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2004 DIGILAW 185 (HP)

P. L. GUPTA v. STATE OF H. P.

2004-08-06

BAKHSHISH KAUR, D.S.AMIST

body2004
ORDER Honble Ms. Bakhshish Kaur, (Retd.) Chairman: Sh. P.L. Gupta, applicant has assailed the orders Annexure A-15 dated 28.1.19933 and order Annexure A-17 dated 31.1.1994 affecting recovery and reduction in pay. He has also prayed that he may be deemed to be confirmed on the post of Foreman from 31.1.1998 the date the expiry of probation period and may be deemed to be promoted on regular basis to the post of Principal in pay scale of 2220-4000 w.e.f. 31.1.1989. 2. Withdrawal of lawful benefits is contrary to the principles of natural justice having been passed in arbitrary manner are liable to be quashed and set aside. 3. The respondents have strongly resisted the claim put forth by the applicant and according to them the impugned, orders, have been passed in accordance with law. The applicant has no right to represent for undue and illegal benefits given to him. The confirmation was made against the post in due course of time and he cannot be confirmed from 31.1.1998 as calmed by him as mater of right. 4. The applicant has re-iterated the pleadings in the application and the stand taken by the applicant by way of filing rejoinder. 5. We have heard Sh. B.N. Misra, learned Counsel for the applicant and Mrs. Abhilasha Kumari, learned Additional Advocate General for respondents-1 and 2. 6. Mr. B.N. Misra, learned Counsel for the applicant contended that the applicant an ex-serviceman having been enrolled in India Navy in December, 1969 and served till January, 1984 was holding the rank of Chief Engine Room Artificer at the time of discharge. He had joined as Foreman in ITI Shimla on 31.1.1986 in the un-revised pay scale of Rs. 750-1300. He was selected for this appointment by Himachal Pradesh Public Service Commission. Since then he has been working on the said post. The pay scale was revised w.e.f. 1.1.1986 is Rs. 2000-3500. In this way his basic salary was Rs. 3100/- as on 31.12 1993. 7. In march 1987 the respondent No. 2 invited option from applicants. Accordingly he gave his option and he was given the benefit of annual increments for the approved military service as per Annexure A-2. 8. The respondent No. 3 who is also an ex-servicemen joined the department in 1982 as Surveyor whereas the applicant had joined as Foreman on 31.1.1986. There was reserved vacancy at the time of respondent No. 3. Accordingly he gave his option and he was given the benefit of annual increments for the approved military service as per Annexure A-2. 8. The respondent No. 3 who is also an ex-servicemen joined the department in 1982 as Surveyor whereas the applicant had joined as Foreman on 31.1.1986. There was reserved vacancy at the time of respondent No. 3. The post of Surveyor (Hqrs.)/Foreman/Group Instructor Forernan Mill Wright/Superintendent (Technical) is one cadre post. These posts are exclusively equal with qualification Metric with Science and Math recognized from University/Board or equivalent. And three years Diploma in Engineering from a recognized State board or Technical Education or equivalent. In fact respondent No. 3 did not posses requisite qualification of Surveyor, but it seems that due to some misunderstanding of Air Force Technical qualification he was initially appointed which is void ab initio. The rules relating the reservation vacancies for ex-servicemen is Annexure A-12 known as Ex-servicemen (Reservation of Vacancies in the Himachal Pradesh Technical Services) Rules, 1985. If was amended on 3.5.1983 and in pursuance of the amendment the roster post for the ex-servicemen came into existence on 3.5.1983 whereas the respondent No. 3 was appointed as Surveyor (Hqrs.) on 31.8.1982. 9. Mr. Misra, learned Counsel for the applicant contended that the fact that respondent No. 3 was appointed as Surveyor and that he was not entitled to the benefits accrued is further clear from Annexure A-1 vide which the representation of respondent No. 3 regarding fixation of seniority on employment on civil post was rejected on the ground that there was no reservation for ex-servicemen in technical post prior to 3.5.1983. As the applicant has given the option which was invited by the respondents, therefore, the impugned order Annexure A-4 cannot be parsed by the respondent by withdrawing benefits already given to him. No prior notice was given to the applicant nor was he given personal hearing before passing impugned order. It has been unilaterally passed against the applicant. Although representation was made against the impugned order to the respondent No. 1 which is Annexure A-16. It was dismissed vide Annexure A-17. No recovery of the arrears i.e. for the period for which salary has been reduced can be affected by the respondents. 10. Mrs. It has been unilaterally passed against the applicant. Although representation was made against the impugned order to the respondent No. 1 which is Annexure A-16. It was dismissed vide Annexure A-17. No recovery of the arrears i.e. for the period for which salary has been reduced can be affected by the respondents. 10. Mrs. Abhilasha Kumari, learned Additional Advocate General contended that although their approved military service can be considered only against the civil post reserved for ex-servicemen, but the applicant was not appointed against the reserved post for ex-servicemen rather general category, therefore, he is not entitled for the said benefits. His basic pay on 21.1.1993 was Rs. 31007- because of the benefits in respect of is approved military service and it deserves to be withdrawn in pursuant to decision as per Annexure R-1. 11. As regards the seniority list Annexure A-5 it was only tentative and legitimately it was finalized as per Annexure A-6. It was challenged by respondent No. 3 by way of representation and subsequently on OA-1488/92 which was treated as representation to the respondent No. 1, who had decoded it as per Annexure R-1. In view of this the claim of the applicant for promotion vis-a-vis the officials mentioned in the application is not tenable. Since the date of joining the applicant and respondent No. 3 is not the same i.e. respondent No. 3 had joined the department on 31.8.1982 and applicant on 31.1.1986 and both being the ex-servicemen former has claim for his promotion before the promotion of the applicant. Since the benefits of ex-servicemen in the categories of Group Inspector/Former Mill Wright Foreman/Surveyor (Head Quarter) etc. against the direct recruitment quota post is required to be given to only one ex-servicemen so that this benefit can be given only to respondent No. 3 who was appointed earlier to the applicant and it was possible only by withdrawing benefits wrongly given to applicant. 12. Mrs. Abilasha Kumari, learned Additional Advocate General has further contended that where a wrong order has been passed, in the case of others it cannot be the ground for admitting the claim of the aggrieved party on the plea of discrimination and in this regard she has placed reliance on "Chandigarh Administration and another, M/s. Jagjit Singh and another, Punjab, and Haryana AIR 1995 S.C. 750. "Generally speaking, the mere fact that his respondent authority has passed a particular order in the case of another person similarly situated can never to the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent Authority to repeat the illegality or to pass another unwarranted order. The extra ordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected." 13. As corollary of the aforesaid no dispute to the factual position that respondent No. 3 who is also as ex-servicemen joined the service on 31.8.1982 as Surveyor, whereas the applicant has joined as Foreman on 31.1.1986. There was reserved vacancy at the time of joining of respondent No. 3. At the time of his initial appointment he was recruited from general quota without any reservation on account of being ex-servicemen in 1982 later on the applicant was recruited in January, 1986, therefore, integrated seniority of Foreman and Surveyors including other categories the options were invited including the category of Foreman an Surveyor against the ex-servicemen quota. The commissioner-cum-secretary Technical Education to the Government of Himachal Pradesh while deciding the representation of respondent No. 3 has appointed out as under: "I am convinced that Shri R.B. Bhatt was deprived of the opportunity to opt to the Government against the ex-servicemen quota for no fault of his as the intimation regarding seeking of option did not reach him. The commissioner-cum-secretary Technical Education to the Government of Himachal Pradesh while deciding the representation of respondent No. 3 has appointed out as under: "I am convinced that Shri R.B. Bhatt was deprived of the opportunity to opt to the Government against the ex-servicemen quota for no fault of his as the intimation regarding seeking of option did not reach him. Department of Technical Education admits that the option sought was not put upto on the office notice board meant for information and advertisement of various matters concerning employees. In view of the above his representation is accepted and he should be given due place on the roster point available for the Ex-servicemen in the category of Foremen/Surveyor. In other words, he will now be replaced at Sr. No. 6 of the seniority list and that Shri Prem Lal Gupta, who was given this benefit wrongly by the department be placed at appropriate place after withdrawing the benefit." 14. In view of the aforesaid once the competent authority after the appreciation of the facts came to the conclusion that the respondent No. 3 should be given due place in the roster point for ex-servicemen and Prem Lal Gupta was given wrongly was placed at appropriate place after withdrawing the benefit of service. We do not find any infirmity illegality. We have no hesitation to hold that impugned order has been passed in accordance with law and procedure. The wrong having been committed at one stage can be rectified and it cannot be said that orders has been passed in an arbitrary manner or in violation of principal of natural justice. Similarly the relief claimed by him that he may be confirmed from 31.1.1988 is not tenable as the respondents have made it clear that the confirmation of the applicant will be made against the available vacancy by the department by adopting procedure in due course of time.