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2014 DIGILAW 641 (HP)

Prem Singh v. State of Himachal Pradesh

2014-05-24

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, Judge. The petitioner is the appellant, who is aggrieved by the judgment passed by the learned Single Judge on 17.08.2010 in CWP-T No.3087 of 2008 whereby though all his contentions were accepted and the action of the respondents was held to be illegal, yet instead of granting the relief as had been prayed for in the petition, the learned Single Judge directed the payment of Rs.1,50,000/-as lump sum compensation for the injury which the petitioner had suffered due to wrong action on the part of the respondents. 2. The case of the petitioner before the learned Single Judge was that he was born on 17th March, 1954 and joined the Indian Army sometime in the year 1974 and was discharged on 30.09.1989. He thereafter enrolled himself with the Directorate of the Sainik Welfare as well as the Employment Exchange. His name was empanelled for being appointed for the post of Forest Guard. A requisition was issued for a large number of Forest Guards. In so far as Bilaspur District was concerned, there were forty anticipated vacancies, out of which five fell to the category of the Ex-servicemen. The petitioner admittedly retired before the private respondent No.3, who infact had retired in the year 1990 while the petitioner, as observed earlier, was discharged on 30.09.1989. 3. The appellant kept waiting for his appointment, but no such letter was sent to him. Then ultimately on 16.03.2002, he went to the Office of the Directorate of Sainik Welfare to enquire about the same and came to know that 15 vacancies had been filled by respondents No.1 and 2 and respondent No.3 had been appointed as a Forest Guard despite his being junior to the appellant. Initially, he issued a legal notice on 19.03.2002 and in response thereto, it was alleged that the appellant could not be considered for appointment since his name had not been sponsored by the Ex-servicemen Cell because he had exceeded the prescribed age of 27 years. Initially, he issued a legal notice on 19.03.2002 and in response thereto, it was alleged that the appellant could not be considered for appointment since his name had not been sponsored by the Ex-servicemen Cell because he had exceeded the prescribed age of 27 years. This action of the respondents was challenged by the petitioner before this Court by filing writ petition wherein the following reliefs were claimed:- “I) That the record pertaining to the recruitment of all 15 vacancies of ex-servicemen may kindly be summoned for the kind perusal of this Hon’ble Tribunal and after perusing the same the impugned action of respondents No.1 and 2 may very kindly be quashed and set aside thereby commanding the respondents No.1 and 2 with an appropriate writ, order or direction to give a chance for the appointment of the applicant as Forest Guard. II) That the Rules framed for the age of selected panel ex-serviceman may kindly be quashed and set aside or the relaxation in age may be given to those selected ex-servicemen personnel while recruiting them in State Government employment. III) That respondents No.1 and 2 may further be directed to give appointment to the applicant from the date when respondent No.3 was appointed and he be also given all consequential benefits. IV) That the original application may kindly be allowed with costs. It is further prayed that the appointment of respondent No.3 may be quashed & set aside V) Any other or further order which this Hon’ble Tribunal may deem just and proper in the facts and circumstances of this case and justice be done to the applicant.” 4. The respondents contested the petition by maintaining that the petitioner was overage and, therefore, his name had not been sponsored. 5. This stand of the respondents was found to be totally false and incorrect by the learned Single Judge in view of Clause 7 of the instructions issued by the Government of Himachal Pradesh in its Booklet on Service Matters relating to Ex-servicemen which reads as under:- “7. What is the upper-age limit for recruitment of ex-Servicemen? 5. This stand of the respondents was found to be totally false and incorrect by the learned Single Judge in view of Clause 7 of the instructions issued by the Government of Himachal Pradesh in its Booklet on Service Matters relating to Ex-servicemen which reads as under:- “7. What is the upper-age limit for recruitment of ex-Servicemen? As per provision contained in rule 4(2)(b) an ex-Serviceman candidate shall be eligible to appointment to the civil service if his age at the time of joining military service or training prior to the Commission, as the case may be, does not exceed the upper age limit prescribed for direct recruitment to such post. From this it is clear that he should not have crossed the upper age limit prescribed for the post/service to which he applies as an ex-serviceman, at the time of his joining the military service to become eligible for that post/service. As such, in effect, there is no upper age limit for recruitment of ex-servicemen.” (emphasis supplied) 6. It was held by the learned Single Judge that in terms of aforesaid Clause, there was no upper age limit for appointment of ex-servicemen when they are appointed against a post reserved for ex-servicemen. The learned Single Judge further held that it was the respondent No.3, who had been appointed against the post reserved for ex-servicemen, whereas, it should have been the petitioner, who instead should have been appointed against the said post. Meaning thereby, that the appointment of the respondent No.3 was held to be bad while the claim of the petitioner was held to be justified by the learned Single Judge. However, as observed earlier, the petitioner was not granted the relief as had been claimed in the writ petition, rather a lump sum compensation to the tune of Rs.1,50,000/- by assigning the following reasons:- “It is thus obvious that the petitioner’s case was wrongly overlooked by the respondent No.2 and the respondent No.3 was wrongly sponsored and appointed. Normally, in such a situation the appointment of respondent No.3 would have been cancelled and the petitioner would have been directed to be considered for appointment in his place. However, I find that now the petitioner would be over 56 years of age and by the time he undergoes training etc. of forest guard it would be meaningless to appoint him to civil service. However, I find that now the petitioner would be over 56 years of age and by the time he undergoes training etc. of forest guard it would be meaningless to appoint him to civil service. Another aspect of the matter which cannot be lost sight of is that the respondent No.3 has already rendered about 10 years of service in the Forest Department. Therefore, I feel that the relief has to be moulded keeping in view the peculiar facts and circumstances of this case. The error has occurred in the office of the Directorate of Sainik Welfare and it is this office which is responsible for sponsoring wrong name. If the petitioner would have been in service he would have, in the last 10 years, earned substantial amount and he would have continued in service for another 2 years. Keeping in view all these factors it is more than apparent that the petitioner has lost a substantial sum of money during this period. One must also take into consideration the fact that the petitioner may not have been idle during these many years and may have been rendering some other vocation. The salary of a forest guard at the minimum of scale would be Rs.15,000/-per month. The petitioner has also been deprived of the benefits of additional pension which he would have got if he continued in service. Further the petitioner shall not be made to suffer for the delay which has taken place in the decision of this case for which he is not at fault. Therefore, though I feel that the relief to which he is actually entitled cannot be granted to him but he must be compensated for the same. Keeping all these factors into consideration, I feel that the interest of justice shall be met in case the respondent No.2 is directed to compensate the petitioner by paying compensation of Rs.1,50,000/-which shall be against all the claims arising out of the present case. The petition is accordingly allowed in the aforesaid terms. The respondent No.2 is directed to pay a sum of Rs.1,50,000/- as lump sum compensation for the injury which the petitioner has suffered due to the wrong action on the part of respondent No.2. The petition is accordingly allowed in the aforesaid terms. The respondent No.2 is directed to pay a sum of Rs.1,50,000/- as lump sum compensation for the injury which the petitioner has suffered due to the wrong action on the part of respondent No.2. This amount be paid to the petitioner on or before 31st of December, 2010 failing which the respondent No.2 shall be liable to pay interest on this amount @ 9% p.a. from the date of filing of the Original application till payment of the amount. There shall be no order as to costs.” 7. The petitioner being aggrieved and dissatisfied with the judgment passed by the learned Single Judge approached this Court by way of the present appeal, which came up for consideration before the Court on 18.10.2010 when the following orders came to be passed:- “Admitted. There will be a direction to 1st respondent to file an affidavit as to whether it is possible to accommodate the appellant/petitioner as a special case for remaining period of two years in terms of the equity and justice, instead of paying the compensation . Post on 13.12.2010.” When the matter was next listed in the Court, the following orders came to be passed on 14.12.2010:- “Sh.Baldev Raj Verma, Sub Regional Employment Officer-cum- Secretary State Selection Committee, Ex-servicemen Employment Cell, Hamirpur is present. It is submitted that one post of Forest Guard is lying vacant. Therefore, there will be direction to respondents No.1 & 2 to forthwith permit the appellant to join duty in the said post of Forest Guard, subject to the result of the appeal. In that view of the matter, there will be stay of the direction of the learned Single Judge to pay the compensation amount to the appellant. Post for further orders on 1.4.2011.” On 10.01.2013 when the matter came up for consideration before the Court, the following order was passed :- “No notice need be issued to the 3rd respondent since he is otherwise only a formal party. However, the prayer for moulding the relief already granted to the appellant cannot be considered without the presence of the second respondent. The appellant prays that instead of lump sum payment of Rs.1,50,000/- by the second respondent, he will be satisfied in case he is given the notional benefits and pension accordingly. However, the prayer for moulding the relief already granted to the appellant cannot be considered without the presence of the second respondent. The appellant prays that instead of lump sum payment of Rs.1,50,000/- by the second respondent, he will be satisfied in case he is given the notional benefits and pension accordingly. There will be a direction to the first respondent to file an affidavit as to what would be the amount to be deposited by the second respondent in that regard. The affidavit shall be filed within six weeks. Post on 8th March, 2013.” 8. Admittedly, the State has not assailed the judgment passed by the learned Single Judge and, therefore, the findings that the petitioner was illegally deprived and denied appointment has attained finality. In this backdrop, the only question which requires to be determined is as to whether the petitioner-appellant is entitled to the notional benefits and compensation as requested by him as finds mention in the order dated 10.01.2013(supra) or is the order passed by the learned Single Judge awarding lump sum compensation of Rs.1,50,000/-fair and equitable, taking into consideration that the appellant would be over 56 years of age and by the time he undergoes the training of For est Guard and, therefore, it would be meaningless to appoint him to civil service. 9. It is strenuously argued by learned counsel for the appellant that the respondents cannot be permitted to take advantage of their own wrongs by denying the appellant his legitimate claim, particularly, when they have not assailed the findings of the learned Single Judge. On the other hand, Shri Shrawan Dogra, learned Advocate General, assisted by Shri Romesh Verma, Shri V.S.Chauhan, learned Additional Advocate Generals and Shri Kush Sharma, learned Deputy Advocate General, has argued that the order passed by the learned Single Judge is just and equitable taking into consideration the peculiar facts and circumstances of the case. 10. We have heard the learned counsel for the parties and given deep and thoughtful consideration to their respective submissions. 11. It has been established on record that the appellant was illegally deprived and denied appointment of Forest Guard and, at the same time, the respondent No.3 was illegally appointed as Forest Guard and such findings have already attained finality. Thus, we see no reason why the appellant should suffer for the mistake or delay on the part of the department. 12. Thus, we see no reason why the appellant should suffer for the mistake or delay on the part of the department. 12. It is settled law that the mistake or delay on the part of the department should not be permitted to recoil on the employee as has been observed by the Hon’ble Supreme Court in Nirmal Chandra Bhattacharjee and others versus Union of India and others 1991 Supp (2) SCC 363 wherein it has been held as under:- “5. One of the principles of service is that any rule does not work to prejudice of an employee who was in service prior to that date. Admittedly the vacancies against which appellants were promoted had occurred prior to restructuring of these posts. It is further not disputed that various other posts to which class ‘IV’ employees could be promoted were filled prior to August 1, 1983. The selection process in respect of Ticket Collectors had also started prior to August 1, 1983. If the department would have proceeded with the selection well within time and would have completed it before August 1, 1983 then the appellants would have become Ticket Collectors without any difficulty. The mistake or delay on the part of the department, therefore, should not be permitted to recoil on the appellants. Paragraph ‘31’ of the restructuring order itself provides that vacancies in various grades of posts covered in different categories existing on July 31,1983 would be filled in accordance with the procedure which was in vogue before August 1, 1983.” 13. At this stage, the learned Advocate General assisted by Shri Romesh Verma, Mr. V.S.Chauhan, learned Additional Advocate Generals and Mr.Kush Sharma, learned Deputy Advocate General, would submit that the appellant cannot be granted retrospective benefit as he has not worked on the said post on the principle of ‘no work no pay’. However, this is not the fact situation obtaining here. It is not the case of the respondents that the appellant was not ready to work, but to the contrary, here is a case where the appellant was illegally deprived and denied appointment. 14. It is relevant to refer to the judgment of the Hon’ble Supreme Court in State of Kerala & Ors. It is not the case of the respondents that the appellant was not ready to work, but to the contrary, here is a case where the appellant was illegally deprived and denied appointment. 14. It is relevant to refer to the judgment of the Hon’ble Supreme Court in State of Kerala & Ors. v. E.K.Bhaskaran Pillai JT 2007(6) SC 83 which reads thus:- “4 Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15.6.1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah & Ors. Vs. Union of India & Anr. JT 1989 (1) SC 595, Virender Kumar, G.M., Northern Railways Vs. Avinash Chandra Chadha & Ors. JT 1990 (3) SC 503, State of Haryana & Ors. Vs. O.P. Gupta & Ors. JT 1996(3) SC 141, A.K. Soumini Vs. State Bank of Travancore & Anr. JT 2003 (8) SC 35 and Union of India & Anr. Vs. Tarsem Lal & Ors. JT 2006 (12) SC 33. As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Union of India & Ors. Vs. K.V. Jankiraman & Ors. JT 1991 (3) SC 527, State of A.P. Vs. K.V.L. Narasimha Rao & Ors. JT 1999 (3) SC 205, Vasant Rao Roman Vs. Union of India & Ors. JT 1993(2) SC 457 and State of U.P. & Anr. Vs. Vinod Kumar Srivastava (2006) 9 SCC 621 . We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before Court or Tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the Court may grant sometime full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard and fast rule. The principle 'no work no pay' cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also. 5. However, so far as present case is concerned, as per directions given by the Court, petitioner's case was considered and it was found that persons junior to him were appointed and he was wrongly denied. Therefore, the petitioner was promoted from retrospective effect i.e. 15.9.1961 but he was not paid the benefit of promotion in terms of arrears of salary. Therefore, he approached the Court and learned Single Judge did not give him the monetary benefit of the promotional post from retrospective effect in terms of arrears of salary. In the review application, the benefit was given from the date he filed O.P. No. 585 of 1975 i.e. 15.6.1972. This appears to be reasonable. The petitioner did not approach the Court for the back wages from 15.9.1961 but he filed a petition dated 15.6.1972 and the Court granted the benefit from the date of filing of the petition before the Court i.e. 15.6.1972. The incumbent in the meanwhile has retired on 31.7.1980. Therefore, looking to the facts and circumstances of the case, the view taken by the High Court appears to be justified and there is no ground to interfere in it.” 15. The incumbent in the meanwhile has retired on 31.7.1980. Therefore, looking to the facts and circumstances of the case, the view taken by the High Court appears to be justified and there is no ground to interfere in it.” 15. It is absolutely clear that the legitimate entitlement of the appellant has been scuttled by the respondents on unreasonable and illegal grounds and, therefore, the appellant ought to have been granted the relief as had been claimed by the appellant in the writ petition. However, at this stage, we feel that the ends of justice would be met in case the appellant is granted the relief as requested by him and reflected in the order dated 10.01.2013 (supra). 16. Taking into consideration the entire facts and circumstances and taking holistic view of the matter, we feel that the ends of justice would be subserved in case the appellant is granted the relief as had been requested by him and reflected in the order dated 10.01.2013 (supra) by directing the respondent No.1 to appoint the appellant on notional basis from the date when respondent No.3 was appointed and grant all benefits as had been granted to the respondent No.3, on notional basis and thereafter grant actual pensionary benefits to the appellant. It is further made clear that in case the appellant has withdrawn a sum of Rs.1,50,000/-or any part thereof, he shall refund the same along with 6% interest per annum to the respondents. Lastly, it is clarified that the amount paid to the appellant pursuant to the order dated 14.12.2010 (supra) whereby the appellant was permitted to join the duty as a Forest Guard shall not be recovered from the appellant since he has actually worked on the said post. 17. The appeal is accordingly disposed of in the aforesaid terms, so also the pending application, if any.