Pyare Lal Gaitri vs Himachal Pradesh State ...
2023 Latest Caselaw 5736 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.6251 of 2020.

Date of Decision: 12th May, 2023.

.

    Pyare Lal Gaitri                                                    .....Petitioner.





                                       Versus

Himachal Pradesh State Electricity Board Ltd. & anr.

.....Respondents.

Coram The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1

For the Petitioner: Mr. Surender Sharma, Advocate.

For the Respondents: Mr. Lakshay Thakur, Advocate.

Jyotsna Rewal Dua, Judge

The petitioner is mainly seeking a direction to the

respondents to regularize his services as Junior Draughtsman w.e.f.

02.02.1996 with all consequential benefits. The respondents have

turned down the prayer of the petitioner vide orders dated

08.06.2020 and 10.08.2020 (Annexure P-12 and P-14), hence this

petition.

2. The petitioner served as Apprentice Draughtsman with

the respondent-Board w.e.f. 11th July, 1985 upto 11th July, 1988.

He was appointed as Store Attendant in the respondent-Board on

09.10.1989 and posted at Nathpa Jhakri Construction Division No.V.

It is the case of the petitioner that:-

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

2 (i) Petitioner was in possession of ITI Diploma in

Draughtsman (Civil). The respondent-Board had been extracting

the work of Draughtsman (Drawing and Civil Estimates etc) from

.

the petitioner all through out. The petitioner preferred a

representation on 15.09.1992 requesting respondent No.1 to grant

him the benefit of diploma in Draughtsman by enrolling him as

Daily Waged Junior Draughtsman.

2 (ii). Petitioner repeated his representation in successive

years. On 02.02.1996, respondents regularized the services of the

petitioner as Store Helper. After serving for four years, the

petitioner was promoted to the post of Assistant Store Keeper in

the year, 2000. The petitioner in the meanwhile kept on

representing for regularizing his services as Junior Draughtsman

instead of Store Keeper, in view of the fact that he was in

possession of diploma in Draughtsmanship and also on account of

the fact that he had been discharging the duties of Draughtsman.

2 (iii). The petitioner further submits that in the year, 2005,

respondent-Board took a decision to appoint the incumbents

holding the diploma of Druaghtsmanship as Junior Draughtsmen.

Consequently, the petitioner was appointed on the post of Junior

Druaghtsman, on 09.03.2005. Petitioner again took up the matter

with the respondents to grant him seniority of Draughtsman w.e.f.

02.02.1996.

2 (iv). According to the petitioner, one Gian Chand was

similarly situated as the petitioner. Gian Chand was appointed

initially as Daily waged beldar on 20.06.1989. The said Gian Chand

.

had also been requesting the respondents for regularizing his

services as Junior Drughtsman w.e.f. the year, 1995 on the ground

that the respondent had been extracting the work of Junior

Drughtsman from him while he was discharging his duties on daily

wage basis. The respondents regularized the services of Gian

Chand as Junior Drughtsman in the year, 2001. Said Gian Chand

represented to the respondent-Board in the year, 2015 to

regularize his services as Junior Draughtsman. The respondent-

Board considered the case of Gian Chand in the year, 2015 and

granted him the benefit and seniority as Junior Drughtsman w.e.f.

01.11.1995.

Petitioner inter-alia pleads and seeks similar treatment

2 (v).

that was meted out to Gian Chand and has prayed for following

substantive reliefs in this petition:-

"(i). That the impugned Annexures P-12 and P-14, dated 08.06.2020 and 10.08.2020, respectively, issued by respondent No.1 may kindly be quashed and set aside.

(ii) That the respondents may kindly be directed to regularize the services of the petitioner as Junior Draughtsman w.e.f. 02.02.1996 or w.e.f. January, 1998, with all consequential benefits like seniority, pay fixation etc."

3. Learned counsel for the petitioner submitted that the

case of the petitioner is similar to that of Gian Chand. The

respondent-Board cannot discriminate between the similarly

.

situated employees. When Gian Chand in the year, 2015, was

retrospectively regularized as Junior Drughtsman w.e.f. 01.11.1995

i.e. the date, when respondent-Board started to extract the work of

Junior Drughtsman from him, then the same benefit was required

to be extended to the petitioner w.e.f. 02.02.1996, when the

respondent started taking work of junior Draughtman from the

petitioner.

It is also submitted that one Partap Singh Thakur

another similarly situated employee had instituted Original

Application No. 2273/2017, before erstwhile H.P. State

Administrative Tribunal. This Original Application was allowed on

18.07.2019, whereby the respondent-Board was directed to

regularize services of Partap Singh Thakur as Junior Draughtsman

from the date of regularization of Gian Chand. The respondent-

Board assailed the judgment passed by the learned Tribunal in this

Court by preferring CWP No.675/2020. The writ petition was

dismissed on 27.07.2021. The dismissal was on the ground that the

respondents could not establish that the case of the petitioner

therein was not in any manner same and similar to Gian Chand.

Next instance highlighted is that of another employee Hans Raj. His

Original Application No.5668/2016, seeking promotion from the

date of promotion of Gian Chand, was allowed vide order dated

16.11.2017. CWP No.499 of 2019 preferred by the respondent-

.

Board against the judgment dated 16.11.2017 was dismissed on

26.11.2019.

Learned counsel for the petitioner referred to several

documents placed on record of the case to demonstrate that case

of the petitioner was similar to that of Gian Chand. Attention was

specifically invited to Annexure P-11 obtained under the Right to

Information Act.

4. The stand of respondents as canvassed by learned

counsel is that respondent had promoted the petitioner as Junior

Draughtsman on 09.03.2005. Petitioner had accepted the offer and

joined as such without any demur or protest. It is too late in the

day for the petitioner to claim his regularization on the post of

Junior Draughtsman w.e.f. 02.02.1996. Petition is hit by estoppel as

well as delay and laches.

5. Heard learned Counsel on both sides and considered

the case file. The documents placed on record of the case, more

particularly the compendium of noting sheets at annexure A-11

amply demonstrate that the respondents had extracted work of

Junior Draughtsman from the petitioner w.e.f. 02.02.1996. These

documents also establish that all through out petitioner had been

representing to the respondents to regularize his service as Junior

Draughtsman. At various noting sheets of different dates, several

functionaries of the respondent-Board, be it of lower rung or higher

.

rung had compared the case of the petitioner with that of Gian

Chand and advocated for granting similar benefits to petitioner as

granted to Gian Chand. It would be apt to refer to some of the

nothing sheets:-

Page-70.

"History of both the cases are identical/similar & akin in nature. Therefore, the services of Sh. Pyare Lal now requires to be regularized as JDM on the analogy of Sh. Gian Chand whose services were also regularized

on & w.e.f. 1.11.1995 on notional basis as JDM to avoid unnecessary/unwanted litigation.

In view of above, we may convert the services of Sh. Pyare Lal as JDM on regular basis with retrospective effect i.e. 1.11.1995 instead of 9.3.2005 on notional basis till his actual joining as Junior Draughtsman, from the date when the services of persons juniors/counter parts to him i.e. Sh. Gian Chand has been regularized as per the then prevailing

regularization policy existing in the Board.

We may consider him against the post of Junior Draughtsman since, 1998 as there is record available with the HPSEB Ltd. Supplied by the Sr.

Executive Engineer ( E) Division Sunni which clearly show that Sh. Pyare lal GAitri was performing the duties of Junior Draughtsman instead of Store halpers so that the memo could be prepared and the same can be placed

before the WTD for its kind perusal/ consideration as desired by the authorities of the HPSEB Ltd. Vide para 9 supra in the instant noting sheet or otherwise.

Submitted Please."

Page-76.

"Contents of PN 32 to 37 ante may kindly be perused. In this context it is submitted that prior to 1998 there is no record available which shows that Sh. Payare Lal Gaitri was performing the duties of Junior Draughtsman in the HPSEBL . Administrative orders are the products of documentary evidence and there is no place for presumption and assumption . The administrative orders are required to be passed on the basis of documentary record and in the present case Sh. Payare Lal Gaitri was initially engaged as Store Attendant on 09.10.1989 and his services were further brought on regular cadre as Store helper on 01.01.1998 and

during this intervening time there is no record that he was performing the duties of Junior Draughtsman.

Keeping in view the facts and circumstances of the case in hand we may consider Sh. Payare Lal Gaitri for the post of Junior Draughtsman from the date on which there is official record available that actually in fact Sh.

.

Payare Lal Gaitri has performed the duties of Junior Draughtsman . If the

orders is passed on the basis of assumption and presumption than same will also be against the service jurisprudence and service record is a subject matter of documentary evidence/ record.

If agreed and approved we may return the case file for further

necessary action to the concerned administrative section at their end.

Submitted please."

The respondent-Board vide impugned orders dated

08.06.2020 and 10.08.2020 turned down the prayer of the

petitioner. The fact remains that the respondent-Board has not

demonstrated even in its reply that case of the petitioner on merits

was not same or similar to that of Gian Chand.

In fact, during hearing of this case, learned counsel for

the petitioner placed on record another set of noting sheets of the

respondent-Board. These noting sheets pertain to the period after

the filing of this petition. It will be appropriate to extract the

following para from these noting sheets which also deals with the

argument of the delay and laches taken by the respondents in their

reply.

"History of both the cases are identical/similar and to avoid unnecessary/unwanted litigation, this case is fit to consider for the grant of seniority to Sh. Pyare Lal as JDM w.e.f. 01.11.1995 on notional basis and convert the services on regular basis with retrospective effect, i.e. 01.11.1995 instead of 09.03.2005 on notional basis till his actual joining as Junior Draughts Man as per then regularizing policy in the HPSEBL on due approval of the competent Board's Authority.

All the facts narrated above regarding the merit of the representation of Sh. Pyare Lal for the settlement of seniority on the merit and equivalence

basis are of relevance/evidence to his legitimate rights to be appropriately considered for the purpose of fixing seniority as JDM w.e.f 01.11.1995.

Therefore, the case is the neither below merit to grant seniority benefit to Sh. Pyare Lal as JDM w.e.f 01.11.1995 nor time barred (as the benefit of seniority to Sh. Gian Chand had been granted after fifteen

.

years).So it is appropriate to grant seniority as JDM to Sh. Pyare Lal (now

HDM) w.e.f 01.11.1995 and Re-Fix him in the seniority list of D/Man HPSEBL below Sh. Gian Chand (now CHDM).

If agreed, we may send the observation and comments as stated

above in the shape of letter to Deputy Secretary (FT) accordingly.

Submitted please.

Deputy Secretary 25.03.2021"

The above discussion leads to the conclusion that the

petitioner was similarly situated as Gian Chand. Respondents have

retrospectively regularized the services of Gian Chand as Junior

Draughtsman. On this basis, certain other persons have also been

granted benefit of retrospective regularization. The order in case of

Gian Chand was passed by the respondents in the year, 2015

regularizing his services retrospectively from a much earlier date.

Similar orders in similar manner have been passed in cases of other

incumbents as well. Petitioner being similarly situated, is also

entitled for consideration of his case at par and on the analogy of

case of Gian Chand.

For the foregoing reasons, this writ petition is allowed.

The respondents are directed to consider the case of the petitioner

for his retrospective regularization as Junior Draughtsman on the

analogy of cases of Gian Chand, Parap Singh Thakur and Hans Raj.

The entire exercise shall be completed within a period of six weeks

from today. The orders so passed shall also be communicated to

the petitioner.

.

All pending miscellaneous application(s), if any, also

stands disposed of.

                                     Jyotsna Rewal Dua
                                           Judge

     12th May, 2023 (CS)



                         r        to