Himachal Pradesh High Court
Clerk In 1St Circle vs State Of H.P on 22 October, 2021
Author: Sabina
Bench: Sabina
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 22nd DAY OF OCTOBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE SABINA
LETTERS PATENT APPEAL No. 133 of 2021
&
CIVIL MISC. PETITION (MAIN) No. 371 of 2021
Between:
KAMLA DEVI,
AGED 53 YEARS,
WIFE OF SH. BHAG SINGH
THAKUR, RESIDENT
OF VILLAGE TANDI,
P.O. RANDHARA,
TEHSIL SADAR,
DISTRICT MANDI, H.P.,
PRESENTLY WORKING AS
CLERK IN 1st CIRCLE,
HP PWD MANDI,
DISTRICT MANDI, H.P.
...APPELLANT
(BY MR. R.L. CHAUDHARY,
ADVOCATE)
AND
1. STATE OF H.P.
THROUGH ITS PRINCIPAL
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SECRETARY (PW) TO THE
GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA - 171002.
.
2. REGISTRAR, HP PWD,
SHIMLA.
3. ENGINEERINCHIEF,
HP PWD, SHIMLA, H.P.
4. SUPERINTENDING ENGINEER,
1st CIRCLE, HP PWD MANDI,
DISTRICT MANDI, H.P.
5. SH. LEKH RAJ,
SON OF SH. JIWAN DASS,
PRESENTLY WORKING AS
CLERK IN 1st CIRCLE,
HP PWD MANDI,
DISTRICT MANDI, H.P.
6. SH. BHAIRAV SINGH,
SON OF SH. PURAN CHAND,
PRESENTLY WORKING AS
CLERK IN 1st CICLE,
HP PWD MANDI,
DISTRICT MANDI, H.P.
...RESPONDENTS
(MR. ASHOK SHARMA,
ADVOCATE GENERAL,
WITH MS. RITTA GOSWAMI,
ADDITIONAL ADVOCATE
GENERAL, AND MS. SEEMA
SHARMA, DEPUTY ADVOCATE
GENERAL, FOR R1 TO 4.)
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This Appeal coming on for admission this day, Hon'ble
Mr. Justice Mohammad Rafiq, delivered the following:
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JUDGMENT
This appeal seeks to challenge the judgment of the learned Single Bench, dated 17th December, 2019, by which the writ petition (CWPOA No. 69 of 2019) filed by the appellant has been allowed in part, directing the respondentsState to grant her benefit of merger against the post of Clerk with due seniority, below the person senior to her as Store Keeper and above the person junior to her as Store Keeper, however, with effect from 28th December, 2016 or with effect from any such date vide which 12 persons, as mentioned in the list enclosed therewith, were merged against the post of Clerks. However, it was directed that from the date in issue from which the petitioner shall be merged as a Clerk, she will be given notional benefits on the post of Clerk and actual benefits shall be conferred upon her on the post of Clerk only with effect from the date of the impugned judgment.
2. As per the office report, the appeal is barred by limitation, having been filed with delay of 96 days. The appellant has filed application under Section 5 of the Limitation Act, being ::: Downloaded on - 31/01/2022 23:12:55 :::CIS 4 CMP (M) No. 371 of 2021, supported by her affidavit, contending that the writ petition filed by the appellant was decided by the .
learned Single Judge vide judgment, dated 17 th December, 2019.
When the appellant received copy of the judgment, she contacted her counsel telephonically, but, at that time, the High Court was closed for winter vacation in the months of January and February, 2020. Thereafter, due to spread of pandemic COVID19 in the month of March, 2020 onwards, she could not take timely steps to file the appeal and when the situation of COVID19 controlled to some extent, the appellant has filed the appeal.
3. Having regard to the explanation given by the appellant in the application seeking condonation of delay, we are satisfied that the appellant was prevented by sufficient cause from filing the appeal within the period of limitation. We are, therefore, persuaded to condone the delay. CMP (M) No. 371 of 2021 is disposed of accordingly.
4. Heard the matter on merits.
5. The learned counsel for the appellant has argued that when the learned Single Judge found the case of the appellant justified for merger at par with 12 persons who were merged as ::: Downloaded on - 31/01/2022 23:12:55 :::CIS 5 Clerks with effect from 28th December, 2016, there was no justification whatsoever in not granting the actual benefit to the .
appellant, when, admittedly, all of them were junior to the appellant.
6. The learned counsel for the appellant has contended that initially when the first batch of 60 incumbents of Store Keepers/Clerks and Receptionists was merged as Clerks vide order dated 24th September, 2012, the case of the appellant was not considered, as, at that time, she was not possessing the qualification of 10+2. The appellant, however, qualified her 10+2 examination in the month of October, 2012 from National Institute of Open Schooling (Government of India). She, thereafter, approached the respondents. When they did not grant her the desired relief, the appellant filed CWP No. 9139 of 2014 before this Court, which was disposed of vide order dated 19 th December, 2014, with liberty to her to make a representation for redressal of her grievance to the EngineerinChief, HP Public Works Department. The representation of the appellant was rejected by the EngineerinChief, vide communication dated 10 th February, 2015.
::: Downloaded on - 31/01/2022 23:12:55 :::CIS 67. The learned counsel for the appellant has taken us through the said order, dated 10th February, 2015, perusal of .
which reveals that there were fourteen such cases, which were received after 24th September, 2012 from various offices of the incumbents who had supplied late options. Vide letter dated 19 th July, 2013, the eleven cases, which were found eligible, fulfilling the requirement of Rules, were sent to the Principal Secretary (Public Works) to the Government of Himachal Pradesh with the request that necessary approval of the Government to merge these Store Clerks/receptionists be arranged and conveyed.
Subsequently, cases of three incumbents were also sent vide letter dated 19th August, 2013, in similar circumstances. However, the Finance Department, vide communication dated 29 th January, 2014, rejected the proposal on the premise that when earlier decision was taken regarding merger of Store Keepers/Clerks and Receptionists, all these posts were in the same pay scale, but, now, the pay band/Grade Pay is higher after two years of service, and, therefore, it will not be proper to merge the posts of Store Keepers/Clerks and Receptionists in the cadre of Clerk. The representation of the appellant was rejected because as per the ::: Downloaded on - 31/01/2022 23:12:55 :::CIS 7 view then taken by the respondents, the appellant and other 13 similarly situated persons, due to difference of pay structure .
between the two cadres now, could not be granted the benefit.
8. Undeniably, 12 persons, who were subsequently granted the benefit of merger vide order dated 28 th December, 2016, are out of above 14 persons and the appellant was also one of them.
There was, therefore, no reason for the respondents to withhold the case of the appellant, particularly when she had already represented to them and that too, pursuant to the order of this Court.
9. The learned Single Judge, therefore, was right in recording the finding that the appellant could not have been denied merger simply on the ground that in her consent form, she was seeking merger from the date when she passed her 10+2 examination and, therefore, noninclusion of her name in the aforesaid order, dated 28th December, 2016, especially when persons junior to her were merged as such, was arbitrary and thus, violative of Article 14 of the Constitution of India and was not sustainable in law.
::: Downloaded on - 31/01/2022 23:12:55 :::CIS 810. When the learned Single Judge has recorded this finding, we do not find any justification in not granting actual .
benefits to the appellant, particularly when she was not at fault inasmuch as she had already timely approached the respondents and the respondents were fully cognizant of her grievance. Only because, in her consent form, she had indicated that she should be granted merger from the date she passed 10+2 examination in October, 2012, this could not be a reason not to grant her such benefit at least from 28th December, 2016, when other similarly situated candidates were granted such benefit, more particularly, when all of them were junior to the appellant.
11. In view of the above, action of the respondents must be held to be arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. The appeal, therefore, deserves to succeed with a direction to the respondents to grant the appellant the actual benefits with effect from 28 th December, 2016, with interest @ 6% per annum. The compliance be made within a period of three months from the date of production of a copy of this order before the concerned respondent.
::: Downloaded on - 31/01/2022 23:12:55 :::CIS 912. Pending miscellaneous applications, if any, shall also stand disposed of.
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( Mohammad Rafiq ) Chief Justice ( Sabina ) Judge October 22, 2021 ( rajni ) ::: Downloaded on - 31/01/2022 23:12:55 :::CIS