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2025 DIGILAW 749 (HP)

Madho Ram v. State of H. P.

2025-04-11

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. By way of instant petition, the petitioner has prayed for grant of following substantive reliefs:- “i). That the pay of the applicant be fixed in the pay scale as it is being given to the similarly corresponding category of Class-IV w.e.f. 20.11.1980. ii). That the pay of the applicant be fixed having regard to the length of service with effect from the date of his initial appointment by ignoring the break if any noticed. iii) The fixation shall be made as per the general principle adopted whenever pay revision are made. In case upward revision has been effected in respect of the category the applicant is appointed in the regular cadre, such revision should be taken into account in refixing the pay of the applicant. iv) The amount representing the difference in the pay of the applicant computed as per the present order shall be paid. The applicant shall be entitled to increments in the pay scale in accordance with law not withstanding the break in service that might have been given. v) That the respondents shall not show displeasure at the applicant who has approached the Tribunal in order to vindicate his right to claim EQUAL PAY FOR EQUAL WORK and the services of the applicant will not be terminated except on reaching the age of superannuation. vi).That the respondents shall also fix the pay of the applicant by extending the benefit of defence approved service i.e. w.e.f. 4.03.1963 to 30.01.1979.” 2. The case as set up by the petitioner is that he had served defence forces w.e.f. 04.03.1963 to 31.01.1979. After his discharge from Army, the petitioner got himself enrolled with the employment exchange. 3. In 1980, the respondents came up with a new project known as Indo German Dhauladhar Farm Forestry Project (for short “the project”) with headquarter at Palampur in District Kangra. Vacancies against Class-IV posts were notified for the project. Sponsorship of the names of eligible candidates was sought from the employment exchanges. In this process, the name of petitioner was also sponsored. Selection process was held by a duly constituted selection committee. The name of petitioner was recommended by the selection committee as one of the successful candidate. Accordingly, the petitioner was appointed as Chowkidar on fixed salary of Rs.300/- per month vide letter dated 12.11.1980 (Annexure A-1). 4. The project came to an end in the year 1988. Selection process was held by a duly constituted selection committee. The name of petitioner was recommended by the selection committee as one of the successful candidate. Accordingly, the petitioner was appointed as Chowkidar on fixed salary of Rs.300/- per month vide letter dated 12.11.1980 (Annexure A-1). 4. The project came to an end in the year 1988. In a meeting chaired by Chief Secretary to the Government of Himachal Pradesh, held on 12.07.1988, a decision was taken to transfer the surplus staff of the project to the respondent- department. In result, the services of the petitioner were placed at the disposal of Divisional Forest Officer (DFO), Palampur. The petitioner resumed his duties w.e.f. 01.09.1989 and till the date of filing of petition, he worked in the same capacity. The status of petitioner in forest department was as daily wage worker. 5. Petitioner approached the erstwhile Himachal Pradesh Administrative Tribunal (for short “the Tribunal”), by way of O.A. No. 1025/D/1995. The petitioner alleged that his initial appointment in the project was as a regular employee and for such reason he was entitled to the initial pay scale of the post of Chowkidar with usual allowances. Petitioner averred that his duty hours were from 5.00 P.M. to 9.00 A.M. next morning and for such reason he was otherwise entitled for salary equivalent to regular Chowkidars by application of principle of “equal pay for equal work”. He submitted that the payment of fixed salary to the petitioner was bad in law. 6. Petitioner has further alleged that his engagement as Chowkidar on daily wage in forest department was also bad in law for the reason that his initial appointment was regular. Further, it was not decided by the High Level Committee in its meeting dated 12.07.1988 to transfer the services of petitioner to the forest department on daily wage basis. 7. The petitioner also claimed the benefit of his past service from 1973 to 1979 in the Army. 8. The respondents have contested the claim of the petitioner by alleging that the appointment of petitioner in the project could not be said to be regular as the project itself was not permanent. 7. The petitioner also claimed the benefit of his past service from 1973 to 1979 in the Army. 8. The respondents have contested the claim of the petitioner by alleging that the appointment of petitioner in the project could not be said to be regular as the project itself was not permanent. Office order by way of which the petitioner was engaged in the project clearly mentioned that the appointment of petitioner as Chowkidar was on a fix salary of Rs.300/- per month w.e.f. 20.11.1980 and the petitioner would not be entitled to any other allowances. The letter also mentioned that the services of petitioner could be dispensed with without giving any notice or reason. It has also been submitted that the governing body of the project had never decided to engage the surplus employees of project in the department of forest on regular basis. 9. In reply to CMP-T No. 19 of 2013, the respondents have stated that the services of the petitioner were regularized in the department of forest in the year 1998 as per the policy of the Government. As regards the claim of the petitioner qua the counting of past military service, it has been submitted that the employment of petitioner in the project or in the forest department was not against any post reserved for ex-servicemen and hence the petitioner was not entitled for addition of his military service for the purpose of pay scale or seniority etc. 10. I have heard learned counsel for the parties and have also gone through the entire record carefully. 11. It is revealed from the record that O.A. filed by the petitioner was decided by the Tribunal vide order dated 30.05.1997 in following terms:- “6. The observations made in the Full Bench case referred to above squarely cover the facts of the instant case. In view of above narration the application is allowed and the respondents are directed to re-draw the seniority list. The respondents are further directed to give the benefit of approved military service to the applicant(s) with all consequences.” 12. The respondents had assailed the aforesaid order by filing CWP No.420 of 2001 in this Court. Hon’ble Division Bench of this Court vide order dated 12.03.2008 allowed the writ petition in following terms:- “The learned Tribunal has fallen into an apparent error while deciding the matter. The respondents had assailed the aforesaid order by filing CWP No.420 of 2001 in this Court. Hon’ble Division Bench of this Court vide order dated 12.03.2008 allowed the writ petition in following terms:- “The learned Tribunal has fallen into an apparent error while deciding the matter. The matter was not at all covered by the judgment of the Full Bench referred to in the order in question. Since the learned Tribunal has not considered the other pleas raised by the respondent, we have no other option but to set aside the order of the learned Tribunal and remand the case for decision afresh. Since the matter pertains to the year 1995, we would request the learned Tribunal to dispose of the original application as early as possible and in any even before 31 st July, 2008.” 13. Thereafter, the original application of petitioner remained shuttling between the Tribunal and this Court and has now come up for hearing as CWPOA No. 1011 of 2019, i.e. the instant petition. 14. Shri Bimal Gupta, learned Senior Advocate representing the petitioner would submit that this Court had allowed the petitioner to place on record certain additional documents and one of such document makes it evident that the services of the petitioner were regularized as Chowkidar in the department of forest in the year 1998. On the basis of this fact the learned senior counsel has submitted that apparently the factum of regularization of petitioner was not placed before the Hon’ble Division Bench of this Court at the time of disposal of CWP No. 420 of 2011, though the order in the said CWP was passed in the year 2008. On these basis, it is canvassed that the petitioner would be entitled for the benefit of past military service at least at the time of regularization of his services. 15. Admittedly, the petitioner has retired in the year 1999. 16. O.A. No. 1025(D)/1995 was filed by the petitioner in the year 1995. In the said application, the petitioner raised grievance with respect to the terms of his appointment in the project, which had taken place in the year 1980 as also to the terms of his subsequent engagement as daily wager Chowkidar in the department of forest, which again had taken place long back in the year 1989. In the said application, the petitioner raised grievance with respect to the terms of his appointment in the project, which had taken place in the year 1980 as also to the terms of his subsequent engagement as daily wager Chowkidar in the department of forest, which again had taken place long back in the year 1989. Without adverting to the merits of such claims of the petitioner, the same are clearly time barred and suffer from delay and laches. Simply because the petitioner had made certain representation in between, the legal impediment would not get automatically removed as the petitioner had neither made any prayer for condonation of delay nor had explained reasons therefor. Even otherwise the petitioner having accepted the employment in the project on the terms reflected in Annexure A-1, he could not have turned around to claim better terms much less the service conditions of a regular employee. It could not be ignored that the employment of petitioner was in a project, which itself was of temporary nature and had come to an end within 8 years of its inception. 17. Similarly, the petitioner had not raised any objection at the time of being engaged on daily wage basis in the department of forest. The conduct of the petitioner as evident from the fact that he accepted his regularization in the year 1998, itself suggest that he had acquiesced with the treatment given to him by the department. This fact gains importance as the petitioner had accepted his regularization after disposal of his O.A. by the learned Tribunal. 18. The contention raised on behalf of the petitioner that the factum of regularization of petitioner in the year 1998 having not been brought to the notice of the Hon’ble Division Bench of this Court while deciding CWP No. 420 of 2001 also will not make any difference as the Hon’ble Division Bench of this Court had passed the order keeping in view the fact that the petitioner was not a regular employee, when the learned Tribunal had passed the order. 19. The claim of the petitioner for grant of benefit of past military service also is not sustainable for the simple reason that he was not appointed against the post reserved for ex-servicemen in terms of Demobalized Armed Forces Personnel (Reservations of Vacancies in the Himachal Pradesh State Non-technical Services) Rules, 1972. 19. The claim of the petitioner for grant of benefit of past military service also is not sustainable for the simple reason that he was not appointed against the post reserved for ex-servicemen in terms of Demobalized Armed Forces Personnel (Reservations of Vacancies in the Himachal Pradesh State Non-technical Services) Rules, 1972. The Rules ibid provide for 15% reservation for demobalized armed personnel in non technical services of the State Government. Rule-3 of the said Rules provides that only the period of approved military service rendered after attaining the minimum age and qualification prescribed for appointment of service concerned, by the candidate appointed against reserved vacancy under the relevant Rules, shall count towards fixation of pay in that service at the time of first civil appointment against the reserved vacancy. 20. In result, there is no merit in the instant petition and the same is accordingly dismissed. 21. Pending applications, if any, also stand disposed of.