IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA LPA No. 69 of 2010 Date of decision: 15.07.2010 ___________________________________________________________ Sewati Devi .....Appellant. Versus The State of H.P & another. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ____________________________________________________________ For the appellant: Mr. Rajnish K. Lal, Advocate. For the respondents: Mr. Bimal Gupta, Advocate, for respondent No. 1. Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General, for respondents No. 2 & 3. None for respondent No. 4. R.B. Misra, J (Oral). Heard Mr. Rajnish K. Lal, Advocate, learned counsel for the appellant, Mr. Bimal Gupta, Advocate, learned counsel for respondent No. 1 and Mr. Rajinder Dogra, Additional Advocate General, for respondents No. 2 and 3. Despite notice, none has put in appearance on behalf of respondent No. 4, i.e., Gram Panchayat Andheri, Tehsil Sangrah, District Sirmour, H.P. through President. 2. On the common request of the learned counsel and 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... learned Additional Advocate General for the parties, present LPA is being disposed of at this stage. 3. The present LPA is being preferred by Smt. Sewati Devi {(appellant herein) respondent No. 4 in CWP(T) No. 7 of 2008 (TA-2/2003)} against the order dated 19.06.2009, passed by the learned Single Judge of this High Court, whereby the writ petition of respondent No. 1 (Ravinder Singh) was allowed, directing to pay him the entire salary of the post of Part Time Water Carrier, w.e.f. 03.08.2002 up to the date of his joining as Part Time Water Carrier in Government Primary School, Andheri in the year 2004, alongwith interest @ 9% per annum. The said amount was to be recovered by the Deputy Commissioner, Sirmaur, as arrears of land revenue and the same was to be paid to respondent No. 1 within four weeks from 19.06.2009 and cost of Rs. 5,000/- was also imposed on the appellant. 4. In order to adjudicate the appeal, it is necessary to give the factual background of the case. Ravinder Singh (respondent No. 1) was interviewed on 26.07.2002 alongwith other aspirants for the post of Part Time Water Carrier by the duly constituted Selection Committee. On 25.07.2002, the name of respondent No. 1 was recommended for the post of Part Time Water Carrier in Government Primary School, Andheri. Accordingly Gram Panchayat, Andheri (respondent No. 3 in CWP(T) No. 7 of 2008) and the appellant (respondent No. 4 in CWP(T) No. 7 of 2008) was expected to issue appointment letter, enabling respondent No. 1 to join his duties as Part Time Water ...3... Carrier. Despite waiting, no such appointment letter was issued, but, respondent No. 1 started working w.e.f. 03.08.2002, as the same is evident by a certificate issued by the Centre Head Teacher on 22.10.2002 and subsequently respondent No. 1 was allowed to join duty in the year 2004. Respondent No. 1 contended in the aforementioned writ petition before the learned Single Judge that since he was duly selected person to the post of Part Time Water Carrier and he joined his duty on 03.08.2002 and started working as such, as such he was to be paid his salary w.e.f. 03.08.2002. Notices were issued in the writ petition and respondents No. 3 and 4 put in appearance through counsel. The matter was adjudicated on merits and was finally disposed of vide judgment dated 19.06.2009. 5. From scrutiny of the documents and impugned order, it appears that appointment to the post of Part Time Water Carrier is governed by Notification dated 27.07.2001, where Appointing Authority is Gram Panchayat and the incumbent is to be kept on contractual appointment, as per Clause 18 of the said Notification. In view of the outcome of the interview dated 16.07.2002, Block Primary Education Officer has sent a recommendation to Gram Panchayat, Andheri. Respondent No. 1 made a representation, dated 31.7.2002, to Smt. Sewati Devi (the appellant), President Gram Panchayat, Andheri, for issuance of appointment letter. Respondent No. 1 had made another representation, dated 01.08.2002, to the Deputy Commissioner, Sirmaur, whereupon District Panchayat Officer, vide a letter dated 01.08.2002, directed ...4... the appellant herein (respondent No. 4 in CWP(T) No. 7 of 2008) to issue necessary appointment letter enabling respondent No. 1 to join his duty. So much so, respondent No. 1 has also made a representation to the Centre Head Teacher followed by another representation to appellant (respondent No. 4 in CWP(T) No. 7 of 2008) on 26.08.2002 and respondent No. 1 had also served a legal notice dated 05.09.2002 upon the appellant for issuance of letter in his favour. 6. Undisputedly, respondent No. 1 had started working w.e.f. 03.08.2002, as Part Time Water Carrier, in reference to a certificate dated 22.10.2002, issued by Centre Head Teacher, however, in absence of formal appointment letter, his joining could not be accepted. Respondent No. 1 prayed for salary w.e.f. 03.08.2002. It has also been brought to our notice that a formal appointment letter was issued in the year 2004, since then respondent No. 1 was getting salary. Respondent No. 1 has contended before the learned Single Judge that he ran from pillars to post and had approached to the Block Primary Education Officer, Deputy Commissioner and repeatedly to the appellants and had also filed repeated representations, so much so, his appointment was challenged by one Vijay Singh by way of CWP No. 1259 of 2002, which was dismissed by this Court on 07.05.2003, but despite repeated requests and representations, appointment letter was not issued by the appellant. Despite working w.e.f. 03.08.2002, he was not allowed to get his salary. Respondent No. 1 has contended before the learned Single Judge that he is a duly ...5... selected person to the post of Part Time Water Carrier and he is working w.e.f. 03.08.2002, as such, he was entitled to salary w.e.f. 03.08.2002 till the date of his formal joining in the year 2004, in reference to the appointment letter. 7. Being persuaded by respondent No. 1, learned Single Judge has allowed the writ petition and directed appellant herein to pay the entire salary to respondent No. 1 w.e.f. 03.08.2002 as Part Time Water Carrier, till the year 2004 with cost @ 9% per annum and the amount was to be paid within four weeks, if the same was not paid, it was to be recovered by way of arrears of land revenue. 8. In compliance to the impugned judgment dated 19.06.2009, no amount was paid by the appellant. Order dated 02.07.2010 was passed by this Court while entertaining the present appeal vide which a limited protection was given to the appellant that no coercive means shall be adopted regarding effecting recovery of amount involved till 13th July, 2010. 9. The learned counsel for the appellant has submitted that though the appellant has engaged the counsel, who was representing appellant (respondent No. 4 in CWP(T) No. 7 of 2008) as well as Gram Panchayat, Andheri, before learned Single Judge and no response was filed on behalf of the appellant as well as Gram Panchayat, Andheri, in writ petition and no sufficient records were brought before that Court. Therefore, in the light of the judgment of Hon'ble Supreme Court, AIR 1981, SC, 1400 (Rafiq and another vs. Munshilal and another), the appellant has not to suffer for the fault of counsel engaged by the party. In Rafiq ...6... and another's case (supra), the petition was dismissed in default at the instance of appellant Rafiq and another and such dismissal was set aside and it was observed in para 3 of the judgment, which is quoted below: “3................What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs. 200/- should be recovered from the ...7... advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K. Sanghi.” 10. We have seen and perused the decision of Hon'ble Supreme Court in Rafiq and another (supra). In our considered view, the present case is different to that of Rafiq and another supra. In the case of Rafiq and another (supra), the petition was dismissed in default and subsequently the same was restored, whereas, in the present case, the learned counsel for the appellant as well as respondent No. 3 had all along participated in the adjudication of the writ petition and there was no fault which could be attributed to the learned counsel, who has rendered assistance on behalf of appellant and respondent No. 3 before the learned Single Judge. 11. It has also been brought to our notice that CMP No. 95 of 2010 was preferred in writ petition, seeking appropriate directions, with prayer to modify order dated 19.06.2009, passed in CWP (T) No. 7 of 2008, to the extent that recovery of amount involved in the order dated 19.06.2009 from the appellant be recalled. The said application was considered by the learned Single Judge and was dismissed vide order dated 06.04.2010. 12. The present LPA (Letters Patent Appeal) has been filed only challenging the order dated 19.06.2009, passed in CWP(T) No. 7 of 2008, whereas, LPA was preferred against the order passed on 6th April, 2010, in CMP No. 95 of 2010 in CWP(T) No. 7 of 2008, has been challenged. The learned counsel for the appellant has ...8... submitted by way of CMP No. 95 of 2010 (preferred in CWP(T) No. 7 of 2008) that the appellant wanted to bring to the notice of this Court (Single Judge) different documents and records on the basis of which the order dated 19.06.2009 was prayed for recalling, but the appellant could not be allowed to present those documents in support of her case. The learned counsel for the appellant has submitted that though President Gram Panchayat, Andheri, was party before the learned Single Judge and she was named as respondent No. 4 before the learned Single Judge, however, no recovery could have been made from the appellant, whereas, on the other hand, the learned counsel for respondent No. 1, Shri Bimal Gupta, Advocate, has submitted that respondent No. 1 was selected by a duly constituted committee and in compliance to his selection he started working as Part Time Water Carrier w.e.f. 03.08.2002 in Government Primary School, Andheri. Despite his running from pillars to post and endeavouring hard, as has been mentioned above, a formal appointment letter was not issued promptly, which was issued in the year 2004 in compliance to the same selection and outcome dated 25.07.2002. The selection of respondent No. 1 was not set aside at the instance of one Vijay Singh in CWP No. 1259 of 2002 and the appellant being under statutory obligation had made defiance of the directions issued by the Block Primary Education Officer and had not paid any heed to the repeated representations of respondent No. 1 and has also not paid any heed to the order of Deputy Commissioner, Sirmaur. As such, the order for making payment of salary in view of the ...9... judgment dated 19.06.2009 of learned Single Judge is legally justified. 13. We have heard the learned counsel/Additional Advocate General for the parties and perused the documents. In the present appeal, only order dated 19.06.2009, passed in CWP(T) No. 7 of 2008 has been challenged. No such order passed on 06.04.2010 in CMP No. 95 of 2010 (preferred in CWP(T) No. 7 of 2008) has been challenged. It could also not be clarified as to whether application (CMP No. 95 of 2010 in CWP(T) No. 7 of 2008) was by way of reviewing the order dated 19.06.2009. In our considered view, said application was filed by way of modification of order dated 19.06.2009 to a limited extent and no prayer was made in CMP No. 95 of 2010 for reviewing the order dated 19.06.2009. 14. In our considered view, no case is made out by the appellant to make our indulgence in the impugned judgment dated 19.06.2009. LPA being devoid of merit, is accordingly dismissed. CMP No. 557 of 2010 In view of the disposal of the main appeal, interim order passed in the CMP shall automatically stand quashed and the pending CMP is disposed of as infructuous. (R.B. Misra) Judge (V.K. Sharma) Judge 15th July, 2010 (virender)