Himachal Pradesh High Court
Luxmi Nand Shyam vs Union Of India And Others on 18 July, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2097/2010 Reserved on: July 15, 2016 Decided on: July 18, 2016 .
________________________________________________________________ Luxmi Nand Shyam ...Petitioner Versus Union of India and others ...Respondents ________________________________________________________________ Coram:
of Hon'ble Mr. Justice Rajiv Sharma, Judge. Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? 1 Yes.
--------------------------------------------------------------------------------- For the petitioner: rt Mr. Sunil Mohan Goel, Advocate.
For the respondents: Mr. Ashok Sharma, ASGI with Mr. Angrez Kapoor, Advocate.
________________________________________________________________ Rajiv Sharma, Judge Petitioner was appointed as an Accounts Clerk on fixed wags of Rs.1500/- per month on 1.11.1990 and services of the petitioner were extended from time to time. Thereafter, vide order dated 22.4.1993, the petitioner was asked to discharge the duties of a Clerk-cum-typist on ad hoc basis initially for a period of six months in the pay scale of Rs.950-1500 and thereafter he continuously discharged his duties. Petitioner alongwith one Shri R.P. Chamoli filed an OA No. 121/HP/1999 before the Central Administrative Tribunal seeking their regularisation. The original application was disposed of on 4.9.2002 with the direction to the respondents to take a decision on the representation made by the petitioners within a period of three months. Petitioner was also 1 Whether reporters of the local papers may be allowed to see the judgment? yes.::: Downloaded on - 15/04/2017 20:50:23 :::HCHP 2
constrained to file a contempt petition. Services of the petitioner were terminated with effect from 28.9.2001. Petitioner alongwith R.P. Chamoli filed another OA No. 1037/HP/2001. OA was .
disposed of by Central Administrative Tribunal vide order dated 21.2.2002. Operative portion of the order reads as under:
"5. From the above discussion, we find that applicants were not appointed against any of sanctioned post of LDC. Posts in SAG Scheme were abolished. However, applicants have been continued in the post of LDCs from 2.5.1993 on temporary and adhoc basis. Applicants would rt have certainly become overage for fresh recruitment in govt. service. Respondents can not be allowed to take the stand that applicants could be considered for regularization of their services only on creation of new posts of LDCs in the new centres. Vide Annexures A-17 & A- 18, dated 22.1.2000, respondents have crated 19 new centres, four of which are in Northern India. In the interest of justice, respondents must consider applicants for regularization of their service. If otherwise eligible, granting relaxation in age to the extent that they have served with respondents since 2.5.1993 on creation of vacancies of posts of LDCs in any new or old centre in the Northern region and if they are agreeable even in the regions outside northern region.
6. On 29.10.2001, an interim order was passed that applicants should not be evicted from the govt. premises allotted to them by the respondents. These interim orders stand vacated automatically with the disposal of this O.A. as above."
2. Petitioner alongwith R.P. Chamoli feeling aggrieved by the direction issued by the Central Administrative Tribunal on 21.2.2002, preferred CWP No. 748/2002. It was disposed of on ::: Downloaded on - 15/04/2017 20:50:23 :::HCHP 3 3.6.2008. The operative portion of the judgment dated 3.6.2008, reads as under
"The present writ petition under Article 226 of .
the Constitution of India has been preferred against the order dated 21.2.2002, passed by the learned Central Administrative Tribunal, Chandigarh Bench, Chandigarh in O.A. No. 1037/HP/2001 whereby, keeping in view the prayers of the petitioners challenging their termination from the deployment from Special Area Games and the prayer for regularization of of their services on the basis of their experience and capability, the learned Tribunal by the impugned order has directed that the respondents must consider the petitioners for rt regularization of their services by granting relaxation in age to the extent as they have served with respondents and such regularization was to be considered on creation of vacancies of posts of LDCs in a new or old centres in northern region on their being agreeable even in the region outside the northern region. According to learned counsel for the petitioners subsequent to the passing of this order some person has been appointed on contractual basis to the cadre and some scheme has been circulated whereby vacancies sufficient in number are available. However, this aspect has not been denied by the learned counsel for the respondents for lack of instructions, however, this court is not willing to make any observations to that effect.
However, according to the learned counsel for the petitioner since the positive response of the respondents has not been forthcoming, therefore, the present writ petition has been preferred. However, keeping in view the best interest of the petitioner and in the prevailing facts and circumstances, prayer is being made that the compliance of the order dated 21.2.2002 passed by the learned Tribunal in O.A. No. 1037/HP/2001 may be made for considering the availability of vacancies and the scheme prevalent. At present the learned counsel for the petitioner is not pressing the present writ petition. However, a prayer is being made that if the petitioners are not considered ::: Downloaded on - 15/04/2017 20:50:23 :::HCHP 4 favourably, then a liberty may be granted to the petitioners to approach this court against the said subsequent decision to be taken by the respondents."
.
3. However, fact of the matter is that in sequel to the judgment rendered by this Court in CWP No. 748/2002 dated 3.6.2008, one of the petitioners namely R.P. Chamoli was ordered to be appointed to the post of LDC with effect from 5.2.2010.
of Petitioner though similarly situate has not been offered appointment letter at par with R.P. Chamoli. It is mentioned in rt letter dated 5.2.2010 (annexure P-3) that Shri R.P. Chamoli has been offered appointment in sequel to Judgment dated 3.6.2008 rendered in CWP No. 748 of 2002. Reply has been filed by respondents No.1 to 4. Stand taken in the reply primarily is that since the petitioner was overage, he could not be considered for appointment as per the Recruitment and Promotion Rules, vide annexure R-1. Petitioner has filed a detailed rejoinder to the reply filed by respondents No.1 to 4. A specific instance has been quoted of one Mr. Mast Ram Koundal, was appointed as LDC on 1.4.1991 on daily wages. He was posted as LDC on 22.5.1992. He was regularized with effect from 19.2.1995. He was also overage since his date of birth is 24.10.1959. Appointment letter of Mast Ram Koundal is annexure PA-1. It is evident from the seniority list, annexure PA-2 that his date of birth is 24.10.1959.
4. We have heard the learned Counsel for the parties and gone through the record very carefully.
::: Downloaded on - 15/04/2017 20:50:23 :::HCHP 55. Petitioner and R.P. Chamoli were appointed with effect from 1.11.1990 as Accounts Clerk. On 22.4.1993, petitioner was discharging the duties of a Clerk/Steno-typist. Petitioner and R.P. .
Chamoli made detailed representation seeking their regularization.
They approached Central Administrative Tribunal by way of OA No. 121/HP/1999. It was disposed of 4.9.2002 with a direction to decide the representation of the petitioner and R.P. Chamoli within of three months. Petitioner was constrained to file a contempt petition. During the pendency of the contempt petition, services of rt the petitioner and R.P. Chamoli were terminated with effect from 28.9.2001. In sequel to directions issued by Central Administrative Tribunal in OA No. 1037/HP/2001 dated 21.2.2002, read in conjunction with judgment dated 3.6.2008, rendered in CWP No. 748/2002, respondents have offered appointment to R.P. Chamoli vide annexure P-3 on 5.2.2010. Petitioner was also similarly situate vis-à-vis R.P. Chamoli. They were appointed on the same day. Their services were terminated on the same day i.e. 28.9.2001. Directions issued in OA No. 121/HP/1999 decided on 4.9.2002, OA No. 1037/HP/2001 decided on 21.2.2002 and CWP No. 748/2002 decided on 3.6.2008, were also applicable to both of them.
6. Mr. Ashok Sharma, learned ASGI has vehemently argued that the petitioner could not be appointed/ regularised since he was overage. Conditions of service of the petitioner are regulated under recruitment and promotion rules called "Sports ::: Downloaded on - 15/04/2017 20:50:23 :::HCHP 6 Authority of India (Supervisory & Ministerial) Staff Recruitment Rules, 1992."
7. According to Rule-7, the Director General, in writing, .
can relax any of the provisions of the Rules. The Director-General, after directions issued by this Court should have invoked Rule-7.
The minimum age prescribed under the Rule is 18 but not above 25 years which is relaxable upto 10 years in case of departmental of candidates. Though the petitioner was thirty years, one month and twenty days on 2.5.1993. However, fact of the matter is that there invoked rt is a relaxation clause as discussed herein above. Rule-7 could be while considering the case of the petitioner for appointment at par with R.P. Chamoli and Mast Ram Koundal in the interest of justice. Petitioner has been permitted to work continuously from 1.11.1990 till 28.9.2001. Question, whether petitioner was overage, at the time of appointment/regularisation, should have been considered at the time when petitioner was appointed and not at the time when his services were to be regularized. Moreover, in the facts and circumstances of the case one Shri Mast Ram Koundal whose date of birth is 24.10.1959, was regularized as per annexure PA-1 on 9.3.2004 though overage. Petitioner has also quoted instances whereby similarly situate persons namely Promil Nagreta and Paras Ram, who were initially appointed as Lower Division Clerk in 1992, were regularized in 1992 ignoring the legitimate claim of the petitioner.
Respondents could not treat the equals as unequals. Action of the ::: Downloaded on - 15/04/2017 20:50:23 :::HCHP 7 respondents in not offering appointment to the petitioner at par with R.P. Chamoli and Mast Ram Koundal is violative of Articles 14 and 16 of the Constitution of India.
.
8. Their Lordships of the Hon'ble Supreme Court in Bhagwati Prasad versus Delhi State Mineral Development Corporation , (1990) 1 SCC 361 have held that practical experience would always aid the per son to effectively discharge the duties and of is a sure guide to assess the suitability. Their Lordships have further held that the initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be rt reckoned with, but it is so at the time of the initial entry into the service and once the appointments are made as daily rated workers and they are allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualification. Their Lordships have held as under:
"6. The main controversy centres round the question whether some. petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 and ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial-entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years' experience, ignoring artificial break in service for short periods created by the respondent. In the ::: Downloaded on - 15/04/2017 20:50:23 :::HCHP 8 circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re-appointment that period may be excluded in the computation of the three years period. Since the petitioners before us satisfy the requirement of three years, service as calculated above, we direct .
that 4 0 of the senior-most workmen should be regularised with immediate effect and the remaining 118 petitioners should be regularised in a phased manner, before April 1, 1991 and promoted to the next higher post according to the standing orders. All the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts. We further direct that 16 of the petitioners who are ousted from the service pending the of writ petition should be reinstated immediately. Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts. The respondent is directed to deposit a sum of Rupees 10,000/- in the Registry of this Court within four weeks to meet the remuneration of rt the Industrial Tribunal. The writ petitions are accordingly allowed, but without costs."
9. Accordingly, the writ petition is allowed. Respondents are directed to offer appointment letter to the petitioner on the analogy of Shri R.P. Chamoli, within a period of four weeks from today and count his services for all intents and purposes from the date Shri R.P. Chamoli was appointed i.e. 5.2.2010, with all the consequential benefits.
Pending applications, if any, are disposed of.
(Rajiv Sharma) Judge (Sureshwar Thakur) Judge July 18, 2016 vikrant ::: Downloaded on - 15/04/2017 20:50:23 :::HCHP 9 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2097/2010 Reserved on: July 15, 2016 ________________________________________________________________ .
Luxmi Nand Shyam ...Petitioner
Versus
Union of India and others ...Respondents
________________________________________________________________ Judgment for consideration please.
of (Justice Rajiv Sharma) Judge rt I agree/I do not agree.
(Justice Sureshwar Thakur) Judge List for pronouncement of judgment on July 18, 2016 (Justice Rajiv Sharma) Judge Court master ::: Downloaded on - 15/04/2017 20:50:23 :::HCHP