Clerk In 1St Circle vs State Of H.P
2021 Latest Caselaw 5018 HP

    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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                               2



         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:




                                                            .
                            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

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

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.

7. 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

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.

10. 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.

12. Pending miscellaneous applications, if any, shall also

stand disposed of.

.

( Mohammad Rafiq ) Chief Justice

( Sabina ) Judge October 22, 2021

( rajni )