Dismissed

Satya Devi v. State

Himachal Pradesh HC8 May 2015CWP/2659/2013

Case brief

AI extract

What is this about?

The court held that a petitioner wrongly denied appointment due to departmental error is entitled to seniority from the selection date but actual monetary benefits only from the date of actual joining.

What did the court decide?

Petitioner to be treated as appointed from selection date for seniority; actual monetary benefits from date of joining.

What the court decided

Satya Devi Vs State — Pension and Retirement Benefits | Himachal Pradesh HC (2015)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No. 2659 of 2013

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Date of decision: 8.5.2015.

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Smt. Satya Devi …… Petitioner Vs. State of H.P. & ors. ….. Respondents

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Coram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

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Whether approved for reporting?1 No

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For the petitioner : Mr. Dilip Sharma, Senior Advocate, with Mr. Manish Sharma, Advocate. For the respondents : Mr. Virender Kumar Verma, Ms. Meenakshi Sharma and Mr. Rupinder Singh, Additional Advocate Generals.

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Tarlok Singh Chauhan, Judge (Oral).

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The Petitioner is aggrieved by the memo dated 10.1.2013 whereby the respondent No.3 has refused to treat the petitioner as Part Time Water Carrier w.e.f. 4.9.2002. Therefore, she has filed this writ petition seeking following substantive reliefs:-

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(i) That impugned memo dated 10.1.2013, Annexure P-6, whereby the respondent No.3 has refused to treat the petitioner as Part Time Water Carrier w.e.f. 4.9.2002 may kindly be quashed and set-aside.

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(ii) That the respondents may be directed to treat the petitioner as Part Time Water Carrier w.e.f. 4.9.2002, with all consequential benefits including conferment of daily waged status to her at par with others who have been given such benefits vide order dated 26.11.2012, Annexure P-4.

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Whether the reporters of the local papers may be allowed to see the Judgment? yes

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…2…

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(iii) That the respondents may also be directed to pay to the petitioner the arrears of enhanced wages pursuant to office order dated 26.11.2012, Annexure P-4.

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The interviews for the post of Part Time Water Carrier in Govt. Primary School, Sarosh, P.O. Kangu, Tehsil Sundernagar, District Mandi were held on 4.9.2002 and one Smt. Hima Devi was offered appointment. The appointment was challenged by the petitioner, who filed Original Application No. 2295 of 2002 before the H.P. State Administrative Tribunal. Vide judgment dated 1.12.2004, the learned Tribunal came to the categoric conclusion that in case the petitioner would have been given 5 marks for belonging to unemployed category, she would have been entitled to more marks than Smt. Hima Devi and accordingly, allowed the Original Application. However, instead of directing the respondent to issue appointment to the petitioner on the basis of her merit, the respondent-department was given liberty to hold fresh interviews. This led to the petitioner filing CWP No. 513 of 2005 before this Court. Vide judgment dated 8.9.2009 learned Division Bench of this Court allowed the writ petition and directed the respondents to appoint the petitioner.

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Pursuant to the directions passed by this Court, the petitioner came to be appointed on 3.11.2009. Vide office order dated 26.11.2012 the Part Time Water Carriers who had completed 9 years continuous service as on 31.3.2012 were converted to Water Carriercum-Peon on daily wages at the rate of Rs.150/- per day by abolishing the post of Part Time Water Carrier. The name of the petitioner appeared at serial No. 80 in this letter and her date of joining as Part Time Water Carrier has shown as 3.4.2002. However,

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…3…

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the petitioner was not given the benefit of the aforesaid letter, which led to the filing of the representation dated 10.12.2012. Vide memo dated 10.1.2013 respondent No.3 rejected this representation by recording the following reasons:

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“No direction to the respondents to appointment you on the basis of same selection pursuant to which Smt. Hima Devi was appointed on 4.9.2002. Hence, the documents received in this office vide application under reference is (sic are) returned herewith for information and necessary action”.

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The petitioner has assailed this order on the ground that once this Court had found the petitioner to be higher in merit and directed her appointment, the same essentially had to relate back to the date when Smt. Hima Devi had wrongly been offered appointment and the petitioner could not be denied this benefit as there was no fault on her part and could not be made to pay for the action/inaction of the respondents.

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In response to the writ petition, the respondents in their reply have contended that the offer of appointment to the petitioner was required to be made with immediate effect from the passing of the judgment in her favour on 8.9.2009, pursuant to which she was offered appointment promptly on 3.11.2009. It is averred that there was no direction of this Court to appoint the petitioner with retrospective effect. It is further averred that the petitioner was wrongly placed at serial No.80 in the order dated 26.11.2012 by showing the date of her first appointment as 3.4.2002 and the same has now been corrected by issuing a corrigendum on 6.6.2013 and the petitioner has now shown to have been rightly appointed on 7.11.2009.

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…4…

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I have heard learned counsel for the parties and gone through the records of the case carefully.

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Indisputably, the Tribunal while deciding the original application No. 2295 of 2002 had categorically observed that there was a patent material irregularity in the selection as the Selection Committee had omitted to award any mark(s) to the petitioner under the heading “category belonging to un-employed category” especially when she had produced the IRDP certificate besides the IRDP number. Even this Court while adjudicating upon CWP No. 513 of 2005 had categorically held that once the Tribunal had reached a conclusion that there had been material irregularity in the selection whereby the Selection Committee had omitted to award any marks to the petitioner for un-employed category, the petitioner could not be denied appointment as Part Time Water Carrier.

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Can the respondents in such background deny the legitimate claim of the petitioner when she claims her appointment on the basis of the selection held on 4.9.2002?

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The appointment of the petitioner was admittedly delayed for no fault on her part and she finally came to be appointed only after the intervention of this Court. The result of the delayed appointment of the petitioner is that she has not only been paid less wages, but has been denied the seniority over a long period of time w.e.f. 2002 to 2009 and by now, would have been conferred daily wage status at par with the others who have been extended the benefit of order dated 26.11.2012.

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…5…

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It has been consistently opined that in case a candidate is wrongly denied the appointment for no fault on her part then she cannot be denied the appointment from due date alongwith all consequential benefits including seniority etc. Reference in this regard can conveniently be made to judgment in CWP No. 188 of 2012 titled as Chatter Singh vs. State of H.P . decided on 1^st May, 2012 where a learned Division Bench of this Court was confronted with a similar proposition and it was held as under:

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“No doubt, the petitioner joined duty only on 13.5.2003. But in his favour admittedly there is an order by the Appointing Authority on 8.8.2002 to give appointment, as has been noted by the Tribunal in Annexure P-1, order. It is that order, which has been upheld by the Tribunal and the direction issued by the Tribunal is for implementing the said order. Therefore, for all purposes, the petitioner shall be deemed to be appointed on 8.8.2002, on the date admittedly the petitioner was directed to be appointed by the Sub Divisional Magistrate. However, taking note of the fact that the petitioner has joined duty on 13.5.2003 after the order was issued to him, the entitlement of the petitioner for actual monetary benefit shall be only from 13.5.2003. In order to avoid any ambiguity, it is made clear that the petitioner shall be deemed to be appointed in the post of Gramin Vidya Upasak on 8.8.2002 for all purposes; but from 8.8.2002 to 13.5.2003, the benefits shall only be notional and from 13.5.2003, the petitioner shall be entitled to all monetary benefits.”

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The judgment of Chatter Singh’s case (supra), in turn,

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has been followed by me in Hem Chand vs. State of H.P. (2014) 3

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Him.L.R. 1962.

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In view of the settled position of law, the petitioner is entitled to be treated as having been appointed as Part Time Water Carrier from the date of selection i.e. 4.9.2002 for the purpose of seniority. However, the entitlement of the petitioner for actual

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…6…

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monetary benefits shall only be from 3.11.2009. In order to avoid any ambiguity, it is made clear that the petitioner shall be deemed to have been appointed as Part Time Water Carrier from 4.9.2002 for all purposes, but from 4.9.2002 to 3.11.2009, the benefits shall only be notional and w.e.f. 3.11.2009, the petitioner shall be entitled to all actual monetary benefits.

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With the aforesaid observations, the writ petition is disposed of, so also the pending applications, if any.

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May 8, 2015. ( Tarlok Singh Chauhan ), (GR) Judge

Satya Devi v. State

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Satya Devi v. State

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