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2025 DIGILAW 475 (HP)

Ajay Singh Thakur v. State of H. P.

2025-03-24

SATYEN VAIDYA

body2025
JUDGMENT : (Satyen Vaidya, J.) By way of instant petition, the petitioner has prayed for grant of following substantive reliefs:- “i). Issue a writ of mandamus directing the respondent authorities to create further promotional avenues for the post presently held by the present petitioner i.e. Store Ledger Clerk by framing and notifying recruitment and promotion Rules for the aforesaid post. ii). In the alternative issue a writ of mandamus directing the respondent authorities to merge retrospectively the post presently held by the present petitioner i.e. Store Ledger Clerk with the cadre of Clerks and consider the case of the present petitioner for further promotion in the merged cadre. iii) Issue a writ of certiorari to call for the records pertaining to the case at hand.” 2. The petitioner was engaged as daily wage Beldar in IPH Division No.1, Shimla, w.e.f. 01.09.1984. Thereafter, the petitioner was made to work in different capacities viz Supervisor, Store Ledger Keeper, Store Munshi and Store Ledger Clerk. Services of the petitioner were regularized on 01.01.1995 as Store Ledger Clerk. 3. Petitioner repeatedly represented to the respondents to merge the post of Store Ledger Clerk in regular cadre of clerks as there were no independent R & P Rules for the post of Store Ledger Clerk and such post was not even the feeder category for any promotional post. Having failed to secure any positive response from the respondents, the petitioner had filed CWP No. 302 of 2011 in this Court. 4. Petitioner has made specific averments regarding the nature of duties performed by him as Store Ledger Clerk. Petitioner has submitted that the duties performed by the petitioner as Store Ledger Clerk were identical to the duties performed by Senior Assistant/Clerk. Since, the petitioner was to stagnate on the same post throughout his career, petitioner had claimed either to create promotional avenues for the post of Store Ledger Clerk or in alternative to merge the same into the regular cadre of Clerks. 5. The respondents have admitted the facts that the petitioner had been performing the duties as Beldar, Supervisor, Store Ledger Keeper, Store Munshi and Stone Ledger Clerk while he remained on daily wages. The fact that the petitioner was regularized as Store Ledger Clerk has also not been denied. 5. The respondents have admitted the facts that the petitioner had been performing the duties as Beldar, Supervisor, Store Ledger Keeper, Store Munshi and Stone Ledger Clerk while he remained on daily wages. The fact that the petitioner was regularized as Store Ledger Clerk has also not been denied. The defence raised by the respondents is that there are few and isolated posts of Store Ledger Clerk and therefore no specific duties have been defined for such post in the office manual. The absence of specific R&P Rules for the post of Store Ledger Clerk has also been stated to be the reason for denying the claim of petitioner. It is further the case of the respondents that the post of Store Ledger Clerk cannot be equated or merged with the regular clerical cadre as there are specific R & P Rules for the post of Clerks and their duties are specifically defined in the office manual. As per the respondents, the duties of Store Ledger Clerk and Clerks are entirely different. As regards, the allegation of stagnation, the respondents have stated that it has floated an Assured Career Progression Scheme, by virtue of which, provision for higher scale after 8, 16, 24 and 32 years has been made applicable in case the official does not get promotion by such time. 6. While filing the rejoinder, the petitioner has placed on record the information received by him under RTI Act to establish that there was no difference between the Store Ledger Clerk and the Clerks in so far as the performance of duties was concerned. 7. CWP No. 302 of 2011 was disposed of by this Court vide judgment dated 21.03.2012 in following terms:- “6. Submission made by the learned Additional Advocate General that the petitioner shall be entitled to the benefit of Assured Career Progression Scheme cannot be accepted for the reason that it already stands abolished. On the question that he has been granted benefit of higher pay scale, the petitioner would otherwise be entitled to the increments. This submission therefore cannot be accepted in view of the law laid down by the Supreme Court, supra. In these circumstances, this writ petition is allowed. A direction is issued to the respondents to consider the case of the petitioner in accordance with the law laid down, by the Supreme Court as noticed above. This submission therefore cannot be accepted in view of the law laid down by the Supreme Court, supra. In these circumstances, this writ petition is allowed. A direction is issued to the respondents to consider the case of the petitioner in accordance with the law laid down, by the Supreme Court as noticed above. Learned counsel for the petitioner submits that the post be merged with that of clerk on which the petitioner is already performing duty. He places reliance on the material placed on record of the case. That will be a matter to be considered by the State. This writ petition is disposed of accordingly. The entire process be completed not later than 1 st October, 2012. No order as to costs. 8. The respondents/State filed Letters Patent Appeal against the judgment dated 21.03.2012 which was decided by the Hon’ble Division Bench of this Court as LPA No. 4066 of 2013 vide judgment dated 29.10.2013 in following terms:- “3. The appellants on affidavit in the present appeal have asserted that the factual position noted in paragraph 6 is incorrect. In grounds B and E, the appellants have asserted thus: “B. That the learned Single Judge below has gravely erred in not considering the submission made by appellant about benefits of ACPS and thereby holding that ACPS cannot be accepted for the reason that it already stands abolished, whereas the facts remain the appellant-State has resorted the ACPS after putting service of 8,16,24 and 32 years and further introduced in its place ACPS after putting in service of 4,9,14 years on a particular post. In this view of the matter, the impugned judgment and order is liable to be quashed and set aside in the interest of justice. E. That the learned Single Judge has gravely erred in applying the ratio of the judgment passed by the Hon’ble Supreme Court of India as the respondent and other Store Ledger Clerks were not appointed against any vacancy or substantive post but were engaged on daily wages as a casual employee. E. That the learned Single Judge has gravely erred in applying the ratio of the judgment passed by the Hon’ble Supreme Court of India as the respondent and other Store Ledger Clerks were not appointed against any vacancy or substantive post but were engaged on daily wages as a casual employee. The services of the respondent and other incumbents in the category Store Ledger Clerks were regularized as per policies of the Government framed from time to time for such daily wages workers who have worked continuously for 10 and 8 years of service with a minimum of 240 days in each calendar years and posts were created in accordance with the strength of daily waged workers in respective circles and were thus not recruited in terms of provision of any R&P Rules. Moreover most of work charge converted into regular establishment including the category of Store Ledger Clerks were declared as Technician and further bifurcated in the ratio of 20:30:50 as Technician Grade I, Technician Grade II and Technician respectively by granting three tier higher pay scales of Rs.4550-7220, 4020-6200, 3120-5160 in the pre-revised pay Rules scales, which was itself a sort of promotion. With the implementation of the revised pay scale effect from 1.1.2006, it was stopped but vide letter No.FIN(PR)B(7)-59/2010 dated 9.8.2012. The appellant-State have resorted to ACPS and further introduced a new Assured Progression Scheme on completion of 4-9-14 years of service and in accordance with this scheme an employee who is not promoted to a higher post on account of non-availability of vacancy or non-existence of promotion avenues in the cadre shall be granted the grade pay, which is next higher in the hierarchy of grade pay given in the schedule of revised pay rules 2009 upto the maximum grade pay of Rs.8900. In this view of the matter the impugned judgment and order dated 21.3.2012 is liable to quashed and set aside in the interest of justice.” 4. We are in agreement with the submission made by the respondent that this is a new plea taken for the first time in the above paras and was not a matter of record in the reply filed to oppose the writ petition. We are in agreement with the submission made by the respondent that this is a new plea taken for the first time in the above paras and was not a matter of record in the reply filed to oppose the writ petition. Nevertheless, in the interest of justice, we deem it appropriate to set aside the decision of the learned Single Judge and remit the matter for re- consideration, as we are of the considered opinion that if the appellants are right in asserting, as has been stated in grounds B and E reproduced earlier, that will go to the root of the matter. Accordingly, the impugned decision is set aside without expressing any opinion either on the merits of the rival contentions, which will have to be decided by the learned Single Judge afresh in accordance with law. 5. The writ petition is restored to the file to its original number to be proceeded before the learned Single Judge under caption “High Court Expedited Cases”. To be included in the consolidated list for the month of February, 2014 as per its turn.” 9. I have heard learned counsel for the parties and have also gone through the entire record carefully. 10. The respondents have not disputed the nature of duties performed by the petitioner as Store Ledger Clerk. The information provided to the petitioner under RTI Act, which has been placed on record by way of Annexure P-12, makes it abundantly clear that the duties performed by the petitioner are clerical in nature and in other offices of the same department, identical duties are performed by the staff of accounts branch and auditors. Apparently, the information provided by other offices of the same department made mention that similar duties were being discharged either by auditors or at sub division level but the designation by whom such duties are performed has intentionally been withheld. However, in reply to the query that whether such duties are clerical in nature, the answer in affirmative has been provided. 11. Thus, the duties discharged by the petitioner as Store Ledger Clerk were not different to that of Clerks working either in other offices of the same department or other departments of the State Government. 12. It is also not disputed that the pay scale granted to the petitioner was that of Clerk. 11. Thus, the duties discharged by the petitioner as Store Ledger Clerk were not different to that of Clerks working either in other offices of the same department or other departments of the State Government. 12. It is also not disputed that the pay scale granted to the petitioner was that of Clerk. Though, the petitioner in his rejoinder denied the applicability of assured career progression scheme to him yet even if it was applicable to the petitioner, what was not available to the petitioner was a chance of progression in terms of designation through out his career. 13. While passing the judgment in CWP No. 302 of 2011 a coordinate bench of this Court had placed reliance on following extract from the judgment passed by the Hon’ble Supreme Court in case titled as Council of Scienti Industrial Research and another vs. K.G.S. Bhatt and another (1989)4 SCC 635 :- “9. ……..This is indeed a sad commentary on the appellant's management. It is often said and indeed, abroitly, an organisation public or private does not 'hire a hand' but engages or employees a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See : Principles of Personnel Management by Flipo Edwin B. 4th Ed. p. 246). Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both no managerial employees and their supervisors". (See : Personnel Management by Dr. Udai Pareek p. 277). There cannot be any modern management much less any career planning, man- power development, management development etc. which is not related to a system of promotions……” 14. Similar reiteration was noticed by the said bench having been made by the Hon’ble Supreme Court in Raghunath Prasad Singh vs. Secetary, Home (Police) Department Government of Bihar and others, 1988 (Supp) SCC 519 which reads as under:- “4. which is not related to a system of promotions……” 14. Similar reiteration was noticed by the said bench having been made by the Hon’ble Supreme Court in Raghunath Prasad Singh vs. Secetary, Home (Police) Department Government of Bihar and others, 1988 (Supp) SCC 519 which reads as under:- “4. Before we part with the appeal, we would like to take notice of another aspect. In course of hearing of the appeal, to a query made by us, learned counsel for the appellant indicated the reason as to why the appellant was anxious to switch over to the general cadre. He relied upon two or three communications which are part of the record where it has been indicated that there is no promotional opportunity available in the wireless organization. Reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly. We would, therefore, direct the State of Bihar to provide at least two promotional opportunities to the officers of the State Police in the wireless organization within six months from today by appropriate amendments of Rules. In case the State of Bihar fails to comply with this direction, it should, within two months thereafter, give a fresh opportunity to personnel in the police wireless organization to exercise option to revert to the general cadre and that benefit should be extended to every one in the wireless organization.” 15. Thus, from the above exposition, an obligation of employer to provide avenues for career progression to its employees is clearly made out. 16. Absence of R & P Rules for the post of Store Ledger Clerk cannot be raised a valid ground to deny the petitioner his dues. The R & P Rules were to be framed by the respondents. In case, in the opinion of respondent No.1, enough number of posts of Store Ledger Clerk, were not available, the said post could easily be merged with the cadre of clerks. The reason for which the respondents/State did not deem it proper to merge the post of Store Ledger Clerk in the cadre of general clerks, that the nature of duties was different, has already been held to be fallacious in the observations made hereinabove. The reason for which the respondents/State did not deem it proper to merge the post of Store Ledger Clerk in the cadre of general clerks, that the nature of duties was different, has already been held to be fallacious in the observations made hereinabove. 17. As regards the grant of benefit of ACPS to the petitioner being reason to deny him the progression in career, it is held that the grant of ACPS cannot be a substitute for career progression more particularly when the post of clerk is feeder category for various promotional posts. Even otherwise, there cannot be a comparison between the two in the absence of any quantified data of benefits available under ACPS vis-a-vis available to a person after promotion. 18. Objection of the respondents, as noticed by Hon’ble Division Bench of this Court while deciding LPA No.4066 of 2013, that Store Ledger Clerks were not appointed against any of the vacancy or substantive post but were engaged on daily wages and as casual employees and hence could not be equated with clerks having been appointed against regular posts also deserves to be rejected for the reason, firstly, that the respondents were extracting the work of store ledger clerk from the petitioner during his daily wage service; secondly, the petitioner was regularized as a Store Ledger Clerk and; lastly, he worked through out his career as Store Ledger Clerk. If there was no post or requirement of Store Ledger Clerk, why the petitioner was regularized on such post is a question that has not been answered by the respondents. How and under what circumstances the petitioner has been allowed to work on non existant post throughout his career is another question. It cannot be ignored that the respondents/State cannot pay a regular employee without existence of substantive post. The fact of the matter is that there was only a difference of nomenclature attached to the post held by the petitioner, whereas for all intents and purposes it was a post of Clerk. 19. The denial of promotional avenue to the petitioner either by not amending the appropriate R & P Rules or by merging the post of Store Ledger Clerk with the general cadre of clerks, the respondents/State has clearly acted irrationally and arbitrary which is nothing but manifestation of discrimination in public service. The equals cannot be treated unequally. 19. The denial of promotional avenue to the petitioner either by not amending the appropriate R & P Rules or by merging the post of Store Ledger Clerk with the general cadre of clerks, the respondents/State has clearly acted irrationally and arbitrary which is nothing but manifestation of discrimination in public service. The equals cannot be treated unequally. The classification drawn by the respondents/State is mere illusory. The petitioner cannot be made to suffer for inaction of respondents. 20. The petitioner had been representing to the respondents since November, 1995. He has also been pursuing his cause before this Court. During the pendnecy of the petition, the petitioner has attained the age of superannuation. The delay in adjudication of the rights of the petitioner cannot be a ground to deny him justice. His right is not defeated by mere fact that the petitioner has retired. As the fight of the petitioner had been for honour, though belatedly, the petitioner is still entitled to enjoy the taste of success. 21. Accordingly, the petition is allowed. Respondent No.1 is directed to consider the case of petitioner for regular appointment in the general cadre of clerks from the date of his regularization as Store Ledger Clerk and thereafter allow him all service benefits including the promotion(s), if any. However, arrears of financial benefits shall be confined for the period of three years immediately prior to the filing of this petition. Petition is accordingly disposed of, so also, the pending applications, if any.