Himachal Pradesh High Court
Ritu Raj vs State Of H.P. & Ors on 20 April, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.6451 of 2020 Decided on: 20th April, 2023 .
_________________________________________________________________ Ritu Raj ....Petitioner Versus State of H.P. & Ors. ...Respondents _________________________________________________________________ Coram Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge 1 Whether approved for reporting?
_________________________________________________________________ For the petitioner: Mr. A.K. Gupta, Advocate.
For the respondents: Mr. Rupinder Singh Thakur, Additional Advocate General.
Jyotsna Rewal Dua, Judge In compliance to the judgment dated 06.01.2010, rendered in CWP No. 1152 of 2007 (State of H.P. and others Vs. Ritu Raj), respondents passed the consideration order (memorandum, Annexure P-3) on 30.10.2010. Based upon this consideration order (memorandum), office order (Annexure P-2), was issued on 05.02.2011 whereby the petitioner was regularized on the post of Store Clerk with retrospective effect from 01.04.2006. Petitioner's basic contention in the instant writ petition is that the aforesaid 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 24/04/2023 20:33:31 :::CIS -2-orders had not been passed in accordance with the directions contained in the judgment dated 06.01.2010.
2. The facts in brief may be noted: -
.
2(i) The petitioner filed Original Application No. 829/2005 (Ritu Raj Vs. State of H.P.) seeking work charge status. This Original Application was allowed by the erstwhile H.P. Administrative Tribunal on 27.04.2007. The respondents-State was directed to grant work charge status to the petitioner after completion of 10 years of service in the capacity in which he had rendered maximum service.
2(ii) Feeling aggrieved against the order passed by the Tribunal, the respondents-State preferred CWP No. 1152 of 2007. This writ petition was decided on 06.01.2010 (Annexure A-1). The facts of the case pertaining to the service rendered by the petitioner (respondent in that petition) were observed as under: -
"In the present case, the respondent started working as daily wage Assistant Ledger keeper in the month of June, 1992, but he did not complete 240 days in the year 1992 and for the first time, he completed 357 as Assistant Ledger Keeper in the year 1993 and continued to work as such till March, 1995 when he was placed as Store Attendant. He worked as Store Attendant from April, 1995 till the month of July, 2000 completing more than 240 ::: Downloaded on - 24/04/2023 20:33:31 :::CIS -3- days in each calendar year. Thereafter, from August, 2000, he was appointed as daily wage Store Keeper."
After considering the facts and the law, following .
directions were issued in the judgment: -
"In view of the above discussion, we allow the writ petition and set aside the order of the Tribunal. We direct that the petitioners shall give a clear-cut option to the respondent within 12 weeks from today as to against which post he wants to be regularized. In case he wants to be regularized in the lower post of Assistant Ledger Keeper, then his entire service from the year 1993 will be counted. In case he wants to be regularized against the post of Store Attendant then only the service from April 1995 shall be counted and in case he wants to be regularized against the post of Store Keeper, then his service from August, 2000 shall be counted. The Government shall take a decision within three months of the respondent exercising the option and in case any monetary dues are payable to the respondent, the same will be paid within two months thereafter. In case the respondent does not exercise any option, it will be presumed that he is satisfied by the orders already passed by the State Government.
The writ petition is disposed of in the aforesaid terms. In view of the final disposal of the main petition, all the pending application(s), if any, shall also stand disposed of."
2(iii) The respondents-State (petitioner in CWP No.1152 of 2007) accepted the above verdict and passed the ::: Downloaded on - 24/04/2023 20:33:31 :::CIS -4- consideration order on 30.10.2010 (Annexure A-3). In the consideration order, the respondents took note of the fact that petitioner had furnished his option for regularization .
against the post of Assistant Ledger Keeper w.e.f. the year 1993. The respondents ruled that the post of Assistant Ledger Keeper was Class-III post. That the status of this post was equivalent to that of Store Keeper. Both these two categories of posts were determined as Class-III posts. This assumption was drawn by the respondents on the basis of rates paid during the period by the government under the minimum wages Act. According to the respondents, the petitioner could not be given the benefit of the period w.e.f. 4/1994 to 8/2000 while counting his service in Class-III category as during this period, the petitioner had rendered service as Store Attendant, which was equated with Beldar (Class-IV) category. Thus, the respondents decided as under: -
"And whereas upon receipt of above direction, the petitioner furnished his option to the replying respondent through proper channel dated nil which was received on 2.2.2010 by the Assistant Engineer, Sataun, who further referred it through proper channel to the undersigned and ultimately through Superintending Engineer, 12th Circle Nahan, received on 4.4.2010. As per this option, the petitioner furnished his willingness and opted for option ::: Downloaded on - 24/04/2023 20:33:31 :::CIS -5- No.1 i.e. since 1993 as Asstt. Ledger Keeper. This option was examined in office of undersigned in establishment and Legal branches as it was fond that the respondent Ritu Raj has worked in three different categories out of which .
category in option No.1 of Assistant Ledger Keeper is the Class-III category whereas against option No.2, i.e. Store Attendant, the category is equivalent to Class-IV and against option No.3, again the category is Class-III as per the rates paid during the said period by the Govt. under minimum wages Act. It was also found that after verdict of case of Mool Raj Upadhaya Vs State of HP, various Class-IV and Class-III categories were clubbed and re-designated besides R&P Rules were also framed since 5.5.95. The category falling in option No.2 was clubbed and re- designated as Beldar whereas category No.1 & 3 were clubbed and re-designated as Store Clerk which decision is also based after taking into account the wages received by the respective category on Daily Waged basis. In this case since the category of Asstt. Ledger Keeper and Store Keeper was re-designated as Store Clerk whereas Store Attendant as per its daily wages rates was brought and equated to Beldar, it was felt necessary to afford another opportunity of being heard to the petitioner so that his grievances is heard and thereafter proper and legitimate decision is rendered in this case because applicant on the one hand was seeking regularization against option No.1 and on the other hand since 1993. Pursuant to this, the petitioner and Executive Engineer, Shillai Divn. were directed to appear in person on 14/7/2010. On this date he appeared in person and reiterated his stand so given dated 2.2.2010 but without making written statement left the office and since then did not turn up despite repeated reminders. In this case, the court has specifically directed for all the three options to be availed by Sh. Ritu Raj and for these if opted to be ::: Downloaded on - 24/04/2023 20:33:31 :::CIS -6- regularized from specific date.
Hence the entire issue has been considered at depth vis-à-vis entire available record and pronouncement of Hon'ble Apex Court and Hon'ble High Court. In this case .
petitioner is seeking option against Asstt. Ledger Keeper since 1993, which category definitely in Class(III) and can be equated for all intends and purposes with option No.3 i.e. Store Keeper but in between the period of 4/95 to 8/2000 the category of Store Keeper i.e. option No.2 is in Class (IV) category which was equated with Beldar category since 5.5.95. Hence in these facts and circumstances, the petitioner is seeking work charge/regular status since 1993 but the period in between 4/95 to 7/2000 cannot be counted being the period rendered on daily wage basis in lower category of Class (IV) equal to Beldar as such if the period w.e.f. 6/92 to 3/95 is to be counted then after deleting the period w.e.f. 4/94 to 8/2000, the period rendered in category of Store Keeper is to be counted w.e.f. 8/2000 onwards thereby w.e.f. 1993 when he became in continuous service. Shri Ritu Raj complete 10 years of continuous service in higher category of Class (III) now Store Clerk on 31.12.2007 (1.1.1993 to 3/95 & 8/2000 to 31.12.2007). Hence, in these facts and circumstances based upon the verdict rendered in case State of HP Vs. Gauri Dutt dated 29.12.2007 as well as the decision rendered in this case dated 6.1.2010 Shri Ritu Raj is found entitled for regular status as Store Clerk in the pay sale of 5910- 20200+1900 grade pay. Before passing with above decision, it is relevant to point out that as per the verdict rendered in Gauri Dutt case, Hon'ble High Court has directed respondent state that the workman if regularized under the scheme formulated by State of H.P. over and above the regularization policy approved by the Hon'ble Apex Court in Mool Raj Upadhaya case, the cut of date as ::: Downloaded on - 24/04/2023 20:33:31 :::CIS -7- per regularization policy and criteria of continuous service rendered on cut of date so fixed is to be taken into account. Applicant as per said policy completes 8 years of continuous service as Store Clerk on 31.12.2005 thereafter he shall be .
entitled for regular status w.e.f. 1.1.2006 and be also placed in seniority of Store Clerk at his appropriate place i.e. above his immediate junior incumbent and all his dues be further released in his favour in further two months by Executive Engineer, Shillai as per decision conveyed by the department after the verdict of Gehar Singh case."
On the basis of above memorandum dated 30.10.2010, the petitioner was regularized on the post of Store Clerk w.e.f. 01.04.2006. The above two orders i.e. memorandum dated 30.10.2010 and the office order dated 05.02.2011, regularizing the petitioner to the post of Store Clerk w.e.f. 01.02.2006, have been assailed by the petitioner in the instant petition under following substantive prayer:-
"(i) That Annexures P-2 and P-3 may be set aside/quashed and the respondents may be ordered to designate the petitioner as Store Clerk/Assistant Ledger Clerk w.e.f.
1.1.2003 with all the benefits incidental thereof."
3. According to the learned counsel for the petitioner, regularization of the petitioner against specific post had to be strictly in accordance with the directions of this Court contained in decision dated 06.01.2010. The petitioner had furnished his option for regularization on the ::: Downloaded on - 24/04/2023 20:33:31 :::CIS -8- post of Assistant Ledger Keeper. His entire service rendered from the year 1993 onwards was required to be considered by the respondents in consonance with the judgment. The .
respondents have illegally deducted the period from April 1995 to August 2000 from petitioner's total service.
Consequently, petitioner has been regularized w.e.f 01.01.2006 instead of 01.01.2023. This action would also result in denial of pension to the petitioner.
Learned Additional Advocate General defended the impugned orders and also took an objection that writ petition filed by the petitioner in the year 2020 against the impugned orders passed in the year 2010 suffers from unexplained delay and laches.
4. Observations Heard learned counsel for the parties and gone through the case file. In my considered view, there is merit in the prayer made in the present petition. This is for the following reasons: -
4(i) In the judgment dated 06.01.2010, passed in the case of the petitioner, a Coordinate Bench of this Court had given clear directions that in case the petitioner wanted to be ::: Downloaded on - 24/04/2023 20:33:31 :::CIS -9- regularized in the lower post of Assistant Ledger Keeper, then his entire service from the year 1993 will be counted.
Further directions were that in case the petitioner .
wanted to be regularized against the post of Store Attendant, then his service from April 1995 was to be counted and in case he wanted to be regularized against the post of Store Keeper, then his service from August 2000 had to be counted.
The respondents were directed to take decision on the above within three months from the petitioner's exercising the option. The monetary benefits, if any, payable to the petitioner in terms of the option, were to be cleared by the respondents within next two months. In case the petitioner did not exercise any option, it was to be presumed that he is satisfied by the orders already passed by the State.
4(ii) It is an admitted position that the petitioner exercised his option for regularization on the post of Assistant Ledger Keeper. The said option was furnished by him on 02.02.2010.
4(ii) In accordance with the directions contained in the judgment dated 06.01.2010, petitioner's entire service from the year 1993 was to be counted towards his regularization ::: Downloaded on - 24/04/2023 20:33:31 :::CIS
- 10 -
on the lower post of Assistant Ledger Keeper.
4(iv) The respondents have counted the service of the petitioner from the year 1993. However, benefit for the period .
April 1995 to August 2000 was denied to him. This was for the reason that according to the respondents, post of Assistant Ledger Keeper and Store Keeper were clubbed and re-designated as Store Clerk. Recruitment and Promotion Rules were also framed on 05.05.1995. The post of Store Clerk was Class-III category post, whereas during the period 4/1994 to 8/2000, the petitioner had worked as Store Attendant, which was Class-IV category post. Therefore, this period was required to be deleted from the total service rendered by the petitioner in order to regularize him as Store Clerk.
I am afraid the reasoning given by the respondents howsoever genuine or bonafide it may appear, cannot advance the case of the respondents in defence of impugned orders. The judgment passed in CWP No. 1152 of 2007, is very categorical that 'in case the petitioner, as per his option, wanted to be regularized in the lower post of Assistant Ledger Keeper, then his entire service from the year ::: Downloaded on - 24/04/2023 20:33:31 :::CIS
- 11 -
1993 will be counted'. The respondents could not have sat over the judgment dated 06.01.2010 after accepting the verdict. In case, according to the respondents, post of .
Assistant Ledger Keeper was not the lower category post or in case for some reasons, according to the respondents, the petitioner's entire service from the year 1993 onwards, could not be counted towards his regularization on the post of Assistant Ledger Keeper, it was for them to seek appropriate remedy in accordance with law against the judgment dated 06.01.2010. The respondents have accepted the decision dated 06.01.2010. While enforcing this decision, they cannot be permitted to sit in appeal over the same. The decision was rendered in the year 2010. Latest H.L.J 2008(1), HP 366 (Gauri Dutt and others Vs. State of H.P.) had also been considered in the aforesaid decision. No new facts came into existence after the aforesaid decision. By giving their own interpretation to the factual scenario of the case and by equating and categorizing different posts at their own level, the respondents cannot be permitted to defy the judgment giving out specific dates as well as the period to be considered for petitioner's regularization. In terms of the judgment, all ::: Downloaded on - 24/04/2023 20:33:31 :::CIS
- 12 -
that the petitioner was required to do was to exercise an option. Depending upon, the option was exercised by him, his services were to be regularized from specific dates in terms of .
the specific directions issued in the judgment itself.
Respondents could not have altered the specific dates given in the judgment and also the period to be counted indicated therein for regularization of petitioner's service. In case petitioner's opting for the post of Assistant Ledger Keeper, the judgment has given specific direction that "entire service from the year 1993 rendered by the petitioner will be counted."
Hence, the respondents could not have taken out the period from 4/1994 to 8/2000 from petitioner's service while considering his case for regularization as Assistant Ledger Keeper w.e.f. the year 1993.
4(v) Before parting with the judgment, contention raised on behalf of the respondents also needs examination.
According to the learned Additional Advocate General, the impugned orders were passed in the year 2010, whereas the petitioner had instituted the petition in the year 2020. This is a fact which is apparent from the record. Apart from making the submissions that the petitioner had been repeatedly ::: Downloaded on - 24/04/2023 20:33:31 :::CIS
- 13 -
approaching the offices of the respondents without any success, there is no plausible explanation given by the petitioner for the delay in taking legal recourse. The petition .
does suffer from unexplained delay and laches. However, the fact remains that the impugned orders are totally illegal having been passed in contravention of the judgment dated 06.01.2010 rendered in CWP No. 1152 of 2007. The interest of justice demands to work out equity for the petitioner's having delayed in taking recourse to the legal remedy. It will be appropriate to confine the payable monetary benefits to the petitioner from the date of passing of fresh consideration order. The pay scales and the financial benefits payable to the petitioner, if any, under the fresh order shall be worked out on notional basis from due dates. The petitioner will be entitled to actual monetary benefits, if any, from the date of passing of fresh order in terms of this judgment.
5. For the aforesaid reasons, the impugned regularization orders of the petitioner at Annexures P-2 and P-3 cannot be sustained. They are accordingly quashed and set aside. The petitioner is held entitled to regularization on the post of Assistant Ledger Keeper in terms of his option ::: Downloaded on - 24/04/2023 20:33:31 :::CIS
- 14 -
admitted to have been exercised by him. In view of the judgment dated 06.01.2010 passed in CWP No.1152 of 2007 (State of H.P. Vs. Ritu Raj), entire service rendered by the .
petitioner from the year 1993 is required to be counted towards his regularization as Assistant Ledger Keeper.
Ordered accordingly. Necessary exercise in this regard be carried out by the respondents by passing appropriate order within a period of six weeks from today. Considering the delay in filing the petition, it is ordered that consequential benefits shall be confined to the petitioner on notional basis from the due dates. He shall be entitled to actual benefits from the date of passing of fresh consideration order.
The present petition to stand disposed of in the above terms, so also the pending miscellaneous application(s), if any.
Jyotsna Rewal Dua Judge April 20, 2023 R.Atal ::: Downloaded on - 24/04/2023 20:33:31 :::CIS