IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No.4885 of 2008(OA No.209/98 Judgment reserved on 1.9.2009 Date of decision: 7.9.2009 Balkrishan …….Petitioner. Vs. State of H.P. and Ors .….Respondents. Coram: The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No ------------------------------------------------------------------------------------------- For the Petitioner : Mr. Virender Verma, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. R.P. Singh, Assistant Advocate General. Kuldip Singh, Judge The Petitioner had filed Original Application being OA No.209/98 on 11.1.1998 before Himachal Pradesh Administrative Tribunal which was abolished and the cases of the erstwhile Tribunal were transferred to this court. On transfer of OA No.209/98 to this Court the same has been registered as CWP (T) No.4885 of 2008. 2. The petitioner in the petition has prayed that a direction may be given to respondents to issue muster roll of Supervisor to petitioner from the date of his initial engagement in March 1992. Whether the reporters of the local papers may be allowed to see the Judgment? yes 2 The respondents may be directed to pay salary of supervisor to the petitioner on the principle of “equal pay for equal work”. It has also been prayed that respondents may be directed to regularize the services of the petitioner as Supervisor with effect from the date of his initial engagement or in alternative to place the petitioner above his juniors Surjit Singh and Madan Lal. 3. The facts in brief, according to petitioner, are that petitioner is matriculate, he was engaged as Beldar in HP Public Works Department, Sub Division, Darlaghat in March, 1992 and since then he had been working continuously completing 240 days in each calendar year. The petitioner was initially engaged as Beldar but he was given the work of Supervisor from his initial date of engagement. The muster roll of Beldar was issued to petitioner and was paid daily wages at the rate of Rs.45.75 per day. One Surjit Singh Mortar Mate was engaged in May, 1993 and he is junior to petitioner. In March, 1994, the respondent No.2 had engaged Madan lal as Beldar on daily wages, who remained as such upto April, 1994. In May, 1994 Madan Lal was made a Mortar Mate and he worked as such till August, 1994. In September, 1994 Madan Lal was made a Supervisor. 4. The petitioner made a representation to Chief Engineer, HP PWD, Shimla on 11.4.1995 and to Superintending Engineer, 3rd Circle HP PWD, Solan raising therein his grievance of issuing muster roll of Supervisor. On 25.4.1995 Superintending Engineer, 3rd Circle HP PWD , Solan directed the Executive Engineer, HP PWD, Arki to send a detailed report regarding the representation 3 dated 11.4.1995 of the petitioner. The petitioner has ultimately filed the petition. 5. The petition has been contested by respondents by filing reply in which preliminary objections of maintainability, laches as well as mis-joinder and non-joinder of necessary parties have been taken. On merits, the case of the petitioner has been denied. It has been submitted that since the date of his initial engagement as daily wage Beldar on muster roll basis the petitioner is continuing as such till day and it has been denied that petitioner had worked as Supervisor. The petitioner has filed rejoinder and has reiterated his stand which he has taken in the petition. 6. Heard and perused the record. The learned counsel for the petitioner has argued that in para-2 of the preliminary objections, the respondents have taken the plea that petition is barred by limitation but they have admitted that the petitioner had been working as Supervisor since 1992. It has also been submitted that the petitioner has filed muster rolls Annexures A-2/1 to A-2/7 with the rejoinder. The perusal of Annexures A-2/1 to A-2/7 indicates that petitioner has marked the presence of workers who were on duty. This proves that petitioner had been working right from the very beginning as Supervisor and not Beldar even though muster roll of Beldar was issued to the petitioner. In these circumstances, the learned counsel for the petitioner has submitted that petitioner is entitled to reliefs prayed in the petition. 7. The learned Sr. Addl. Advocate General has submitted that reply of respondents is to be seen as a whole. The para-2 of 4 the preliminary submissions, if read as a whole nowhere indicates that respondents have admitted that petitioner had been working as Supervisor since the year 1992. It has been submitted that the stand of respondents in para 6(iii) of the reply is very clear wherein it has been pleaded that since the date of his ( petitioner) initial engagement as daily wage Beldar on muster roll basis he is continuing as such till day. 8. The respondents have filed statement of Man Days chart of petitioner and in that chart petitioner has been shown Beldar from June, 1992 till March, 1998. In the same chart Madan Lal has been shown as supervisor from March, 1994 and Surjit Singh as Mortar Mate from May, 1993. There is no reason to disbelieve the statement of Man Days chart showing the designation of petitioner, Madan Lal and Surjit Singh. 9. The petitioner has heavily relied on muster rolls Annexures A-2/1 to A-2/7 in order to show that he had been working as Supervisor. The muster rolls Annexures A-2/1 to A-2/7 were issued in the name of J.S. Verma, Junior Engineer, Darlaghat. The muster rolls Annexure A-2/1 to A-2/4 and A-2/7 were issued for Beldars whereas muster rolls Annexure A-2/5 and A-2/6 were issued for Beldars and Masons. The petitioner has marked his presence by signing muster rolls Annexure A-2/1 to Annexure A-2/7. It is the case of the petitioner that right from the year 1992 he had been working as Supervisor and not as Beldar. The muster rolls Annexures A-2/1 to A-2/7 were not issued for any Supervisor. The petitioner has marked his presence by signing muster rolls 5 Annexures A-2/2 to A-2/6 but on these muster rolls he has nowhere indicated that he has marked his presence by signing these muster rolls as Supervisor. 10. It appears the muster rolls Annexures A-2/1 to A-2/7 were not issued and maintained properly. It is the case of the respondents that petitioner was engaged as Beldar and he never worked as Supervisor. On the contrary, it is the case of the petitioner that he has worked as Supervisor though muster rolls of Beldar were issued to him. The muster rolls Annexures A-2/1 to A-2/7, do not show that petitioner actually worked as Beldar or Supervisor but he has signed these muster rolls in token of his presence. The obvious inference from the stand of the respondents is that petitioner was paid wages of Beldar. In what capacity the petitioner has marked his presence and signed these muster rolls Annexures A-2/1 to A-2/7 that has not been made clear. 11. The petitioner was engaged in June 1992 as Beldar and he was paid wages of Beldar. It is not believable that in case the petitioner was performing the duties of Supervisor from 1992 then why he would accept the wages of Beldar. According to petitioner he made a representation to Chief Engineer on 11.4.1995 raising his grievance therein. It means, for nearly three years he remained silent. He even after filing the representation on 11.4.1995 filed the petition in January, 1998. In these circumstances the conduct of the petitioner is against his stand otherwise the petitioner would not have waited for such a long time 6 for raising his grievance either to his superior authority or approaching the appropriate forum or court. 12. In the statement of Man Days chart Madan Lal has been shown as Supervisor and Surjit Singh as Mortar Mate whereas petitioner has been shown as Beldar, therefore, petitioner cannot take any benefit from the engagement of Madan Lal and Surjit Singh who are in different categories. There is nothing on record to show that the petitioner had been working as Supervisor from June 1992 except the muster rolls Annexures A-2/1 to A-2/7 in which the petitioner has simply signed in token of his presence without indicating in what capacity he has signed muster rolls Annexures A-2/1 to A-2/7. The Annexures A-2/1 to A-2/7 were filed in rejoinder and respondents did not get an opportunity to explain these muster rolls. The petitioner has failed to establish his case and therefore, he is not entitled to any relief. Resultantly, petition fails and is accordingly dismissed. No costs. ( Kuldip Singh ) Judge. Sepetmber 7,2009 (sks)/GR.