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2016 DIGILAW 2686 (HP)

Bhuri Singh v. State of Himachal Pradesh

2016-12-20

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

body2016
Tarlok Singh Chauhan, J. This Letters Patent Appeal is directed against the judgment passed by the learned writ Court on 15.07.2011 whereby his claim for appointment as Pipe Fitter with retrospective effect came to be dismissed. 2. As per the pleaded case of the appellant, he joined services of the respondent-Department in the year 1984 as daily waged ‘Beldar’ and subsequently in July, 1986, was engaged as a Pipe Fitter. His case for regularization was considered in the year1993 and he was appointed as a work charged ‘Beldar’ instead of a Pipe Fitter. He thereafter on 09.03.1995 joined under protest and at the same time filed OA (M) No.424/95 before the learned Tribunal wherein he claimed regularization as Pipe Fitter. The Original Application was decided on 25.06.1996 by directing that the appellant would be entitled for appointment to the post of work charged Pipe Fitter in the lowest grade i.e. the scale of Rs.770-1350/- and his services would be regularized in the said category as and when vacancy is available with the respondent-Department. 3. In compliance to the judgment, the respondents on 07.03.1998 issued a corrigendum and the designation of the appellant instead of ‘Beldar’ was shown as Fitter in the scale of Rs.770-1350/-. 4. Aggrieved by the corrigendum, the appellant filed O.A.No.78/2002 wherein he claimed that the respondent-Department should have appointed the appellant to the post of Pipe Fitter and granted him time scale on seniority basis. It was further averred that the respondents in violation of the judgment earlier passed by the learned Tribunal had appointed junior persons to the post of Pipe Fitter thereby violating the provisions of Articles 14 and 16 of the Constitution of India. 5. The respondents filed reply wherein it was averred that the judgment passed by the learned Tribunal in favour of the appellant had been implemented in its letter and spirit and the appellant had been appointed in the pay scale of Rs.770-1350/-, even though no post of Pipe Fitter was available. 6. It was upon closure of the learned Tribunal at that time that the record of the Original Application No.78/2002 was transferred to this Court and was registered as CWP(T) No.8192/2008. 6. It was upon closure of the learned Tribunal at that time that the record of the Original Application No.78/2002 was transferred to this Court and was registered as CWP(T) No.8192/2008. The same came up for consideration before the learned writ Court on 15.07.2011 and the only argument put-forth by the appellant was that the judgment passed by the learned Tribunal on 25.06.1996 has not been implemented in its letter and spirit. However, the said contention was negated by the learned writ Court. 7. It is this judgment which has been assailed by the appellant on the ground that the learned writ Court had fallen in error in concluding that the petition had been filed for seeking compliance of the judgment of the erstwhile Tribunal in OA (M) No.424/95, whereas, the appellant had infact set up a claim that he should be considered as daily waged Fitter with effect from July, 1996, so as to be eligible and entitled for the grant of work charged status of Pipe Fitter after 10 years. We have heard the learned counsel for the parties and gone through the records of the case. 8. At the outset, we may notice that the directions passed by the learned Tribunal in OA (M) No. 424/95 are very specific whereby the appellant was directed to be appointed as Pipe Fitter in the lowest grade with the scale of work charged ‘Beldar’ in the scale of Rs.770-1350/- and the same read as under:- “The lowest grade of the post held by the applicant i.e. Beldar and Pipe Fitter to complete 10 years continuous service is that of Beldar, that is to say the scale of the Beldar is that of 770-1350, as such the applicant is to be made a work charged employee as Pipe Fitter in the lowest grade i.e. the scale of work charged Beldar in the scale of Rs.770-1350. The applicant would thus entitled to be appointed to the said post and his services to be regularised in the said category as and when vacancy is available with the respondent-department and the regularisation is to be done on the basis of seniority of the applicant in the seniority list maintained by the Department under the scheme.” 9. The applicant would thus entitled to be appointed to the said post and his services to be regularised in the said category as and when vacancy is available with the respondent-department and the regularisation is to be done on the basis of seniority of the applicant in the seniority list maintained by the Department under the scheme.” 9. We further find that the respondents in compliance of the aforesaid directions had infact issued a corrigendum on 07.03.1998 and the same reads as under:- “As the status of Pipe fitter in the lowest grade of Rs.770-1350 has been given by the Administrative Tribunal H.P. Shimla in OA No. (M)-424/95 as per judgment dated 25.06.1996 in favour of Shri Bhuri Singh S/o Sh.Tashi Ram Village Kuthed, P.O.Deola, Tehsil Churah, Distt. Chamba, the name of post as written as Beldar in the appointment order of Shri Bhuri Singh may be read as Fitter in the scale of Rs.770-1350. This is w.r.to the clarification as sought for vide IPH-A-5-E(3)28/97 dated 5.12.97 from the Financial Commissioner-cum-Secretary (IPH) to the Govt. of Himachal Pradesh Shimla.” 10. From what has been extracted above, we have no doubt in our mind that the order passed by the learned Tribunal directing the appellant to be designated as Pipe Fitter in the lowest grade of Rs.770-1350/- was duly complied with by the respondents by issuing corrigendum dated 07.03.1998. If that be so, then there is no occasion for the appellant to have any further grievance. What infact the appellant is striving for is questioning the orders passed by the learned Tribunal on 25.06.1996 in OA (M) No.424/95 which obviously is not permissible? If at all the appellant was aggrieved by the directions passed by the learned Tribunal whereby he was ordered to be placed in the lowest grade, he ought to have either filed a review petition or assailed the said order before the higher Forum/Court. 11. Having failed to do so, the findings as recorded by the learned Tribunal would obviously stare at his face having attained finality. 11. Having failed to do so, the findings as recorded by the learned Tribunal would obviously stare at his face having attained finality. That apart, even at the time of filing of CWP (T) No.8192/2008 out of which the present appeal arises was taken up for consideration, the only contention put-forth by the appellant was that the judgment passed by the learned Tribunal on 25.06.1996 had not been implemented in its letter and spirit, as would be evident from the perusal of the judgment, the relevant portion whereof reads thus:- “3. Mr. Rajesh Raghuvanshi, learned counsel for the petitioner has argued that the judgment dated 25th June, 1996 rendered by the learned Tribunal has not been implemented in letter and spirit. 4. However, it is evident from the material placed on record and the contents of Annexure-R dated 9.3.1998 filed with supplementary affidavit that the petitioner’s designation was changed from Beldar to pipe fitter in the pay-scale of Rs.770-1350. 5. The grievance of the petitioner stands redressed and the judgment rendered in OA (M) No. 424 of 1995 has already been implemented. Consequently, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. No costs.” 12. Having obtained judgment in his favour, the appellant cannot turn around and now claim that he should have been appointed as a daily waged Pipe Fitter with effect from July, 1986 alongwith pay-scale which in teeth of the findings recorded by the learned Tribunal in its judgment dated 25.06.1996 is not clearly available to him. That apart, even while filing OA No.78/2002 (CWP(T) No. 8192/2008), the only claim agitated at the time of arguments pertained only to the non-implementation of the aforesaid judgment and that being the position, the appellant is otherwise precluded and estopped from raising the contention as now sought to be raised in this appeal. 13. Consequently, we find no merit in this appeal and accordingly the same is dismissed, leaving the parties to bear their own costs.