Himachal Pradesh High Court
Vinod Kumar vs State Of H.P. And Others on 8 December, 2016
Bench: Mansoor Ahmad Mir, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 2082 of 2016 with CWP's No.2083, 2084, 2085 and 2086 of 2016 Reserved on: November 24, 2016 .
Decided on: December 8, 2016
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1. CWP No. 2082 of 2016 Vinod Kumar ................Petitioner Versus State of H.P. and others ..........Respondents
2. CWP No. 2083 of 2016 of Thakur Singh ................Petitioner Versus State of H.P. and others ..........Respondents
3.
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CWP No. 2084 of 2016
Puspa Lata ................Petitioner
Versus
State of H.P. and others ..........Respondents
4. CWP No. 2085 of 2016
Sham Ved ................Petitioner
Versus
State of H.P. and others ..........Respondents
5. CWP No. 2086 of 2016
Ajaib Singh ................Petitioner
Versus
State of H.P. and others ..........Respondents
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Coram Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice Hon'ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting? Yes.
----------------------------------------------------------------------------------------- For the petitioner(s) : Mr. Amit Singh Chandel, Advocate, in all the petitions.
For the respondents : Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan and Mr. Romesh Verma, Additional Advocate Generals and Mr. J.K. ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 2 Verma, Deputy Advocate General, for respondent No.1, in all the petitions.
Mr. Mukul Sood, Advocate, for respondents No.2 to 4, in all the petitions.
Mr. K.D. Sood, Senior Advocate with Mr. Dhananjay Sharma, Advocate, for respondent .
No.5, in all the petitions.
----------------------------------------------------------------------------------------- Per Sandeep Sharma, Judge Since common questions of law and facts are involved in all these petitions, and same and similar relief(s) has/have been sought, all of were taken up together for disposal. The petitions have been filed on same and similar facts and circumstances. However, for the sake of rt clarity, facts of CWP No. 2082 of 2016 are being discussed herein below.
Main relief(s) prayed for in CWP No. 2082 of 2016 (as also in other connected petitions), are as follows:
"(i) That impugned annexure P-12 dated 19-5-2016, regarding delisting the trucks number HP24-2617 & HP 24-6217 issued in view of the Division Bench Judgment passed in CWP No. 2402/2008 titled as Baldev Singh VS H.P. Ex-servicemen corporation and Others (as annexure P-4) may be quashed and set aside, by reconsidering the judgment passed in CWP No. 2402/2008 titled as Baldev Singh vs H.P. Ex-
servicemen corporation and Others (as annexure P-4), in light of the scheme/ legislative intent of the H.P. Ex-servicemen Corporation Act, 1979, by referring the same to the larger Bench of this Hon'ble court, in the interest of law, equity, justice and fair play;
::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 3(ii) That regulations made in 102nd meeting of Board of Directors of respondent no. 2 on dated 27th April, 2011 vide issue no. 102/9 as well as clause 10 of the bye laws of H.P. Ex-Servicemen Truck Operators welfare .
Working Committee (as annexure P-5/B) may be held violative of Article 14 & Article 21 of the Constitution of India as well as in violation of Legislative intent of the H.P. Ex-servicemen Corporation Act, 1979 & Himachal Pradesh General Clauses Act, 1968, of therefore, may kindly be quashed and set aside, in the interest of law equity and justice.
(iii) That the appropriate directions may kindly be given to rt the respondents to allow the petitioner the attachment of his truck with the respondent Nos. 2 and 5 in light of the scheme/ legislative intent of Himachal Pradesh Ex-servicemen corporation Act, 1979, in the interest of Law, Equity and Justice;"
2. Briefly stated the facts of the case, as emerge from the record are that the petitioners are aggrieved by the issuance of order dated 19.5.2016 passed by the respondent, Himachal Pradesh Ex-servicemen Corporation ( for short, 'Corporation') pursuant to the representation submitted by the petitioner in terms of judgment dated 26.4.2016 passed by this Court in LPA No. 10 of 2016 and other connected petitions, whereby trucks owned by the petitioners were ordered to be de-listed as per directions issued by the learned Single Judge of this Court on 6.1.2011 in CWP No. 2402 of 2008 titled Baldev Singh vs. Himachal ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 4 Pradesh Ex-servicemen Corporation & ors. Petitioner claiming himself to be Ex-serviceman in terms of Section 2 (f) of the Himachal Pradesh Ex-servicemen Corporation Act, 1979 (in short, 'Act'), applied in the .
year 2012 for the transfer of attachment of truck in his name being legal heir of his father, who was originally enlisted with the Corporation as Ex-
serviceman for transporting cement from Associated Cement Company Limited (in short, 'ACC'). It also emerges from the record that of respondent No.2-Corporation has entered into an agreement with ACC, wherein 40% of transportation work of cement is/was allocated to the rt Corporation. Under the Act, State Government established the Corporation. Chapter IV, "FUNCTIONS AND FUND OF THE CORPORATION", of the Act provides for welfare and economic upliftment of the Ex-servicemen in the State. It would be apt to reproduce Chapter IV as under:
CHAPTER IV FUNCTIONS AND FUND OF THE CORPORATION
15. Function of the Corporation. - (1) Subject to the provisions of this Act, the functions of the Corporation shall be to provide for the welfare and economic uplift of the ex-servicemen in the State.
(2) Without prejudice to the generality of the foregoing provisions the Corporation may take such steps, as it may think necessary, --
(i) to plan, promote and undertake on its own or in collaboration with or through such ex-servicemen organizations or other agencies as may be approved by ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 5 the Corporation, programmes of agricultural development, marketing, processing supply and storage of agricultural produce, small scale industry, building construction, transport and such other .
business, trade or activity as may be approved in this behalf by the Government;
(ii) to provide financial assistance to ex-servicemen or their organisations by advancing to them in cash or in kind loans including loans under hire-purchase of system and/or loan towards margin money for any of the purposes specified in clause (i) either directly or through such agency, organisation or institution as rt may be approved by it;
(iii) to give on hire agricultural or industrial machinery or equipment to ex-servicemen or their organisation;
(iv) to give grants and subsidies to and to guarantee loans taken by the ex-servicemen or their organisation;
(v) to discharge such other functions as may be prescribed or as are supplemental, incidental or consequential to any of the functions conferred on it under this Act.
(3) In discharging its functions, the Corporation shall have due regard to public interest, its solvency and welfare of ex-servicemen.
16. Capital of the Corporation and its power to borrow or issue bonds and debentures, etc.--(1) For the purpose of carrying out its functions under this Act, the Corporation may--
(a) be provided with capital by the Government on such terms and conditions as the Government may ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 6 specify, or by any person, or association of persons or association of persons interested in or dealing with the welfare of ex-servicemen on such terms and conditions as may be mutually agreed, upon between .
the Corporation and such person or association of persons;
(b) with the previous approval of, and subject to the directions of the Government, borrow money from any bank or other financial institution or any other of authority or organisation;
(c) issue bonds and debentures or draw, make, accept, endorse, discount, execute and issue rt promissory notes, bills of exchange, hundies, bills, warrants, debentures and other negotiable instruments.
(2) The Government may guarantee the repayment of the moneys borrowed by the Corporation under sub-section (1) and the payment of interest thereon.
17. Ex-servicemen Corporation Fund. - (1) The Corporation shall maintain a Fund called the Ex-servicemen Corporation Fund (hereinafter referred to as the Fund) to which shall be credited --
(a) all moneys received by it from the Government or from any person or association of persons interested in or dealing with the welfare of ex-servicemen;
(b) such sums of moneys as may from time to time, be realized by way of repayment of loans made from the fund or from interest on loans;
(c) all moneys borrowed under section 16; and
(d) all moneys received by it from any other source.
::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 7(2) The moneys in the Fund shall be applied by the Corporation for carrying out its functions under this Act. (3) All moneys in the fund shall be deposited in the bank for the time being included in the Second Schedule to the .
Reserve Bank of India Act, 1934 (2 of 1934), or in a government Treasury, as may be decided by the Corporation; Provided that the Corporation may invest or deposit its surplus funds in the Government secureties or in such other manner as it may decide.
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3. With a view to achieve aforesaid objectives as mentioned in clause 15 of aforesaid Chapter, Corporation entered into aforesaid rt agreement with the ACC and secured 40% of transportation work of cement. Since the Corporation did not have its own fleet of trucks, it entered into agreement with the individual ex-servicemen truck operators, for fulfilling the obligation regarding transportation of cement pursuant to the agreement entered between it and the cement company. It also emerges from the record that the Corporation with a view to provide better and transparent management to ex-servicemen truck operators of the State engaged by it through ex-servicemen Welfare Working Committee, for carrying cement to different destinations from Barmana cement factory, framed Bye-Laws providing therein that the Welfare Working Committee shall work under overall supervision and direction of Chairman-cum-Managing Director (for short, 'CMD'). The Welfare Working Committee (in short, 'Committee') comprises of Project Manager as President, one of the District Presidents as Vice President and ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 8 all the District Presidents as Members of the Committee. In bye-law 4 of the Bye-Laws i.e. 'Detailment of Trucks for Cement Lifting' , following provisions were made:
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"Detailment of Trucks for Cement Lifting
4. (a) It will be the sole responsibility of District Presidents to ensure that the trucks of Ex-Service are registered with H.P. Ex-Servicemen Corporation, Camp Office Barmana for transportation of cement. The trucks owned by civilians/unauthorized persons will not be attached.
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(b) Trucks will be registered with the approval of CMD H.P. Ex-Servicemen Corporation and decision taken by
(c) rt CMD in this regard shall be final.
The list of unauthorized trucks attached will be put up in the quarterly meeting of Welfare Working Committee, on which firm decision will be taken.
(d) District wise list of trucks attached will be prepared separately.
(e) District Presidents will ensure that trucks owned by re-employed ex-servicemen are not attached. One person cannot get double benefit at the cost of others who are on waiting list and awaiting their turn for attachment of trucks.
(f) The trucks will be detailed for lifting of cement according to the seniority and no preference will be given to any District in consideration of the location of the consignee. Impartial detailment of the trucks will be supervised by the President and he will ensure that demand of the trucks is correctly taken from the ACC Factory according to the Corporation share and if there is any variation then he shall report this matter to the Distribution Manager of ACC ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 9 Barmana under the information to the Chairman-cum- Managing Director.
(g) It will be mandatory for the Welfare Working Committee to implement the decision of Senior Sub Judge .
Bilaspur dated 19.05.2003 that the carriage work needs to be rationalized and the President Welfare Working Committee is directed to give due and proper work to all the truck operators of all the Districts. Every truck operator should be given work to carry cement to longer as well as shorter of distance/destinations so that all truck operators earn almost equal profit."
4. rt Perusal of aforesaid bye-law suggests that trucks owned by ex-servicemen can only be registered with the Corporation at Barmana for transportation of cement. It further suggests that the most of them are owned by ex-servicemen can not be enlisted. Similarly, Bye-Laws provide that one ex-serviceman can not get double benefit at the cost of others, who are in the waiting list and awaiting their turn for attachment of trucks. It also emerges from the pleadings/records that aforesaid Bye-
Laws were amended from time to time and even widows and legal heirs of deceased ex-servicemen were allowed to attach their trucks for transportation of cement.
5. In the year 2011, one ex-serviceman namely Baldev Singh approached this Court by way of CWP No. 2402/2008, with a prayer that the Corporation may be directed to attach his truck with it. Petitioner in that case claimed that since his truck was stolen as such he was entitled to ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 10 get another truck attached with the Corporation in place of stolen truck.
The Corporation instead of attaching his new truck, de-listed the truck which was originally enlisted with the Corporation earlier. Corporation .
informed the Court in those proceedings that in the year 2002, keeping in view larger interest of ex-servicemen, it was decided that only one truck of one ex-serviceman would be attached with the Corporation.
Corporation further claimed that aforesaid resolution of the year 2002 of was reiterated in the year 2005 and endeavour of the Corporation is/was to ensure that largest number of ex-servicemen gets the benefit of rt attachment of their trucks with the Corporation. But it appears that during the pendency of the aforesaid writ petition, petitioner submitted a list of few persons, who were permitted to attach more than one truck, even after passing of aforesaid resolutions in the years 2002 and 2005. In the aforesaid background, Division Bench of this Court vide order dated 7.8.2009 directed the CMD of the Corporation to file an affidavit specifically giving therein details of the members of the Corporation, who were permitted to attach more than one truck with the Corporation after the resolution passed in 2002. Court also asked for information, whether any truck of any member has been delisted on account of the fact that not more than one truck can be attached with the Corporation. Though respondent Corporation filed an affidavit in terms of aforesaid order passed by the Court annexing therewith complete list of members, who were permitted to attach more than one truck even after passing of ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 11 resolutions dated 17.1.2002 and 6.1.2005 but the fact remains that the Court after noticing the plea of the learned counsel for the petitioner, further discovered that more than 185 ex-servicemen were permitted to .
attach more than one truck and in some cases as many as four trucks were allowed to be attached, after passing of aforesaid resolutions.
Accordingly, Division Bench of this Court was constrained to observe as under:
of "The Himachal Pradesh Ex-servicemen Corporation virtually has the monopoly of transporting cement from the A.C.C factory at Barmana in Bilaspur. In certain cases, as rt per the Policy, only one truck is being attached with the Corporation while in the cases of other persons as many as 4 to 5 trucks have been attached. Though in the affidavit of the Corporation, it is mentioned that there are 185 persons having more than one truck attached with the Corporation but in the counter-affidavit filed on behalf of the petitioner, it is mentioned that there are other persons such as Ex-Sipahi Roop Singh whose name is not in the list but has more than two trucks attached.
The Corporation has been formed by the State Government for the welfare of the ex-servicemen. The purpose is to provide some means of livelihood to the ex- servicemen after their retirement from the Armed Forces at a young age. There is a massive scope for doing good work by the Corporation. But if the Corporation continues to act in the manner in which it has been acting till now, i.e., in a totally arbitrary and capricious manner, the entire purpose of setting up the Corporation will be set at naught. In such ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 12 eventuality, we are of the considered opinion that it would be better to wind up the Corporation itself.
From the material placed on record, it is apparent that it is the office bearers of the Corporation who are deriving .
the maximum benefit of having more than one truck attached. When these District Presidents or other office bearers apply for attachment of trucks then the Corporation does not raise the objections that under the resolutions of 2002 and 2005, not more than one truck of an individual can of be attached. Even as per the Corporation, there are 192 persons who were permitted to attach more than one truck after the resolution was passed in the year 2002. It is, rt therefore, apparent that no sanctity is attached by the Corporation to its own resolutions. However, we do not want to turn the clock back since people who have already made investments and spent huge money on purchase of trucks should not be put at loss all of a sudden.
To put an end to the entire dispute, we want to issue certain directions which must be obeyed in letter and spirit.
While issuing these directions, we are taking into consideration the fact that the Himachal Pradesh Ex-
servicemen Corporation has been constituted for the benefit of the ex-servicemen. The interest of the ex-servicemen will be served if each ex-serviceman is allowed to attach only on truck with the Corporation. This way, the maximum number of ex-serviceman can be accommodated. This does not in any way debar an ex-serviceman from purchasing or plying the second truck but he cannot get it attached with the Corporation but can ply it in his individual capacity. If the ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 13 maximum number of ex-servicemen are to be helped and assisted in getting livelihood after retirement, it would be in the interest of justice, if each ex-serviceman is permitted to attach only one truck with the Corporation. We would like to .
make it clear that the right of the ex-serviceman to get his truck attached can be inherited only by his widow and not by his children unless there are minor children. We would also like to make it clear that in case an ex-serviceman is re- employed in a Government/public sector undertaking, he of shall loose his right to have his truck attached with the Corporation."
6.
rt In the aforesaid background, Division Bench of this Court vide judgment dated 6.1.2011 directed the respondent-State as well as Corporation to ensure that Bye-Laws, Rules and Regulations of the Corporation are amended in line with the directions issued by the Court.
The Division Bench of this Court passed as many as 15 directions, which were required to be strictly followed by the Corporation for regulating transportation business amongst its members but in the facts and circumstances of present petition, directions No. 9 and 10 would be material, which are as under:
"9. In case an ex-serviceman dies, his widow shall be entitled to inherit the right to have a truck attached till her life time.
10. In case there is no widow or the widow voluntarily gives up her right, the attachment can be transferred to one son/daughter of the ex-serviceman but in such eventuality, the right to ply the truck shall only be for ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 14 a period of 5 years. After the death of the widow or on expiry of 5 years, the attachment shall cease to exist and the slot shall be given on the basis of seniority."
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7. Aforesaid judgment having been passed by the Division Bench of this Court was accepted in toto by the Corporation, because no further appeal was preferred before the Apex Court by it, rather the Corporation suitably amended its Bye-Laws in its 102nd meeting held on of 27.4.2011 and incorporated following provisions: -
"10. Inclusion of Directions /orders given by Hon'ble High court vide CPW -2402/2008 dated 06 Jan 2011.
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(a) In future only one truck of an ex-servicemen shall be attached with the Corporation.
(b) As far as the attachments already made are concerned, if there are more than two trucks of any ex-
serviceman attached with the Corporation after 1.4.2011 only two trucks will be attached and the remaining trucks shall not be attached.
(c) The Corporation shall ensure that on and w.e.f. 1.4.2012, only one truck of each ex-servicemen shall be attached. Thus, an ex-servicemen will have a period of one year to either dispose of the excess trucks or to make alternate arrangement for their plying.
(d) The Corporation shall invite applications from all ex-servicemen of Himachal Pradesh by publishing advertisements in two English and two Hindi newspapers having wide circulation in the State. The advertisements be published on or before 31.1.2011 and last date for receipt of applications shall be 28.2.2011.
::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 15(e) The ex-servicemen who are desirous of plying and attaching their truck with the Corporation shall file their application latest by 28.2.2011.
(f) The Corporation shall draw up a list of .
candidates and seniority shall be given in order of retirement, i.e., a person who has retired earlier shall be placed senior in the seniority. If two candidates have retired on the same date then the candidate who has put in longer service in the Armed Forces shall rank higher in seniority.
of Henceforth all attachment shall be made strictly in accordance with the seniority list, so maintained. This list be drawn up latest by 25.3.2011. The list shall be displayed on rt the Notice Board of the respondent No.1-Corporation and shall be open for inspection to all ex servicemen. The ex-
servicemen can file their objections with the Corporation to the said list.
(g) For the future every year, the respondent-
Corporation shall invite applications from ex-servicemen for including their names in the list by issuing advertisement as aforesaid. These advertisements shall be published by 31st December of each year and applications shall be invited latest by 31st of January and the list shall be prepared by 28th of February of the subsequent years. These lists shall be applicable from 1st April of the subsequent years.
(h) The vacant positions for the trucks which are detached only after 1.4.2011 will be offered to the ex- servicemen who are next in the waiting list.
(i) In case an ex-servicemen dies, his widow shall be entitled to inherit the right to have a truck attached till her life time.
::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 16(j) In case there is no widow or the widow voluntarily gives up her right, the attachment can be transferred to one son/daughter of the ex-servicemen but in such eventuality, the right to ply the truck shall only be for a .
period of 5 years. After the death of the widow or on expiry of 5 years, the attachment shall cease to exist and the slot shall be given on the basis of seniority.
(k) No transfer of any attachment with the Corporation shall be permitted. Any ex-servicemen who of does not want to ply the truck will have to surrender the attachment to the Corporation who shall offer it to the next person in the seniority list.
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(l) In case the ex-serviceman is reemployed, his truck will not be attached and if his truck has been already attached and the Ex-servicemen re-employed in Government service/public sector undertakings, Banks etc. then he shall have to surrender his right to get the truck attached and the vacant slot shall be given to the Ex-servicemen next in the waiting list.
(m) In case of truck of an Ex-servicemen is stolen or meets with an accident then the Ex-servicemen shall have a right to replace his stolen/ unserviceable truck and get it attached with the Corporation. However, only one truck shall be attached one time.
(n) That when a truck of any Ex-servicemen is attached with the Corporation, the Corporation shall give a distinctive year-wise number to every attached truck and on the body of the truck, the Ex-servicemen shall ensure that the following information is depicted:-
::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 17"This truck No.______ is attached with the H.P Ex-Servicemen Corporation vide attachment No._______ of the year _______."
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(p) That if there are more than one Society for different cement plants, the Ex-servicemen shall have a right to attach one truck with only one Society and it shall not be open for an Ex-servicemen to become a member of more of than one Society and thereby attach more than one truck."
8. At this stage, it may be noticed that a few members of the rt Corporation being aggrieved and dissatisfied with the aforesaid judgment, filed an SLP before the Apex Court i.e. Y.K. Awasthi & Ors versus H.P. Ex-Servicemen Corp. & Ors, which came be dismissed, in limine, on 10.10.2011.
9. Pursuant to aforesaid insertion of bye-law 10 in the Bye-laws of H.P. Ex-servicemen Truck Operator Welfare Working Committee, show cause notice was issued to those persons, who were not held entitled by the Court to attach their trucks with the Corporation. Being aggrieved and dissatisfied with the issuance of show cause notice by the Corporation, present petitioner alongwith others approached this Court by way of CWP's No. 4141/2015, 488/2016, 624/2016, 625/2016 and 626/2016. In the aforesaid petitions, having been filed by the present petitioners, they claimed that prior to passing of judgment dated 6.1.2011 in CWP No. 2402/2008, respondents No.2 and 3 had already issued ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 18 permission to attach their trucks, which was valid upto 21.10.2017 and as such no show cause notice could be issued to them in terms of aforesaid judgment. Petitioners in those cases also claimed that in the aforesaid .
judgment since Section 2 (f) of the Act was not taken into consideration, judgment passed in that case can not be made applicable in their case, especially when under the Act, they have been held to be ex-servicemen for all intents and purposes. Petitioners in those cases, further claimed of that they are deemed to be ex-servicemen under Section 2 (f) of the Act and a right in their favour accrued immediately after enactment of rt aforesaid Act and their right of attachment of truck could not have been taken away by subsequent amendment in the Rules, Regulations or Bye-
Laws of Corporation, because that would be against the basic Act, which was enacted strictly for the welfare of the families of the ex-servicemen.
10. However, the fact remains that all the aforesaid petitions were dismissed as withdrawn on 26.4.2016 (Annexure P-10) with liberty reserved to the petitioners to file representations to the authority concerned seeking redressal of their grievances. Pursuant to dismissal of the aforesaid petitions, petitioner herein preferred representation (Annexure P-11) before the Corporation. The Corporation vide Annexure P-12, rejected the claim of the petitioner by stating that action of de-
listing truck(s) was taken in compliance of directions passed by the Division Bench of this Court. In the aforesaid background, petitioner approached this Court by filing the instant petitions, laying therein ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 19 challenge to communication dated 19.5.2016 (Annexure P-12). Petitioner in CWP No. 2082/2016 alongwith petitioners in connected matters is claiming attachment of his truck with the Corporation being the legal .
heir(s) of the deceased ex-serviceman, who prior to death was allowed/permitted to attach his truck with the Corporation for transportation of cement.
11. Mr. Amit Singh Chandel, Advocate, learned counsel for the of petitioner(s), vehemently argued that order of de-listing of trucks issued by the Corporation deserves to be set aside being contrary to the rt provisions contained in the Act as well as Bye-Laws. He further contended that the Corporation has illegally issued notices for delisting the trucks of present petitioners by misreading and mis-interpreting the ratio decidendi of the judgment passed by Division Bench of this Court in CWP No. 2402/2008. He further contended that while passing certain directions in the aforesaid judgment, Division Bench had specifically directed respondents No.1 and 2 to ensure that Bye-Laws, Rules and Regulations are amended in line with the directions contained in judgment dated 6.1.2011 but the Corporation, without effecting any amendment in Bye-Laws, Rules and Regulations, directly incorporated the directions issued by the Court in their Bye-Laws. He further argued that since Division Bench, while passing aforesaid judgment had only issued certain directions and had actually not struck-down the legality or validity of Rules and Regulations already contained in the earlier Act and ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 20 Bye-laws and it can not be stated that statutory provisions which govern vested rights of the petitioners in the Corporation, from where rights of the petitioners original were created, were declared to be illegal. While .
concluding his arguments, Mr. Chandel further argued that the observations made by the Court in CWP No. 2402/2008 are obiter observations and as such they are per incuriam and no law has been declared by way of such directions so as to take away the vested rights of of the petitioners with retrospective effect, more particularly, when claim of Scheme of the Act is prospective. He further argued that while rt incorporating any amendment in the Bye-Laws in terms of judgment passed by Division Bench of this Court, it was incumbent upon the respondents to adhere to Sections 31 to 34 of the Act. He further contended that in order to further amend Rules, Bye-laws of the Corporation, respondents No.1 and 2 ought to have incorporated amendment by adhering to the provisions of the Act as well HP General Clauses Act, 1968, as amended from time to time, but since, in the present case, aforesaid provisions were not followed and amendments carried out in the Bye-Laws being in violation of the Scheme, deserve to be quashed and set aside. In the aforesaid background, Mr. Chandel, prayed that judgment passed in CWP No. 2402/2008 requires to be reconsidered by this Court and amendment in Bye-Laws deserves to be declared null and void.
::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 2112. Mr. Shrawan Dogra, learned Advocate General duly assisted by Mr. Anup Rattan, Additional Advocate General and Mr. Mukul Sood, Advocate, vehemently opposed the aforesaid prayer having been made on .
behalf of the petitioners by stating that there is no illegality or infirmity in the decision taken by the respondent-Corporation pursuant to the directions passed by this Court in CWP No. 2402/2008. They further argued that the aforesaid judgment has attained finality because the SLP of filed by a member of the ex-servicemen Union, was dismissed in limine.
Mr. Mukul Sood, learned counsel representing respondent-Corporation rt further contended that the directions passed in CWP No. 2402/2008 by this Court are in the interests of the ex-servicemen community and as such same were immediately accepted by the Corporation by effecting amendment in its Bye-laws.
13. We have heard the learned counsel for the parties and also gone through the record carefully.
14. After perusing pleadings as well as submissions having been made by the respective parties, this Court has no hesitation to conclude that the instant petitions are wholly misconceived and sheer abuse of process of law. Prayer(s) as made in the present petitions have already been considered and rejected by this Court in earlier set of petitions filed by the present petitioners {CWP's No. 4141 of 2015 (Ajaib Singh v. State of HP and others), 488 of 2016 (Puspa Lata versus State of H.P. & others), 624 of 2016 (Thakur Singh versus State of H.P. & others), 625 of ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 22 2016 (Vinod Kumar versus State of H.P. & others) and 626 of 2016 (Sham Ved Versus State of H.P. & others)}. In the instant petitions, petitioners, who are legal heirs of the deceased ex-servicemen, are .
aggrieved by the action of the Corporation, whereby their trucks have been de-listed, in terms of Bye law 10 inserted in the Bye-laws by way of amendment pursuant to directions passed by a Division Bench of this Court in CWP No. 2402/2008. The Division Bench of this Court has of already held that in the event of death of ex-serviceman, his widow would be entitled to inherit right to have attached till her life time. This Court rt has rightly held that in case there is no widow, or widow voluntarily gives up her right of attachment, said right could be transferred to one son/daughter of the ex-serviceman but in that eventuality, right to ply truck would be restricted to five years after the death of widow or on expiry of five years, attachment would cease to exist and slot would be given on the basis of seniority to other ex-servicemen in the list. On the basis of aforesaid direction, Corporation has carried out amendment in the Bye-laws in its general meeting by incorporating directions issued by this Court, in the Bye-laws and as such all the ex-servicemen are bound by the same. It can be taken note of that aforesaid directions issued by this Court in CWP No. 2402/2008, were accepted by the Corporation without any demur, because same were issued in larger interests of the ex-servicemen, more particularly, aforesaid judgment has attained finality after dismissal, in limine, of SLP, filed against the same.
::: Downloaded on - 15/04/2017 21:42:05 :::HCHP 2315. Hence, this Court sees no occasion /reason to accept the contentions raised in the instant petitions. It is not understood how the judgment passed by Division Bench of this Court, which has attained .
finality, can be reconsidered by this Court, as has been prayed in the instant petitions.
16. Though this court, does not deem it proper to say over and above what has been observed in the judgment in CWP No. 2402/2008, of but, definitely, sees no force in the contentions raised by the counsel for the petitioners that the Corporation had no authority to carry out rt amendment in the Bye-laws, on the basis of directions issued by the Division Bench of this Court. No reliefs, as have been prayed for in the present petitions, can be granted in the present proceedings by this Court, in view of the directions already issued in CWP No. 2402/2008, because that would amount to overreaching the judgment of this Court, which has been further affirmed by the Apex Court.
17. In light of the detailed discussion above, the petitions are without any merit and same are dismissed. Pending applications, if any are also disposed of.
(Mansoor Ahmad Mir) Chief Justice (Sandeep Sharma) Judge December 8, 2016 (vikrant) ::: Downloaded on - 15/04/2017 21:42:05 :::HCHP