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Himachal Pradesh High Court · body

2019 DIGILAW 1934 (HP)

Kamla Devi v. State Of H P

2019-12-17

AJAY MOHAN GOEL

body2019
JUDGMENT Ajay Mohan Goel, J. - By way of this writ petition, the petitioner has prayed for the relief that after quashing order dated 08.02.2016 (Annexure P-16), a direction be issued to the respondents to merge the petitioner against the post of a clerk with all consequential benefits as from the date when persons junior to her (private respondents) were merged. 2. Brief facts necessary for the adjudication of the present writ petition are that the petitioner was initially engaged on daily wage basis as a Store lerk by the respondent-orporation in the year 1989. Her services were regularized as such in the year 1998. It appears that after regularization of services of the petitioner, respondent-State gave an option to the employees serving as Store lerks/Receptionists in H.P. Public Works Department for merger against the post of lerk. 3. Vide Annexure P-l, i.e. communication dated 04.03.2010, name of the petitioner was forwarded alongwith other employees by Superintending Engineer, 1st Circle, HPPWD, Mandi, to Engineer-in-Chief , HPPWD, Shimla, for being considered for merger as Clerk as the petitioner was one of the employee who had given their willingness for the said purpose. 4. Thereafter, vide Annexure P-3, dated 01.09.2012, respondent-Department took a conscious decision with regard to the merger of Store lerks and Receptionists in the cadre of Clerks to the effect that those Store lerks and Receptionists were to be merged as lerks who were possessing minimum qualification of 10+2. This was followed by issuance of office order dated 24.09.2012, Annexure P-4, vide which, 60 willing Store lerks and Receptionists in H.P. Public Works Department were merged in the cadre of lerks with immediate effect. In this list, name of the petitioner was not there as she was not possessing the qualification of 10+2. 5. Vide Annexure P-6, the petitioner qualified her 10+2 in the month of October, 2012 from National Institute of Open Schooling (Government of India). 6. In the meanwhile, the petitioner initially filed WP No.9139 of 2014 before this ourt, which was disposed of vide order dated 19.12.2014, with liberty to the petition to make a representation for the redressal of her grievance to the Engineer-in-hief, HP Public Works Department. The representation of the petitioner was rejected by the Engineer-in-hief, vide communication dated 10.02.2015. 6. In the meanwhile, the petitioner initially filed WP No.9139 of 2014 before this ourt, which was disposed of vide order dated 19.12.2014, with liberty to the petition to make a representation for the redressal of her grievance to the Engineer-in-hief, HP Public Works Department. The representation of the petitioner was rejected by the Engineer-in-hief, vide communication dated 10.02.2015. Annexure P-12, inter alia, on the ground that the petitioner could not be merged as a Clerk on 29.09.2012 as at the relevant time, she was not possessing the minimum qualification of 10+2. It was also mentioned in this office order that there were other similarly situate employees as the petitioner and their services were also not merged. 7. Record demonstrates that this order was assailed by, the petitioner before the learned Himachal Pradesh administrative Tribunal by way of OA No.165 of 2015, which stood disposed of by the learned Tribunal by again permitting the petitioner to file a representation to the authority concerned. 8. This representation was also rejected vide order dated 08.02.2016 (Annexure P-16), by reiterating its earlier stand but with a further observation that as the Government was considering the merger of Store lerks in the cadre of lerks, the applicant can exercise her option for merger alongwith other Store lerks of the Department as and when Government approves the same. 9. It is in this background that the petitioner again approached the learned Erstwhile Tribunal by way No.997 of 2016, which now stands transferred to this court and is being adjudicated upon as the present writ petiton. 10. In the response, which has been filed to the writ petition, respondent-State has appended therewith communication dated 28.12.2016, Annexure R-2, as per which, 12 Store Keepers, as per list enclosed, were merged in the cadre of clerks and petitioner was purportedly was not considered on the ground that the Board, from which, she has passed her 10+2 was not recognized. 11. Learned counsel for the petitioner while referring to Annexure P-8, appended with the writ petition has argued that said communication which was addressed Joint Director of Higher Education to the Government of Himachal Pradesh, dated 23.04.2013, Annexure P-8, contained the name of the Board, from which, the petitioner has passed her 10+2 at Serial No.31, which categorically demonstrates that this Board was duly recognized by the Government of Himachal Pradesh. 12. 12. During the course of arguments, learned Additional Advocate General though has not seriously disputed this aspect of the matter. However, he has submitted that the reason as to why the petitioner was not considered for merger as a lerk vide communication dated 28.12.2016, is that in the consent form, which was so submitted by her for merger against the post of Clerk she has sought her merger as from the date wherr she had passed her 10+2 and as the same was not possible, therefore, she was not considered for merger against the post of lerk. 13. Having heard learned counsel for the petitioner as well as learne Additional Advocate General and having perused the pleadings as well as documents which are on record, in considered view, denial of merger against the post of clerk to the petitioner at least from the date when persons juniors to her stood promoted as such vide Annexure R-2, dated 28.12.2016, is arbitrary and not sustainable in law. 14. The stand of the respondent-State that petitioner was not merged as a lerk vide communication dated 28.12.2016 (though admittedly persons junior to her were merged as lerks) as she was seeking her merger as clerk from the date when she passed her 10+2 examination, is not sustainable in law. The petitioner expecting her merger as lerk from the date when she acquired the qualification of 10+2, might have had mentioned in her consent form the date from which she was seeking her merger, however, the same was not binding upon the respondent-Department. The respondent-Department would have had been well within its authority to order the merger of the petitioner alongwith other Store Keepers w.e.f. 28.12.2016. However, it could not have denied merger to the petitioner simply on the ground that in her consent form she was seeking merger from the date when she had passed her 10+2 examination. Therefore, non-inclusion of the name of the petitioner in Annexure R-2/denial of merger to the petitioner as a lerk w.e.f. 28.12.2016, i.e., the date when persons junior to her were merged as such, is arbitrary and thus, violative of Article 14 of the Constitution lndia, and not sustainable in law. 15. Therefore, non-inclusion of the name of the petitioner in Annexure R-2/denial of merger to the petitioner as a lerk w.e.f. 28.12.2016, i.e., the date when persons junior to her were merged as such, is arbitrary and thus, violative of Article 14 of the Constitution lndia, and not sustainable in law. 15. According, this writ petition is allowed to the extent that the respondent-State is directed to order the merger of the petitioner as a lerk w.e.f 28.12.216 or w.e.f from any such date, vide which, 12 persons as mentioned in the list enclosed with Annexure R-2, were merged against the post of lerks. Due seniority shall be given to her below the person senior to her as Store Keepers and above the person junior to her as Store Keeper. If need be, supernumerary post be created for the said purpose. As from the date in issue from which the petitioner shall be merged as a lerk, she will be given notional benefits of the post of lerk and actual benefits shall be conferred upon her of the post of a lerk w.e.f. from today. Necessary orders in this regard shall be passed by the respondent(s) within a period of four weeks from today, giving her consequential benefits also. The petition stands disposed of in above terms, so also the pending application(s), if any.