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Himachal Pradesh High Court · body

2017 DIGILAW 1396 (HP)

Manoj Kumar v. State Of H. P.

2017-12-15

AJAY MOHAN GOEL

body2017
JUDGMENT Ajay Mohan Goel, J. - This petition was filed by the petitioners praying for the following reliefs:- (i) That the impugned annexure P-3 dated 24.3.2011 issued by respondents with respect to ordering recoveries of Rs. 1000 per month from the pay package of petitioners may very kindly be quashed and set aside. (ii) That recoveries as made till date by respondent in view of annexure P-3, may very kindly be ordered to be refunded to the petitioners. (iii) That respondents may very kindly be directed to give placement to the petitioners as Junior Assistant i.e. 50% of cadre of clerks of respondent who have completed 5 years of service in the cadre w.e.f. due date i.e. 1.1.1998 with all consequential benefits of arrears of pay etc. etc. (iv) That superfluous wording as is given in rules of the year 2001 in as much as that ''Junior Assistant will be promoted from clerks'' may very kindly be ordered to be deleted from the statute book. (v) That directions may be given to the respondents to correct orders annexure P-2 thereby ordering placement of petitioners and not promotion and accordingly only respondents may very kindly be directed to meet audit para as per office procedure forthwith without any further delay. (vi) Directions may be given to respondents to act in accordance with annexure P-1 and order placement of petitioners to the post of Junior Assistants w.e.f. 1.1.1998 in the interest of law and justice with consequential benefits. (vii) That the records pertaining to the case may also kindly be directed to be summoned for the kind perusal of this Hon''ble Court. Any other or further relief as this Hon''ble Court may deem just and proper keeping in view the facts and circumstances of the case may also be passed in favour of the Petitioners and against the respondents." 2. On 04.10.2017, when the matter was heard by the Court, the following order was passed:- "It has been jointly stated at the bar that with the afflux of time and on account of subsequent developments prayer No. (i) and (ii) have been rendered infructuous. Mr. Ajay Sharma learned counsel for the petitioners submits that now the surviving grievance of the petitioners are qua prayer No. (iii)." 3. Mr. Ajay Sharma learned counsel for the petitioners submits that now the surviving grievance of the petitioners are qua prayer No. (iii)." 3. In view of above, now this Court will only be adverting to the issue germane to adjudicating the surviving cause of petitioners i.e. relief (iii) claimed by the petitioners. Petitioners pray that the respondents be directed to place the petitioners as Junior Assistants with effect from the due date i.e. 01.01.1998 with all consequential benefits of arrears of pay etc. to the extent of 50% of the cadre of Clerks who had completed 5 years of service as on 01.01.1998. The genesis of the said relief as can be culled out from the averments made in the petition is that as per petitioners when benefit of ACP stands given to the employees of the Trust at par with the Government employees then the same also has to be given from the date the same was given to government employees. For this reliance is paled upon notification Annexure P-1. 4. On the other hand, the contention of the respondents is that Baba Balak Nath Temple Trust had made Service Rules for its employees at its own level in the year 1991 and services of the employees were regularized in the year 1996 w.e.f. 01.01.1993. As per the said Rules, petitioners completed 5 years of regular service in the year 1998 and as per Government notification, the Clerks who have completed 5 years of service had to be placed on the post of Junior Assistants. It is further the stand of the respondents that as notification dated 01.09.1998 was not adopted by the Temple Trust, hence such like benefits were not conferred upon the petitioners immediately. It is further the stand of the respondents that Service Rules framed in the year 1991 were repealed in the year 2001 and thereafter, the employees were governed by the said Rules. As per these Rules, petitioners were placed as Junior Assistants vide order dated 23.08.2003 w.e.f. 03.09.2001 on the recommendations of the Departmental Promotion committee. This is also clear from the supplementary affidavit so filed by respondents No. 2 and 3 dated 21.03.2017. 5. Be that as it may, fact of the matter remains that notification dated 01.09.1998 was not adopted by Baba Balak Nath Temple Trust. This is also clear from the supplementary affidavit so filed by respondents No. 2 and 3 dated 21.03.2017. 5. Be that as it may, fact of the matter remains that notification dated 01.09.1998 was not adopted by Baba Balak Nath Temple Trust. It is also not in dispute that the employees of the trust are governed by the service rules which have been so framed by the Trust. Whereas, the basis of the petitioners'' contention that they are entitled for benefits as conferred upon them vide Annexure P-2 w.e.f. 01.01.1998 is notification dated 01.09.1998 issued by the Government of Himachal Pradesh, Finance Department, the justification of the respondents of conferring the said benefits upon the petitioners from the dates as they find mention in Annexure P-2 is that the benefits have been conferred on the basis of service rules which govern the services of the petitioners. 6. In this background, in my considered view, when no legal right of the petitioners has been proved to have been breached by the respondents, this Court cannot issue a writ of mandamus calling upon the respondents to confer a particular status or benefit upon the petitioners from a particular date. That being the prerogative of the respondent-trust cannot be pre-empted by the Court. Of course, this Court has got ample powers to intervene in case the employer acts in an arbitrary manner but for that the employee has to establish on record that he had an existing right and the said right stands breached by the employer. In the present case, the petitioners have not been able to establish that they had any existing legal right for being conferred benefit which stands bestowed upon them by Annexure P-2 w.e.f. 01.09.1998. Simply because the State Government had done for its own employees, the same does not cast any duty in law upon the respondent-Trust to follow the suit. 7. In view of above discussion, in my considered view, as the petitioners are not entitled to relief (iii) as has been claimed in the relief clause of the petition, the petition is accordingly dismissed. No order as to costs. Miscellaneous Applications pending, if any, stand disposed of. Interim order, if any, also stands vacated.