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2006 DIGILAW 388 (HP)

TARUN KUMAR v. STATE OF H. P.

2006-12-08

M.R.VERMA, VIJAY PAL SINGH

body2006
JUDGEMENT M.R. Verma, J (Retd.) Chairman:- The applicant herein has claimed the following reliefs: (i)That the letter dated 31.1.2003 (Annexure PB) may be quashed, (ii)The applicant may be directed to be treated on duty w.e.f. 8.1.2003 when he joined his duty, (iii) That the respondents may be directed to grant him all consequential benefits from 8.1.2003 to April, 2003: (iv) That if this Tribunal comes to the conclusion that the applicant is not entitled to the above stated benefits for the period of 8.1.2003 to April 2003 when he was allowed to work in that event the respondents may be directed to pay him wages as daily waged employee for the period he was not allowed to work. 2. The case of the applicant as made out in the original application is that the services of the applicant who was working as daily rated Beldar were regularized as a Peon vide order dated 8.1.2003. The applicant immediately thereafter joined his duties but was informed vide communication dated 11.1.2003 that because of the promulgation of the Model Code of Conduct his joining report during the period 11.1.2003 to 7.2.2003 could not be accepted, therefore, he reported back to the concerned DFO/FC whereas the applicant had already worked as Peon till the receipt of the aforesaid letter. The applicant was thus, sent back on daily wages w.e.f. 1.2.2003 where he was not allowed to work despite the regular status having been given to him. Thus, the applicant was prevented from working till 7.3.2003 whereas he had in fact started working as regular appointee from 8.1.2003 and has also submitted his joining report. It is, thus claimed that action of the respondents is illegal, arbitrary and unconstitutional and against the principle of natural justice therefore, the letter dated 31.1.2003 is liable to be quashed and the applicant is entitled to the wages as claimed. 3. The respondents contested the claim of the applicant. In the reply it was averred that the applicant submitted his joining report on 16.1.2003 but in view of the Model Code of conduct of Conduct which was applied w.e.f. 11.1.2003 the applicant was directed to report back to his previous station and the applicant in fact reported to the R.O. Jhugi where he worked from 8.2.2003 to 30.3.2003 for which his daily wages had been sanctioned which are not being accepted by him despite directions. Thus, the defence of the respondents is that because of the promulgation of the Model Code of Conduct joining report of the applicant could not be accepted during the period 11.1.2003 to 7.3.2003. 4. We have heard the learned counsel for the applicant and the learned Deputy Advocate General for the respondents. 5. It may be pointed out at the very outset that the respondent have not placed on record a copy of the Model Code of Conduct nor any thing prohibiting/accepting joining report of appointed/promoted employee has been brought to our notice at the time of arguments. However, the purpose of enforcement of the Model Code of Conduct during election period is to ensure fair elections. Recruitment and promotions to Govt./Semi Govt. posts during the specified period of election process may be reasonably prohibited to ensure that the will of the recruited/promoted voter or the voters interested in them may not be influenced. However, in the case of person appointed/promoted before the commencement of the election process prohibiting them from joining the posts to which such person had been appointed/promoted before the enforcement of said Code does during specified period of election process does not seem reasonable for the reasons that mere joining on appointment/promotion already made cannot influence the discretion to cast ones vote. Therefore, it is not possible to agree with the defence that because of the enforcement of the Model Code of Conduct the joining report of a person duly appointed before enforcement of Model Code of Conduct cannot and should not be accepted. 6. In the case in hand it is not in dispute that the applicant was appointed vide order dated 8.1.2003 and one of the conditions of appointment was that he was to join the post offered to him on or before 24.1.2003 failing which the offer of appointment was to stand cancelled automatically. The applicant claims to have joined on 8.1.2003 but this claim is not substantiated by anything cogent and reliable on record. However, it is admitted case of the respondents that the applicant had submitted his joining report on 16.1.2003 which was not accepted by the respondents on the ground that Model Code of Conduct had been enforced from 11.1.2003 till 7.2.2003. 7. However, it is admitted case of the respondents that the applicant had submitted his joining report on 16.1.2003 which was not accepted by the respondents on the ground that Model Code of Conduct had been enforced from 11.1.2003 till 7.2.2003. 7. In view of what we have observed hereinabove the acceptance of the joining report of the applicant could not be denied and such denial evidently had resulted in loss of higher salary, seniority in the cadre and consequential service benefits to the applicant. Therefore, the act of the respondents in not accepting the joining report of the applicant pursuant to his appointment as Peon cannot be sustained. 8. As a result, memo dated 31.1.2003 refusing to accept joining report of the applicant is quashed and set aside. The respondents shall accept the joining report dated 16.1.2003 (F.N.) submitted by the applicant who shall be deemed to have joined on the said date and shall be entitled to and be given all the consequential benefits. The consequential monetary benefits shall be paid to him by the respondents within four weeks of the parsing of this order. The original application is disposed of in terms of the above orders leaving the parties to bear their own costs.