IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.: 4663/2008 Decided on: 24.06.2010 ______________________________________________________ Shri Hemant Kashyap ...…..Petitioner. Versus State of H.P. and others ….…. Respondents. Coram The Hon’ble Mr. Justice Sanjay Karol, Judge. For the petitioner : Mr. Neel Kamal Sood, Advocate. For the Respondents : Mr. R.K. Sharma, Senior Additional Advocate General. Sanjay Karol, J (oral) The petition has prayed for following relief (s):- i) Quashing Annexures A-6, A-8 and A-9; ii) Directing the respondents to allow the applicant to work as Fitter Grade-I and his reduction in rank to Fitter Grade-II be declared as void-ab-initio and null and void. Further, directions be issued to the respondents to allow the applicant to continue with the scale of Rs.1200-2100/- p.m. as approved by the I&PH Department as well as by the Finance Department. iii) That the respondents may be burdened with the cost of this original application; iv) That the respondents may be directed to produce the entire record pertaining to this case. v) Any other order as deemed fit in the circumstances of the case may also be passed in favour of the applicant”. 2. In the reply the respondents has stated as under: …2… “The present application not maintainable as being barred under Section 10 of CPC being res-judicata. The subject matter in issue had already been decided by this Hon’ble Tribunal on 11.8.1997 in OA-1084/97 titled Hemant Kashyap Versus State of Himachal Pradesh and others wherein this Hon’ble Tribunal has given clear directions to afford him reasonable opportunity of being heard. The applicant was given proper notice of 15 days as per the directions of this Hon’ble Tribunal and the reply given by the applicant was duly considered and rejected being devoid of any substance. It is submitted that the Respondent- State has formulated a policy on the lines of the judgment of the Apex Court in Mool Raj Upadhaya Versus State of Hiamchal Pradesh relief upon by the applicant in the present case also wherein it has been clearly stipulated to regularize the services of the daily rated workmen on the lowest grade in the Government .Since, the lowest grade in the Fitter category is Fitter Grade-II hence his regularization as Fitter Grade-II is as per the policy of the Government. Moreover, it is submitted that the applicant had been working as Fitter Grade-II on daily wages, therefore, the mistake of the Respondent No. 3 rectified later on in respect of the applicant is legally tenable and the applicant cannot claim benefit on account of any clerical error or mistake committed in discharge of official function by the Respondent No. 3 erroneously or non awareness of clarification issued by Engineer- in-Chief. The plea of the applicant regarding creating of Fitter Grade-I post is not tenable as the post has not been specially created for the applicant nor does he qualify for the regularization as Fitter Grade-I. The applicant was not entitled to be regularized as Fitter Grade-I keeping in view the daily waged service and the policy of the Govt. hence, he has been reverted …3… as Fitter Grade-II in view of the factual position and the policy of the Government. It is further respectfully submitted that the Himachal Pradesh Government had formulated a scheme for the betterment (appointment) and regularization of muster roll daily paid workers in Himachal Pradesh and the same has been approved by the Hon’ble Apex Court with modification in its judgment dated 19.4.1994 in the matter of CWP- 787/87 titled: Mool Raj Upadhaya Versus State of Himachal Pradesh. According to the aforesaid scheme, the daily wages/muster roll workers, whether skilled or unskilled who have completed 10 years or more of continuous service with a minimum of 240 days in calendar year on December 31,1993, where to be appointed as work-charged employees w.e.f. January 1,1994 by putting them in the time scale of pay applicable to the corresponding lowest grade in the Government and this process was to continue every year thereafter as would be evident from the Paragraphs 1 and 2 of the judgment ibid. The applicant was engaged as a daily rated Fitter Grade-II w.e.f. 1.12.84 and he has worked continuously as such till he became eligible for regularization and as per the policy of the Government the applicant become eligible for being appointed as Fitter Grade-II w.e.f. 1.1.95 and was to be appointed as Fitter Grade-II on work-charged basis w.e.f. 1.1.95 as he had been working as Fitter Grade-II on daily wages prior to 1.1.1995. But he was appointed as work- charged Fitter Grade-I erroneously and non awareness of Engineer-in-Chief clarification dated 15.11.95 by the replying respondents w.e.f. 1.1.95 as he had never worked as Fitter Grade-I during the preceding 10 years from 1.1.95 even otherwise, according to the paragraph-1 of the judgment ibid, the …4… applicant was to be put in the time scale of pay applicable to the corresponding lowest grade in th Government. Therefore, this Hon’ble Tribunal will kindly appreciate that the appointment of the applicant as Fitter Grade-II instead of Fitter Grade-I, is perfectly legal and in accordance with law. Therefore, the applicant has made out a case which does not have any substance and, as such, his Original Application may kindly be dismissed on this short ground only”. 3. Now, the plea that the petitioner is barred by res-judicata is not tenable in the eyes of law for the reason that the petitioner has assailed the orders passed subsequent to the decision rendered by the Himachal Pradesh Administrative Tribunal. 4. From the record, it could not be pointed out as to how the impugned Annexure A-8, is illegal, arbitrary or otherwise contrary to the Service Regulations. It also could not be pointed out as to how the petitioner is otherwise eligible for appointment as Fitter Grade-I. 5. As is evident from the stand taken by the respondents, which is duly reflected in the impugned orders, the State had only corrected the error which had crept in, while initially appointing the petitioner as Fitter Grade-I, instead of Fitter Grade-II. 6. For the aforesaid reasons no legally enforceable right of the petitioner stands infringed, the petition being devoid of any merit, is dismissed. No costs. (Sanjay Karol), Judge June 24, 2010 “BRB” …5… .