Himachal Pradesh High Court: Vivek Thakur J., while allowing the present petition, made an elaborated discussion over conditions for granting benefit of service and regularization, in the light of Gauri Dutt v. State of Himachal Pradesh, HLJ 2008 (HP) 366.
Background
The petitioner in the instant case was appointed as daily waged surveyor on 1-11-1983 and in the same year, he served at the said position for 61 days. He continued to work as a daily waged Surveyor till 30-06-1987 and with effect from 01-07-1987 to 28-02-1988, he was engaged as daily waged beldar. Thereafter, from 01-03-1988 to 31-10-1989, he was engaged as daily waged Fitter, a Class-III post equivalent to the post of Surveyor. Since 01-11-1989 till his regularization, he was engaged as daily waged Surveyor continuously. Since 1984 till his regularization vide order dated 17-12-2002, with effect from 31-03-2000, he served for 240 days each in every calendar year as a daily waged employee, though in a different capacity, that is, Surveyor, Beldar and Fitter, as mentioned above.
It is also undisputed that pursuant to the decision of Government dated 28-02-2008, taken after passing of judgment by the present High Court in Gauri Dutt v. State of Himachal Pradesh, 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 18-03-2008 from retrospective date with effect from 01-01-2000. Thereafter petitioner had represented to the respondent authority to take into consideration his service with effect from 1984 onwards as he had completed 240 days in each calendar year continuously after 01-01-1984 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 the present 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 01-03-1988 to 31-10-1989, petitioner was engaged as daily waged fitter and thereafter he 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 with effect from 01-03-1988 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 with effect from 01-01-1998, instead of 01-01-2000.
By way of present petition, petitioner has assailed order dated 28-11-2011, claiming that his entire service with effect from 01-01-1984, 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.
Observation
The Court referred to the case of Gauri Dutt, where the essential question was precisely relevant for consideration in the instant case, that is,
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?
The Division Bench in the aforementioned case held, “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…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.” In essence the Bench observed 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.
The Court further admitted the fact that the facts of the present case are not exactly similar to the facts of the Gauri Dutt and in the same light observed, “… 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. 01-01-1984, though against different posts having different scales.”
Decision
While allowing the present petition the Court said, “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 with effect from 01-01-1984 to 30-06-1987 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 01-01-1984 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 with effect from, 01-07-1987 to 28-02-1988 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.”[Ashok Kumar v. State of Himachal Pradesh, CWPOA No. 842 of 2019, decided on 27-11-2020]
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