IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 12295/2008 alongwith CWP (T) Nos. 12296 and 12297 of 2008 Reserved on: 25.2.2011 Decided on:9.3.2011 _____________________________________________ 1. CWP (T) No. 12295/2008 Rajinder Kumar. …Petitioner. Versus H.R.T.C. and another. …Respondents. 2. CWP (T) No. 12296/2008 Amar Singh. …Petitioner. Versus H.R.T.C. and another. …Respondents. 3. CWP (T) No. 12297/2008 Sant Tam. …Petitioner. Versus H.R.T.C. and another. …Respondents _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Manohar Lal Sharma, Advocate. (in all the petitions) For the Respondents: Mr. H.S. Rawat, Advocate in all the petitions. ____________________________________________________ Justice Rajiv Sharma, Judge. Since common questions of law and facts are involved in all these petitions, the same are taken up together for hearing and are being disposed of by a common judgment. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 However, in order to maintain the clarity, the facts of CWP (T) No. 12295 have been taken into consideration. CWP (T) No. 12295/2008 2. Petitioner was appointed as Store-Keeper in the respondent-corporation at Rekong Peo on 14.10.1997. He completed his normal tenure of two winters and three summers on 14.10.2000. However, he was transferred to Sarkaghat on 30.9.2005. He was not paid over stay allowance though he had made representation. CWP (T) No. 12296/2008 3. Petitioner was appointed as Driver in the respondent-corporation on 26.6.1997. He completed his normal tenure, i.e. two winters and three summers at Rekong Peo on 26.6.2000. He was transferred to Himachal Road Transport Corporation, Pathankot on 30.9.2005. He has not been paid over stay allowance. CWP (T) No. 12297/2008 4. Petitioner was appointed as Conductor at Rekong Peo in the month of May, 2000. He has completed his normal tenure, i.e. two winters and three summers at Rekong Peo in the month of May, 2003. He was transferred to Himachal Road Transport Corporation, Bilaspur. He has also not been paid over stay allowance. 3 5. Mr. Manohar Lal Sharma has strenuously argued that as per the ‘past practice’, respondent-corporation had been paying over stay allowance to the incumbents who had over stayed beyond the normal tenure in the tribal areas. According to him, his clients were entitled to over stay allowance to the extent of 10% of basic pay in the 4th year, 17.½% of basis pay in the 5th year, 25% of basic pay in the 6th year and 35% of the basic pay in the 7th year, subject o minimum of Rs. 50/- and maximum of Rs. 500/- in all cases. 6. Mr. H.S. Rawat has vehemently argued that the respondent-corporation for the first time has taken a decision to grant the over stay allowance on 28.9.2005. 7. I have heard the learned counsel for the parties and have perused the pleadings carefully. 8. It is not in dispute that the normal tenure in the tribal areas is two winters and three summers. Petitioners had over stayed after completion of normal tenure of two winters and three summers. 9. Mr. Manohar Lal Sharma has drawn the attention of the Court to Annexures A-4, A-5, A-6 and A-7 whereby similarly situate persons have been paid over stay allowance. Respondent-corporation was directed to file supplementary affidavit in CWP (T) No. 12296/2008 under 4 what provisions of law over stay allowance had been paid to the incumbents, as per Annexures A-4 to A-7. Respondent- corporation has not filed any supplementary affidavit. A bare perusal of Annexures A-4 to A-7 makes it abundantly clear that the incumbent who had over stayed after completion of normal tenure of two winters and three summers have been paid over stay allowance on 19.5.1986, 23.8.1996, 19.9.1996 and 25.3.1997. Petitioners are also similarly situate vis-à-vis those persons, who had been paid over stay allowance. Respondent-corporation cannot be permitted to treat equals as unequals. 10. Mr. H.S. Rawat has strenuously argued that the decision to pay over stay allowance has only been taken on 28.9.2005. According to him, only the persons, who have overstayed after 28.9.2005 will be entitled to over stay allowance. All the employees, who have over stayed their normal tenure, constitute homogenous class. They cannot be discriminated against only on the basis of cut-off date, i.e. 28.9.2005. 11. The matter is required to be considered from another angle. Respondent-corporation had been paying over stay allowance to its employees, who were posted in tribal area and had completed their normal tenure. This 5 practice has been consistently followed, as is evident, as per Annexures A-4 to A-7. Petitioner are also entitled to get the over stay allowance, on the basis of ‘past practice’. The practice adopted by the respondent-corporation has to be applied uniformly. There cannot be pick and choose while granting over stay allowance to few employees and denying the same to similarly situate persons. Respondent- corporation is a State within the meaning of Article 12 of the Constitution of India. It has to behave like model employer. Normal tenure of two winters and three summers is followed in tribal areas due to harsh weather conditions prevailing in those areas. Petitioners had not chosen to remain posted in tribal area beyond the prescribed period of two winters and three summers of their own. Rather, they were required to be shifted out from the harsh conditions after two winters and three summers. In the instant case, petitioners have over stayed almost for five years after the completion of their normal tenure in the tribal area. The basic concept of granting over stay allowance to the incumbents is to mitigate the hardships being faced by them due to harsh conditions prevailing in the tribal areas. 12. A Division Bench of this Court in CWP No. 82 of 2005, titled H.R.T.C. versus Hans Raj, decided on 6 30.8.2005 has held that the normal tenure of the incumbent posted in the tribal area should be two winters and three summers, even though the policy framed by the State was not applicable to the employees of the respondent- corporation, as per letter dated 19.9.1985. 13. Accordingly, in view of the observations and discussions made hereinabove, it is held that petitioners and similarly situate persons are entitled to over stay allowance on the basis of ‘past practice’ and they cannot be discriminated against in view of letter dated 28.9.2005. 14. Consequently, all the petitions are allowed. Respondents are directed to pay and release the petitioners over stay allowance @ 10% of the basic pay on completion of 4th year, 17.½% of the basic pay on completion of 5th year, 25% of the basic pay on completion of 6th year and 35% of the basic pay on completion of 7th year, within a period of 8 weeks after the production of certified copy of this judgment by the petitioners. No costs. (Rajiv Sharma), Judge 9.3. 2011 *awasthi*