Between vs State Of H.P. And
2021 Latest Caselaw 5005 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA




                                                      .
             ON THE 21st DAY OF OCTOBER, 2021





                           BEFORE

         HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN





                              &
          HON'BLE MS. JUSTICE JYOTSNA REWAL DUA


               CIVIL WRIT PETITION No. 4107 of 2021

         Between:-
                   r       to
         RAKESH KUMAR, S/O SHRI AMAR NATH,
         RESIDENT OF VILLAGE DUGHIAR, P.O.
         SOHARI, TEHSIL DHATWAL (BIJHARI),

         DISTRICT HAMIRPUR, H.P.           ......PETITIONER.

         (BY SH. AJAY SHARMA, SENIOR ADVOCATE
         WITH SH. ATHARV SHARMA, ADVOCATE)



         AND

    1.   STATE OF H.P. THROUGH SECRETARY




         (ARTS, LANGUAGE & CULTURE) TO
         THE GOVERNMENT OF HIMACHAL
         PRADESH, SHIMLA-171002.





    2.   THE DEPUTY COMMISSIONER, HAMIRPUR-
         CUM-COMMISSIONER, BABA BALAK NATH





         TEMPLE TRUST, DEOTHSIDH AT
         HAMIRPUR, DISTRICT HAMIRPUR, H.P.

    3.   THE SUB-DIVISIONAL OFFICER (CIVIL)-
         CUM-CHAIRMAN, BABA BALAK NATH
         TEMPLE TRUST AT BARSAR, DISTRICT
         HAMIRPUR, H.P.                ......RESPONDENTS.

         (SH.ASHOK SHARMA, ADVOCATE GENERAL
         WITH SH. RAJINDER DOGRA,
         SENIOR ADDITIONAL ADVOCATE GENERAL,
         SH. VINOD THAKUR, SH. SHIV PAL MANHANS,
         ADDITIONAL ADVOCATE GENERALS AND




                                     ::: Downloaded on - 31/01/2022 23:12:51 :::CIS
                                      2




         SH. BHUPINDER THAKUR,
         DEPUTY ADVOCATE GENERAL,
         FOR RESPONDENT-1)




                                                                 .

         (SH. AVNEESH BHARDWAJ, ADVOCATE,
         FOR RESPONDENTS-2 & 3)





               This petition coming on for admission after
    notice this day, Hon'ble Mr. Justice Tarlok Singh
    Chauhan, passed the following:





                          ORDER

The instant petition has been filed for grant of

the following substantive relief:-

"That the impugned act of respondents No.2 & 3 in ordering recoveries, vide Annexure P-3, dated 24.03.2011 qua the petitioner may very kindly be

quashed and set aside with directions to the respondents to refund the recoveries as are made till date alongwith interest @ 9% per annum and further

to give placement to the petitioner as Junior Assistant on and w.e.f. 01.01.1998 having completed five years

of service in the cadre with all consequential benefits of pay, seniority etc. etc."

2. Briefly stated the facts of the case are that the

services of various persons working in Deothsidh Temple

were taken over by the Trust after its formation and

thereafter regularization orders were issued with respect

to the persons whose services were taken over on and with

effect from 01.01.1993. However, there were a few

persons, who were not fulfilling the eligibility criteria and

had filed the writ petition before this Court. A compromise

.

was entered into between those persons and the Trust

and accordingly one time relaxation in respect of the

eligibility criteria was given and thereafter even their

services were ordered to be regularized and the petition

was disposed of.

3. It is averred that the Government r revised pay

scales vide notification dated 01.09.1998 and revision of

pay scales was allowed with effect from 21.01.1996. It is

further averred that by treating the employees of the Trust

at par with the Government employees, respondents No. 2

and 3 allowed placement of 50% of Clerks in the pay scale

of Rs. 4400-7000 and this was with respect to employees,

who had rendered minimum five years of service in the

cadre as per requirements and vide letter dated

23.08.2003, the benefit of pay scale of Junior Assistant was

allowed on and with effect from 03.09.2001 and vide letter

dated 23.08.2003, respondents No. 2 and 3 had stated that

on the recommendations of the Departmental Promotion

Committee, the employees as mentioned in the said letter

are promoted. In fact, the word "promotion" has wrongly

been mentioned in the letter dated 23.08.2003 as the same

ought to have been that employees as mentioned in the

.

said letter are placed in the pay scale of Junior Assistant so

that the same ought to have been in consonance with

notification dated 01.09.1998.

4. It was also averred that revised pay scales were

allowed to all the employee of the Trust whose names find

mention in the letter dated 23.08.2003 on and with effect

from 03.09.2001 and arrears were paid in cash. As regards

grant of placement and arrears, the said benefit is given by

the Trust at its own and in view of notification dated

01.09.1998 and in case it is found that monetary benefits

have been given to any employee without his

representation, respondents No. 2 and 3 cannot recover

the same and now they have started recoveries by

deducting particular amount from the pay packet and at the

back of the petitioner without giving any opportunity of

hearing and more than Rs. 1.00 lakh have been recovered

from the pay of the petitioner.

5. Lastly, it was averred that all the employees of

the Trust were allowed service benefits at par with the

Government employees and the said benefits were not

granted to the petitioner only on the pretext that the matter

was sub-judice before this Court in CWP No. 6860/2011 in

.

case titled 'Manoj Kumar and others versus State of H.P. and

others'.

6. Noticeably, the aforesaid writ petition i.e. CWP

No. 6860/2011 came to be dismissed by the learned Writ

Court vide order dated 15.12.2017, however, the said order

was set aside r by this Bench in LPA No. 8/2018 vide

judgment dated 25.02.2021 when the following relief(s)

came to be granted to the appellants therein by observing

as under:-

"7. In view of the aforesaid discussion, we find merit in this appeal and the same is accordingly allowed and order/judgment passed by the learned Writ Court is set

aside. Consequently, the respondents are directed to

give placement to the petitioners as Junior Assistants on completion of five years of service in the cadre with effect from 01.01.1998 with all consequential

benefits like seniority etc. However, the actual monetary benefits shall be limited to a period of three years prior to the date of filing of the writ petition i.e. 08.08.2011. Pending application, if any, also stands disposed of."

7. When this case came up for consideration before

this Court on 16.09.2021, the Court passed the following

.

order:-

"Learned counsel for the petitioner states that

the issue in question is squarely covered by the judgment rendered by learned Division Bench of this Court in LPA No. 8/2018, titled as Manoj Kumar & ors. vs. State of H.P. & ors., dated 15.12.2017.

Confronted with this, learned counsel for respondents No. 2 and 3 prays for and is granted two weeks' time to obtain instructions.

List on 7.10.2021."

though concedes that the issue in question is squarely

covered by the judgment rendered by this Court in LPA No.

8/2018, but would contend that since the petition has been

filed belatedly, therefore, the same is barred by delay and

laches and should be dismissed on this ground alone.

9. In support of such contention, reliance is placed

on a judgment rendered by this Court in LPA No. 604/2011

titled 'Karan Singh Pathania versus State of H.P. and

others'.

10. We have heard the learned counsel for the

parties and gone through the records of the case.

11. As observed above, it is not in dispute that the

issue in question is squarely covered by the judgment

.

rendered in LPA No. 8/2018. Therefore, the only question

that now remains open for determination is whether the

petition is barred by delay and laches.

12. Even this question need not detain us in view of

the letter issued by respondents No. 2 and 3 on 13.12.2011

whereby the petitioner was informed that the issue

regarding recoveries cannot be decided by the respondents

in view of pendency of CWP No. 6860/2011 and it is only

after the decision of the High Court that further action in

terms thereof will be taken by the respondents.

13. Once that be so, obviously then, the

respondents cannot be permitted to take a 'U' turn by

questioning the liability of the petitioners for the stay of

the recoveries in view of judgment rendered in LPA No.

8/2018.

14. It also needs to be noticed that LPA No. 8/2018

was decided by this Bench on 25.02.2021 and it is

thereafter that the petitioner filed this petition on

26.07.2021 and, therefore, the petition clearly goes to show

that the petitioner has filed the instant petition promptly

without any undue delay.

.

15. In this view of the matter, we are inclined to

allow the petition. Ordered accordingly. Consequently, the

impugned acts of respondents No. 2 and 3 in ordering the

recoveries vide Annexure P-3 dated 24.03.2011 qua the

petitioner are quashed and set aside with a direction to the

respondents to refund r the recoveries so made to the

petitioner along with interest @ 9% per annum. The

respondents are further directed to give placement to the

petitioner as Junior Assistant on and with effect from

01.01.1998 having completed five years of service in the

cadre with all consequential benefits of pay and seniority

etc. The needful be done within a period of ten weeks.

16. Pending application, if any, also stands disposed

of.

17. For compliance, to come up on 04.01.2022.

(Tarlok Singh Chauhan) Judge

(Jyotsna Rewal Dua) Judge

21st October, 2021.(krt)