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2014 DIGILAW 897 (HP)

Munish Dulta v. Himachal Pradesh University

2014-07-14

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. 1. The petitioner has filed this writ petition claiming therein mainly the following substantive reliefs: “(i) That writ in the nature of mandamus may kindly be issued and the impugned order dated 20.9.2013 (Annexure P-27), may kindly be quashed and set aside. (ii) That writ in the nature of mandamus may kindly be issued directing the respondent University to consider the candidature of the petitioner for appointment as Assistant Professor in the department of Public Administration P.G. Centre, Shimla, with effect from the year 2010 as per the judgment passed by this Hon’ble Court on 28.10.2010 in CWP No. 1762 of 2010. (iii) That the respondent University may kindly be directed to give all the consequential benefits including the arrears of salary, seniority etc. from the year 2010.” 2. It is not in dispute that the petitioner had approached this Court earlier by preferring CWP No. 1762 of 2010, wherein this Court passed the following directions: “In the present case, I find that the only disabled person who has applied for the post is the petitioner and since as found above, the number of posts which have been advertised is very large, there can be no manner of doubt that the petitioner being a disabled person is entitled to be considered for appointment and as such, for this year, a direction is issued that one of the posts of Assistant Professor in the Department of Public Administration shall be reserved for the disabled and in case the petitioner is otherwise found suitable, he shall be appointed to the said post.” 3. It appears that thereafter the respondent issued a fresh advertisement for filling up one post of Assistant Professor and consequent thereupon, the petitioner came to be appointed as Assistant Processor. But, his grievance is that he ought to have been appointed at Shimla in the University Campus itself and not at the Regional Centre at Dharamshala, which action of the University, according to the petitioner, was totally illegal, contrary and frustrated the very judgment passed by this Court. He even issued legal notices to the University and even preferred contempt petition before this Court, which is stated to have been dismissed. 4. Not only this, the petitioner, thereafter filed CWP No. 9231 of 2011, wherein the petitioner claimed similar reliefs as are claimed in this petition apart from certain other reliefs. He even issued legal notices to the University and even preferred contempt petition before this Court, which is stated to have been dismissed. 4. Not only this, the petitioner, thereafter filed CWP No. 9231 of 2011, wherein the petitioner claimed similar reliefs as are claimed in this petition apart from certain other reliefs. That Writ Petition initially came up for consideration on 23.11.2011, on which date, the Court passed the following order: “In view of the plain factual position that there are only eight students in Dharamshala, the University may consider as to whether there should be two Assistant Professors at Dharamshala or whether the petitioner be appointed at Dharamshala and permitted to work at Shimla, for the time being, as a special case. Learned Standing Counsel may get instructionon the above submission. Post on 01.12.2011.” 5. Thereafter, on 7.12.2011, the petition was finally disposed of in the following terms: “The petitioner approached this Court with certain grievances regarding posting at H.P. University, Shimla as Assistant Professor. On 23rd November, 2011, this Court passed the following order: “In view of the plain factual position that there are only eight students in Dharamshala, the University may consider as to whether there should be two Assistant Professors at Dharamshala or whether the petitioner be appointed at Dharamshala and permitted to work at Shimla, for the time being, as a special case. Learned Standing Counsel may get instruction on the above submission. Post on 01.12.2011.” The writ petition is disposed of in terms of the order, as above, with a further direction to the University to pass appropriate orders, within a week. 2. Pending application(s), if any, also stands disposed of.” 6. Though, a number of contentions have been raised by the petitioner which have been strenuously contested by the learned counsel for the respondent, however, the moot question at the very outset is, whether the present petition is maintainable or not. 7. The petitioner, having came to be appointed on 30th July, 2011 and joined on 3rd August, 2011. The contempt petition filed by him claiming appointment at Shimla, has undisputedly been rejected. While, insofar as, his claim thereafter raised in CWP No. 9231 of 2011, similar to the one raised in this petition, is deemed to have been rejected in view of the ratio of the judgment of Hon’ble Supreme Court in State Bank of India vrs. The contempt petition filed by him claiming appointment at Shimla, has undisputedly been rejected. While, insofar as, his claim thereafter raised in CWP No. 9231 of 2011, similar to the one raised in this petition, is deemed to have been rejected in view of the ratio of the judgment of Hon’ble Supreme Court in State Bank of India vrs. Ram Chandra Dubey and others, reported in (2001) 1 SCC 73 , wherein at paragraph 8, it has held as under: “The principles enunciated in the decisions referred by either side can be summed up as follows: Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a preexisting right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages.” 8. Consequently, the Writ Petition is dismissed, leaving the parties to bear their own cost. Pending application(s), if any, shall stand disposed of.