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2014 DIGILAW 1126 (HP)

Hem Chand v. State of H. P.

2014-08-23

TARLOK SINGH CHAUHAN

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Judgment : Tarlok Singh Chauhan, J. The petitioner has claimed the following substantive relief:- “(i) That the respondent department may be directed to treat the petitioner as having been duly appointed as Part Time Water Carrier at Government Primary School Alyas, Gram Panchayat Sawindhar, Karsog-II, District Mandi, H.P. from June 30, 2004 pursuant to recommendations of government of Himachal Pradesh as per order dated 26.6.2004, Annexure P-1, with all consequential benefits including seniority as Part Time Water Carrier, except arrears of wages for the period during which he has not actually worked as Part Time Water Carrier.” 2. The undisputed facts, as emerge from the record are that the petitioner was recommended for appointment as a Part Time Water Carrier by the respondents on 26.6.2004 but was kept out from the appointment by the Pradhan, Krishan Kumar, Gram Panchayat, Sawindhar. It is only after a protracted litigation, that the petitioner was allowed to join on 9.6.2009. Therefore, the only question, which arises for determination in this case is whether the petitioner can be considered to be deemed to have been appointed from the date of his recommendation i.e. from 30.6.2004, pursuant to the recommendation made by the respondents as per the order dated 26.6.2004 for all intents and purposes. 3. Admittedly, the appointment of the petitioner was delayed for no fault of his and came to be appointed only in the year 2009, that too after the intervention of this Court. The result of delayed appointment of the petitioner is that he has been paid less salary and denied the seniority over a long period of time. It has been consistently opined that in case a candidate is wrongly denied appointment for no fault on his part, he cannot be denied appointment from due date and consequential seniority. Reference in this regard can conveniently be made to 1996 (8) SCC 637 , Pilla sitaram Patrudu & others vs. Union of India and others, 2000 (8) SCC 182 Sanjay Dhar vs. J&K Public Service Commission & another, 1991 (6) Vol. 76, Services Law Reporter 753, Hawa Singh Sangwan vs. Union of India & others and 1996 (6) Vol. 116, Services Law Reporter, 335, Hawa Singh and others vs. The Haryana State Electricity Board. 76, Services Law Reporter 753, Hawa Singh Sangwan vs. Union of India & others and 1996 (6) Vol. 116, Services Law Reporter, 335, Hawa Singh and others vs. The Haryana State Electricity Board. Moreover, it is not the case of the respondents that the petitioner was not recommended to be appointed on 26.6.2004 but the only ground taken is that it was the Pradhan, Gram Panchayat Sawindhar, Tehsil Karsog, who delayed the appointment of the petitioner. This is the precise reason that the petitioner is entitled for the seniority from the date of offer of appointment, as held by the Division Bench of this Court in similar circumstances, in case titled as Chattar Singh vs. State of H.P. & others, CWP No. 188 of 2012-I:- “3. No doubt, the petitioner joined duty only on 13.5.2003. But in his favour admittedly there is an order by the Appointing Authority on 8.8.2002 to give appointment, as has been noted by the Tribunal in Annexure P-1, order. It is that order, which has been upheld by the Tribunal and the direction issued by the Tribunal is for implementing the said order. Therefore, for all purposes, the petitioner shall be deemed to be appointed on 8.8.2002, on the date admittedly the petitioner was directed to be appointed by the Sub Divisional Magistrate. However, taking note of the fact that the petitioner has joined duly on 13.5.2003 after the order was issued to him, the entitlement of the petitioner for actual monetary benefit shall be only from 13.5.2003. In order to avoid any ambiguity, it is made clear that the petitioner shall be deemed to be appointed in the post of Gramin Vidya Upasak on 8.8.2002 for all purposes; but from 8.8.2002 to 13.5.2003, the benefits shall only be notional and from 13.5.2003, the petitioner shall be entitled to all monetary benefits.” 4. In view of the exposition of the law referred to above, the petitioner is entitled to be treated as having been appointed as a Part Time Water Carrier at Government Primary School Alyas, Gram Panchayat, Sawindhar, Karsog-II, District Mandi from 30.6.2004, pursuant to the recommendation of the Government of H.P., as per order dated 26.6.2004 for the purpose of seniority. However, the entitlement of the petitioner for actual monetary benefits shall be only from 9.6.2009. However, the entitlement of the petitioner for actual monetary benefits shall be only from 9.6.2009. In order to avoid any ambiguity, it is made clear that the petitioner shall be deemed to be appointed as Part Time Water Carrier from 30.6.2004 for all purposes, but from 30.6.2004 to 9.6.2009, the benefits shall only be notional and w.e.f. 9.6.2009, the petitioner shall be entitled to all monetary benefits. 5. The present petition is partly allowed in the aforesaid terms, leaving the parties to bear the costs.