Himachal Pradesh High Court
Executive Engineer vs Downloaded On - 31/01/2022 ... on 20 August, 2021
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 20th DAY OF AUGUST, 2021
BEFORE
.
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL WRIT PETITION No. 2162 of 2020
Between:-
BHAGAT RAM, SON OF SH.
NATHU RAM, RESIDENT OF
VILLAGE MALOG, POST
OFFICE NANDPUR, TEHSIL
JUBBAL, DISTRICT SHIMLA,
H.P., PRESENTLY WORKING
AS CLERK IN THE OFFICE OF
EXECUTIVE ENGINEER,
MECHANICAL DIVISION H.P.
PWD DHALLI, DISTRICT
SHIMLA, H.P.
...PETITIONER
(BY SHRI P. D. NANDA, ADVOCATE)
AND
1. STATE OF HIMACHAL
PRADESH THROUGH ITS
ADDITIONAL CHIEF
SECRETARY (PW), H.P.
SECRETARIAT, SHIMLA-171002.
2. THE ENGINEER-IN-CHIEF, HP
PWD, NIRMAN BHAWAN,
SHIMLA-171002.
3. EXECUTIVE ENGINEER,
MECHANICAL DIVISION, HP
PWD DHALLI-171012.
4. SHRI ARUN KUMAR SHARMA,
SON OF SH. SUBHASH CHAND,
PRESENTLY WORKING AS
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JUNIOR ASSISTANT HP PWD
DIVISION ARKI, DISTRICT
SOLAN, H.P.
....RESPONDENTS
.
(M/S SUMESH RAJ & SANJEEV SOOD,
ADDITIONAL ADVOCATE GENERALS WITH
M/S J.S. GULERIA & KAMAL KANT
CHANDEL, DEPUTY ADVOCATE
GENERALS, FOR R-1 to R-3.
None for R-4.
___________________________________________________________
This petition coming on for orders this day, the Court passed the
following:
JUDGMENT
Brief facts necessary for the adjudication of present petition are
as under:-
As per the petitioner, he was appointed on daily wage basis as
a Store Attendant on 02.03.1987. He was called upon to perform the duties
of Complaint Attendant as also of a Receptionist. Though he was entitled
for regularization against the post, work of which was being performed by
him, yet he was regularized on the lower post of work charged Beldar w.e.f.
01.01.1997.
2. Feeling aggrieved with the order of regularization, he raised an
industrial dispute. On the reference made by the Appropriate Government to
the learned Labour Court, the Award was passed by the learned Labour
Court in Reference Petition No. 95 of 2000, titled as Bhagat Ram Vs.
Executive Engineer Mechanical Division and another on 09.01.2004 to the
effect that the petitioner/workman was held entitled for regularization in
service of the respondents as Clerk/Complaint Attendant with effect from the
.
date when his services were regularized as work charged Beldar. This
regularization was ordered alongwith continuity in service and seniority. The
Award of learned Labour Court was challenged by the State by way of CWP
No. 736 of 2006, which was dismissed by the Hon'ble High Court vide
judgment dated 15.05.2007 (Annexure P-2). LPA filed by the State against
the judgment of the learned Single Judge was also dismissed on 13.12.2011
(Annexure P-3). SLP preferred by the State was also dismissed by the
Hon'ble Supreme Court vide order dated 19.02.2013 (Annexure P-4). In the
meanwhile, the respondent-State took a decision vide letter, dated
30.12.2011 (Annexure P-5) to provide promotional avenues to Store
Clerks/Receptionists by merging them in the Cadre of Clerks by inviting their
options. On account of the ongoing litigations, the petitioner could not
exercise his option. Resultantly, vide Office Order, dated 24.09.2012
(Annexure P-6), 60 Store Clerks/Receptionists were merged in the Cadre of
Clerks, which included juniors of the petitioner. Petitioner was finally
appointed against the post of Complaint Attendant (Receptionist) vide Office
Order, dated 20.05.2013 (Annexure P-7). The petitioner made a request to
the Government to merge him in the Cadre of Clerks. This representation is
dated 17.06.2013 (Annexure P-8). Petitioner was merged in the Cadre of
Clerks on 05.11.2018, whereas he was entitled to be merged in the said
Cadre w.e.f. 24.09.2012, when his juniors were merged and it is in this
background that the petition has been filed with the prayer that the decision
of the Government contained in Annexure P-18, dated 28 th August, 2019, as
.
conveyed vide Communication dated 02.03.2020 (Annexure P-21) be
quashed and the respondents be directed to merge the petitioner in the
Cadre of Clerks w.e.f. 24.09.2012 in stead of 05.11.2018.
3. The petition is resisted by the State, inter alia, on the ground
that the option was exercised by the petitioner for being merged in the
Cadre of Clerks on 17.06.2013 and in terms of his option, his case for
merger in the Cadre of Clerks was considered alongwith 10 other similarly
situated incumbents and the decision of the Government was to the effect
that it was not proper to merge the posts of Store Keepers/Clerks and
Receptionists in the Cadre of Clerks, as the same were in different Pay
Band/Grade Pay. It is further the stand of the respondent-Department that
upon approval of the Government dated 23.10.2018, the name of the
petitioner was again considered and this time, orders were passed, as he
had given his consent for merger from prospective date. On these basis, the
petition has been resisted by the State.
4. Having heard learned counsel for the parties and after perusing
the pleadings, this Court is of the view that no interference is called for with
the decision of the Government, for the reason that if the petitioner was
really aggrieved by his non-merger in the Cadre of Clerks from the date
when persons juniors to him were so merged, then he should have had
approached the Court of law immediately after the litigations with respect to
his regularization came to an end post dismissal of the SLP. Yet, this was
not done by the petitioner and he preferred this writ petition only after he
.
was merged in the Cadre of Clerks by the Department in the year, 2018.
This conduct of the petitioner cannot be ignored by this Court, as the
petitioner did not approach the Court within reasonable time as from the
date when cause of action accrued in his favour. This petition being belated,
cannot be entertained. Otherwise also, it is the stand of the State that when
the petitioner was merged against the post of Clerk, this was done after he
had agreed for prospective merger and that being the case, the petitioner is
otherwise estopped from making the prayer that he may be merged against
the post of a Clerk from the date when persons junior to him were merged,
as he has acquiescenced to his subsequent merger. In this view of the
matter, this petition is dismissed, so also pending miscellaneous
applications, if any.
(Ajay Mohan Goel)
Judge
August 20, 2021
(bhupender)
