STATE OF H P Vs. AMAR SINGH

JUDGEMENT

(1.) This writ petition is directed against the order of the H.P.State Administrative Tribunal dated 30th May, 1997.The writ petition was filed on 20th July, 2002 more than fiveyears after the order was passed by the Tribunal. In the writ petition the explanation given for the delay is that the department was not even aware of the impugned judgement. It was also averred that though long delay has occurred but this delay was attributable to certain officials of the department against whom departmental inquiry have been ordered. The writ petition as observed above was filed on 20th July, 2002. On 15th September, 2009 we directed the State to file a fresh affidavit with regard to the action, if any, taken. Now in the affidavit, it is stated that in Whether the reporters of the local papers may be allowed to see the Judgment the inquiry report submitted on 31st October, 2002 no lapse on thepart of any individual was found and it was not possible to fix the responsibility of any individual. According to the Director the inquiry conducted was not conclusive and therefore, the same is to be made again by another Inquiry Officer. We are astounded at the manner in which the State has dealt with the matter. Whereas in the explanation for condoning the delay it was specifically stated that an inquiry has been ordered to fix the lapse, now it is stated that as far back 31st October, 2002 nothing conclusive was found against any person. Obviously no inquiry can be ordered now in the year 2009 after further a period of seven years. It is, therefore, obvious that the explanation was a mere eye-wash. We deprecate this practice of the State and clearly state that in case in future any such false explanation is given the concerned officials shall be dealt with strictly.

(2.) Having said so, in the present case, we find that the learned Tribunal has passed a totally erroneous order. It has not even understood the controversy between the parties. Therefore, though there is delay we condone the same subject to payment of Rs.25,000/- as costs by the State of H.P. to the petitioner. The State shall be at liberty to recover these costs from the erring officials. We are imposing exemplary costs because of the huge delay involved and the fact that a false explanation was given to explain the delay and the result of the inquiry was not brought to the notice of this Court till this Court passed a specific order in this behalf on 15th September, 2009. Coming to the merits of the case, we find that the petitioner in his original application filed before the erstwhile Tribunal had prayed that his pay be fixed by protecting the basic pay, which he was getting in the army. Undisputed facts are that the petitioner joined the Indian army on 30.1.1963 and was discharged on 30.12.1983. On 30.10.1985 the petitioner was appointed as Operation Theatre Assistant in the Directorate of Health at Solan in the pay scale of Rs.450-800. This post was not reserved for exservicemen and therefore, the petitioner was not covered under the Demobilized Armed Forces Personnel Rules, 1972. The petitioner in his original application prayed that the respondents be directed to give the benefit of military service to the applicant in accordance with Rule 5 of the said Rules. This original application appears to have been filed some time in 1996. Even before reply could be filed by the State, the O.A. was disposed of by the learned Tribunal holding that the dispute is covered by the judgement rendered by the Full Bench of the Tribunal in a case titled as Kali Dass and others vs. State of H.P. and others decided on 3.8.1994. The decision of the Tribunal in Kali Dass's case has no relevance to the dispute in hand. The question which was decided by the Full Bench in Kali Dass's case was that even those ex-servicemen employed in the army prior to declaration of emergency on 1.11.1962 were entitled to the benefit of the Demobilized Armed Forces Personnel Rules. It would be pertinent to mention that this judgement of the Tribunal has been set-aside by the Apex Court. However, we are of the considered opinion that this judgement in any event had no relevance to the dispute in hand since admittedly the petitioner had joined the Indian Army on 30.1.1963 i.e. after 1.11.1962. Therefore, the Tribunal totally misdirected itself and we have to set-aside the order of the Tribunal.

(3.) The Tribunal did not go into the merits of the plea raised by the claimant and did not wait for the reply of the State. According to the State all the posts of Operation Theatre Assistant belonged to the general category and none were reserved for ex-servicemen. It may be true that the applicant may have been given relaxation in age but he was not appointed against a post reserved for exservicemen.