken by the petitioner, reliance has been placed upon the judgment of this High Court passed in CWP No. 611 of 1995, Hem

Raj & others Vs. State of H.P., decided on 15.7.1996, SLP preferred against whereof, was also dismissed by the Supreme Court vide order dated

17.1.1997. In this case entire service of the petitioner therein, who had served as Surveyor, Beldar and Work Inspector for different intervals of

period, was ordered to be taken into consideration for his regularization for the higher post i.e. Work Inspector.

Claim of the petitioner has been repelled by the respondents on the ground that after his initial engagement as Surveyor, his services as Surveyor

were discontinued w.e.f. 1.7.1987 to 28.2.1988, when he was engaged as daily waged Beldar and, therefore, in view of pronouncement of this High

Court in Gauri Dutt’s case referred supra, his continuous service w.e.f. 1988, when he was engaged as daily waged Fitter, has been taken into

consideration for counting 10 years service for extending benefits to him in terms of pronouncement of the Apex Court in Mool Raj Upadhyaya Vs.

State of H.P. 1994 Supp (2) SCC 316, as now regularization of daily waged employees working on different post is governed by the verdict of Gauri

Dutt’s case.

I have given thoughtful consideration to the submissions of parties and have also gone through the judgment in Gauri Dutt’s case. Question No.

4 framed in Gauri Dutt’s case is relevant for consideration in present case, which reads as under:-

“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 higher scale by combining the two services after 10 years?â€​

In answer to the aforesaid question, the Division Bench has held as under:-

“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. 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 opinion 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.â€​

The essence of findings returned by the Division Bench in Gauri Dutt’s case to the aforesaid question is that an employee, for regularization

against higher scale, cannot have benefit of his service against lower scale for the purpose of counting 10 years service, however, for regularization

against lower scale an employee can have benefit of his service against post of higher scale for counting 10 years.

In present case, petitioner has served as daily waged Surveyor w.e.f. 1.1.1984 to 30.6.1987. Thereafter w.e.f. 1.7.1987 to 28.2.1988 he has

served as daily waged Beldar, which is admittedly a post of lower scale than the post of Surveyor. 1.3.1988 onwards, petitioner has served as Fitter

and Surveyor and these posts, according to respondents-authority are at par with each other and, therefore, for the purpose of counting 10 years

service of petitioner for regularization, the period has been counted from the year 1988.

In aforesaid facts, the controversy has narrowed down to that as to whether services of petitioner w.e.f. 1.1.1984 to 28.2.1988 when he served as

Surveyor and Beldar, is to be counted for the purpose of his regularization or not. As detailed in Gauri Dutt’s case, service rendered as Beldar, a

post in lower scale, than the post of Surveyor and Fitter, cannot be counted for regularization of the petitioner to the post of Surveyor. Therefore, in

any eventuality, period from 1.7.1987 to 28.2.1988 cannot be taken into consideration for counting requisite years of service as Surveyor.

In Gauri Dutt’s case, the Division Bench has given example of cases where daily wager initially is appointed on lower scale and later on

appointed on higher scale. But a case, like present one, wherein the employee initially and finally has been appointed to a post of higher scale and in

between to a post of lower scale, has not been discussed and considered therein. However, the essence of the judgment is very clear that for

regularization to the post of higher scale, services of employee against the post of higher scale are only to be taken into consideration, but not the

services rendered against post having lower scale. Petitioner herein, has continuously served for 240 days in each calendar year w.e.f. 1.1.1984,

though against different posts having different scales.

Considering the entire facts and circumstances and also ratio laid down in Gauri Dutt’s case, I am of the considered opinion that services of

petitioner w.e.f. 1.1.1984 to 30.6.1987 when he has served against the post of Surveyor, is required to be taken into consideration for counting his

requisite years of service for the purpose of conferring work-charge status/regularization, because there is no break in his daily wage service since

1.1.1984 as though he was engaged against posts having different scales, but his services were never discontinued till his regularization and he had

completed 240 days in every calendar year during this period. His services as daily waged Beldar w.e.f. 1.7.1987 to 28.2.1988 are not to be taken into

consideration for calculating the requisite years, rather has to be excluded for the purpose of calculation of requisite years. But at the same time this

period is not to be considered as a period when petitioner has not served at all for the purpose of continuance of service and completion of 240 days in

each calendar year. Though, this period is to be taken into consideration for purpose of continuation, but is not to be added to the period of service as

Surveyor. Such eventuality has neither been placed before the Division Bench in Gauri Dutt’s case nor has been considered or elaborated in that

case.

In view of above discussion, petitioner is held to be entitled for counting of his service w.e.f. 1.1.1984 to 30.6.1987 for the purpose of extending

benefit of regularization/conferring work-charge status upon him and thus respondents-authority is directed to extend the benefit of the said period of

service to the petitioner on or before 31st January, 2021 for all intents and purposes with all consequential benefits, including arrears if any, as a result

thereof.

The petition is allowed in the aforesaid terms.