IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP Nos. 1578 and 1612 of 2002. Judgment reserved on 5.3.2010. Date of decision: April 23, 2010. CWP 1578 of 2002. 1. State of H.P. & others …Petitioners. versus Smt. Sudesh Sood & others …Respondents. CWP 1612 of 2002. 2. State of H.P. and others …Petitioners. versus Smt. Simmi Butail & another. …Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. The Hon’ble Mr. Justice Kuldip Singh, J. Whether approved for reporting?1 No For the petitioners Mr. P.K.Sharma, Additional Advocate General with Mr. P.M.Negi, Deputy Advocate General. For the respondents Mr. K.D.Shreedhar, Advocate with Mr. Rajnish Maniktala, Advocate. For Respondent No. Mr.D.K. Khanna, Advocate. Dev Darshan Sud, J. These writ petitions are disposed of by a common judgment as they involve the same questions 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes - 2 - of law. The State is aggrieved by the order passed by the learned Administrative Tribunal accepting the contention of the petitioners that they be regularized against the post of Senior Drughtsman. This case has a chequered history. The facts of both the petitions will be considered separately. In Original Application 308 of 1996, which is subject matter of challenge in CWP 1578 of 2002, the applicants approached the Tribunal on the allegations that they joined as Senior Draughtsmen (Architecture) on daily wages with effect from various dates for a period of three months. They were issued retrenchment notices and they approached this Court in CWP 546, 547 and 622 of 1992 wherein directions were issued that they would continue on daily wages till recruitment was made on regular basis. This Court in those petitions directed that the petitioners therein be offered appointment as regular Junior Draughtsman in the pay scale of Rs.1200-2100/- on completion of 10 years service. One other grievance was made and which right was specifically reserved to the petitioners was that they are entitled to be appointed as Senior Architectural Draughtsman. This Court observed that for this relief, they may approach the appropriate forum if necessary. Before the Tribunal, the claim of the petitioners was resisted primarily on the ground - 3 - that regularization required the intervention of the Public Service Commission. The State pleaded and accepted that the petitioners had been appointed as Senior Draughtsmen. The reply is interesting which reads: “5. That the applicants appointed as Sr. D/man during 1986 & 1988. Due to paucity of funds the applicants were adjusted on the lower post of Jr. D/man which were accepted by them.” To similar effect is the pleading of the State in paragraph 6 on merits with this addition that the petitioners are required to be regularized by the Public Service Commission. The petitioners also placed on record material to establish that they were made to perform the duties of Senior Architectural Draughtsmen, although they were designated as Junior Draughtsmen for the reason that the State was not possessed of sufficient funds. The Tribunal has gone into the detailed aspect of this matter holding that the nature of work performed by the petitioners was that of Senior Architectural Draughtsmen. The Tribunal also holds in its judgment that recommendation had been made by the Chief Architect for regularization of the applicants as Senior Architectural Draughtsmen but his recommendations were turned down vide Annexure A-1 holding that the petitioners should be regularized as Junior Draughtsmen. This order was - 4 - challenged by the petitioners. The Tribunal has noted all these facts in the judgment which is challenged before us. The Tribunal holds that the State has only urged its reply which has filed before it. It records:- “11. The learned Additional Advocate General has only referred to the reply filed. 12. After going through the pleadings it is evident that although the initial appointment of the applicants had been made only for three months yet they have been discharging the duties of Senior Draughtsman since the very beginning. When the department was faced with the resource problem the applicants were adjusted against the post of Junior Draughtsman for the purpose of wages but the work taken from the applicants was that of Senior Draughtsman. In that view of the matter it would not be equitable to adjust the applicants against the post of Junior Draughtsman particularly in view of the fact that they are qualified for the post of Senior Draughtsman. The respondent department has not placed any material on record to rebut the statement made by the applicants in the Original Application and in the rejoinder that they had discharged the duties all through, of the post of Senior Draughtsman as per Annexures-A-4/1, A-4/2 and A-4/3 even when they were being paid the wages - 5 - of the Junior post. It has been observed by the Hon’ble apex Court in many cases that in an unemployed person has no capacity to bargain as he has to sustain himself some how. The record supports contentions of the applicants that they did not voluntary agree to work against the post of Junior Draughtsman. Their consent was obtained only on December 14, 1990 whereas they were adjusted against the post of Junior Draughtsman w.e.f. July 1, 1990. Thus it was not a voluntary consent, it was a consent given under peculiar circumstances as the applicants wanted a job some how to sustain themselves and the respondents had no resources to pay the wages of the post on which they worked i.e. against the post of Senior Draughtsman.” It is obvious in the background that the Tribunal itself had gone into details of the work performed by the petitioners and the State could not deny its own record. On repeated queries from this Court as to the Rules applicable for appointment of Senior Architectural Draughtsmen at the initial stage, we were not given any record / shown any Rules whereby the consultation of the Public Service Commission for regularization was necessary. That apart, the State being a model employer, it was not open to it to have used its superior bargaining - 6 - power to deny the petitioners the post of Senior Architectural Draughtsmen, continue taking work from them as such and designate them as Junior Draughtsmen only on this ground that the State was not possessed of adequate funds. This practice was unfair and the petitioners could not be subjected to this disadvantage. Learned Additional Advocate General submits that the petitioners are estopped from urging that they can be regularized as Senior Architectural Draughtsmen as they had accepted the post of Junior Draughtsmen and further the orders passed by this Court in the writ petitions, they could not be granted any regularization. We cannot accept this contention on behalf of the State. On the first submission, all that we need say is that we do find it a bit strange that the State should urge for legitimization of unfair practices of deny benefit to its employ keeping them against a lower post though extracting work against a higher post. Even assuming that lack of funds prompted the State to redesignate them as Junior Draughtsmen for the purposes of reducing the financial burden, but the unrebutted record before the Tribunal was that they were performing the duties of Senior Architectural Draughtsmen. On the question of estoppel, we find it strange that the State with its immense bargaining power can subdue the petitioners and urge a principle of law to deny them their legitimate - 7 - rights. We do not find any material on record to rebut crucial aspects established as a fact i.e. (a) that the petitioners were appointed as Senior Architectural Draughtsmen and (b) that despite their so called redesignation, the work performed by them was that of Senior Architectural Draughtsmen. Learned Additional Advocate General urges that the principle of law is now well settled that no Court can issue a direction contrary to the rules for appointment / regularization. In particular, he refers to the decisions in Ahmedabad Municipal Corporation v. Virendra Kumar Jayantibhai Patel, 1997 (5) SLR 401, Santosh Kumar Verma (Mr.) and Ors. v. State of Bihar and Ors., 1997 (1) SLR 773, State of Himachal Pradesh v. Suresh Kumar Verma and another, AIR 1996 SC 1565 and State of U.P. and others v. Ajay Kumar, 1997 (2) SLR 234. The principle as urged is established and needs no reiteration. However, it is the applicability of the principle to the facts of the case which has to be established on record. While granting relief, the Tribunal has noticed the same arguments which were advanced before it. The Tribunal holds: “16. … … … … … …The contention of the applicants that despite change in designation they continued to discharge the duties of Senior Draughtsman has not been rebutted and as such on completion of 10 - 8 - years service as Senior Draughtsmen, they are entitled to be regularized in terms of the scheme contained in Annexures-A/10 and A/11 dated 11th July, 1995 and 17th August, 1995 respectively on the lowest post in that cadre. This would in no manner be against the directions of the Hon’ble Supreme Court. 17. During the course of arguments it was submitted by learned counsel for H.P. Public Service Commission that some interview/recruitment were held for the posts of Senior Draughtsmen (Architecture) and results had also been prepared. However, declaration of the result had been stayed by this Tribunal vide order dated May 31, 1996 in MA No.1016/96 in this original application. It was prayed that the stay order may be vacated. Keeping in view the facts of this case and the conclusions arrived at in the preceding paras, in case some posts are still available with the respondents after regularizing of the applicants, as Senior Draughtsmen, the result against those posts can be declared by the Public Service Commission. However, respondents 1 to 3 will consider this matter and issue suitable instructions to H.P. Public Service Commission. The stay order passed on May 31, - 9 - 1996 is vacated with these observations. 18. The original application in view of the discussion in preceding paras is allowed with no order as to costs. The respondents are directed to regularize the applicants as Senior Draughtsman on the available vacancies with effect from the dates the applicants have completed 10 years of service in terms of Annexure- A/10 and A/11.” Dealing with CWP No.1612 of 2002, Tribunal basis its decision on this judgment where also the petitioner before the Tribunal had been denied the benefit of regularization in accordance with the Schemes available with the petitioner. We do not find that the State has been able to establish on record the facts to establish to deny relief to the petitioners. There is no merit in these writ petitions which are accordingly dismissed. There shall be no order as to costs. All pending applications shall stand disposed of and all interim orders vacated. (Dev Darshan Sud), Judge. April 23, 2010 (Kuldip Singh) (PC/aks) Judge.