Jeewan Prakash vs State Of H.P
2021 Latest Caselaw 4465 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                ON THE 10th DAY OF SEPTEMBER 2021
                             BEFORE
            HON'BLE MR. JUSTICE SURESHWAR THAKUR




                                                        .

                CIVIL WRIT PETITION No. 3529 of 2021
    Between:­





    JEEWAN PRAKASH,
    SON OF SH. DIWAN CHAND,
    R/O VILL. JAWAHAR NAGAR,
    P.O. HPBOSE DHARMSHALA,
    TEHSIL DHARMSHALA,





    DISTRICT KANGRA, H.P.
    AGED ABOUT 55 YEARS,
    PRESENTLY SERVING AS EXECUTIVE ENGINEER
    JAL SHAKTI DEPARTMENT,

    AT PHINA SINGH MEDIUM,

    IRRIGATION PROJECT DIVISION,
    SADWAN, DISTRICT KANGA, H.P.

                                             ....PETITIONER



    (BY SH. SANJEEV BHUSHAN, SR. ADVOCATE WITH MR.
    RAJESH KUMAR, ADVOCATE)




                          AND





    1.     STATE OF H.P.,
           THROUGH PRINCIPAL SECRETARY,
           (JAL SHAKTI DEPARTMENT)





           TO THE GOVERNMENT OF
           HIMACHAL PRADESH.

    2.     ENGINEER­IN­CHIEF,
           JAL SHAKTI DEPARTMENT,
           JAL SHAKTI BHAWAN,
           SHIMLA­5.

    3.     SH. SANJEEV VOHRA EE,
           S/O NOT KNOW TO THE PETITIONER,
           PRESENTLY POSTED AT




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         JAL SHAKTI DIVISION KEYLONG,
         DISTRICT LAHAUL & SPITI,
         H.P.
                                   ....RESPONDENTS




                                                          .
         (BY SH. ASHOK SHARMA, ADVOCATE GENERAL WITH





         SH. HEMANT VALID, ADDITIONAL ADVOCATE GENERAL
         AND MR. VIKRANT CHANDEL, SH. GAURAV SHARMA,
         DEPUTY ADVOCATE GENERALS, FOR R­1 AND 2)





         (SH. SUNIL MOHAN GOEL, ADVOCATE, FOR R­3).

                         Reserved on: 27.8.2021





                         Date of decision: 10.9.2021

         This petition coming on for final hearing this day,

    the Court passed the following:­

                         JUDGMENT

Through Annexure P­5, the writ petitioner

became transferred, as Executive Engineer, from Jal

Shakti Division Phina Singh Medium Irrigation Project

Division, Sadwan, District Kangra, H.P., to Jal Shakti

Division, Keylong, District Lahaul & Spiti. The afore

made annexure, is, through the instant petition, hence

challenged by the writ petitioner.

2. Though the respondents, in their reply, meted

to the writ petition, had shown their willingness to

adjust the writ petitioner, at, Jal Shakti Division, Una,

H.P. against a vacant post. Even though, through the

afore made contention, reared by the respondents, in

their reply meted to the writ petition, the writ grievance

.

stands mitigated. However, the learned counsel for the

petitioner contends, that since he is solitarily possessed

with an Explosive License, as, issued by the competent

authority, and, as, becomes annexed as Annexure P­4.

Thereupons, he yet, contends that since the user of

Explosive(s) is imperative at the site of construction,

and, when no other suitable person(s), holds a valid

Explosive License, for, users thereof, at the site

concerned. Therefore, he has contended that, he be

permitted to work at Jal Shakti Department, as

Executive Engineer, at Phina Singh Medium Irrigation

Project Division, Sadwan, District Kangra, H.P.

3. For testing the validity of the afore made

submission(s), this Court had through an order, made

on, 20.8.2011, rather made the hereinafter extracted

directions, upon, the respondents:­

"The learned Advocate General is directed to, on or before the next date of hearing, place on record scribed instruction displaying that

.

apart from the writ petitioner having explosive

licence in his favour, also other contractors holding the apposite licence. He is also

directed to place on record scribed instructions, that the explosives are not being issued for the relevant construction activities,

and, that as and when the use of explosives are required, at the relevant site, they shall be

made available by the licencing authority

concerned, vis­a­vis, the authority concerned."

4. In pursuance thereto, the respondents

through their compliance affidavit, made, a contention

therein, that the explosives were required for

construction of Head Race Tunnel, tunnel whereof has

been completed, during 2018­19. Therefore, the

respondents explicated, in their supplementary affidavit,

that as of now, there is no requirement of user of

explosives, at the site concerned, except in rare

emergent situations. Moreover, it has also been

contended in the affidavit, instituted by the respondents

that as and when an emergent situation arises, rather

necessitating the user(s) of explosive(s), thereupon the

respondents will manage to transfer the explosive

.

license, in the name of other officers, working in the

project.

5. The afore explication, meted on an affidavit,

sworn by a responsible functionary of the respondents,

does forestall, the efficacy of any arguments, addressed

before this Court, by the learned counsel for the writ

petitioner, that merely upon Annexure P­4, and, also

upon, no other person(s) possessing a valid explosive

license, hence the writ petitioner be ordered to work at

Jal Shakti Department, as Executive Engineer, at Phina

Singh Medium Irrigation Project Division, Sadwan,

District Kangra, H.P. Moreover, the counsel for the

petitioner also cannot contend, that the user of

explosive, is a dire necessity, for the construction

activities becoming undertaken, at the site concerned,

besides the writ petitioner cannot contend, that the

respondents are disabled to, upon, arising of an

emergent situation, hence necessitating the, user of

explosive(s) at the construction site, the respondents will

not be able to manage transfer of explosive license, as

.

per rules, in the name of other officers working in the

project.

6. Be that as it may, the respondents, may not,

with respect to any purported unsatisfactory work or

qua the purported laggard pace of construction activity,

at the project concerned, rather purportedly attributable

to the petitioner, hence draw any proceeding against the

writ petitioner.

7. In view of the afore observations, there is no

merit in the writ petition, and, the same is accordingly

dismissed. However, the respondents are directed to

forthwith ensure the posting of the writ petitioner, as

Executive Engineer, at Jal Shakti Division, Una, against

a vacant post. All pending applications, if any, also

stand disposed of.

(Sureshwar Thakur) 10 September, 2021 th Judge (kck)