Tarlok Chand vs The State of Himachal Pradesh and The Director, Food and Supplies Department, Govt. of H.P. Shimla

Mr. Sanjay Karol, J.—According to learned counsel for the petitioner, matter in issue is squarely covered by the decision rendered by a Coordinate Bench of this Court in CWP No. 3139 of 2011, titled as Ram Krishan versus State of H.P. and others, decided on 20.7.2011, copy of which is taken on record.

It is not in dispute that petitioner was promoted as Inspector in terms of order dated 31.10.1986 (Annexure A-1). This of course was subject to fulfillment of certain conditions. Since petitioner did not comply with the same, show cause notice (Annexure A-2) dated 4.11.1992 was issued to him. Petitioner replied to the same but the explanation did not find favour with the authorities and as such in terms of order dated 30.11.1992 (Annexure A-4) petitioner was reverted to the post of Sub Inspector, which was challenged by the petitioner before the erstwhile Himachal Pradesh Administrative Tribunal and his O.A. was disposed of with a direction to the respondents to decide his representation. In that regard order dated 16.12.1992, passed by the erstwhile Himachal Pradesh Administrative Tribunal reads as under:

The present application u/s 19 of the Administrative Tribunals Act, 1985 has been filed without exhausting the alternative remedy of appeal/representation to the Secretary (Food and Supplies).

In the peculiar circumstances of the case we direct that the present application itself be treated as representation/appeal to the Secretary (Food and Supplies) to the Government of Himachal Pradesh who will consider the case of the applicant on merit and decide the same in accordance with law within a period 3 of three months with liberty reserved to the applicant to approach the Tribunal again on the same cause of action if aggrieved.

The operation of the impugned order dated November 30, 1992, annexure -A1 is stayed in the meanwhile. ''Dasti copy''.

Petitioner''s representation was however rejected vide order dated 18.2.1993 (Annexure A-6) which also was assailed by him before the erstwhile Himachal Pradesh Administrative Tribunal in O.A. No. 562 of 1993 which was disposed of on 21.8.1995 with the following observations:-

The applicant is stated to have been again promoted as Food & Supplies Inspector and as such no other and further orders need be passed. The application stands disposed of accordingly.

Undisputedly vide another order dated 15.3.1993 (Annexure A-8) petitioner was promoted as Inspector in his own right.

Thus it is seen that w.e.f. 31.10.1986 petitioner has continued to work as an Inspector. It was only for a brief period between 30.11.1992 till 18.2.1993 that he worked as an Inspector under orders passed by the erstwhile Himachal Pradesh Administrative Tribunal. Noticeably even after rejection of his representation on 18.2.1993 he was not reverted to the post of Sub Inspector but he continued to officiate as an Inspector till he was formally promoted as such, in terms of order dated 15.3.1993.

I find that the facts of Ram Krishan (supra) are similar to that of the present petitioner wherein following directions were issued:-

The respondents resisted and contested the claim of the petitioner, precisely on the ground that the petitioner was promoted to the post of Junior Editor on 23.7.1986 against a vacancy reserved for backward class, subject to his furnishing the fresh certificate of backward classes and later, on verification, it was found that he did not belong to the backward class as his income being more than Rs. 7,500/- per month. Finding this discrepancy, the petitioner was reverted back to the post of Clerk, but on account of the stay obtained from the Administrative Tribunal, he remained on the said post as aforesaid till his appeal was dismissed by the Secretary of the Respondent, so it is that period, for which recovery is sought to be made.

As a matter of fact, when the petitioner approaches the competent Court bona-fidely to protect himself from prejudice likely to be caused by any administrative order and prima-facie succeeds in getting order of stay from a competent Judicial Authority and remained on the post pursuant to the orders of the Court without any protest from the respondents, in my opinion it is not legally justified that the recovery should be made for the period he actually worked on that post without his fault, that too, much after his superannuation. As such, Annexures P-23 and P-26, are hereby quashed and set-aside. Respondents are accordingly directed to release all the retiral benefits including the gratuity and commuted value of the portion of pension to the petitioner, within a period of four months, from the receipt of the copy of this judgment and the respondents shall also sanction the final pension of the petitioner on the basis of the last pay drawn.

Thus in my considered view, petition needs to be allowed. Order dated 14.3.2002 (Annexure A-9) which has yet not been implemented, needs to be quashed. Attempt made on the part of the respondent to refix petitioner''s pay scale by reverting him to the post of Sub Inspector w.e.f. 31.10.1986 till 15.3.1993 is unwarranted, illegal and thus quashed.

With the aforesaid observations, present petition stands disposed of, so also the pending application(s), if any.