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Himachal Pradesh High Court · body

2010 DIGILAW 364 (HP)

SHYAM LAL v. STATE OF H. P.

2010-03-02

KULDIP SINGH

body2010
JUDGMENT Kuldip Singh, J.-The petitioners in the petition have prayed for a direction for implementation of office order dated 19.1.1995 Annexure A-7 and office order dated 17.2.1995, Annexure A-8 by showing regular date of appointment of the petitioners as Upper Division Clerks (Assistants) w.e.f. 7.10.1973, 1.10.1973, 1.10.1973 and 5.1.1973 respectively with all consequential benefits. 2. The pleaded case of the petitioners is that petitioners No.1 to 4 were promoted as Upper Division Clerks in the pay scale of Rs. 160 – 400 temporarily till further orders purely on ad hoc basis. The petitioners No. 1 to 4 joined as temporarily Upper Division Clerks on 7.10.1973, 1.10.1973, 1.10.1973 and 5.1.1973 respectively. They continued to work continuously, uninterruptedly till 27.9.1976. They had earned only increments, they were allowed to cross the efficiency bar as temporary / adhoc Upper Division Clerks on due dates. As per their initial orders of promotion, their promotions were made subject to further orders. The petitioners on 27.9.1976 were promoted on regular basis in the same pay scale from the date of issue of order. 3. Roshan Lal Dulta, Assistant who was promoted as adhoc Upper Division Clerk on 2.6.1976 but was reverted on 27.1.1983, he filed writ petition for declaring him to be a regular Upper Division Clerk from the date of his ad hoc promotion w.e.f. 2.6.1976 and against his reversion to the post of Clerk without giving any opportunity. The writ petition was transferred and ultimately allowed by the erstwhile Tribunal. The respondents No. 1, 2 of the said petition were directed to treat Roshan Lal Dulta as having been regularly appointed as Upper Division Clerk (Assistant) w.e.f. 2.6.1976 and give him all consequential benefits accruing therefrom. In compliance to the order of the erstwhile Tribunal, the respondent No.1 passed office order dated 19.1.1995, Annexure A-7 promoting Roshan Lal Dulta as regular Upper Division Clerk w.e.f. 2.6.1976, i.e. the date of his initial promotion on ad hoc basis. 4. In pursuance of office order Annexure A-7, the seniority of the Senior Assistants was also revised, the names of the petitioners in the revised seniority list were shown at serial Nos. 400, 407, 399 and 401 with date of regular appointment as 2.6.1976. The name of Roshan Lal Dulta was shown in the seniority list Annexure A-8 at serial No. 416. It is the grievance of the petitioners that injustice was done to them. 400, 407, 399 and 401 with date of regular appointment as 2.6.1976. The name of Roshan Lal Dulta was shown in the seniority list Annexure A-8 at serial No. 416. It is the grievance of the petitioners that injustice was done to them. They were not given the same benefit as was given to Roshan Lal Dulta and illegality continued till the petitioners retired or promoted to the next higher scale. This has affected their pensionary benefits. The petitioners in the petition have prayed that they be shown as regularly appointed as Upper Division Clerks (Assistants) w.e.f. 7.10.1973, 1.10.1973, 1.10.1973 and 5.1.1973 respectively with all consequential benefits. 5. The respondents have contested the petition by filing reply and took several preliminary objections regarding maintainability, lack of cause of action, limitation and petitioners have failed to avail alternate remedy. On merits, it has been submitted that in order to implement the judgment of the erstwhile Tribunal, Roshan Lal Dulta was given regular promotion w.e.f. 2.6.1976. The persons who were senior to Mr. Dulta were also regularized w.e.f. 2.6.1976. The petitioners could not be given regular promotion from the date they were promoted on ad hoc basis. The respondents No. 1, 2 have justified the Annexures A-7 and A-8. It has been submitted that petitioners cannot claim regular promotion from the date of their ad hoc promotion during the year 1973. There were several respondents in the petition but vide different orders passed by the erstwhile Tribunal, the respondents No. 3 to 260 were ordered to be deleted. 6. The erstwhile Tribunal on 15.7.1994 in T.A. No. 597/1986 titled as Roshan Lal Vs. State of H.P.& Others while quashing order dated 27.1.1983 directed the respondents No.1 and 2 of the said petition to treat the petitioner as having been regularly appointed as Upper Division Clerk (Assistant) w.e.f. 2.6.1976 and give him all consequential benefits accruing therefrom. The respondents complied the judgment dated 15.7.1994 and gave regular appointment as Upper Division Clerk (Assistant) to Roshan Lal Dulta w.e.f. 2.6.1976. 7. On behalf of the petitioners, it has been submitted that Roshan lal Dulta was appointed as ad hoc Upper Division Clerk (Assistant) on 2.6.1976. The petitioners were appointed Upper Division Clerks on ad hoc basis on 7.10.1973, 1.10.1973, 1.10.1973 and 5.1.1973 respectively. The petitioners were similarly placed as Roshan Lal Dulta. 7. On behalf of the petitioners, it has been submitted that Roshan lal Dulta was appointed as ad hoc Upper Division Clerk (Assistant) on 2.6.1976. The petitioners were appointed Upper Division Clerks on ad hoc basis on 7.10.1973, 1.10.1973, 1.10.1973 and 5.1.1973 respectively. The petitioners were similarly placed as Roshan Lal Dulta. In fact, while issuing office order Annexure A-7, the respondents admitted the similarity in the case of the petitioners and that of Roshan Lal Dulta, but while actually giving them benefit, the petitioners were given regular appointment as Upper Division Clerks (Assistants) from 2.6.1976 which was given to Roshan Lal Dulta. Once the respondents have admitted that the case of the petitioners is similar to Roshan Lal Dulta, then petitioners were entitled to the date of regular appointment from the date of their initial appointments i.e. 7.10.1973, 1.10.1973, 1.10.1973 and 5.1.1973 respectively instead of 2.6.1976. The learned counsel for the respondents has failed to point out by applying what principle the respondents have given date of regular appointments of petitioners 2.6.1976 when the respondents have come to the conclusion that the case of the petitioners is similar to the case of Roshan Lal Dulta. On this ground alone, the petition is liable to be allowed. The petitioners have retired, therefore, now the petitioners are entitled to only declaration that their date of regular appointment as Upper Division Clerks (Assistants) is 7.10.1973, 1.10.1973, 1.10.1973 and 5.1.1973, respectively with all consequential benefits. 8. No other point was urged. 9. The result of the above discussion, the petition is allowed. It is held that the petitioners No. 1 to 4 were regularly appointed as Upper Division Clerks (Assistants) w.e.f. 7.10.1973, 1.10.1973, 1.10.1973 and 5.1.1973 respectively and they are entitled to all consequential benefits flowing therefrom such as seniority, pay fixation, promotion (notionally) if any, and pension etc. The respondents No.1 and 2 are directed to calculate the arrears and pay the same to the petitioners within a period of four months from today, failing which the petitioners shall be entitled to payment of interest at the rate of 9% per annum on such arrears till payment. No costs.