Research › Search › Judgment

Himachal Pradesh High Court · body

2005 DIGILAW 120 (HP)

MADAN LAL SHARMA v. STATE OF H. P.

2005-05-06

BAKHSHISH KAUR

body2005
ORDER Honble Ms. Bakhshish Kaur, J. (Retd.) Chairman :- The applicant appointed as a Peon (Class-IV) in the office of the Assistant Commissioner, Excise and Taxation, Shimla, respondent No. 3 is claiming pay and allowances admissible to a clerk the duties whereof the applicant, a Class-IV employee has been performing. He is also claiming regularization of his service as a Clerk by way of filing this Original Application as under:- "(a) pay the applicant the full pay and allowances with retrospective effect from 2, 1st November, 1987 in the pay scale as sanctioned for any other clerk in the Department with benefit of annual increments; and (b) consider him regularly appointed Clerk right from the aforementioned date in November, 1987 with all consequential benefits in the matter of seniority, confirmation etc. etc." 2. Response of the respondent is that Original Application is not maintainable as the applicant cannot be termed as a person aggrieved under Section 19 of the Administrative Tribunals Act, 1985 which provides that subject to other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance. The applicant has not produced any order passed by the respondents depriving him of his legal right. Therefore, in the absence of such order, the Original Application is liable to be dismissed. 3. On merits, the right of the applicant claiming regularization of his service as well as pay admissible to a Clerk is strongly opposed. In fact, it is averred that he has never discharged the duties of a Clerk. The duties of Class.-IV Daftri is distinct from the duties of a Clerk. Therefore, the Original Application is liable to be dismissed on this short ground as well. 4. The applicant in his rejoinder has reaffirmed the pleas contained in the Original Application. 5. We have heard Sh. H.K. Paul, learned Counsel for the applicant and Mrs. Abhilasha Kumari, learned Additional Advocate General for respondents. 6. To appreciate the issue involved in this Original Application, it is necessary to give some facts. The applicant a Matriculate was appointed as a Peon (Class-IV) in the pay scale of Rs. 70-95 in the Office of Judicial Commissioner, on February 15, 1979 where he worked till the winding up of the Commission. 6. To appreciate the issue involved in this Original Application, it is necessary to give some facts. The applicant a Matriculate was appointed as a Peon (Class-IV) in the pay scale of Rs. 70-95 in the Office of Judicial Commissioner, on February 15, 1979 where he worked till the winding up of the Commission. He was absorbed in the Department of Excise and Taxation w.e.f. May 1, 1980 and posted as a Peon in the Office of the Assistant Excise and Taxation Commissioner, respondent No. 3. 7. The applicant claims that due to shortage of staff and in order to cope with ever increasing office work, the respondent no. 3 had deployed the applicant to work as despatch and Diary Clerk in his office as he was educationally qualified. He has been holding this assignment without any break or interprruption ever since November 20, 1987. During this period, he has not only worked as Receipt Clerk or handled the typing work but has been posted on seats dealing with accounts, establishment and the like. The applicant was treated at par with Class-Ill Clerks and not grouped or clubbed with other peons and Class-IV employees in the matter of duties and responsibilities. This fact is also evident from Annexure PB whereby respondent No. 3 had ordered the posting of all the Class-IV employees on his establishment except the applicant on November 22, 1988. 8. Sh. H.K. Paul, learned Counsel for the applicant also contended that the letter Annexure PC further establishes the fact that the applicant has been working as Dispatch Clerk and confidential letters and another important documents were lying in his custody under his lock and key. Therefore, where a person has been discharging the duties of a Clerk, he is entitled to the pay payable to Class-Ill employees. 9. Annexure PC is nothing but a report made by the applicant i.e. on June 22, 1990 when he came to office, be. found that all the dak meant for dispatch was scattered here and there. On checking the Dispatch Register, he found ten permits of Himfed despatched and this was done by Sh. Kaul who works in Himfed. 10. The handling of dak and its despatch is one of the duties performed by a Class-IV employee. Annexure R-7 placed on record by the respondents indicates the duties of Class-IV staff as laid down by the Himachal Pradesh Government. Kaul who works in Himfed. 10. The handling of dak and its despatch is one of the duties performed by a Class-IV employee. Annexure R-7 placed on record by the respondents indicates the duties of Class-IV staff as laid down by the Himachal Pradesh Government. The Class-IV employees mentioned therein are Caretaker, Daftri, Jamadar, Peon and Frashes. The nature of the duties to be performed by a peon as mentioned in Annexure R-7 reads as under :- "Peon: (1) To carry and deliver dak within and outside the office (maximum weight to be carried outside the office not to exceed 10 kg); (2) to ensure the cleanliness and general up keep of the Section wherein posted and of the furniture, fixture and equipment; (3) to perform miscellaneous and odd jobs for officers/officials; (4) to attend to any other work that may be assigned; and (5) to attend to officers at Head-quarters and while on tour." 11. In addition to this, the respondents have referred to para 4-2 Chapter IV of office Manual where the duties of diary and despatch clerk are mentioned which are extracted from the reply as under :- "(1) to submit to officers concerned files and receipts in dak pads for perusal at the dak stage; (2) to bring to the notice of the Section Incharge any papers which are not received back from officers to whom the papers were sent for perusal at dak stage; (3) to enter all receipts in the Receipt Register; (4) to be responsible for proper maintenance of :-(a) Diary Register; (b) Movements of files and papers in the Registers; (c) Register of files for record. (5) to issue all postal and local communications promptly through the issue Section or special messengers (6) to make a note of the files sent to record in the File Register besides a note in the Register of files for record; (7) to prepare the arrears statements; (8) to maintain the casual leave accounts." 12. According to the respondents, the applicant was not doing any of the above duties but only looking after the Diary and Despatch work under the office Superintendent. He was never deputed to work on seats dealing with accounts, establishments or type work. On all these seats, Assistants and Senior Clerks have been working. According to the respondents, the applicant was not doing any of the above duties but only looking after the Diary and Despatch work under the office Superintendent. He was never deputed to work on seats dealing with accounts, establishments or type work. On all these seats, Assistants and Senior Clerks have been working. Therefore, we are of the considered view that the applicant is not entitled to the pay and allowances admissible to a Clerk. In Union of India v. Tarit Ranjan Dass, AIR 2004 SC 852 : 2004 SCC (L&S) 160, equality is not based on designation or nature of work alone but depends on several factors, like responsibilities, reliabilities, experience, confidentiality involved. 13. The other relief claimed by the applicant to consider him regularity appointed Clerk right from November, 1987 with all consequential benefits cannot be accepted. As per Annexure substituted vide H.P. Excise and Taxation Department Class-Ill (Ministerial other than Superintendent and Head Assistant) Service (Recruitment and Certain Conditions of Service Rules) (Amendment) Rules, 1988 in rule 10 part-II fays down the following condition at Clause 10 and 11 for the post of Clerk at serial No. 7. Sr. No. 7 Clerk & Column No. 10 Column No. 11 By promotion: 10% By transfer Promotion from Class-IV and by direct recruitment: 90% employees subject to the passing of Examination/Test as may be prescribed." 14. Under Column 10, 1.1, promotion from Class-IV employees is; subject to the passing of examination/test as may be prescribed. The applicant has nowhere averred that he has passed examination/test prescribed by the Department. Even the applicant has never filed any representation at any time to the office claiming for his promotion from Class-IV to Class-Ill as averred by the respondents. Thus, taking into consideration these facts, no direction can be issued to the respondents to consider the applicant as regularly, appointed Clerk right from November, 1987 with all consequential benefits. However, the respondents are directed to consider the case of the applicant for promotion as Class-IH as and when he is found eligible in accordance with the rules. The Original Application stands disposed of accordingly to the extent indicated above with no order as to costs.