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2024 DIGILAW 199 (HP)

Ravinder Kumar v. State of Himachal Pradesh

2024-03-22

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this writ petition, the petitioner has, inter alia, prayed for the following reliefs:- a) “That the impugned order dated 01.01.2013 issued by the respondents may be quashed and the respondents be directed to regularize the services of the petitioner as Class-III receptionist on seniority basis from January, 1998 and the recovery may kindly be set aside. b) That the respondents may further be directed to grant all consequential benefits after his regularization as receptionist instead of Beldar on seniority basis on January, 1998.” 2. The case of the petitioner is that he was engaged as a daily wager by the respondent-Department on 01.07.1986 and he was assigned the work of a Receptionist w.e.f. 30.09.1983. The petitioner was considered for conferment of work charge status as a Beldar on 01.04.1998, instead of the post of Receptionist. Feeling aggrieved by the fact that the services of the petitioner were not regularized against the post of Receptionist, which was the higher post, work of which was performed by him, the petitioner preferred CWP(T) No. 6549 of 2008 titled Ravinder Kumar versus State of Himachal Pradesh and another, which was decided by the Hon’ble Division Bench of this Court, vide Judgment dated 18.08.2010 (Annexure P-1), by holding as under:- “In the present case, the petitioner had worked as Beldar from 01.07.1986 to 30.09.1993 and thereafter w.e.f. 01.10.1993, the petitioner had been working as Complaint Attendant. The petitioner was given work charged status on 21.03.2000 w.e.f. 01.04.1998 as Beldar. The petitioner is entitled to work charged status as Beldar or Complaint Attendant as per his option in accordance with Gauri Dutt (supra). The respondents are directed to obtain the option of the petitioner within one month from today whether he is to be given work charged status as Beldar or Complaint Attendant. In case the petitioner gives an option, then, he is to be given work charge status as Beldar or Complaint Attendant in accordance with Gauri Dutt (supra) within another three months. In case the petitioner fails to convey his option within 30 days as directed by the respondents, it shall be deemed that the work charge status of Beldar was validly given to the petitioner w.e.f. 01.04.1998. The petition stands disposed of in above terms, so also the pending applications, if any.” 3. In case the petitioner fails to convey his option within 30 days as directed by the respondents, it shall be deemed that the work charge status of Beldar was validly given to the petitioner w.e.f. 01.04.1998. The petition stands disposed of in above terms, so also the pending applications, if any.” 3. In compliance thereto, the respondent-Department issued Annexure P-2, an office order which reads as under:- “Consequent upon the order passed by the Hon’ble High Court of H.P. on dated 18.08.2010 in CWP(T) No.6549 of 08 and further approval received from Engineer-in-Chief, HPPWD, Shimla-2 vide his office letter No.PWE-133 (Court Case) ES-III/-11689-93 dated 12.12.2011 and further clarification received from the Engineer-in-Chief, HPPWD Shimla-2 office letter No.PWE-133 (Court Case) ES-III-12076-77 dated 01-10-2012 and Executive Engineer, Shimla Division No.II, HPPWD, Shimla-4 office letter No.SD-IICB-Estt-4/12-12066 dated 16-102012 on the basis of screening report of the Executive Engineer, Shimla Division No.II, HPPWD, Shimla-3 received in this office vide his office letter No.SD-II-CB-Estt.DW. Seniority/12-20903 dated 16.02.2012, Sh. Ravinder Kumar, S/o Sh. Jia lal, presently working in the office of Executive Engineer Shimla Division No.II, HPPWD, Shimla-4, is hereby regularized as receptionist in the pay scale of Rs.5910-20200+1900 GP Class-III Non-Gazetted w.e.f. 30-12-2006 i.e. from the date of his immediate junior has been regularized on the said post with all consequential benefits so admissible from said date. Therefore, his earlier appointment as Beldar so made by this office fide Executive Engineer, Medical college, HPPWD Shimla-3 office order No. PWMCD-E DW/99-2000-9637-42 dated 21-3-2000 shall now stand withdrawn and the excess pay/emoluments so drawn by him w.e.f. 01.04.1998 as Regular Beldar till his regularization as Receptionist minus wages of Receptionist for said period is liable to be recovered in accordance with law from his within next three years in equal installments after re-fixing the pay as Receptionist. Other terms and conditions are as under:- 1. The above regularization will be considered w.e.f. 30.12.2006 in the post of Receptionist with the concerned controlling officer. 2. No TA/DA will be admissible for joining the above post. 3. He will be on probation period for the first two years as Receptionist. 4. His services will be covered under the civil services regulations applicable for Class-III not gazette. 5. His services will be covered under FR & SR and Civil Services Conduct Rules, 1964. 6. He will be covered under Himachal Pradesh Civil Services contributory pension rules, 2006.” 4. He will be on probation period for the first two years as Receptionist. 4. His services will be covered under the civil services regulations applicable for Class-III not gazette. 5. His services will be covered under FR & SR and Civil Services Conduct Rules, 1964. 6. He will be covered under Himachal Pradesh Civil Services contributory pension rules, 2006.” 4. This officer order stands assailed by the petitioner to the effect that recovery has been ordered to be effected from the petitioner. 5. Learned counsel for the petitioner has argued that first of all, the denial of regularization to the petitioner against the post of Receptionist, when, he gained eligibility for regularization against the said post was bad and, thereafter, when he was regularized in terms of office order (Annexure P-2), recovery, which has been ordered in terms of this order is totally uncalled for because the petitioner in the interregnum was paid wages for the work which he actually performed. 6. On the other hand, learned Advocate General has defended the order passed by the State by submitting that the offer of regularization was given to the petitioner after he completed ten years on daily wage service as a Complaint Clerk/Inquiry Attendant, therefore, he was regularized as such as a Receptionist on 30.12.2006. Learned Advocate General has also argued that the appointment was accepted by him without any protest and filing of this petition being an afterthought, therefore, the same deserves to be dismissed. 7. I have heard the learned counsel for the petitioner and also learned Additional Advocate General and I have also carefully gone through the pleadings as well documents appended therewith. 8. The primary relief prayed in the petition is for regularization with effect from January, 1998 as Receptionist. As it is the own case of the petitioner that the muster roll of Complaint Attendant was issued to him w.e.f. 01.10.1993, therefore, this Court is of the considered view that his regularization in terms of Annexure P-2, w.e.f. 30.12.2006, does not calls for any interference. This is more so for the reason that even in the earlier judgment of this Court referred to hereinabove, it stands recorded that the petitioner had worked as a Beldar from 01.07.1986 to 30th of September, 1993 and thereafter as a Complaint Attendant. This is more so for the reason that even in the earlier judgment of this Court referred to hereinabove, it stands recorded that the petitioner had worked as a Beldar from 01.07.1986 to 30th of September, 1993 and thereafter as a Complaint Attendant. These findings have attained finality and, therefore, now the petitioner cannot call upon the Court to return findings contrary to the one returned by the Hon’ble Division Bench of this Court. 9. Be that as it may, this Court is of the considered view that then also the recovery that stands ordered in terms of Annexure P-2 as a result of the regularization of the petitioner against the post of Receptionist w.e.f. 30.12.2006 is totally uncalled for. This is for the reason that when the Department had earlier extracted the work of a Beldar from the petitioner and, thereafter that of a Receptionist, as per the settled law, when the petitioner became eligible for regularization, option ought to have been given to him whether he wanted to be regularized against the post of Beldar or a Receptionist. That not been done and the petitioner being forced to fight litigation for this relief, consequence thereof cannot be that ultimately when the Department promoted petitioner against the post of Receptionist w.e.f. 20.12.2006, it ordered recovery on account of the re-fixation of the pay of the petitioner as Receptionist. Recovery being sought from the petitioner is uncalled for as he is being penalized for the acts of omission of the Department and otherwise also the petitioner being a Class-III employee, no recovery can be made from him for overpayment in view of the judgment passed by Hon’ble Supreme Court of India in State of Punjab and others versus Rafiq Masih (White Washer) and others, (2015) 4 SCC 334 . 10. Therefore, this petition is partly allowed and office order dated 01.01.2013 (Annexure P-2) to the extent it directs recovery of excess pay/emoluments paid to the petitioner against the post of regular Beldar till his regularization as Receptionist minus wages of Receptionist is quashed and set aside and it is ordered that no recovery whatsoever shall be effected in terms of Annexure P-2 from the petitioner. Pending miscellaneous applications, if any, also stand disposed of.