Smt. Dei Devi, Mr. Anil Kumar, Mr.Parveen Kumar, minor through his mother and natural guardian, Smt. Dei Devi, petitioner No. 1, and Kumari Bandna vs State of Himachal Pradesh

Justice Rajiv Sharma, Judge

Predecessor-in-interest of the present petitioners, Shri Duni Chand was engaged on daily wage basis as Chowkidar in the year 1983-84. He was regularised on 19.12.2002. Shri Duni Chand filed Original Application bearing No. 2115 of 2004 before the erstwhile learned Himachal Pradesh Administrative Tribunal seeking his regularisation with effect from 1.1.1995. On abolition of the learned Tribunal, the same was transferred to this Court and assigned CWP(T) No. 10976 of 2008. Shri Duni Chand died on 14.9.2009 and his legal representatives were brought on record vide order dated 17.3.2011. Mr. Jaidev Sharma, learned counsel for the petitioners has strenuously argued that late Shri Duni Chand ought to have been regularised on completion of ten years'' continuous service w.e.f. 1.1.1995 instead of 19.12.2002 since the period of his illness between 10.5.1990 to 30.9.1990 and 1.1.1991 to 20.5.1991 (total 284 days) was approved as continuous service for the purpose of regularisation.

Mr. Vikas Rathore, learned Deputy Advocate General has supported the decision of the respondents to regularise Shri Duni Chand with effect from 19.12.2002.

I have heard the learned counsel for the parties and gone through the pleadings carefully.

Shri Duni Chand was engaged on daily wage basis as Chowkidar in the year 1983-84. He remained sick between 10.5.1990 to 30.9.1990 and 1.1.1991 to 20.5.1991. In these circumstances, there was brake in service and he was regularised on 19.12.2002. He submitted the medical certificates to the competent authority for condoning the break in service between 10.5.1990 to 30.9.1990 and 1.1.1991 to 20.5.1991. The competent authority accorded approval to condone the break in service on 27.8.2002 as per instructions issued by the respondent-department. Thus, the period between 10.5.1990 to 30.9.1990 and 1.1.1991 to 20.5.1991 stood regularised. This period was required to be counted for the purpose of continuity in service for conferment of work-charge status/regularisation. Once the competent authority has taken a decision to regularise the period of illness of Shri Duni Chand between 10.5.1990 to 30.9.1990 and 1.1.1991 to 20.5.1991, he ought to have been conferred with work-charge status with effect from 1.1.1995. Shri Duni Chand had completed, after condonation of break in service, ten years of continuous service with 240 days on or before 31.12.1993. Therefore, his case is covered by the dicta of law laid down in Mool Raj Upadhyaya versus State of Himachal Pradesh and others, 1994 Supp. (2) SCC 316. Accordingly, in view of the observations and discussions made hereinabove, writ petition is allowed. Shri Duni Chand will be deemed to have been conferred the work-charge status w.e.f. 1.1.1995 instead of 19.12.2002, with all consequential benefits and the present petitioners are entitled to retiral/pensionary benefits available in accordance with law. Same shall be worked out and paid to the petitioners within a period of ten weeks from today. The pending application(s), if any, also stands disposed of. No costs.