IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. L.P.A. No. 19 of 2003. Reserved on: 22.4.2008. Decided on: 28.5.2008. ________________________________________________________ National Hydro-Electric Power Corporation Ltd. & Ors. … Petitioners. Versus Smt. Krishna Devi. … Respondent. _____________________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’bl Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting? No. For the Petitioners : Mr. K.D. Shreedhar, Advocate. For the Respondent : S/Shri K.D. Sood and B.N. Gupta, Advocates. __________________________________________________________________ Rajiv Sharma, Judge. The present Letters Patent Appeal has been preferred by the petitioners-Corporation (hereinafter referred to as the petitioners for convenience sake) against the judgment of the learned Single Judge dated 3.6.2003 passed in CWP No. 1083/1996. The brief facts necessary for the adjudication of this appeal are that the respondent was appointed as Tracer in Salal Hydro-Electric Project vide order dated 9.5.1979. She joined her duties on 10.5.1979. She was transferred to Chamera Hydro-Electric Project on 6.6.1985. It appears from the pleadings of the parties that seven persons, who were working as Tracers in Salal Hydro-Electric Project and had qualified the trade test on 13.8.1985 and 23.8.1985, were re-designated as Draughtsman Grade-III in the pay scale of Rs. 330-560. These persons were subsequently promoted to the post of Draughtsman Grade-II in the _________________________________________________________________ Whether reporters of the local papers may be allowed to see the judgment? No. :2: pay scale of Rs. 425-700 w.e.f. 25.9.1985. A memorandum of settlement under Section 18 (1) of the Industrial Disputes Act, 1947 was entered into between the representatives of the Union and functionaries of the Salal Hydro-Electric Project on 23.4.1987. The terms of settlement of the Memorandum dated 23.4.1987 read thus: “It was agreed that non-qualified Draftsmen (other than those designated as Tracers/Ferro Printers) in the Project as on 21.4.1986 will be allowed revised scales of pay as has been allowed to the qualified Draftsmen as in terms of letters/circulars mentioned herein above. Financial benefit arising out of this settlement will be payable w.e.f. 1.4.1985.” The respondent qualified the trade test at Chamera Hydro-Electric Project during the year 1988. She was promoted as Draughtsman Grade- II in the pay scale of Rs. 330-560 w.e.f. 1.7.1985 vide office order dated 18.3.1988 and was subsequently promoted as Draughtsman Grade-I in the pay scale of Rs. 1450-2440 w.e.f. 1.7.1993. She made a representation on 13.5.1988 which was re-iterated on 15.4.1994 seeking revised scale and arrears on the basis of settlement dated 23.4.1987. The representation made by her was rejected on 17.6.1994. She filed CWP bearing No. 1083/1996 seeking the following reliefs: “(a) Grant the petitioner the benefit of the revised scale as Draftsman Gr.III, Gr.II, Gr.I and Senior Draftsman Gr.II and Senior Draftsman Gr.I under the orders Annexures P-13, P- 14, P-15 and the Settlement Annexure-P1. (b) Direct the respondent to grant the petitioner arrears of revised pay scale along with interest at 18% per annum from the dte the arrears fell due as per Annexures P-1, P-13, P-14 and P-17. ( c) Direct the respondents to grant the petitioner the promotion according to revised scale on completion of the qualifying period for (d) Quash the order Annexure P-2. :3: (e) Direct the respondents to decide the representation of the petitioner Annexure P-3. (f) Direct the respondents production of all records. (g) Allow the cost of the petition. (h) Allow any other appropriate writ, order or direction which this Hon’ble Court in the facts and circumstances of the case may deem fit and proper.” The Management filed a detailed reply to the writ petition. The learned Single Judge allowed the writ petition on 3.6.2003 and consequently the Management was directed to fix the pay of the respondent in the pay scale for the post held by her from time to time as was done in the case of the persons working with her and junior to her in Salal Hydro-Electric Project and to pay the entire arrears to her within three months. The Management had assailed the judgment of the learned Single Judge dated 3.6.2003 by way of present appeal. Mr. K.D. Shreedhar had strenuously argued that the judgment of the learned Single Judge dated 3.6.2003 is not sustainable in the eyes of law. He contended that the settlement, the foundation for seeking the relief by the respondent herein was made on 23.4.1987 and before that the respondent was transferred from Salal Hydro-Electric Project to Chamera Hydro-Electric Project on 6.6.1985. He then contended that the settlement was not applicable to the category to which the respondent belonged i.e. Tracer as per settlement dated 23.4.1987 and the persons cited by the respondent, who were designated as Draughtsman Grade III, had qualified the trade test. He further contended that the respondent had passed the trade test in the year 1988 and thereafter, she was promoted in accordance with law. Mr. K.D. Sood, Advocate with Mr. B.N. Gupta, Advocate had supported the judgment dated 3.6.2003. Mr. K.D. Sood had further contended that his client had qualified the test and was to be treated at par with her juniors, who were working in Salal Hydro-Electric Project and :4: were granted benefit of promotion from Grade III to Grade II. We have heard the learned counsel for the parties and have perused the record carefully. What emerges from the facts enumerated hereinabove is that the respondent was appointed as Tracer in Salal Hydro-Electric Project where she joined her duties on 10.5.1979. She was transferred on 6.6.1985 from Salal Hydro-Electric Project to Chamera Hydro-Electric Project. The settlement was arrived at between the Management and the workmen of the Salal Hydro-Electric Project on 23.4.1987. Before this date, i.e. 23.4.1987, the respondent stood transferred to Chamera Hydro-Electric Project vide letter dated 6.6.1985. She qualified the test in the year 1988 and was promoted to Grade II from Grade III and Grade I. She made a representation in the year 1988 for the first time when she was promoted Draughtsman Grade-II. The second representation was made by her when she was promoted as Draughtsman Grade-I on 27.11.1993. She should have approached the Court expeditiously instead of waiting for unreasonable period. The representation made by her on 15.4.1994 was rejected on 17.6.1994. It is evident from the relevant extract of settlement dated 23.4.1987 that only non-qualified Draughtsmen (other than those designated as Tracers/Ferro Printers) were to be allowed revised pay scales as had been allowed to the qualified Draughtsmen. The respondent was Tracer at the time when she was transferred from Salal Hydro-Electric Project to Chamera Hydro-Electric Project. The terms and conditions settled between the Workmen of the Salala Hydro-Electric Project and the Management were not ipso-facto applicable to her. The Tracers, who had been designated as Draughtsman Grade-III had qualified the trade test as is evident from communication dated 12.9.1985 and they were subsequently promoted as Draughtsmen Grade II in the pay scale of Rs. :5: 425-700 w.e.f. 25.9.1985. The respondent cannot draw any parallel with the persons who were working in Salal Hydro-Electric Project. She had qualified the trade test in the year 1988 and consequently, she was granted promotion from due date. The learned Single Judge has relied on two judgments, i.e. Shamsher Singh and others Vs. The Union of India and others, CWP No. 163 of 1990 decided on 3.8.1993 and Karam Singh Vs. National Hydro-Electric Power Corporation Ltd. And others [ 1996 (2) SLJ 1153] while allowing the petition. In these cases the retirement age in the transferor project was 60 years but the date of superannuation in the transferee department was 58 years. The Court relied upon para 7 of the standing order framed by the company to come to the conclusion that the terms and conditions of the employee could not be altered by retiring him at the age of 58. These cases are distinguishable for the simple reason that in the present case the respondent was transferred on 6.6.1985 from Salal Hydro-Electric Project and the settlement was arrived at between the Workmen and Management of Salal Hydro-Electric Project on 23.4.1987. She was transferred as Tracer from Salal Hydro-Electric Project to Chamera Hydro Electric Project. She cannot be permitted to take advantage of the settlement which was arrived on 23.4.1987 since her rights had crystallized on 6.6.1985 when she was transferred from Salal Hydro- Electric Project to Chamera Hydro-Electric Project. True it is that the persons junior to her had been designated as Draughtsman Grade III and promoted to the post of Draughtsman Grade II on 12.9.1985 and 25.9.1985 but by the time the respondent had already been transferred from Salal Hydro-Electric Project to Chamera Hydro- Electric Project. She has raked up the issue of not being considered for the promotion by filing a petition only in 1996 by the time the matters have settled and the same cannot be unsettled at this belated stage. The :6: matter can be viewed from another angle. The persons who were junior to her in Salal Hydro-Electric Project had passed the trade test on the basis of which they were designated/promoted. Respondent had passed the trade test in the year 1988 and not 1985 as projected by the learned counsel appearing for her. So far as the observations made by the learned Single Judge with regard to Annexure P-14 dated 21.4.1984 are concerned, suffice it to say that the pay scales of Draughtsmen Grade III, Grade II and Grade I were though revised but the entitlement to the same was still regulated as per the existing Recruitment & Promotion Rules. In view of the observations made hereinabove, the Letters Patent Appeal is allowed. The judgment of the learned Single Judge rendered in CWP No. 1083/1996 dated 3.6.2003 is quashed and set aside. No orders as to costs. (Deepak Gupta) Judge. (Rajiv Sharma) Judge. May 28, 2008. (cr)