IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 5152 of 2008 (OA No. 1209/1998) Judgment reserved on : 1.6.2010 Date of decision : 23.7.2010 Shankar Lal …Petitioner. Versus State of H.P. & Ors. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Mr. Dilip Sharma , Advocate. For Respondents : Mr. P.K.Sharma, Addl. A.G. with Mrs. Shubh Mahajan, DAG. Kuldip Singh, Judge The petitioner has filed this petition for quashing memo dated 25.3.1998 Annexure A-3 with a direction to respondents not to take any action against petitioner pursuant to memo dated 25.3.1998. 2. The case of the petitioner is that initially he joined Himachal Pradesh Public Works Department on daily wages and worked in different capacities. On 24.12.1994 he was regularized as work-charged Fitter Grade-II (Auto) w.e.f. 1.1.1994 and he joined as such on 29.12.1994. On 28.9.1995 the designation of the post held by the petitioner was changed to Fitter Grade-II. On 20.9.1997 the 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 petitioner was confirmed w.e.f. 1.1.1996 as Fitter Grade-II. On 25.3.1998 vide Annexure A-3 the petitioner was called upon to exercise his option as to whether he wanted to be regularized as Beldar (Auto) w.e.f. 1.1.1994 or as Mechanic Grade-II (Auto) w.e.f. 1.1.1999. The petitioner submitted his representation dated 6.4.1998 in response to memo dated 25.3.1998 requesting the respondent No.3 to supply him the copy of judgment in the case titled Akbar Ali Vs. State of H.P., but vide letter dated 30.6.1998 Annexure A-5, the respondent No.3 asked the petitioner to exercise his option in reference to memo dated 25.3.1998 within 15 days of the receipt of the said letter. The petitioner submitted his reply vide representation dated 10.7.1998 Annexure A-6. The petitioner had worked in the capacity of Fitter Grade-I for more period as compared to his work in lower category. The petitioner was rightly regularized as Fitter Grade-II. The same deserves to be maintained and the memo is liable to be quashed. 3. It has been alleged that on the basis of work and conduct of the petitioner as Fitter Grade-II, his services were regularized and he was confirmed and petitioner acquired substantive status. The respondents vide impugned memo are seeking to revert the petitioner to lower Class-IV post of Beldar (Auto). The impugned action, in substance, tantamounts to reducing the rank of the petitioner. The petitioner being substantive holder of the post of Mechanic Grade-II (Auto), his status cannot be reduced on the basis of impugned memorandum in view of Article 311 of the Constitution of India. A person can be reduced in rank on the basis of proved misconduct. But in the 3 present case, no misconduct of the petitioner is involved and, therefore, impugned action of the respondents deserves to be quashed and set-aside. 4. The petitioner was regularized on the basis of material which was available with the Department. After having been regularized as Fitter Grade-II and thereafter confirmed on the said post, the petitioner cannot be reduced in rank on the basis of alleged clarification, which has been issued after the regularization of the petitioner. The clarification issued by the department is not based on any rational principle. Therefore, there is no justification to permit the respondents to reduce the petitioner in rank on the basis of alleged clarification. The respondents mis-interpreted Mool Raj Upadhyaya judgment of the Supreme Court. 5. The respondents No.1 to 3 have contested the petition by filing reply in which several preliminary objections such as maintainability, lack of cause of action and jurisdiction have been taken. It has been stated that petitioner was appointed on work- charged post of Fitter Grade-II (Auto) w.e.f. 1.1.1994 by the Superintending Engineer (Mechanical), Circle HPPWD vide office order dated 24.12.1994. The Financial Commissioner-cum- Secretary (PW) to the Govt. of Himachal Pradesh vide letter dated 5.9.1995 in reference to case No. 1059/1995 of erstwhile Tribunal Akbar Ali and ors. Vs. State of H.P. clarified that the worker who has completed 10 years continuous service as daily waged worker as on 31.12. 1993 or 31.12.1994 with a minimum 240 days in every calendar year is eligible for appointment as work charged w.e.f. 1.1.1994 or 1.1.1995. In case any worker has completed 10 years 4 service in more than one capacity, he has to be appointed as work charged beldar as per scheme approved and circulated. 6. The further case of the respondents is that petitioner had worked on different capacities as daily wage worker as mentioned in office order dated 25.3.1998 Annexure A-3 and further detailed in the reply. It has been alleged that petitioner had not completed 10 years continuous service in one capacity, therefore, as per order of the Tribunal in case No. 1059/1995 the petitioner is required to be appointed on the lowest post as Beldar (Auto) instead of Fitter Grade-II (Auto) w.e.f. 1.1.1994. It has been alleged that in these circumstances, the petitioner is not entitled to continue his service on the post of Fitter Grade-II (Auto) further work charged w.e.f. 1.1.1999. The memorandum issued by respondent No.3 is in accordance with law. The respondents have ultimately prayed for dismissal of the petition. The petitioner has filed rejoinder and reiterated his case. 7. I have heard the learned counsel for the parties. The petitioner was appointed on work charged post of Fitter Grade-II (Auto) vide Superintending Engineer (Mechanical) Circle, HPPWD office order dated 24.12.1994 w.e.f. 1.1.1994. The O.A. No. 1059 of 1995 titled Akbar Ali and others Vs. State of H.P. was decided on 2.6.1995 vide which application filed in the erstwhile Tribunal was directed to be treated as representation to Secretary (PWD) with a further direction to decide the same within a period of three months in light of the judgment in Mool Raj Upadhyaya Vs. State of H.P. & Others 1994 (2) SLR 377. The Financial Commissioner-cum- Secretary (PW) to the Government of Himachal Pradesh vide letter 5 dated 5.9.1995 in reference to case No. 1059 of 1995 of erstwhile Tribunal Akbar Ali and others Vs. State of H.P. clarified that the worker who has completed 10 years continuous service as daily wage worker as on 31.12.1993 or 31.12.1994 with a minimum of 240 days in every calendar year, is eligible for appointment as work- charged w.e.f. 1.1.1994 or 1.1.1995. In case any worker has completed 10 years service in more than one capacity, he has to be appointed as work-charged beldar as per the scheme approved and circulated. The petitioner vide office order dated 20.9.1997 of Superintending Engineer, Mechanical Circle, HPPWD, was confirmed as Fitter Grade-II (Auto) w.e.f. 1.1.1996. 8. The memo dated 25.3.1998 refers to decision / clarification dated 5.9.1995 issued by the Financial Commissioner- cum-Secretary (PW) to the Govt. of H.P. in reference to erstwhile Tribunal case No. 1059 of 1995. The Tribunal in case No. 1059 of 1995 had only directed the Secretary, PWD to treat the application filed in the Tribunal as representation and to decide the same within a period of three months in the light of judgment of Mool Raj Upadhyaya. The erstwhile Tribunal on merits did not decide the case No. 1059 of 1995. The Financial Commissioner-cum-Secretary (PW) had issued clarification on 5.9.1995 but before that petitioner was made work charged Fitter Grade-II (Auto) on 29.12.1994 w.e.f. 1.1.1994. In presence of clarification dated 5.9.1995 the petitioner was made regular on 20.9.1997 w.e.f. 1.1.1996 as Fitter Grade-II (Auto). The petitioner had not concealed anything from the respondents nor it is the case of the respondents that petitioner has 6 obtained work-charged status and thereafter confirmation after mis- representation of the facts. 9. The respondents issued memo dated 25.3.1998 on the basis of clarification dated 5.9.1995 of the Financial Commissioner- cum-Secretary (PW). The clarification dated 5.9.1995 cannot have retrospective effect so far as the case of the petitioner is concerned who was made work-charged Fitter Grade-II (Auto) on 29.12.1994 w.e.f. 1.1.1994 and he joined on such post on 29.12.1994. The respondents in the teeth of clarification on 5.9.1995 made petitioner regular Fitter Grade-II (Auto) on 20.9.1997 w.e.f. 1.1.1996. Therefore, respondents are estopped now questioning the work- charged status of petitioner as Fitter Grade-II (Auto) w.e.f. 1.1.1994 and then as regular Fitter Grade-II (Auto) w.e.f. 1.1.1996. The petition was filed on 16.7.1998 and vide order dated 17.7.1998 the erstwhile Tribunal had stayed the operation of impugned memo dated 25.3.1998 Annexure A-3 till further orders. In other words, the implementation of memo dated 25.3.1998 Annexure A-3 was stayed. 10. The petitioner was confirmed on the post of Fitter Grade-II (Auto) on 1.1.1996 now he cannot be reverted to the post of Beldar (Auto) in the manner respondents propose to revert him after issuing memo dated 25.3.1998 Annexure A-3. The petitioner has vested right to retain the post of Fitter Grade-II (Auto) w.e.f. 1.1.1996. The respondents have failed to establish that work- charged status which was given to petitioner w.e.f. 1.1.1994 and confirmation on the post of Fitter Grade-II (Auto) given to him w.e.f. 1.1.1996 are in violation of any statutory rules. In these 7 circumstances, the memo dated 25.3.1998 Annexure A-3 is not sustainable. 11. In view of the above, the petition is allowed, memo dated 25.3.1998 Annexure A-3 is quashed and respondents are directed not to take any action against the petitioner on the basis of memo dated 25.3.1998. No costs. ( Kuldip Singh ), July 23, 2010 Judge. (GR)