IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No.3688 of 2008 (OA(D) No.177/1996) Judgment reserved on : 22.6.2009 Date of decision : 14.7.2009. Ramesh Chand …Petitioner. Versus State of H.P.& Others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 yes For the Petitioner : Mr. Ranjan Sharma, Advocate. For Respondents No.1 & 2 : Mr. R.K.Sharma, Sr. Addl. A.G. with Mr. A.K.Bansal, Addl.A.G. and Mr. R.P.Singh, Asstt. A.G. For Respondent No. 3. : Mr. D.K.Khanna, Advocate. Kuldip Chand, Judge The Original Application (D) No. 177 of 1996 was filed in erstwhile Himachal Pradesh Administrative Tribunal which was abolished on 8th July, 2008. Thereupon the Original Application (D) No.177 of 1996 was transferred under Himachal Pradesh Administrative Tribunal (transfer of decided and pending cases and applications) Act, 2008 and registered as CWP(T) No.3688 of 2008 in this Court. 2. The petitioner has prayed that respondent No.2 may be directed to consider the case of the petitioner for the post of 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Clerk in view of letter dated 15.2.1996, Annexure A-17 of respondent No.1 and letter dated 10.6.1996, Annexure A-18 of respondent No.3. It has also been prayed that the respondents may be directed to give the salary of Clerk to the petitioner since his initial appointment in view of the duties of Clerk discharged by the petitioner since then. 3. The further case of the petitioner is that he passed out his matriculation examination in the year 1978 and thereafter was appointed as Chainman on 26.6. 1985 by respondent No.2 vide Annexure A-2 on regular basis. The petitioner was offered fixed salary of Rs.300/- per month plus admissible allowances. The petitioner joined as Chainman on 28.6.1985 in the office of respondent No.2 at Dharamshala. The petitioner had been doing the work of Clerk since his initial appointment. 4. The case of the petitioner is that 90% posts of Clerks are to be filled by direct recruitment through Himachal Pradesh Public Service Commission – Respondent No.3, the remaining 10% posts of Clerks are to be filled by the respondents by way of promotion from amongst the class –IV personnel with 4 / 5 years of service as such. A person who has qualified 10 + 2 examination is eligible for appointment of Clerk under direct quota whereas for 10% promotion quota the minimum qualification is passing of matriculation examination. The petitioner has passed his 10 + 2 examination in the year 1992. The petitioner had completed 4 / 5 years of service as required i.e. Class – IV post under the respondent on 28.6.1990. The petitioner became eligible on 3 28.6.1990 for being considered for the promotion as Clerk under respondents against 10% quota reserved for Class - IV employees. 5. The respondent No.2 had appointed Uttam Chand, Sushil Kumar, Joginder Singh and Subh Karan as Clerks from the category of Chainman by relaxing the rules from amongst 10% quota meant for Class – IV employees. The respondents did not consider the case of the petitioner for promotion as Clerk which is illegal and discriminatory. The petitioner submitted representations to respondent No.2 on 10.9.1992 and 26.9.1995. The respondent No.2 recommended the case of the petitioner for seeking necessary approval for appointment of petitioner as Clerk against available vacancy on 6.12.1995 vide Annexure A-15. The respondent No.2 had sent a reminder to respondent No.1 on 24.1.1996 to this effect. The respondent No.1 took the stand on 15.2.1996, Annexure A-17 that since the posts of Clerks are filled by the respondent No.2, therefore, respondent No.2 should consult respondent No.3. Thereafter, respondent No.2 had sent the case of the petitioner to respondent No.3 on 13.5.1996. The respondent No.3 vide letter dated 16.6.1996, Annexure A-18 has returned the case of the petitioner to respondent No.2 that Department should examine and consider the case of the petitioner on the basis of rules. But the respondent No.2 had not promoted the petitioner as Clerk. 6. The petitioner was appointed on fixed salary of Rs.300/- plus admissible allowances per month on 28.6.1985. The fixed salary of the petitioner was revised to Rs. 700/- plus admissible allowances on 1.7.1989. The petitioner has claimed difference of wages from the date of his initial appointment till filing of the petition 4 as Clerk. The petitioner has submitted that respondents No.1 and 2 have not promoted the petitioner as Clerk nor they have paid him salary of Clerk from the date of his initial appointment on the principle of equal pay for equal work. It is the case of the petitioner that the respondents have violated Articles 14, 16 and 300-A of the Constitution of India. 7. The respondents No. 1 to 3 filed common reply, they took the stand that petitioner could not be appointed directly or by promotion to the post of Clerk under the Himachal Pradesh Settlement Department, Class III Services (Recruitment, Promotion and other conditions) Rules, 1976. The appointing authority has no power to relax the rules so far as the direct recruitment / promotion is concerned. The direct recruitment of Class –III service is made by the department only from amongst the candidates sponsored and recommended by the Himachal Pradesh Public Service Commission. The consultation with H.P.Public Service Commission is required for making promotion in 10% quota. Uttam Chand, Sushil Kumar, Joginder Singh and Subh Karan were recruited through Employment Exchange as contingent paid and subsequently regularized against the vacant posts of Clerks. At that time, there was no provision for direct recruitment through H.P.Public Service Commission to the posts of Clerks. The petitioner was educated and had been retained at Head Office, Dharamshala and was entrusted with the work of receipt and dispatch due to shortage of clerical staff in order to run the office work smoothly. The petitioner is being paid fixed salary of Rs.750/- per month as admissible under the rules. It has however been admitted that 10% posts are required 5 to be filled amongst Class –IV employees having requisite qualification. The rules are relaxable by the Government under special circumstances. The case of the petitioner was recommended to Financial Commissioner (Revenue) vide letter dated 6.12.1995, Annexure R-V for obtaining approval to appoint the petitioner directly against the available vacant posts of Clerk by relaxing the rules, but neither approval nor any favourable reply was received from the Government and the case of the petitioner remained under consideration. It has been pleaded that petitioner cannot be appointed directly as Clerk without obtaining the relaxation for his appointment as per the rules which power lies with the State Government and for which necessary steps are being taken. 8. The petitioner has filed rejoinder and has brought on record Annexures A-19 to A-24. According to him as Clerk, he is entitled to salary / pay scale of Rs.950 – 1800 from 1.1.1986 and Rs.3120 – 5160 from 1.1.1996 plus allowances. As Chainman, he was given scale of Rs. 770 – 1430 w.e.f. 1.1.1986 and Rs.2620 – 4140 from 1.1.1996. It has been pleaded that O.M. dated 25.11.1990, Annexure A-25 provides relaxation of rules. In these circumstances, petitioner is entitled to appointment as a Clerk against 90% direct recruitment quota. On the basis of directions vide letter dated 6.12.1995, Annexure A-15 and letter dated 15.2.1996, Annexure A-17 as well as letter dated 10.6.1996, Annexure A-18 the consultation with respondent No.3 is not required for filling up Class –III and IV posts in view of Himachal Pradesh Public Service Commission (Exemption from Consultation) 6 Regulation applicable w.e.f. 1981. The petitioner is eligible for promotion in 10% quota as Clerk as the petitioner is the senior most Chainman as per the seniority list vide Annexure A-29. The erstwhile Tribunal vide order dated 25.6.1996, kept vacant promotion post of Clerk till decision. 9. Heard and perused the record. The petitioner has claimed appointment to the post of Clerk either by way of direct appointment in 90% quota or by way of promotion under 10% quota. The Himachal Pradesh Settlement Department, Class III Services (Recruitment, Promotion and other conditions) Rules, 1976 provides recruitment to the posts of Clerks by way of direct recruitment. These rules were amended vide notification dated 14.2.1979 which provides that 10% vacancies of Clerks are reserved for Class –IV employees of the department provided they possess the requisite qualification. It is nobody’s case that petitioner is not eligible for appointment under direct quota or by way of promotion under promotion quota. The case of the respondents is that there is no provision of relaxation in the said rules. The petitioner has placed on record copy of H.P.Government, Department of Personnel O.M.No. PER (AP-II) A(3) -2/80 dated 25th November, 1980 which provides as under:- “Subject : Relaxation clause in the Recruitment and Promotion Rules. The undersigned is directed to state that it has been observed that some of the Recruitment and Promotion Rules framed and adopted by the departments do not contain the general relaxation clause in the absence of which it becomes difficult to relax any of the provisions of these rules with respect to any class or category of 7 persons or posts where these are harshly operating. Accordingly, it has been decided to incorporate the following relaxation clause in all the recruitment and promotion rules where such clause is not provided at present:- Where the Government is of the opinion that it is necessary or expedient to do so, it may, by order, for reasons to be recorded in writing and in consultation with the Himachal Pradesh Public Service Commission, relax any of the provisions of these rules with respect to any class or category of persons or posts. 2. It has also been decided that the standard foot notes, as contained in the enclosed annexure (including the relaxation clause) should be notified in all the rules where such foot notes are not provided at present. It may be ensured that the foot-note pertaining to the Departmental Examination is notified only in the rules for Gazetted posts. 3. Since this is an amendment of routine nature the approval of the Department of Personnel / Law Department / Council of Ministers to the insertion of the above clause in the rules, need not be obtained and the amendments may be issued straightway. The approval of the Public Service Commission to the incorporation of the relaxation clause in all the recruitment and promotion rules together with the foot-notes has already been obtained. ANNEXURE FOOT NOTES :- 1. (a) (b) (c ) (d) (e) 2. 3. xxxxxx.” 8 It is thus clear that in view of O.M. No. PER (AP-II) A(3) -2/80 dated 25th November, 1980, in a given case Government has power to relax for reasons to be recorded in writing and in consultation with the H.P.Public Service Commission the rules covered aforesaid O.M. No. PER (AP-II) A(3) -2/80 dated 25th November, 1980. 10. The respondent No.2 in letter dated 6.12.1995, Annexure A-15 addressed to Financial Commissioner –cum- Secretary (Revenue) has stated that the petitioner was appointed as regular Chainman in the department in the year 1985. There were insufficient Clerks in the department and, therefore, he was given independent charge of diary and dispatch in the year 1985. He had been working as Clerk for the last more than 10 years. He has discharged his duties efficiently. He has passed 10 + 2 and is fully eligible for the post of Clerk. He even applied for the post of Clerk. The respondent No.2 keeping in view the work of the petitioner as Clerk recommended that petitioner should be appointed on the post of Clerk on any future vacancy. The respondent No.2 in continuation of letter dated 6.12.1995, Annexure A-15 had again requested Financial Commissioner –cum-Secretary (Revenue) vide letter dated 24.1.1996 Annexure A-16 to give approval for appointment of petitioner as Clerk. The respondent No.1 vide letter dated 15.2.1996 Annexure A-17 informed that selection to the post of Clerks is within the purview of H.P.Public Service Commission and as such, Commission may be consulted in the matter. The respondent No.3 vide letter dated 10.6.1996 Annexure A-18 has directed respondent No.2 that 90% posts of direct recruitment are within the purview of the Commission and 10% posts to be filled up 9 from amongst the Class –IV employees. The case of the petitioner be examined and considered in the light of recruitment and promotion rules for the posts of Clerks. Thereafter, no decision was taken by any authority for appointment of petitioner either in direct quota or promotion quota of Clerks. 11. The erstwhile Tribunal on dated 25.6.1996 by interim order had ordered not to fill up post of Clerk from promotion quota till further orders. Order dated 25.6.1996 was modified on 28.4.2005 by erstwhile Tribunal to the extent that the respondents will be at liberty to fill up the post of Clerk by keeping one post vacant for the petitioner till the decision of the Original Application. The respondents No.1 to 3 in their reply in para 6 (xxiii) have stated that the case of the petitioner was recommended to Financial Commissioner (Revenue) on 6.12.1995 for obtaining necessary approval to appoint the petitioner directly against the available vacant post of Clerk by relaxing the rules, being a special case but neither the approval nor any favourable reply was received and the case of the petitioner is under consideration. The respondents have not specifically stated in their reply whether after attaining eligibility by the petitioner for appointment as Clerk in promotion quota or even after his appointment as Chainman any post of Clerk either under promotion quota or in direct quota fell vacant. The letter dated 6.12.1995 Annexure A-15 indicates that some vacancies of the Clerks were likely to fall vacant and, therefore, the case of the petitioner was recommended by respondent No.3 for appointment as Clerk. In the reply of respondents No.1 to 3, it has been stated that for direct appointment of petitioner as Clerk, 10 necessary steps are being taken. The petitioner is at serial No.1 in the seniority list, Annexure A-29 of Chainman. It has not been disputed that Chainman is a feeder post for promotion to the post of Clerk. The stand of the respondents No.1 to 3 is that petitioner cannot be appointed as Clerk under direct or promotion quota without relaxation and power of relaxation is not with the appointing authority. It has not been indicated in the reply of respondents No.1 to 3 what is lacking in the petitioner for which the relaxation is required. The petitioner is discharging the duties as Clerk almost from the very beginning when he was appointed as Chainman. There is nothing in the reply of respondents No. 1 to 3 that petitioner does not fulfill eligibility for appointment as Clerk under direct or promotion quota. In any case the petitioner’s case was not considered by respondent No.1 for relaxation for appointment as Clerk under direct or promotion quota. 12. In Annexure A-15 letter dated 6.12.1995 the respondent No.2 has stated that petitioner had been working as Clerk since the year 1985. The petitioner has prayed for salary of Clerk from the date of his initial appointment 28.6.1985 on the principle of equal pay for equal work. It has not been denied in the reply by respondents No.1 to 3 that the petitioner had been paid salary of Chainman. The learned counsel for the petitioner has relied Tirath Raj and others Vs. H.P.State Electricity Board and others, 1989 (2) Sim.L.C. 350 wherein the grievance of the petitioners was that though they were employed as T. Mates, they were required to perform the work of Clerks. They claimed that they were entitled to be regularized as Clerks and also paid wages in the same scale of 11 pay as was being paid to regularly employed Clerks. The Division Bench directed the Board to pay to petitioners of that case the wages at the rate equivalent to the minimum pay in the pay scale of a regularly employed Clerks, but without any increments, for the period for which they have been required to perform the duties of a clerical nature with further direction that the petitioners will be entitled to the corresponding dearness allowance and additional dearness allowance, if any, payable thereon. 13. The learned counsel for the petitioner has also relied judgment dated 24.7.2008 in CWP No. 448 of 2005 titled H.P.Housing & Urban Development Authority Vs. Nisha Sharma & Others wherein respondents were initially engaged on Muster-rolls as beldars, but they were actually working as Tracer draftsmen and they claimed salary on that basis by filing Original Application before the erstwhile Tribunal which was allowed on 1.3.2005 and held that applicants are entitled to daily wage as Tracer draftsman. The decision dated 1.3.2005 of the erstwhile Tribunal was assailed in CWP No. 448 of 2005 which was dismissed by a Division Bench on 24.7.2008. In the present case also the petitioner is working as Clerk right from 28.6.1985, therefore, he is entitled to wages at the minimum of the scale of Clerk for the period for which he was required to perform the duties of clerical nature. 14. In light of above discussion, the respondent No.1 is directed to consider the case of the petitioner for relaxation, if required, for appointment as Clerk under direct or promotion quota within a period of two months from the date of availability of post of Clerk under direct or promotion quota and thereafter, respondent 12 No.2 within a further period of one month shall consider to appoint the petitioner as Clerk on the post of clerk in direct or promotion quota as the case may be. The petitioner is also entitled to wages / salary at the minimum of the scale of Clerk from 28.6.1985 onwards till he was required to perform the work of Clerk without any increments, the petitioner shall be entitled to the corresponding dearness allowance and additional dearness allowance of Clerk, if any, payable thereon after adjusting the wages / salary already paid to petitioner. The respondents No.1, 2 shall calculate the difference of wages payable to petitioner as Clerk and shall pay the same to petitioner within a period of four months from today, failing which interest at the rate of 9% per annum on such arrears shall also be paid by respondents No.1, 2 to petitioner. On above terms, the petition is disposed of. No costs. ( Kuldip Singh ), July 14, 2009, Judge. (GR)