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Himachal Pradesh High Court · body

2014 DIGILAW 1093 (HP)

RAM DASS v. H. P. STATE ELECTRICITY BOARD

2014-08-19

PIAR SINGH RANA

body2014
ORDER : 1. Present Civil Writ Petition filed under Article 226 of the Constitution of India. Brief facts of the case as pleaded are that petitioner was initially appointed as T-mate in HP State Electricity Board w.e.f. 6.1.1998. It is pleaded that thereafter petitioner is performing his duties to the best satisfaction of his superiors. It is further pleaded that respondent-Board asked the petitioner to perform the duties of Clerk w.e.f. 30.9.2002. It is further pleaded that since then the petitioner is performing duties of Clerk with respondent-Board. It is further pleaded that duty of Clerk is of higher nature and the pay scale of Clerk is also higher than that of T-mate. It is further pleaded that petitioner is performing higher duty but despite performing higher duty by petitioner respondent-Board did not pay salary for higher duty and pay the salary of lower scale of T-mate to petitioner. It is further pleaded that cadre of the petitioner be change to the ministerial cadre by treating him as Clerk w.e.f. 30.9.2002 from which date he is performing the duties of Clerk. It is further pleaded that salary of Clerk to the petitioner be paid w.e.f. 30.9.2002 with all consequential benefits along with interest @ Rs. 12% per annum. Prayer for acceptance of writ petition sought. 2. Per contra reply filed on behalf of respondent-Board pleaded therein that post of T-mate is Class-IV (Technical) and post of Clerk is Class-III (Non-Technical). It is further pleaded that as per Recruitment and Promotion Rules the post of Clerk is to be filled by direct recruitment from amongst the persons possessing academic qualification 10+2 with 2nd Division. It is further pleaded that petitioner was appointed as T-mate w.e.f. 6.1.1998 and due to shortage of clerical staff as a stop gap arrangement the petitioner has temporarily been assigned the duty of billing Clerk and he is performing the duty of Clerk till date. Prayer for dismissal of writ petition sought. 3. Court heard learned Advocate appearing on behalf of the parties and also perused entire records carefully. 4. Following points arise for determination in the present writ petition: (1) Whether petitioner is entitled to the ministerial cadre by treating him as Clerk as alleged? (2) Whether petitioner is entitled to salary of Clerk with all consequential benefits along with interest @ Rs. 12% per annum as alleged? Finding upon Point No. 1. 5. 4. Following points arise for determination in the present writ petition: (1) Whether petitioner is entitled to the ministerial cadre by treating him as Clerk as alleged? (2) Whether petitioner is entitled to salary of Clerk with all consequential benefits along with interest @ Rs. 12% per annum as alleged? Finding upon Point No. 1. 5. Submission of learned Advocate appearing on behalf of petitioner that petitioner is entitled to change of cadre to the ministerial cadre by treating him as Clerk is rejected being devoid of any force for the reason hereinafter mentioned. In the present case it is prima facie proved on record that petitioner was appointed as T-mate w.e.f. 6.1.1998 and due to shortage of clerical staff as a stop gap arrangement the petitioner is performing temporarily the duty of billing Clerk. It was held in case reported in Haribans Misra and Others vs. Railway Board and Others, (1989) 2 SCC 84 that person appointed to a post on ad hoc basis cannot have any lien on the post. It was held in case reported in J and K. Public Service Commission vs. Dr. Narinder Mohan and others, (1994) 2 SCC 630 that ad hoc employee should be replaced as expeditiously as possible by direct recruits. It is well settled law that candidate working on ad hoc basis have to give place to the candidate selected in accordance with law. It was held in case reported in State of Haryana and others vs. Mahabir Prasad Sharma and others, AIR 1994 SC 1804 that ad hoc appointment is temporary appointment. It is well settled law that regularization of ad hoc appointment has to be done by a Committee duly constituted by appointing authority. It was held in case reported in Dr. Kishore vs. State of Maharashtra and Others, (1997) 3 SCC 209 that employee appointed as a stop gap arrangement cannot claim regularization merely because vacancies are existing. It was held in case reported in Rudra Kumar Sain and Others vs. Union of India and Others, (2000) 8 SCC 25 that recruitment to the public post should be governed by appropriate statutory Rules. It is well settled law that under Article 320 of the Constitution Government cannot take any decision contrary to Constitution to regularize the service of employee dehors the recruitment Rules and statutory process of selection. It is well settled law that under Article 320 of the Constitution Government cannot take any decision contrary to Constitution to regularize the service of employee dehors the recruitment Rules and statutory process of selection. It is well settled law that promotion in public service is by way of two modes (1) Promotional post (2) Direct entry post. It is well settled law that ad hoc appointee is under legal obligation to appear before the selection committee in accordance with law. Hence it is held that it is not expedient in the ends of justice to regularize the services of petitioner dehors the recruitment rules and statutory process of selection upon public post. Finding upon Point No. 2. 6. Submission of learned Advocate appearing on behalf of petitioner that petitioner is performing the duties of billing Clerk and is legally entitled for the salary of billing Clerk with all consequential monetary benefits along with interest from the date petitioner is performing duties of billing clerk is accepted for the reason hereinafter mentioned. It is held that petitioner is entitled for salary of Clerk on the concept of right to equality mentioned under Article 14 of the Constitution of India. It is well settled law that equal pay for equal work is the fundamental right of employee. It was held in case reported in Centre for Public Interest Litigation vs. Union of India, (2014) 8 SCC 682 that Court must be sensitive relating to Article 14 of the Constitution of India that is concept of right of equity. In view of the above stated facts it is held that petitioner is entitled to equal pay for equal work. 7. In view of the above findings it is held (1) That respondent-Board will pay salary of Clerk to the petitioner with all consequential benefits along with interest @ 9% per annum from the date of working of petitioner as Clerk as stop gap arrangement subject to adjustment of salary already paid to the petitioner for the post of T-mate. (2) Prayer of the petitioner to change the cadre of the petitioner to the ministerial cadre by treating him as Clerk is declined and it is held that promotion of the petitioner will be subject to recruitment and promotion rules only. (3) Other relief(s) claimed by petitioner declined. Writ petition is accordingly disposed of with no order as to costs. (2) Prayer of the petitioner to change the cadre of the petitioner to the ministerial cadre by treating him as Clerk is declined and it is held that promotion of the petitioner will be subject to recruitment and promotion rules only. (3) Other relief(s) claimed by petitioner declined. Writ petition is accordingly disposed of with no order as to costs. All miscellaneous application(s) are also disposed of.