Himachal Pradesh High Court
Sh. Shankar Dass vs Himachal Pradesh State Electricity ... on 25 October, 2021
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
ON THE 25th DAY OF OCTOBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL ORIGINAL PETITION CONTEMPT (TRIBUNAL)
No.176 of 2020
Between:
SANJEEV KUMAR S/O LATE
SH. SHANKAR DASS, VILLAGE
-SAKON, P.O.- BALH, TEHSIL
BANGANA, DISTRICT-UNA,
H.P. 174321.
....PETITIONER.
(BY. SHRI ANKUSH DASS SOOD, SENIOR ADVOCATE WITH
SHRI RAKESH K. SHARMA, ADVOCATE)
AND
1. KUMUD SINGH D/O SH.
SHAKTI SINGH, SECRETARY
OF HIMACHAL PRADESH
STATE ELECTRICITY BOARD
VIDYUT BHAVAN SHIMLA.
2. DR. ASHWANI SHARMA,
SECRETARY-CUM-
EXECUTIVE DIRECTOR OF
HPSEBL (IN TERMS OF
ORDER DATED 21/7/2020)
3. MANOJ KUMAR,
SECRETARY OF
RESPONDENT-BOARD (IN
TERMS OF ORDER DATED
5/10/2021)
....RESPONDENTS.
(BY. SHRI SURINDER SAKLANI, ADVOCATE )
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Whether approved for reporting?1 No
This Petition coming on for admission this day, the Court passed the
.
following:
JUDGMENT
The petitioner before this Court was appointed as a Junior Engineer (Electrical) with the H.P. State Electricity Board pursuant to Office Order dated 05.08.2011 on contract basis. He approached the learned erstwhile Himachal Pradesh Administrative Tribunal by way of O.A. No.4735 of 2015, titled as Sanjeev Kumar Vs. Himachal Pradesh State Electricity Board & others, vide which Original Application, prayer was made that the employer be directed to offer appointment to him from the date of initial appointment on regular basis in terms of similar treatment having been granted to the incumbents similarly situated as the petitioner who stood appointed in these posts under the 3% quota meant for Persons with Disability (PWD) Act, 1995. This Original Application was disposed of by the learned Tribunal in the following terms:-
"4. The learned counsel for the applicant states at the very outset that the case of the applicant is squarely covered under common judgment 30.10.2014, Annexure A-3, rendered by the Hon'ble High Court of Himachal Pradesh in CWP No.811 of 2011, Ashwani Kumar Versus Himachal Pradesh State Electricity Board & others and the connected matters.::: Downloaded on - 31/01/2022 23:13:22 :::CIS 3
5. the learned Standing Counsel states on behalf of the respondents that subject to verification of records, if it is found that the applicant is similarly situate as the .
petitioner in the aforesaid CWP No.811 of 2011 and the connected matters, his case shall also be considered accordingly.
6. In view of the above, the original application is disposed of in terms of the aforementioned judgment in CWP No.811 of 2011 and the connected matters, with a direction to the respondents/ competent authority that subject to the above verification and on finding the applicant to be similarly situate as above, benefit of the said judgment, if the same has attained finality and implemented, shall also be extended to him alongwith consequential benefits, if any, as per law, without any discrimination, within three months from the date of production of certified copy of this order by the applicant."
2. As no order was passed by the competent authority within the stipulated period of three months, the petitioner filed this contempt petition before the learned Tribunal which after abolition of the learned Tribunal stands transferred to this Court for the purpose of adjudication.
3. Alongwith the response which was filed to the present contempt petition, an order passed by the competent authority dated 13.06.2017 was also appended, vide which the representation of the petitioner stood dismissed on the ground that as the ::: Downloaded on - 31/01/2022 23:13:22 :::CIS 4 petitioner was recruited vide a drive in which there were persons of other categories also, i.e. Open Category, Scheduled Caste Category .
and Scheduled Tribe Category, who were offered appointment on contract basis, therefore, the petitioner was not entitled for the relief as was being prayed by him.
4. Rejoinder to the reply stands filed by the petitioner and it stands mentioned therein, as has also been argued by learned Senior Counsel, that Ashwani Kumar with whom parity was being drawn by the petitioner was similarly situated to the petitioner who was offered regular appointment by the respondent-board in terms of the order passed by the competent authority, appended with the rejoinder, dated 20.06.2015 (Annexure C-7) and the reasons which stand assigned by the competent authority while dismissing the representation of the petitioner are not only perverse but the act of the respondent-authority is also contemptuous and the same amounts to willful disobedience of the Court orders for the reasons that when on the basis of a direction passed by this Court in CWP No.811 of 2011, Ashwani Kumar Versus Himachal Pradesh State Electricity Board & others and the connected matters, decided on 30.10.2014, the competent authority regularized the services of an incumbents appointed under 3% reserve backlog posts meant for Person with Disability, then denying the same relief to the petitioner is nothing but contempt. Accordingly, a prayer has been made that ::: Downloaded on - 31/01/2022 23:13:22 :::CIS 5 appropriate action be taken against the respondents for willful disobedience of the Court orders.
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5. Justifying the act of the respondent, Mr. Surinder Saklani, learned counsel for the respondent has argued that though it is not in dispute that both Ashwani Kumar and the petitioner have been appointed under 3% quota under the Persons with Disability (PWD) Act, 1995, however Ashwani Kumar alongwith other incumbents were appointed exclusively under a drive taken by Himachal Pradesh State Electricity Board to fill the backlog of vacancies available under the Persons with Disability (PWD) Act, 1995, but this was not the case with the petitioner as he although was recruited under the Persons with Disability (PWD) Act, 1995, but was recruited alongwith other incumbents belonging to General Category as well as Scheduled Caste and Scheduled Tribes Categories.
6. I have heard learned counsel for the parties and have gone through the pleadings.
7. A perusal of the order which has been passed by the competent authority, dated 13.06.2017, inter alia, demonstrates that the same has not been passed in terms of the judgment passed by the learned Tribunal vide order dated10.12.2015, in O.A. No.4735 of 2015. This Court is making the said observation for the following reasons:-
::: Downloaded on - 31/01/2022 23:13:22 :::CIS 6Order dated 10.12.2015 demonstrates that it was contended before the learned Tribunal on behalf of the present .
petitioner that his case was squarely covered by the common judgment rendered by the High Court of Himachal Pradesh in CWP No.811 of 2011, Ashwani Kumar Versus Himachal Pradesh State Electricity Board & others and connected matters, decided on 30.10.2014. Thereafter, a holding out was made by the learned Standing Counsel for the Board before the learned Tribunal that subject to verification of records, if it was found that the applicant was indeed similarly situated as the petitioner in CWP No.811 of 2011 and other connected matters, his case shall be considered accordingly. It was in this backdrop that the learned Tribunal disposed of the Original Application by passing a direction that respondent/competent authority subject to the verification of the factum of the petitioner being similarly situated as Ashwani Kumar and on finding the petitioner to be similarly situated, extend the benefit of judgment if the same had attained finality and stood implemented alongwith consequential benefits, if any, as per law without any discrimination.
8. Now, incidently order dated 13.06.2017 has not dealt with the said directions passed by the learned Tribunal in letter and spirit. It appears that what weighed with the appropriate authority was more the mode of recruitment of the petitioner rather than his ::: Downloaded on - 31/01/2022 23:13:22 :::CIS 7 contention that as he stood recruited under 3% quota prescribed under the Persons with Disability (PWD) Act, 1995, as was Ashwani .
Kumar, therefore, he being similarly situated was entitled for similar relief as stood granted to Ashwani Kumar and that too by the Board itself by its decision dated 20.06.2015 (Annexure C-7), appended with the rejoinder.
9. To this effect, this Court is of the considered view that order dated 13.06.2017 suffers from infirmity as the same is not inconsonance with the directions issued by the learned Tribunal. It is thus but obvious that in view of the said observations made by the Court, order dated 13.06.2017 does not with stands the test of legality as it is not inconsonance with the directions passed by the learned Tribunal.
10. Now, in this background, the moot issue is as to what directions can be passed in the present Contempt Petition in order to ensure that substantive justice is imparted to the parties.
11. Hon'ble Supreme Court of India in AIR 1970 Supreme Court 1767, titled The Aligarh Municipal Board and others Versus Ekka Tonga Mazdoor Union and others has been pleased to hold that the contempt proceedings against a person who has failed to comply with the Court's order serves a dual purpose: (a) Vindication of the public interest by punishment of contemptuous conduct and (b) ::: Downloaded on - 31/01/2022 23:13:22 :::CIS 8 coercion to compel the contemner to do what the law required of him.
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12. Accordingly, in order to impart substantive justice to the parties, this Contempt Petition is ordered to be closed by discharging the notice but with a direction that fresh order be passed by the authority concerned on the representation of the petitioner in terms of directions passed by the learned Tribunal in O.A. No.4735 of 2015, titled as Sanjeev Kumar Vs. Himachal Pradesh State Electricity Board & others, dated 10.12.2015, with specific reference to the judgment of Ashwani Kumar as well as per the decision taken by the Board of Directors as is reflected in publication dated 20.06.2015 appended with the rejoinder as Annexure C-7.
13. Now, needful shall be done by the competent authority on or before 30.11.2021 after giving an opportunity of being heard to the petitioner.
October 25, 2021 (Ajay Mohan Goel)
(rishi) Judge
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