Bhagat Ram vs State Of H.P. And Others

Jyotsna Rewal Dua, J

The writ petitioner, who was merged in the cadre of Clerks on 05.11.2018, did not succeed before the learned writ Court in his claim of retrospective merger in the Clerical cadre w.e.f. 24.09.2012, hence, this appeal.

Facts leading to institution of present appeal :-

2(i) The appellant was appointed as daily waged bedar on 02.03.1987. On completion of 10 years of service, he was made work charge beldar on 01.01.1997.

2(ii) Appellant’s claim petition (Reference No. 95 of 2000) seeking regularization as Clerk/Complaint Attendant w.e.f. 01.01.1997 was allowed by the learned Labour Court on 09.01.2004. The appellant was held entitled for regularization as Clerk/Complaint Attendant instead of work charge beldar w.e.f. the date his services were regularized as work charge beldar alongwith continuity in service and seniority.

2(iii) Civil Writ Petition No. 736 of 2006 preferred by the respondent -State against the decision of Labour Court was dismissed on 15.05.2007. Letters Patent Appeal No. 165 of 2007 filed by the State was dismissed on 13.12.2011. Special Leave to Appeal (C) CC No. 4002 of 2013 moved by the State was also dismissed on 19.02.2013.

2(iv) While the SLP was pending, a decision was taken by the respondents on 30.12.2011 for merging Store Clerks/Receptionists in the cadre of Clerks after obtaining undertaking from concerned officials. Pursuant to this decision, about 60 Receptionists/Store Clerks were merged in the cadre of Clerks with immediate effect vide Office Order dated 24.09.2012. The appellant, who at that time was designated as beldar, could not submit his undertaking as he was neither designated as Receptionist nor Store Clerk at that time.

2(v) Subsequent to the dismissal of the SLP, the respondents on 20.05.2013 regularized the appellant as Complaint Attendant (Receptionist) w.e.f. 01.01.1997.

2(vi) On getting the designation and regularization on the post of Complaint Attendant/Receptionist, the appellant on 17.06.2013 wrote to the respondents that he be also merged in the cadre of Clerks w.e.f. 24.09.2012. The appellant also furnished his undertaking to this effect. On 19.03.2013, respondent No.2/Engineer-in-Chief, HP PWD recommended merging certain Store Clerks and Receptionists including the appellant in the cadre of Clerks. The appellant repeated his written request to the respondents on 24.06.2014 to merge him in the cadre of Store Clerks/Receptionists w.e.f. 24.09.2012. Respondent No. 2 recommended the case of the appellant. However, in the Office Order issued by respondent No. 1 on 12.01.2017, merging some more Store Clerks in the cadre of Clerks, the name of the appellant did not appear. The appellant once again vide written representation dated 20.11.2017, requested the respondents to consider his earlier representations dated 17.06.2013, 24.06.2014, 27.06.2015 and 08.02.2016 for merging him as Clerk from 24.09.2012. He repeated his request on 10.01.2018. The respondents finally merged the appellant in the cadre of Clerks vide Office Order dated 05.11.2018. This merger was inter-alia with the condition that incumbent opting for merger would be placed at the bottom of seniority list of Clerks and merger would take place with immediate effect i.e. from the date of passing of the order. Feeling aggrieved, the appellant on 26.11.2018 requested the respondents to merge him in the cadre of Clerks w.e.f. 24.09.2012. Respondent No. 2 forwarded his representation to respondent No.1, who vide communication dated 28.08.2019 rejected the same.

2(vii) The appellant filed Civil Writ Petition No. 2162 of 2020 on the ground that juniors to him were merged in the cadre of Clerks w.e.f. 24.09.2012, so he also ought to have been merged from that date. Learned Single Judge held that appellant’s conduct in not coming to Court immediately after dismissal of the SLP on 19.02.2013, disentitled him for the relief and further that the appellant had himself agreed for prospective merger, therefore, could not seek merger with retrospective date.

We have heard learned counsel for the appellant and the learned Additional Advocate General for the respondents-State.

For the following reasons, we are inclined to accept the present appeal.

4(i) It was during the pendency of SLP instituted by the respodnents that the State had decided to merge the Receptionists/Store Clerks in the cadre of Clerks. Such decision was taken by them on 30.12.2011. The appellant at that time was serving as beldar. He though had succeeded in his pursuit before the High Court for his regularization to the post of Receptionist/Clerk/Complaint Attendant, but the SLP instituted by the State against the decision of the High Court at that time was pending before the Hon’ble Apex Court. The respondents had not implemented the decision of the Labour Court given in appellant’s favour as also affirmed by the High Court in Civil Writ Petition and in the Letters Patent Appeal. The appellant at the relevant time was in no position to either represent the respondents or take recourse to law for his merger in the clerical cadre w.e.f. 24.09.2012.

4(ii) The SLP was dismissed on 19.02.2013. The respondents passed an Office Order on 20.05.2013 appointing the appellant as Complaint Attendant (Receptionist) w.e.f. 01.01.1997. This order gave reason to the appellant to ask for his merger in the cadre of Clerks as per State’s decision dated 30.12.2011. Accordingly, on 17.06.2013, the appellant requested the respondents to merge him in the cadre of Clerks w.e.f. 24.09.2012 i.e. when the respondents had merged his juniors in that cadre. This request was repeated by the appellant umpteenth number of times. The respondents though merged several others in the cadre of Clerks under the subsequent Office Orders issued by them from time to time, however, case of the appellant was not considered. It is not that the respondents had rejected the case of the appellant. His representations remained under consideration of the respondents. It was only on 05.11.2018 that the respondents merged the petitioner in the cadre of Clerks, but w.e.f. the date of passing of the order.

The appellant’s representation dated 26.11.2018 seeking his merger w.e.f. 24.09.2012 was rejected on 28.08.2019. The writ petition was instituted on 04.07.2020. Under the circumstances, it cannot be said that the claim of the appellant had become stale. In the given facts, the cause of action actually accrued to the appellant on 28.08.2019.

4(iii) The undertaking submitted by the appellant for his prospective merger cannot be held against him to deny the relief prayed for by him qua his retrospective merger w.e.f. 24.09.2012. The documents placed on record of the writ petition make it evident that ever since dismissal of the SLP, the appellant had been requesting the respondents to merge him in the cadre of Clerks. The respondents did not decide appellant’s representation. Repeated representations, one after the other, were preferred by the appellant. Some of the representations were even forwarded for favourable consideration by respondent No. 2. Respondent No. 1 did not take any decision on the representations for a long period of time. Names of several Store Clerks were considered by respondent No. 1 for their merger in the cadre of Clerks, however, the name of appellant was not being considered. Left with fait-accompli, the appellant furnished undertaking of his willingness for merger in the cadre of Clerks from prospective date. Such kind of undertaking furnished under compulsion cannot be held against the appellant to deny the relief that he is legitimately entitled to. We may profitably refer to the observations made in (2021) 10 SCC 116 (Somesh Thapliyal and another Vs. Vice Chancellor, H.N.B. Garhwal University and another) that “it is not open for a person appointed in public employment to ordinary choose the terms and conditions of which he is required to serve. It goes without saying that employer is always in a dominating position and it is open to the employer to dictate the terms of employment. The employee who is at the receiving end can hardly complain of arbitrariness in the terms and conditions of employment. This Court can take judicial notice of the fact that if an employee takes initiation in questioning the terms and conditions of employment, that would cost his/her job itself. The bargaining power is vested with the employer itself and the employee is left with no option but to accept the conditions dictated by the authority. If that being the reason, it is open for the employee to challenge the conditions if it is not being in conformity with the statutory requirement under the law and he is not estopped from questioning at a stage where he finds himself aggrieved.”

4(iv) On merits, nothing was urged before us as to why the appellant cannot be merged in the cadre of Clerk w.e.f. 24.09.2012 when his juniors were merged in such cadre and from that particular date.

For the foregoing reasons, we allow instant appeal. The judgment passed on 20.08.2021 in CWP No. 2162 of 2020 is set aside. The respondents are directed to merge the appellant in the cadre of Clerks w.e.f. 24.09.2012 alongwith all consequential benefits. Pending applications, if any, also stand disposed of.