Devender Chauhan vs Himachal Road Transport Corporation and Others

Rajiv Sharma, J.—Petitioner joined his duties at Rekong Peo on 11.11.1996. The normal tenure of posting in difficult/tribal areas is two winters and three summers. Petitioner was not transferred from tribal area to a soft area. He made a representation. Pursuant to the representation made by petitioner, he was transferred to Tara Devi on 8.6.2012. An employee, if is not transferred out of the tribal area, is entitled to Overstay Allowance at the following rates:

"1. In fourth year of stay: 10% of basic pay

In fifth year of stay: 17 1/2% of basic pay

In sixth year of stay: 25% of basic pay

In seventh year of stay 35% of basic pay thereafter."

However, fact of the matter is that petitioner has not been paid overstay allowance. He approached this Hon''ble High Court by way of CWP No. 7246 of 2012. It was decided on 30.8.2012 and the respondent-corporation was directed to consider the case of the petitioner on the analogy of judgment rendered in CWP (T) No. 12296/2008. Case of the petitioner was rejected on 9.11.2012 on the ground that he has given undertaking that he would not claim Overstay Allowance, in case he is permitted to remain in tribal area.

Mr. Manohar Lal Sharma, has brought to the notice of this Court that one Shri Jodha Ram from whom same type of undertaking was obtained, has been granted Overstay Allowance. He had filed CWP No. 4737/2010, which was decided on 19.8.2010. The undertaking of Jodha Ram is at page 36 of the paper-book. Counsel of the petitioner has also been informed by the Regional Manager, HRTC, Rekong Peo, vide communication dated 11.12.2013, that Shri Jodha Ram, driver, who was working at Rekong Peo, has been paid Overstay Allowance of Rs. 78,828/- by the Regional Manager HRTC Nalagarh. Case of petitioner was also required to be considered on the analogy of Jodha Ram, Driver. It is settled law that there can not be estoppel against any legal right. Petitioner has been discriminated by the management of the respondent-Corporation by denying him Overstay Allowance and by paying the same to Jodha Ram, as noticed herein above.

The Apex Court in Nar Singh Pal Vs. Union of India and Others, have held that there cannot be any waiver or estoppel against the fundamental rights. Their Lordships have held as under:

"13. The Tribunal as also the High Court, both appear to have been moved by the fact that the appellant had encashed the cheque through which retrenchment compensation was paid to him. They intended to say that once retrenchment compensation was accepted by the appellant, the chapter stands closed and it is no longer open to the appellant to challenge his retrenchment . Thus, we are constrained to observe, was wholly erroneous and was not the correct approach. The appellant was a casual labour who had attained the ''temporary'' status after having put in ten years'' of service. Like any other employee, he had to sustain himself, or may be, his family members on the wages he got. On the termination of his services, there was no hope left for payment of salary in future. The retrenchment compensation paid to him, which was only a meagre amount of Rs. 6,350/-. was utilised by him to sustain himself. This does not mean that he had surrendered all his constitutional rights in favour of the respondents. Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any estoppel against the exercise of Fundamental Rights available under the Constitution. As pointed out earlier, the termination of the appellant from service was punitive in nature and was in violation of the principles of natural justice and his constitutional rights. Such an order cannot be sustained." 4. In latest judgment their Lordships of the Hon''ble Supreme Court in State of H.P. and Others Vs. Gehar Singh, have held as under:

"19. Notwithstanding the fact that the services of the respondents have been regularised with effect from 1st January, 2003 and they have joined their posts from that date without protest, they cannot, in our view, be denied the benefits as directed to be given to them by the Tribunal and affirmed by the High Court which had already accrued to them under the Scheme which was approved in Mool Raj Upadhyaya''s case." 5. Accordingly, the writ petition is allowed. Respondent Corporation is directed to pay Overstay Allowance to the petitioner from due date i.e. 10.11.1999 to 31.5.2012 with interest @ 12% per annum within a period of four weeks from today, failing which petitioner shall be entitled to interest @ 18% till the payment is made. Pending applications, if any, are also disposed of.