Sh. Shankar Dass vs Himachal Pradesh State ...
2021 Latest Caselaw 5036 HP

       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 )




                                       ::: Downloaded on - 31/01/2022 23:13:22 :::CIS
                                        2


    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.

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

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

appropriate action be taken against the respondents for willful

disobedience of the Court orders.

.

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:-

Order 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

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)

coercion to compel the contemner to do what the law required of

him.

.

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