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2013 DIGILAW 126 (HP)

Dharam Singh v. State of Himachal Pradesh

2013-02-28

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. By means of this writ petition, the following relief has been claimed:- “(a) That the impugned seniority list, dated 22.7.2009 may be quashed and set aside and the respondents may be directed to re-draw the seniority list of pump operators on the basis of their date of appointment, as pump operators on regular basis. (b) That the respondents may be directed to allow the petitioner to draw the pay scale, granted to him as junior technician grade-II w.e.f. 1.1.1996, which has been fixed in pursuant to the order dated 23.9.2002. 2. Learned counsel representing the petitioner submits that the issue in this writ petition is covered in favour of the petitioner by the judgment of this Court in CWP No.4143 of 2010 and its connected petitions including CWP No.3240 of 2010. 3. Pursuant to the orders passed on 26.2.2013, in this writ petition, the record of CWP No.3240 of 2010 is tagged herewith. The issue involved in this writ petition is identical in nature as in CWP No.3240 of 2010 and its connected petitions decided by a Division Bench of this Court vide judgment dated 25.10.2010 rendered in CWP No.4143 of 2010. The judgment reads as follows:- “4. Seniority, it is a well settled principle, is to be based on either the date of joining duty in the regular service or on the date of advice for the job which is based on the position in the select list, unless otherwise prescribed in accordance with law. If two or more persons join on the same day, their interse seniority has to be fixed based on their age, the older in age being placed above the younger. That is the only situation where age becomes a relevant factor in fixing the seniority. It is also another settled principle that seniority once duly and properly settled, will not normally be reopened. However, if for some demonstrably wrong factual or legal mistakes the same has to be reopened, before deciding to do so, notice has to be given to the affected parties. Yet another principle is that once the seniority has been finalized as per the direction of the Court or where seniority list has the approval of the Court, the same cannot be unsettled otherwise than through a judicial process. 5. Yet another principle is that once the seniority has been finalized as per the direction of the Court or where seniority list has the approval of the Court, the same cannot be unsettled otherwise than through a judicial process. 5. All the petitioners belong to Sunder Nagar /Hamirpur Circle and seniority has been finalized by the Superintending Engineer. It is the stand of the Superintending Engineer that the steps were taken as per the clarification issued by the Government and second respondent. But the moot question pointed out by the learned counsel for the petitioners is that no notice prior to the decision was given to the persons who had enjoyed the benefit of settled seniority for quite a few years. If it is realized at any stage that there is a mistake in the settled seniority list, the very reopening process itself can be only after giving an opportunity for hearing. 6. All the consequential action regarding the refixation, recovery are on account of refixation of the seniority list which are only dependant actions. In the above circumstances, these writ petitions are disposed of as follows: Annexure A-1, notice issued to the petitioners shall be treated as a notice on the proposal for reopening the settled seniority list on the basis of date of joining duty. In case any of the petitioners has any objection to such reopening of the seniority issue, they may file their objections before the Superintending Engineer, I & PH, Circle Sunder Nagar/Hamirpur within a period of six weeks from today. The Superintending Engineer/competent authority shall consider those objections in accordance with law and pass appropriate orders thereon within another two months. In case any of the petitioners requests for an opportunity for hearing, the same shall also be granted at the time of presentation of the objections, as above. Depending on the orders thus passed by the competent authority, it will be open to the respondents to take appropriate further action. 7. However, one aspect which requires clarification is on the justification for recovery as a dependant action. It is now fairly settled law that recovery of the benefits already paid to the workmen would be permissible only if the same has arisen on account of fraud, misrepresentation or bonafide mistake. If it is a matter of bonafide mistake, the steps have to be taken for rectifying the mistake within a reasonable period. It is now fairly settled law that recovery of the benefits already paid to the workmen would be permissible only if the same has arisen on account of fraud, misrepresentation or bonafide mistake. If it is a matter of bonafide mistake, the steps have to be taken for rectifying the mistake within a reasonable period. (See the decision of the Supreme Court in Syed Abdul Quadir and Others versus State of Bihar and Others (2009) 3 SCC 475 . ) In the case of the petitioner herein, the recovery as proposed does not fall in any of the grounds. It is the respondents who fixed the seniority and it is based on that seniority fixed, may be on wrong premises, the 20%, 30% and 50% bifurcation was done and on the basis of such bifurcation, the petitioners were actually paid their wages. In case the very basis of such bifurcation is to be changed on a permissible ground, in that case it cannot be said that the amounts already paid to the petitioners on the basis of the bifurcation already done on a principle once adopted by the department though erroneously, is justifiable. Therefore, we make it clear that in either case, there shall be no recovery of the emoluments already paid to the petitioners. As far as refixation is concerned, we make it clear that the refixation already made would be subject to the result of the action as above to be taken by the Superintending Engineer/competent authority. In case the order passed by the authority is in favour of the petitioners, the refixation already done shall be ignored and the petitioners shall be paid their wages as per the original fixation done in the year 1996. The needful, as above, shall be done within another two months.” 4. Consequently, there shall be a direction to the respondents to examine the case of the petitioner and take appropriate action in accordance with law and also in the light of the decision of this Court referred to above, in case the same has attained finality and in case the petitioner is similarly situated. Consequently, there shall be a direction to the respondents to examine the case of the petitioner and take appropriate action in accordance with law and also in the light of the decision of this Court referred to above, in case the same has attained finality and in case the petitioner is similarly situated. Pending further action to be taken by the respondents in this matter in terms of the judgment cited supra, the petitioner shall continue to draw his salary in accordance with office order, Annexure P-2 and refixation of his seniority vide impugned order, Annexure P-4 shall be deemed to have been withdrawn. 5. With the above observations this writ petition stands finally disposed of, so also the pending application(s), if any.