Himachal Pradesh High Court
Sangeeta Bhardwaj vs State Of H.P. & Others on 2 August, 2024
Neutral Citation No. ( 2024:HHC:6317 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 2762 of 2019 a/w CWPOA
No. 2836 of 2019
.
Reserved on: 19.7.2024
Decided on: 2.8.2024.
1. CWPOA No. 2762 of 2019
Sangeeta Bhardwaj ...Petitioner.
Versus
State of H.P. & others ...Respondents
2. CWPOA No. 2836 of 2019
Anil Kumar .....Petitioner
Versus
State of H.P. & others ....Respondents
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes.
For the petitioners : Mr. Onkar Jairath and Mr. Vijay
Verma, Advocates.
For the respondents : Mr. Anup Rattan, Advocate General
with Mr. Govind Korla, Addl. A.G.,
for respondent No.1.
Mr. Dinesh Thakur, Advocate, for
respondent No.2.
Mr. Dilip Sharma, Sr. Advocate
with Mr. Manish Sharma,
Advocate, for respondent No.3.
1
Whether reporters of Local Papers may be allowed to see the judgment?
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-2-
Satyen Vaidya, Judge:
.
Both these petitions were heard and are being decided together, as common questions of facts and law are involved.
2. Petitioners initially were appointed as daily wage Beldars w.e.f. 4.1.1994 in the erstwhile Himachal Pradesh Housing Board, later merged with Himachal Pradesh Urban Development Authority (for short, 'HIMUDA'). They were paid daily wages as admissible to Beldar w.e.f.
4.1.1994 till 7.9.1995. Thereafter, the petitioners were paid the daily wages admissible to the post of Work Inspector till 30.4.1997. From 1.5.1997, the petitioners were paid daily wages for the post of Architectural Senior Draftsman. The services of petitioners were regularized w.e.f. 4.8.2007.
3. In the first instance, petitioners approached the erstwhile State Administrative Tribunal with the grievance that their seniority position in the seniority list of daily wagers, though correctly reflected in the tentative seniority list, was unilaterally changed in the final seniority list. It ::: Downloaded on - 05/08/2024 20:30:41 :::CIS -3- was alleged that in the tentative seniority list their date of engagement was shown as 1.1.1994 and 1.12.1993 .
respectively but subsequently in the final seniority list, their date of engagement as Architectural Senior Draftsman was shown as 1.5.1997. The petitioners have also pleaded that though they were being paid the daily wages of Beldar from 4.1.1994 till 8.9.1995 and daily wages as Work Inspector w.e.f. 8.9.1995 to 30.4.1997 but their engagement from the very inception was as Senior Architect Draftsman and as such, they were entitled to the seniority as Senior Architect Draftsman w.e.f. 4.1.1994. It had also been submitted that the petitioners had submitted their representations but the same had been rejected on 31.3.2003 by the competent authority.
4. The Original Applications filed by the petitioners were transferred to this Court on closure of the H.P. State Administrative Tribunal and were registered as CWP(T) No. 6337 of 2008, titled as, Anil Kumar vs. The Commissioner-
cum-Secretary Housing and another and CWP(T) No. 15139 of 2008, titled as, Sangeeta Bhardwaj vs. The Commissioner-cum-Secretary Housing and another. Both ::: Downloaded on - 05/08/2024 20:30:41 :::CIS -4- the above petitions were disposed of by the Division Bench of this Court on 21.6.2010 by allowing the petitioners to .
file appropriate individual representations before the first respondent therein and the said respondent was directed to examine the matter with reference to the records made available by the petitioners after affording them opportunity of being heard and further to pass appropriate orders in accordance with law and justice within three months.
5. The order dated 21.6.2010 passed in CWP(T) No. 6337 of 2008 and CWP(T) No. 15139 of 2008 was further modified on the applications of the petitioners by the same Bench on 16.8.2010, whereby certain clerical mistakes were ordered to be corrected.
6. The petitioners submitted their representations to the Commissioner-cum-Secretary (Housing) to the Government of Himachal Pradesh, who vide common order dated 12.10.2010, rejected both the representations of the petitioners on the ground that the petitioners had been engaged as Beldars w.e.f. 1.1.1994 to 31.10.1995 and as Work Inspectors w.e.f. 8.11.1995 to 3.4.1997. They were ::: Downloaded on - 05/08/2024 20:30:41 :::CIS -5- engaged as Architectural Senior Draftsman w.e.f. 1.5.1997 and had rightly been regularized in the same post w.e.f.
.
4.8.2007. Therefore, the petitioners were held not entitled to seniority as Architectural Senior Draftsman from any date prior to 1.5.1997.
7. Thereafter, the petitioners have approached this Court again by way of the instant petitions for the following reliefs: r "i) That the respondents may kindly be directed with a writ of mandamus for correcting the seniority of the petitioner in the seniority list and to place the petitioner above the respondent No.3 who have joined the department after the petitioner as Architectural Sr. Draftsman.
ii) That the respondents may kindly be directed to
pay the wages of the Architectural Sr.
Draftsman to the petitioner from the period 4.1.1994 to 1.5.1997."
8. The petitioners have again raised the ground that the petitioners were engaged as Architectural Senior Draftsman w.e.f. 1.1.1994 and were entitled to be considered as such for the purpose of seniority. A claim for wages applicable to the post of Architectural Senior ::: Downloaded on - 05/08/2024 20:30:41 :::CIS -6- Draftsman has also been made for the period w.e.f.
1.1.1994 till 1.5.1997.
.
9. Petitioners have impleaded private respondent No.3 as party respondent because the said respondent held higher seniority position than the petitioners in the final seniority list of daily wagers.
10. The first and second respondents have contested the claim of the petitioners by alleging that the petitioners were never engaged as Architectural Senior Draftsman before 1.5.1997. Their initial engagement w.e.f. 1.1.1994 is stated to be as Beldars till 7.9.1995 and from 8.9.1995 till 30.4.1997, the petitioners were stated to have worked as Work Inspectors. On such count, the claim of the petitioners has been denied. It is further submitted that the petitioners were rightly regularized in the year 2007 after taking into consideration ten years daily wage service w.e.f. 1.5.1997. The claim of petitioners with respect to wages admissible to the post of Architectural Senior Draftsman for the period w.e.f. 1.1.1994 to 30.4.1997 has also been denied on merits as also on the ground of being time barred.
::: Downloaded on - 05/08/2024 20:30:41 :::CIS -7-11. Respondent No.3 has filed separate reply alleging inter-alia that in absence of challenge to the final .
seniority list dated 21.4.2003 and the subsequent regularization of respondent No.3 w.e.f. 26.9.2005, the petitioners cannot maintain their claim. It has further been submitted that respondent No.3 was engaged as Architectural Senior Draftsman in June, 1994 on daily wage basis and by considering the daily wage service of said respondent under the regularization policy, she was regularized on 26.9.2005. As per respondent No.3, the petitioners in their original applications before the erstwhile State Administrative Tribunal had not claimed the wages payable to the post of Architectural Senior Draftsman for the period w.e.f. 1.1.1994 to 30.4.1997 and hence they are precluded from claiming said wages by way of instant petitions.
12. I have heard learned counsel for the parties and have also gone through the record carefully.
13. It is not in dispute that the petitioners were paid the daily wages of Beldars for the period w.e.f. 1.1.1994 to 7.9.1995 and the wages of Work Inspectors for the period ::: Downloaded on - 05/08/2024 20:30:41 :::CIS -8- w.e.f. 8.9.1995 to 30.4.1997. The petitioners claim that though they had been paid the wages of Beldar and Work .
Inspector but from very inception they had been engaged as Architectural Senior Draftsman and their services were utilized for such purpose only. Petitioners have placed on record documents to show that they had prepared drawings for different projects during the period between 4.1.1994 till 30.4.1997.
14. The assertions, as above, raised by the petitioners, however, have remained unsubstantiated.
15. In the aforesaid backdrop, even if it is presumed that the official respondents had taken the work of Architectural Senior Draftsman from the petitioners right from beginning of their engagement, the question that arises for consideration is can the petitioners claim substantive rights on the post of Architectural Senior Draftsman?
16. It becomes evident from the material on record that no selection process was undertaken before engaging the petitioners w.e.f. 1.1.1994. The post of Architectural Senior Draftsman is a Class-III post. Specific Recruitment ::: Downloaded on - 05/08/2024 20:30:41 :::CIS -9- & Promotion Rules have been framed in HIMUDA for the said post. The method of recruitment as provided under .
the R&P Rules is 100% by direct recruitment/contract.
Merely, because the petitioners had prepared certain drawings cannot imply that they had acquired right to the post of Architectural Senior Draftsman. Petitioners had accepted the engagement as Beldars and Work Inspectors and had also received wages accordingly.
17. Evidently, the engagement of petitioners was not against the substantive sanctioned post of Architectural Senior Draftsman. It is more than settled that a person cannot claim right of a substantive post unless specifically appointed against such post. The petitioners at the best could have claimed the wages for the work done by them.
18. Thus, the seniority list of daily wagers in the final seniority list showing the engagement of petitioners as Architectural Senior Draftsman w.e.f. 1.5.1997 cannot be faulted with. Much water has flown thereafter. Petitioners and respondent No.3 have been regularized. The petitioners were regularized in the year 2007, whereas respondent No.3 was regularized much prior in time i.e. in ::: Downloaded on - 05/08/2024 20:30:41 :::CIS -10- the year 2005. There is no challenge to the regularization of respondent No.3 from prior date. In view of changed .
scenario, in any case, now the seniority list of regular Architectural Senior Draftsman in HIMUDA will prevail.
No challenge has been laid by the petitioners to the seniority list position of respondent No.3 post regularization of the parties. Obviously, when respondent No.3 was regularized in 2005 as against the regularization of the petitioners in 2007, respondent No.3 would be ranked senior.
19. It can also be seen that the petitioners have not sought quashing of final seniority list of daily waged workmen in HIMUDA as circulated in the year 2003.
20. Respondent Non.3 has placed on record a copy of O.A. filed by the petitioners to show that the petitioners had not claimed the higher wages for the period 1.1.1994 to 30.4.1997. The order dated 21.6.2010 passed by the Division Bench of this Court in CWP(T) No. 6337 of 2008 and in CWP(T) No. 15139 of 2008 also records the contention of the petitioners, whereby they had given up the claim of monetary benefits. In this background, the ::: Downloaded on - 05/08/2024 20:30:41 :::CIS -11- petitioners now cannot even claim the higher wages for the period w.e.f. 1.1.1994 to 30.4.2007, which otherwise has .
become hopelessly barred by limitation as also delay and laches.
21. In light of above discussions, there is no merit in these petitions and the same are accordingly dismissed with no order as to costs.
r (Satyen Vaidya)
2nd August, 2024 Judge
(kck)
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