IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 6077 of 2008 Decided on : 14.12.2010 ___________________________________________________________ Kewal Kumar …Petitioner. Versus State of H.P. and another ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. Ajay Sharma , Advocate. For Respondents : Ms. Ruma Kaushik, Addl. A.G. for respondent No.1. Mr. Sanjeev Kuthiala, Advocate for respondent No.2. Kuldip Singh, Judge ( Oral) The petitioner has prayed that respondent No.2 may be directed to allow the petitioner to continue to work as Mate on the same terms and conditions and in the same capacity and at the same place treating him as his services were never terminated. The prayer to regularise the services of the petitioner as Mate has also been made alongwith the prayer that respondents may be directed to pay the wages of Mate to the petitioner as he had been paid the wages of Beldar only and the principle of equal pay for equal work may be applied. A specific prayer has been made that the wages for April 1998 may be ordered to be paid to the petitioner accordingly. 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 2. The brief facts of the case are that the petitioner, who is matriculate was engaged in August, 1996 on daily wage basis as Mate by respondent No.2. The petitioner continued as such till September, 1997 when respondent No.2 submitted a proposal for regularisation of petitioner as Mate. The Director, Urban Development in response to the communication dated 24.7.1997 had written letter dated 24.10.1997 to the President of respondent No.2 and observed that Section 53(1) (c ) of the H.P. Municipal Corporation Act, 1994 (sic) provides that the total expenditure on establishment should not exceed one third of the total expenditure of the Municipality. Nagar Panchayat, Daulatpur Chowk does not fulfill the said condition, therefore, department regret to concur with the proposal for the creation of regular post of Mate. It was further observed that existing incumbent Kewal Kumar will continue to work as Mate on daily wages. 3. The further case of the petitioner is that respondent No.2 in this context in a calculated way asked the petitioner to enter into an agreement for the post of Mate on a consolidated pay of ` 1500/- for a period of six months. He was appointed Mate on contract basis. The respondent No.2 terminated the services of the petitioner on 1.5.1998. The petitioner was not paid the wages from 1.4.1998 to 30.4.1998, although, he had worked for the said period after the expiry of contract period also. 4. The respondent No.2 in order to adjust their favourite terminated the services of the petitioner and one Madan Lal was engaged as Mate. This act of respondent No.2 suffers from legal malafides and not sustainable. Madan Lal has been wrongly engaged as Mate by respondent No.2 in place of petitioner. 3 5. The petitioner filed O.A. No. 1021 of 1998 in the erstwhile Tribunal in which respondents herein were also respondents. The replies were filed in O.A. No. 1021 of 1998. In the meantime, the respondent No.2 passed a resolution and resolved that service of the petitioner who had been working as Mate be engaged as Supervisor on the condition of his withdrawing the case filed in the Tribunal and his submitting an affidavit to this effect to respondent No.2. In view of the resolution passed by respondent No.2, the petitioner prayed for dismissal of his O.A. No. 1021 of 1998 as withdrawn and the Tribunal vide order dated 10.6.1999 granted the permission to the petitioner to withdraw the petition and dismissed the petition as withdrawn. After the withdrawal of the petition despite repeated requests the respondent No.2 did not engage the petitioner as Supervisor as per resolution of respondent No.2 referred above. On these facts, the petitioner has filed the petition for the reliefs noticed above. It has been pleaded that respondent No.2 has acted in unjust, unfair and in arbitrary manner. It has been stated that petitioner was paid wages at the rate of ` 45.75 less than the wages prescribed for Mate. 6. The respondent No.2 has contested the petition by filing reply. It has been stated that petitioner had withdrawn the O.A. No.1021 of 1998 without any liberty, therefore, he cannot file similar petition again. The petitioner was engaged on contract for six months on the basis of agreement dated 1.10.1998. The engagement of petitioner is over by afflux of time. It has been admitted that petitioner was engaged as Mate as well as Tax Collector on 24.8.1996 and he worked with respondent No.2 till 31.7.1997 on daily wage basis. The proposal was made to respondent No.1 for appointment of regular Mate on 24.7.1997. The respondent No.2 in the meeting held on 12.9.1997 had resolved to appoint a Work Supervisor-cum- 4 Tax Collector on contract basis for a period of six months. It has been submitted that respondent No.2 had not received communication dated 24.10.1997 of Director, Urban Development but respondent No.2 came to know of this letter only through earlier O.A. No. 1021 of 1998. It has been stated that appointment of petitioner as Mate on daily wages as per letter dated 24.10.1997 loses significance since the petitioner had entered into an agreement with respondent No.2 on 1.10.1997 for his appointment on contract basis. 7. The services of the petitioner were terminated in accordance with condition No.4 of the agreement which came to an end on 31.3.1998. It has been denied that the petitioner had worked with respondent No.2 from 1.4.1998 to 30.7.1998. It has been denied that no person was appointed as Mate with respondent No.2 after 31.3.1998. It has been denied that Madan Lal was engaged by respondent No.2. The respondent No.2 has prayed for dismissal of the petition. 8. The petitioner has filed rejoinder to the reply of respondent No.2 in which he has reiterated his stand and denied the case put forth by respondent No.2. The petitioner has also placed on record a copy of daily attendance for the month of April 1998 Annexure A-3 wherein his presence has been marked having worked as Mate from 2.4.1998 to 28.4.1998.The petitioner has filed an application and has also placed on record letter dated 17.12.1999 of Secretary, Nagar Panchayat Daulatpur Chowk informing the candidates that the interview for the post of Work Supervisor on contract basis for six months had been fixed on 24.12.1999. The respondent No.2 in reply to application has taken the stand that the petition has become infructuous since pursuant to the interview held by respondent No.2 on 5 24.12.1999 one Naresh Kumar has been appointed as Work Supervisor on contract basis for six months. 9. I have heard the learned counsel for the parties. It has been submitted on behalf of the petitioner that petitioner was engaged on daily wage basis as Mate by respondent No.2 in August 1996, petitioner worked as such till September 1997. On 24.10.1997 the Director, Urban Development in response to letter dated 24.7.1997 of respondent No.2 had informed respondent No.2 that it was not possible to concur with the proposal of respondent No.2 for creation of regular post of Mate but the respondent No.2 was directed that existing incumbent Kewal Kumar be continued to work as Mate on daily wages. 10. It has been alleged that the respondent No.2 managed to engage petitioner as Mate on contract basis as per agreement dated 1.10.1997 for a period of six months. The petitioner continued to work after termination of contract on 31.3.1998 and he worked almost full month of April, 1998. The petitioner was dis-engaged on 1.5.1998. The respondent No.2 engaged one Madan Lal as Mate wrongly and illegally. 11. The petitioner filed O.A. No. 1021 of 1998. In the meantime, the respondent No.2 passed a resolution to engage petitioner as Supervisor subject to withdrawal of O.A. No. 1021 of 1998 by the petitioner and filing an affidavit to this effect with respondent No.2. The petitioner accordingly withdrew the petition but despite that respondent No.2 did not fulfill the promise held out to the petitioner in the form of resolution of respondent No.2 and the petitioner having acted on the resolution of respondent No.2 to his detriment by withdrawing the O.A. No. 1021 of 1998. The respondent No.2 has denied that any Madan Lal was engaged by respondent No.2, but during the pendency of the petition, it has come on record that respondent 6 No.2 had engaged one Naresh Kumar as Work Supervisor on contract basis. 12. The controversy between the parties is in narrow compass. The conduct of the parties before the resolution of respondent No.2 noticed above is not of much significance for deciding the petition inasmuch as respondent No.2 has passed the resolution for appointing the petitioner as Supervisor subject to the condition that petitioner would withdraw O.A. No. 1021 of 1998 which was pending at that time before the Tribunal. It has been stated by respondent No.2 in the reply that communication dated 24.10.1997 of Director, Urban Development was not received by respondent No.2 but the respondent No.2 came to know of the communication dated 24.10.1997 during the pendency of the O.A. No. 1021 of 1998. 13. It is thus clear that when resolution was passed by respondent No.2 at that time the respondent No.2 was aware of the communication dated 24.10.1997 of Director, Urban Development in which it was specifically observed that petitioner to continue as Mate on daily wages. The respondent No.2 by passing the resolution has taken a conscious decision to appoint the petitioner as Supervisor and, therefore, directed the petitioner to withdraw O.A. No. 1021 of 1998. The petitioner complied the direction of respondent No.2 and withdrew O.A. No. 1021 of 1998. After the withdrawal of O.A. No. 1021 of 1998, the respondent No.2 is sleeping over the matter and the petitioner has been left high and dry. The respondent No.2 instead of appointing the petitioner as Supervisor appointed one Naresh Kumar as Work Supervisor on 3.1.2000. This indicates that respondent No.2 has work as well as funds for the appointment of Supervisor. The respondent No.2 has arbitrarily ignored the right, claim of the petitioner by pushing him to the wall. The respondent 7 No.2 has not acted fairly in not appointing the petitioner as Supervisor even though the petitioner had fulfilled the condition laid down by the respondent No.2 for this purpose by directing the petitioner to withdraw O.A. No. 1021 of 1998. Thus, the petitioner has made out a case for a direction to respondent No.2 for considering the case of the petitioner for appointment as Supervisor and thereafter to appoint the petitioner as Supervisor in the light of observations made above. 14. No other point was urged. 15. The result of the above discussion, the petition is allowed. The respondent No.2 shall consider the case of the petitioner for appointment as Supervisor in one month from the date of supply of copy of this judgment by the petitioner as held above and appoint the petitioner as Supervisor with respondent No.2 in two weeks thereafter. The respondent No.2 is also directed to pay the wages of petitioner as Mate w.e.f. 2.4.1998 to 28.4.1998 within the same period. No costs. ( Kuldip Singh ), December 14, 2010, Judge. (GR)