Hans Raj vs State of H.P. and Others

V.K. Sharma, J.—The petition has been filed for grant of the following substantive relief vide para 7(1):

That the Respondents may be directed to promote the applicant from the date when his junior were promoted as such and also direct the Respondents to give all the consequential benefits to the applicant.

In the reply on behalf of Respondents No. 1 and 2, the following averments have been set up vide para 6(iii & iv):

The contents of these paras are matter of record. The category of the applicant was different than Sh. Bachan Singh in 1980. The applicant was working as Meter Reader whereas Sh. Bachan Singh was working as Bill Clerk, hence the applicant can not claim seniority with Sh. Bachan Singh. Moreover it is submitted that the seniority assigned to Sh. Bachan Singh Bill Clerk is still under review with the Respondent department as the seniority of Clerk to Shri. Bachan Singh was wrongly assigned by the PWD Department and came into the Roll of I&PH Deptt. only w.e.f 27.4.94. The E-in-C PWD has recommended this department to review the case of Shri Bachan Singh as he was not entitled to be considered for the seniority of Clerk, as he was workcharged Bill Clerk, hence his case has been sent to the Government for review. It is submitted that the applicant is challenging the orders dt. 22.12.97 after lapse of about 2 and half years hence the same is barred by limitation. It is, however, submitted that the post of the applicant is of work-charged category which is a circle cadre post and the post of regular clerk is a State cadre post and the seniority of both posts are maintained separately with separate R & P Rules. It is further submitted that the Govt. of H.P. later on clubbed the various post of the department in which the post of Meter Reader, Bill Clerk, Meter Ledger Clerk has been clubbed together with after Sh. Bachan Singh was assigned the seniority of Clerk has been redesignated as Water Works Clerk vide notification dated 14.11.95 (copy annexed as Annexure-R-I). However, it is submitted that the seniority of these categories is still under process with Respondent and has been notified separately. The applicant shall be considered for combined seniority with Meter Ledger Clerk and Bill Clerk to be notified in due course of time. So far as, the claim of the applicant with that of Shri Bachan Singh is not justified and is wrong as the case of Shri Bachan Singh is till under review with the Government as Shri Bachan Singh has been wrongly assigned the seniority with Clerk which is state cadre, post whereas the post of Work Charged category is a Circle Cadre posts. Therefore, the wrong benefit given to Shri Bachan Singh does not confer any legal right upon the applicant to claim the seniority on that basis, as once a wrong is always a wrong. A copy of letter of the E-in-C, PWD for re-consideration of the seniority of Shri Bachan Singh is annexed as Annexure-R-2.

However, no reply has been filed on behalf of private Respondent No. 3.

Some undisputed facts may be noticed first. Earlier there was a composite department known as Himachal Pradesh Public Works Department (in short HPPWD) comprising of two wings, namely, Building and Roads (B&R) and Irrigation & Public Health (I&PH). Later on, the department was bifurcated in two independent departments known as Himachal Pradesh Public Works Department (HPPWD) and Himachal Pradesh Irrigation & Public Health Department (I&PH Deptt.). Both, the Petitioner and private Respondent No. 3 joined employment of the erstwhile composite Himachal Pradesh Public Works Department on 31.3.1980. Whereas, the Petitioner was appointed as Meter Reader in the pay scale of Rs. 110-250, vide memorandum dated 31.3.1980, Annexure P-9, private Respondent No. 3 was appointed as Bill Clerk in the same pay scale of Rs. 110-250, vide memorandum dated 31.3.1980, Annexure P-8.

The case of the Petitioner is that though both he and private Respondent No. 3 were appointed on the same date, yet he was the first to join on 1.4.1980 and is thus senior to private Respondent No. 3, who joined thereafter on 2.4.1980. On bifurcation of the composite department, services of both of them were allocated to the Himachal Pradesh Irrigation & Public Health Department. Though, the designations of the Petitioner and private Respondent No. 3 were carrying different nomenclature as Meter Reader and Bill Clerk, respectively, yet the fact remains that they were in the same pay scale of Rs. 110-250. Even as per the case set up by Respondents No. 1 and 2, private Respondent No. 3, was initially promoted as Clerk, but later on when it was found that the promotion was wrongly made, he was reverted. It appears that it was against this backdrop that private Respondent No. 3 challenged his reversion before the erstwhile H.P State Administrative Tribunal (since abolished) by way of O.A No. 1570 of 1990, which was later on withdrawn in pursuance of order dated 25.9.1997 (Annexure P-7), passed by the said Tribunal, which was to the following effect:-

The learned Additional Advocate General has placed on record the office order dated May 1, 1991 by which the impugned order Annexure-A/5 dated November 27, 1990 has been withdrawn. Accordingly the application has become infructuous and is dismissed as such.

It is further apparent from office order dated 31.5.2004, Annexure P-5 that private Respondent No. 3 ultimately retired as Senior Assistant on attaining the age of superannuation w.e.f 31.5.2004 (A.N.). However, as stated at the bar by the learned Counsel for the Petitioner, the Petitioner is still continuing as Meter Reader (since re-designated as Water Works Clerk), even after putting in service of more than 30 years.

In view of the facts and circumstances of the case as enumerated here-in-above and on an overall view of the matter, I am more than satisfied that the Petitioner is entitled for grant of relief prayed for. Consequently, the petition is allowed with a direction to Respondent No. 1 to consider the case of the Petitioner for promotion as Clerk and thereafter for further promotions to which he may be found entitled in accordance with the Rules on and with effect from the date private Respondent No. 3, who according to the Petitioner is junior to him and if that contention is found to be correct, was promoted initially as Clerk, along with consequential benefits including further promotions to which he may be found entitled in accordance with the Rules. The entire exercise in this regard shall be carried out within a period of three months from the date of production of copy of this judgment by the Petitioner within one month from today.

With these observations the writ petition is disposed of so also the pending application(s), if any.