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Himachal Pradesh High Court · body

2013 DIGILAW 278 (HP)

BHAG CHAND SHARMA v. STATE OF HIMACHAL PRADESH

2013-04-08

KULDIP SINGH

body2013
JUDGMENT KULDIP SINGH, J.- 1. THE petitioner has prayed mainly the following reliefs in the petition: That the impugned order dated 31st October, 2005 I. (Annexure A-I) may kindly be quashed and set aside. II. That the respondents may kindly be directed to restore the regularisation/apptt. of the applicant w.e.f.1.1.94 as J.E. as ordered earlier vide order dated 10.11.98/11.2.99 with its consequential benefits which the applicant is already enjoying for the last about 12 years. 2. THE facts in brief are that the petitioner a qualified Diploma holder J.E.(Mech.) was appointed on daily wages as Junior Engineer during January 1984 to December, 1988 and in other categories on muster roll from 1989 to 1993, but he never served on other categories except Junior Engineer till he was regularised as Junior Engineer vide letter dated 13.10.1998 as Junior Engineer (Mech.) instead of Foreman (Mech) from the date of regularisation 1.1.1994 as Foreman against available vacancy of Junior Engineer. The respondent No.2 regularised the petitioner as Junior Engineer vide office orders dated 10.11.1998 and 2.2.1999. The petitioner was earlier wrongly, illegally regularised as Foreman vide order dated 22.12.1994. The petitioner was confirmed as Junior Engineer vide office order dated 17.1.2001 w.e.f. 1.1.1997. The work and conduct of the petitioner was satisfactory but despite that the petitioner was reduced to the rank of Foreman vide order dated 31.10.2005. The demotion of the petitioner from Junior Engineer (Mech) to Foreman is wrong, illegal and arbitrary. The respondent No.2 issued show cause notice dated 13.10.2005 asking the petitioner why he should not be restored as Foreman. The petitioner filed reply dated 27.10.2005 but despite that regularisation of the petitioner as Junior Engineer (Mech.) has been withdrawn. 3. THE reduction of the petitioner from Junior Engineer (Mech.) to Foreman is a major penalty which could not be imposed without following due process of law. The petitioner was rightly regularised as Junior Engineer (Mech.). The petitioner has nothing to do with O.A.(M) No. 80 of 2001, he was not party in that petition. The petitioner has served the department for 21 years as Junior Engineer including on daily wages. The demotion of petitioner from Junior Engineer (Mech.) to Foreman is in violation of Article 311 of the Constitution. 4. THE respondents have filed reply. It has been stated that the petitioner had worked as Junior Engineer/ Beldar/ Supervisor/ Mason/ Foreman intermittently w.e.f. 12/84 to 31.12.1993. The demotion of petitioner from Junior Engineer (Mech.) to Foreman is in violation of Article 311 of the Constitution. 4. THE respondents have filed reply. It has been stated that the petitioner had worked as Junior Engineer/ Beldar/ Supervisor/ Mason/ Foreman intermittently w.e.f. 12/84 to 31.12.1993. The petitioner had worked for 564 days as Junior Engineer (Mech.), 1465 days as Foreman and 577 days in other categories and as such was assigned the seniority of Foreman. As per the policy of the Government for regularisation, the daily wage skilled or unskilled who have completed 10 years or more continuous service with a minimum of 240 days in a calendar year on 31.12.1993 shall be appointed as work charged employees w.e.f. 1.1.1994 and shall be put in the time scale of pay applicable to the lowest grade in the Government. The petitioner had been assigned the seniority of Foreman (daily wages) in the lowest category as per the policy of the Government, he was offered a post of Foreman in work charged category w.e.f. 1.1.1994 vide order dated 22.12.1994. The petitioner joined as such on 23.12.1994. The petitioner made representation for his regularisation as Junior Engineer (Mechanical) to the Chief Minister, the case of the petitioner was considered inadvertently for regularisation as Junior Engineer instead of Foreman w.e.f. 1.1.1994 vide office order dated 10.11.1998/1.2.1999. 5. ONE Umesh Kumar filed O.A.No.(M) 80/2001 on 9.12.2004. The erstwhile Tribunal in the Original Application directed the respondents to file supplementary affidavit highlighting the circumstances under which the petitioner was regularised as Junior Engineer. The case of the petitioner was examined by the Government in detail. It was found that his case was considered erroneously for regularisation as Junior Engineer instead of Foreman and, therefore, the Government reviewed its decision. The petitioner was ordered to be regularised as Foreman w.e.f. 1.1.1994 vide order dated 31.10.2005. The petitioner was given proper opportunity before issuing order dated 31.10.2005. The wrong committed at one time could always be rectified lateron after following due process of law. The respondents have supported the order dated 31.10.2005. The respondents have not denied the earlier confirmation of petitioner as Junior Engineer. The petitioner has filed rejoinder and reiterated his stand. On the directions of the Tribunal, O.P.Chauhan, Superintending Engineer and R.K.Malhotra, Superintending Engineer have filed supplementary affidavits to explain the position reflected in the show cause notice dated 13.10.2005 and manday's chart. 6. The respondents have not denied the earlier confirmation of petitioner as Junior Engineer. The petitioner has filed rejoinder and reiterated his stand. On the directions of the Tribunal, O.P.Chauhan, Superintending Engineer and R.K.Malhotra, Superintending Engineer have filed supplementary affidavits to explain the position reflected in the show cause notice dated 13.10.2005 and manday's chart. 6. I have heard learned counsel for the parties on either side. After approval conveyed by the Chief Engineer (C/Z), IPH Department, Mandi on 3.11.1998 the petitioner was promoted as Junior Engineer (Mech.). The petitioner vide another office order dated 1.2.1999 of respondent No.2 was ordered to be treated as Junior Engineer (Mech) w.e.f. 1.1.1994 according to the decision of F.C.(I&PH) letter No. IPH(B)1(A)1/96 dated 13.10.98. The petitioner was confirmed as Junior Engineer vide office order dated 17.1.2001 issued by respondent No.2 in pursuance to the Commissioner-cum-Secy (Pers.) to the Govt. of H.P. letter No. Per(AP-II)B(15)2/75 dated 14.6.94 and clarification received from the Chief Engineer (N), IPH Department, Dharamshala vide letter dated 26.11.1996 and also as per the recommendation of the Departmental Promotion Committee met on 5.1.2001. The respondent No.2 issued show cause notice dated 13.10.2005 to the petitioner why he should not be restored as Foreman after withdrawing his appointment as Junior Engineer (Mech.). The petitioner submitted reply dated 27.10.2005. The respondent No.2 issued impugned office order dated 31.10.2005 reverting the petitioner as Foreman after withdrawing his regularisation as Junior Engineer (Mech.). 7. IN substance the stand of respondents is that the petitioner was inadvertently regularised as Junior Engineer (Mech.) instead of Foreman. The error was detected when one Umesh Kumar filed O.A. No.(M) 80/2001 and the Tribunal on 9.12.2004 directed the respondents therein to file supplementary affidavit to highlight the circumstances under which the petitioner was regularised as Junior Engineer. Thereafter, show cause notice was issued to the petitioner and after hearing him, he was reverted to the post of Foreman. 8. THE matter is not so simple as projected by the respondents. The petitioner was initially regularised as Foreman on 1.1.1994, he made a representation to the Government. Thereafter, show cause notice was issued to the petitioner and after hearing him, he was reverted to the post of Foreman. 8. THE matter is not so simple as projected by the respondents. The petitioner was initially regularised as Foreman on 1.1.1994, he made a representation to the Government. The Under Secretary (IPH) to the Government of Himachal Pradesh vide letter No. IPH(A)1(A)1/96-Part dated 13.10.1998 informed the Engineer-in-Chief, I&PH Department that the Government has decided that Bhag Chand Sharma may be treated to have been regularised to the post of Junior Engineer (Mech.) instead of Foreman (Mech.) from the date of his regularisation as Foreman against available vacancy with further request to take necessary action accordingly. Thereafter, with the approval of the Chief Engineer (C/Z), IPH Department, Mandi, the respondent No.2 promoted the petitioner as Junior Engineer (Mech.) vide office order dated 10.11.1998 and vide another office order dated 1.2.1999 the petitioner was treated as Junior Engineer (Mech.) w.e.f. 1.1.1994. It is thus clear that the decision to regularise the petitioner as Junior Engineer (Mech.) was taken by the Government and follow up action was taken up by respondent No.2. The petitioner was even confirmed as Junior Engineer (Mech.) on 17.1.2001. The respondent No.2 after more than 10 years of the regularisation of the petitioner as Junior Engineer issued show cause notice to the petitioner on 13.10.2005 why he should not be restored as Foreman and his regularisation as Junior Engineer (Mech.) be withdrawn 'in view of Government decision'. The petitioner has replied the show cause notice on 27.10.2005. The petitioner was reverted to the post of Foreman by withdrawing his regularisation as Junior Engineer (Mech.) vide office order dated 31.10.2005. In the impugned office order only reason given for withdrawal of regularisation of petitioner as Junior Engineer is that he was regularised as Junior Engineer (Mech.) inadvertently which was not in consonance with the regularisation policy of the Government. 9. THE decision to regularise the petitioner was taken by the Government, the only follow up action was taken up by respondent No.2 and that too with the approval of the Chief Engineer (C/Z) IPH Department, Mandi. The show cause notice dated 13.10.2005 was issued by respondent No.2 wherein the petitioner has been asked to explain why his appointment should not be restored as Foreman after withdrawing his regularisation as Junior Engineer (Mech.) in view of Government decision. The show cause notice dated 13.10.2005 was issued by respondent No.2 wherein the petitioner has been asked to explain why his appointment should not be restored as Foreman after withdrawing his regularisation as Junior Engineer (Mech.) in view of Government decision. But no such Government decision to withdraw the regularisation of petitioner as Junior Engineer (Mech.) has been placed on record. There is no reference of such Government decision in impugned office order dated 13.10.2005.The decision to regularise the petitioner as Junior Engineer (Mech.) was taken by the Government higher authority, therefore, his regularisation as Junior Engineer (Mech) could not be withdrawn by the lower authority namely Superintending Engineer. There is no allegation of misrepresentation, fraud on the part of the petitioner for regularisation as Junior Engineer (Mech). The authorities decided to regularise the petitioner as Junior Engineer (Mech.) of their own. The petitioner was even confirmed as Junior Engineer (Mech.) Therefore, he could not be reverted as Foreman in the manner it has been done vide impugned office order dated 31.10.2005 which in the facts and circumstances of the case is not sustainable. 10. IN view of above, the petition is allowed, office order dated 31.10.2005 issued by respondent No.2 reverting the petitioner to the post of Foreman and withdrawing his regularisation as Junior Engineer (Mech.) is quashed. On 4.1.2005 the Tribunal at the time of consideration of interim direction had ordered that if the petitioner succeeds then he will get everything. In these circumstances, the petitioner is also entitled to all consequential benefits including seniority, pay fixation, arrears of difference of pay etc. The respondents shall pay the difference of arrears of pay, if any, to the petitioner within two months from the date of supply of a copy of the judgment by the petitioner to the competent authority. No costs.