Shri Madan Lal vs Himachal
2021 Latest Caselaw 4354 HP

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    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                ON THE 6th DAY OF SEPTEMBER, 2021




                                                           .
                                BEFORE





           HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
            EXECUTION PETITION (TRIBUNAL) 12 OF 2020





    Between:-
    1.   SHRI MADAN LAL
         SON OF SHRI DHANI RAM,
         RESIDENT OF GIAN ASHRAM,





         FIRST SANGTI SUMMER HILL,
         SHIMLA, H.P.

    2.   SHRI KANTI LAL
         SON OF SHRI BISHAMBER DASS,

         RESIDENT OF VILLAGE BANOOTI,

         TEHSIL AND DISTRICT SHIMLA,
         H.P., PRESENTLY WORKING AS
         GROUND MAN, IN DEPARTMENT
         OF      PHYSICAL   EDUCATION
         HIMACHAL PRADESH


         UNIVERSITY, SHIMLA-5, H.P.
                                                             ...PETITIONERS
         (BY SH.LEELA NAND SHARMA,
         ADVOCATE)




         AND





    1.   HIMACHAL PRADESH
         UNIVERSITY SHIMLA,





         THROUGH ITS REGISTRAR,
         SUMMER HILL, SHIMLA-5
    2.   NARESH KUMAR
         SON OF LATE SHRI JANKI DASS,
         PRESENTLY      WORKING      AS
         GROUND MAN, IN THE O/O
         ASSISTANT DIRECTOR
         PHYSICAL
         EDUCATION & YOUTH PROGRAM
         (CAMPUS) HIMACHAL PRADESH
          UNIVERSITY, SHIMLA-5, H.P.
                                                           ...RESPONDENTS
         (BY  SH.VIVEKANAND       NEGI,
         ADVOCATE)




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         Whether approved for reporting?

                          This execution petition coming on for orders
    this day, the Court passed the following:

                               JUDGMENT

.

This Execution Petition has been filed seeking

direction to the respondents to execute order dated 18.07.2019

passed by erstwhile H.P. State Administrative Tribunal in TA

No.4892 of 2015, titled as Madan Lal & another vs. Himachal

Pradesh University & another, whereby petition filed by the

petitioners was disposed of in terms of instructions dated

16.07.2019, reproduced in the order, with a direction to

respondent No.1-University through its Registrar to take further

action in terms of these instructions as expeditiously as possible,

but in any case not later than thirty days from the date of

passing of the order with further observation that while doing so,

prayer of the petitioners, for being regularized at par with private

respondent NO.2 from the respective date(s) of their initial

engagement on ad hoc basis and assignment of seniority

accordingly, may also be considered sympathetically in

accordance with Rules/Law.

2. As per instructions, referred supra, it was

communicated that the Finance Committee of the University has

recommended that existing incumbent working in various

Departments under SFS/Projects/NRI Funds are to be merged into

mainstream of the University from the date of

Notification/submission of affidavit by the concerned incumbent

and will be placed at the bottom of the seniority of their

respective cadres.

3. In response to the Execution Petition, it has been

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stated that case of the petitioners could not be considered for

their merger into their mainstream of the University for want of

submission of affidavit by them as asked to be filed by the

University despite providing draft thereof to them. Draft of

affidavit has been placed on record alongwith Annexure E-3.

4. Learned counsel for the petitioners has submitted

that petitioners have no hesitation to submit affidavit to the

University, but for para No.4 thereof particularly last portion of it

and, thus, petitioners are not filing the affidavit as it says that

petitioner shall not file any Application/Petition before the

competent Court of Law against the H.P. University. Learned

counsel for the petitioners has further submitted that such an

affidavit or undertaking is not permissible under law.

5. In view of submissions made on behalf of the

petitioners, respondent No.1-University was directed to impart

instructions and in sequel to such direction, it has been

communicated by the Registrar of the University that affidavit is

only meant for an agreement to the terms and conditions of the

merger facilitating the merger of such employees who were

engaged under SFS/Projects/NRI Funds without following the

prescribed recruitment process.

6. In view of instructions imparted by the University,

learned counsel for the University has submitted that filing of

affidavit is a formality which is required to be completed by the

petitioners for extending benefits as has been extended to other

similarly situated persons and, therefore, he has further

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submitted that in case petitioners file affidavit, they shall be

treated like other similarly situated persons in terms of

instructions dated 16.07.2019 from the date of issuance of

Notification dated 30.05.2019 (Annexure R-2).

7. In view of above, present petition is disposed of with

a direction to the petitioners to submit affidavit to facilitate and

complete process of merger in terms of decision taken by the

H.P. University. It is made clear that undertaking given in the

affidavit shall be subject to legal and just exceptions particularly

provisions of Section 28 of the Indian Contract Act, and law of

land including pronouncement of Supreme Court in Centre

Enland Water vs. Birju Nath, 1986 (3) SCC 156, and it shall not be

prejudice to the legal rights of petitioners which are otherwise

available to them.

8. On filing requisite affidavit by the petitioners,

necessary process qua petitioners shall be initiated and

completed by respondent No.1 as early as possible but within

maximum period of two weeks after filing/submission of affidavit.

Pending application(s), if any, also stand disposed of.

(Vivek Singh Thakur), Judge.

September 6, 2021 (Purohit)