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Himachal Pradesh High Court · body

2009 DIGILAW 431 (HP)

LALIT KUMAR v. STATE OF HIMACHAL PRADESH

2009-05-07

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, J-The petitioner was appointed as Fitter-cum-Mechanic vide letter dated 2.3.1973. He joined his duties at Dehra Sub Division on 9.3.1973. He was placed in the pay scale of Rs.100-160. The State Government ordered the revision of pay scale of the carpenters serving under various departments on the basis of qualification prescribed as per office memorandum dated 9.12.1976 (Annexure A-1). He was placed in the pay scale of Rs.120-250 instead of Rs. 140-300. He made representation for the release of pay scale of Rs.140-300 on the basis of notification dated 9.12.1976. The matter was taken up by the Engineer-in-chief with the Financial Commissioner-cum-Secretary (PW) on 25.7.1998. The case of the petitioner was rejected on 9.2.2001. 2. Mr. Dilip Sharma, Advocate has strenuously argued that the petitioner had obtained one year technical training of motor mechanic from Industrial Training Institute, Shahpur before his appointment as Fitter-cum-Mechanic. He then argued that at the time when the petitioner had obtained diploma/certificate, its duration was only one year. The duration of the course was increased from one year to two years by the Industrial Training Institutes after the petitioner had undergone the course. He has finally argued that on the basis of the Notification dated 9.12.1976 his client was entitled to the higher scale of Rs.140-300 instead of Rs.120-250. 3. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that since the petitioner had not obtained two years technical training from the Industrial Training Institute, he was not entitled to get higher pay scale on the basis of office memorandum dated 9.12.1976. According to him the petitioner was only entitled to the higher pay scale, the day he had completed seven years from the initial date of his appointment i.e. 9.3.1973. 4. I have heard the learned counsel for the parties and perused the record carefully. 5. The petitioner has obtained one year diploma in Motor Mechanic Trade from Industrial Training Instituted, Shahpur in the year 1973. It is not denied by the respondent-State that the duration of the Course when the petitioner has passed the diploma was one year and not two years. It is in these circumstances that the Engineer-in-Chief had sought clarification from the Financial Commissioner-cum-Secretary (PW) on 25.7.1998. It is not denied by the respondent-State that the duration of the Course when the petitioner has passed the diploma was one year and not two years. It is in these circumstances that the Engineer-in-Chief had sought clarification from the Financial Commissioner-cum-Secretary (PW) on 25.7.1998. The Financial Commissioner-cum Secretary (PW) had informed the Engineer in Chief vide communication dated 9.2.2001 that the petitioner was required to fulfill the requirement of matriculation with two years technical training from the Industrial Training Institute or any other recognized institute or he was required to put in seven years service of the trade which was made applicable for the existing incumbents. It is a fit case where principle of lex non cogit ad impossibilia will be attracted. 6. The petitioner could not be declared ineligible for higher pay scale only on the ground that he was not in possession of technical training of two years from the Industrial Training Institute prescribed vide office memorandum dated 9.12.1976. In fact, he was in possession of one year diploma/certificate obtained from the Industrial Training Institute. It was only after the petitioner had undergone one year diploma from the recognized institution that the duration of the course was increased to two years by the State Government. The respondents were required to look into the matter rationally. This condition of obtaining two years diploma course could not be imposed upon the petitioner since he had already passed diploma course from recognized institute of one year duration before his appointment. The Recruitment and Promotion Rules have to be applied in a reasonable manner by taking into consideration practical ramifications thereof. Something which is impossible to be achieved cannot be insisted upon. 7. The petitioner on the basis of his diploma/certificate was appointed as Fitter-cum-Mechanic in the year 1973. The condition of obtaining two years diploma course could be prescribed only from the date the Industrial Training Institutes have decided to increase the duration of course from one year to two years. The action of the respondents to deny the petitioner higher pay scale is declared arbitrary. The respondents have misconstrued the memorandum and have read the condition of qualification very strictly. The Authority should have taken a common sense view instead of taking a decision which has resulted in denying higher pay scale to the petitioner and similarly situate persons. 8. Accordingly, the petition is allowed. The respondents have misconstrued the memorandum and have read the condition of qualification very strictly. The Authority should have taken a common sense view instead of taking a decision which has resulted in denying higher pay scale to the petitioner and similarly situate persons. 8. Accordingly, the petition is allowed. The petitioner is held eligible on the basis of memorandum dated 9.12.1976. The respondents are directed to release the higher pay scale of Rs.140-300 to the petitioner w.e.f. 9.12.1976 along with interest @ 9% per annum. No costs.