IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Review (T) No. 40 of 2008 alongwith CWP (T) No. 43 of 2010 Date of decision: 10.11.2010 _________________________________________________________ In Civil Review (T) No. 40 of 2008 and CWP (T) No. 4310 of 2010 Kamlesh Sharma. .....Petitioner. Versus The State of H.P. & another. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. __________________________________________________________ For the petitioner: Ms. Ranjana Parmar, Advocate. For the respondents: Mr. Anil Jaswal, Deputy Advocate General. V.K. Sharma, J (Oral). Heard. The records of the main O.A. No. 380 of 1998, titled Kamlesh Sharma vs. State of H.P. and another perused. 2. The present review petition arises out of order dated April 25, 2003, passed by a Single Member of the erstwhile H.P. State Administrative Tribunal which has since been abolished and all the matters pending before the said Tribunal stand transferred to this Court for adjudication. 3. Before proceeding further, it shall be appropriate to notice the operative part of the impugned order dated April 25, 2003 (Annexure PR-1), which is sought to be reviewed by way of the 1 Whether reporters of Local Papers may be allowed to see the judgment? No. present application. It forms part of paras 6 and 7 of the order, which ...2... are extracted below: “6. From the reading of above provisions the arguments of the learned counsel for the applicant seems to be correct that relaxation can be made only for a class or category of persons or posts and that it cannot be made for anyone particular person. However, in this original application the appointment of Miss Sumedha Awasthi has not been challenged nor she is a respondent in this case. Therefore, no directions in this behalf can be issued. 7. In view of the provisions of Rule 14 quoted above and the arguments of the learned counsel that relaxation cannot be made in favour a any person, this original application cannot be allowed because a direction to consider the applicant in relaxation of rules cannot be issued. Moreso when the applicant still within the prescribed age for competing as a direct recruit for the post of clerk.” 4. At this stage, the learned counsel for the petitioner has pointed out that though an application seeking to bring on record the aforesaid Ms. Sumedha Awasthi a prayer for amendment of the petition was duly moved before the Administrative Tribunal, but the same came to be dismissed vide order dated nil of January, 2003, passed in M.A. No. 1403 of 1999 (in O.A. No. 380/98) (Annexure PR-2). Para 11 and operative part of the order being relevant are reproduced below: “11. In the present case the applicant had impleaded the State of H.P. Through Secretary-cum-election Commissioner to the Govt. of H.P. and Deputy Commissioner-cum-Distt. Election Officer Shimla, as respondents and had sought relief that respondents be directed to consider applicant for appointment to the post of Clerk on regular basis at par with Ms. Sumedha Awasthi who according to the pleadings, was given regular appointment on 2.7.1997 and original application No. 380/98 was filed on 24.2.1998. Now through this Misc. ...3... application the applicant seeks permission to implead Ms. Sumedha Awasthi as respondent No. 3 and further seeks to amend the relief clause to the effect the “in the alternative, the appoint of respondent No. 3 may be quashed for making applicant's appointment to the said post.” However, there are no averments in the original application that proposed respondent No. 3 was illegally appointed in place of the applicant. In the circumstances, the Misc. application cannot be allowed as firstly the original application had been filed on a cause of action which had nothing to do with the appointment of the proposed respondent. Secondly it has been averred in the original application that even after the appointment of proposed respondent the applicant can be considered for appointment on one of the six remaining vacancies. Thirdly vis-a-vis proposed respondent, the prayer is time barred.” 5. Thus, though the fact remains that the aforesaid order dated nil of January, 2003, passed in the aforesaid miscellaneous application was not challenged by the petitioner before an appropriate forum/court, yet the fact remains that on a combined and harmonious reading of the above paras of the order dated April 25, 2003, passed by the Tribunal in the original application and the one dated nil of January, 2003, passed in the miscellaneous application, it is manifest on the face of it that the same do not reconcile with each other for the reason that on the one hand it was stated in the order passed in the miscellaneous application that the appointment of Ms. Sumedha Awasthi was not challenged in the original application and on the other the original application has been dismissed and the petitioner was non-suited mainly on this ground. 6. In view of the above, I am satisfied that it shall not be ...4... unsafe to recall the impugned order dated April 25, 2003, with a view to do substantial justice between the parties in the matter in hand. Ordered accordingly. Consequently, the impugned order dated April 25, 2003, shall stand recalled. Consequently, original application No. 380/98, titled Kamlesh Sharma vs. State of Himachal Pradesh and others is ordered to be restored to its original number for disposal afresh on merits. It be registered as such. 7. The original application was filed for grant of the following reliefs vide para 7(i) and (ii): “7(i) that the applicant be held entitled for consideration and appointment as Clerk under the respondents. (ii) That the respondents be directed to consider the applicant for appointment to the post of clerk on regular basis at par with Miss Sumedha Awasthi.” 8. In the reply the following stand has been taken by the respondent vide para 3: “3. That in reply to this para it is submitted that in view of the orders passed by the Hon'ble Tribunal dated 2.4.1993 in O.A. No. 190/92 the applicant was engaged on daily wages on priority basis against the daily paid post created for a period of 89 days in connection with the conduct of Assembly Election-1993. According to the Recruitment and Promotion Rules the regular appointment of clerk are made through Himachal Pradesh Public Service Commission. The regular appointment orders of a clerk have been issued vide this Department Officer Order No. 5-2/ 97- ELN dated 2.7.1997 on compassionate grounds in relaxation of Recruitment and Promotion Rules.” 9. Admittedly, the original application was moved way- back on 29.03.1998. Even as per the petitioner, the said Ms. Sumedha ...5... Awasthi has been appointed on regular basis. The petitioner is stated to be still continuing on daily wages. As per the policy framed by the State Government, daily wagers are being regularized after completion of 8 years of service subject to fulfillment of the requisite conditions. The record reveals that both the petitioners and Ms. Sumedha Awasthi were similarly situate persons and ought to have been treated similarly. In such circumstances, it shall be expedient and in the interest of justice to direct that subject to the petitioner making a representation to respondent No. 1 alongwith a copy of this judgment within one month from today, the said respondent shall consider and take final decision in the matter within next three months at par with the case of Ms. Sumedha Awasthi after giving an opportunity of being heard to the petitioner, if so desired. 10. Needless to say that consequential benefits, if any, shall also be payable to the petitioner within another three months. 11. Both the petitions (Civil Review (T) No. 40 of 2008 and CWP(T) No. 43 of 2010) stand disposed of in the above terms. (V.K. Sharma) Judge 10th November, 2010 (virender)