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2010 DIGILAW 461 (HP)

State of H. P. v. Bahadur Singh Rana

2010-03-11

KURIAN JOSEPH, R.B.MISRA

body2010
JUDGMENT Justice Kurian Joseph, C.J. (Oral) - CMP(M) No.1026 of 2009. This is an application for condonation of delay in filing the appeal. Heard learned counsel. Having gone through the affidavit accompanying the application, we are satisfied that the delay is liable to be condoned. Accordingly, the delay is condoned. The appeal shall be treated to have been filed in time. LPA No. 160 of 2009 Admitted. 2. The State is aggrieved by the judgment dated 19th May, 2009 in CWP(T) No. 567 of 2009. The parties are referred to as they are arrayed in the Writ Petition. 3. The Writ Petitioner approached the erstwhile Tribunal with certain grievances regarding fixation of his pay and subsequent promotion. On account of abolition of the Tribunal, the matter was transferred to this Court and thus the matter was considered by the learned Single Judge of this Court leading to judgment under appeal. In order to appreciate the contention raised by the State in appeal, it is necessary to refer to the factual matrix. The Writ petitioner joined service in the Department of Agriculture in the post of Junior Engineer (Agriculture) on 1.10.1977. While he was serving in the Department as Junior Engineer (Workshop), the workshop itself was transferred as such to H.P. Agro Industries Corporation. Since the post was also transferred to the Corporation, the petitioner had to work in the Corporation as Junior Engineer with effect from 1.1.1978 consequent upon his transfer. It is true that the post of Junior Engineer in the Corporation was an isolated post. While the petitioner was working in the Corporation, the workshop was retransferred to the Department on 21st March, 1994. The petitioner contends that he is entitled to count and continue his service in the Department, enjoying equal status both in terms of pay and promotional prospects alongwith his compeers. 4. The contention of the State on the contrary is that since the petitioner had already been appointed in the H.P. Agro Industries Corporation, and when the workshop was re-transferred to the Government Department with effect from 21st March, 1994, the State had to create additional posts so as to accommodate the petitioner and similarly situated persons and hence they can count their seniority and hope for promotional avenues, only with effect from the date of retransfer. However, it is stated that the service rendered prior to the transfer and the service in the Corporation will count for pensionary benefits. 5. The learned Single Judge allowed the Writ Petition holding that the petitioner was entitled to have an equal opportunity alongwith his compeers and that the petitioner hence should be placed in the common cadre with equal status. Aggrieved the State has come in appeal. 6. It is the contention of the learned Senior Additional Advocate General that the petitioner having become the employee of the Corporation, on account of shifting of the workshop to the Corporation in the year 1978, when the workshop was re-transferred to the Corporation, the petitioner had in fact been re-appointed so as to be absorbed back in the Government service and hence the petitioner can claim continuity of service status only with effect from the date of re-transfer in the year 1994. We are afraid the contention cannot be appreciated. There is no dispute that the petitioner joined the Government service, in the common cadre of Junior Engineers on 1.10.1977. He was posted at Agriculture Workshop Bhangrotu. It is only on account of the policy decision of the State at the relevant time the workshop was transferred to the Agro Industries Corporation. It is not as if the petitioner opted for it. The post as such was shifted to the Corporation. No doubt, on such shifting the Corporation became the master of the petitioner with effect from the date of transfer. There is also no dispute that the post of Junior Engineer was an isolated post in the Corporation. However, while the petitioner was continuing so in the Corporation, the workshop was re-transferred to the Government w.e.f. March, 1994. What is the impact of such transfer and re-transfer on the service prospects of the petitioner is the moot question. 7. It is not a case where the petitioner gave an option to go over to the Corporation, after his joining the Government service in the year 1977 when the workshop was shifted to the Corporation. It is a case where the post as such was shifted. However, it was shifted back to the Government in. the year 1994 and it has become part of the Government service. It is a case where the post as such was shifted. However, it was shifted back to the Government in. the year 1994 and it has become part of the Government service. If the stand of the State in the appeal is to be appreciated, petitioner will be junior to several of his compeers who joined service in the year 1977, when the post was re-transferred to the State in the year 1994. Had it been on account of the volition or option etc. exercised by the petitioner to go to greener, one could understand the rationale behind the submission made by the learned Senior Additional Advocate General. It is the situation of the post as such being shifted to the Corporation for a while and thereafter the same being retransferred to the State. Had the petitioner obtained an accelerated promotion in the Agro Industries Corporation and in case the petitioner had raised the claim to retain the benefit of such accelerated promotion even after the post being shifted to the Government, the contention of the State would have been appreciated since the petitioner may not have been entitled to retain the benefit of accelerated promotion when the post as such is retransferred to the State. In the present case, what the petitioner seeks is only the benefit of equal opportunity and equal status with that of his compeers when he joined his duty in the Government Department in 1977. That only has been protected by the learned Single Judge and nothing more. That is the mandate under Articles 14 and 16 of the Constitution of India. 8. We do not find any merit in the Letters Patent Appeal and the same is accordingly dismissed, so also the pending applications.