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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Satyen Vaidya, J.
Jeeva Nand and Ors. - Petitioner
Vs.
State of H.P. and Ors. - Respondent
CWP No. 3189 of 2019
Decided On : 09-04-2024
Rule 7(n) - Denial of Benefit - H.P. State Cooperative Bank Employees (Terms of Employment and Working Conditions), Rules, 1979 - 7(n) - Summary: The court discussed the denial of benefits to the petitioners under Clause 7(n) of the Rules, which provide for benefits to employees applying for higher posts. The court held that the petitioners had consciously accepted the terms and conditions of the appointment and failed to avail the opportunity to object to the exclusion clause. The court also found that the petitioners had waived their right by not challenging the exclusion clause before accepting the appointment. The court rejected the petitioners' contention of lack of bargaining power and non-applicability of the principle of waiver. The court also highlighted that the petitioners had not laid any factual foundation for their challenge and had not availed legal remedies within a reasonable time, thus barring their claim by delay and laches.
Fact of the Case:
The petitioners, who were working as Junior Clerks with the bank, applied for the posts of Assistant Managers and were selected. They accepted the appointments on a condition to forgo their right to the benefits under Clause 7(n) of the Rules. The bank denied the benefit of Clause 7(n) to the petitioners, who then filed repeated representations without success. The bank finally rejected their claim, leading to the petition.
Finding of the Court:
The court found that the petitioners had consciously accepted the terms and conditions of the appointment and failed to challenge the exclusion clause before accepting the appointment. The court rejected the petitioners' contentions of lack of bargaining power and non-applicability of the principle of waiver. The court also held that the petitioners had not availed legal remedies within a reasonable time, thus barring their claim by delay and laches.
Issues: The issues involved the denial of benefits to the petitioners under Clause 7(n) of the Rules, the petitioners' contention of lack of bargaining power, non-applicability of the principle of waiver, and the delay and laches in availing legal remedies.
Ratio Decidendi: The court held that the petitioners had consciously accepted the terms and conditions of the appointment and failed to challenge the exclusion clause before accepting the appointment. The court rejected the petitioners' contentions of lack of bargaining power and non-applicability of the principle of waiver. The court also highlighted that the petitioners had not availed legal remedies within a reasonable time, thus barring their claim by delay and laches.
Final Decision: The court found no merit in the petition and dismissed it, along with any pending applications.
JUDGMENT :
Satyen Vaidya, J.
By way of instant petition, petitioners have prayed for following reliefs:-
(i) That impugned action of the respondents which has denied the benefit of Rule 7(n) of H.P. State Cooperative Bank Employees (Terms of Employment and Working Conditions), Rules, 1979, to the petitioners, the copy of one such impugned letter dated 02.04.2019 (Annexure P-9), may kindly be quashed and set aside and the respondents may be directed to implement the above provisions to them.
(ii) That the Respondents No. 2 & 3 may be directed to count the past service of the petitioners for the purpose of fixation of pay in new scale, towards pension/retirement benefit and the leave at credit may ordered to be carried forward as per the provision of Bank Rule 7(n) of H.P. State Cooperative Bank Employees (Terms of Employment and Working Conditions), Rules, 1979.
(iii) That the seniority of the petitioners to the post of Assistant Manager may kindly be ordered to be counted from the initial day of their joining for all intend and purposes and the contrary action by counting the seniority from the date of regularization may kindly be set aside.
(iv) That the respondents may be directed to consider the case of the petitioners for the implementation of Bank Rule 7(n) of H.P. State Cooperative Bank Employees (Terms of Employment and Working Conditions), Rules, 1979, afresh as they have been condemned unheard.
2. Petitioners were working as Junior Clerks with respondent No.3 (hereinafter referred to as the ‘bank’). The bank issued advertisement dated 27.02.2009, for filling-up posts in different categories on contract basis through direct recruitment in the bank, which included the post of Officer Grade-III (Assistant Manager). The employees already serving the bank, were also free to apply through proper channel for the posts advertised as above.
3. Petitioners, having requisite qualification, also applied for the posts of Assistant Managers through proper channel. They were selected. Since, the posts were advertised to be filled on contract basis, offers were also made to the petitioners to be appointed as Assistant Managers on contract basis.
4. The offer of appointment was made to the petitioners with a condition that they would have to undertake to forgo their right to the benefits under Clause 7(n) of the H.P. State Co-operative Bank Employees (Terms of Employment and Working Conditions) Rules, 1979, (for short ‘The Rules’). Petitioners accepted the appointments on aforesaid condition. They submitted their respective undertakings and thereafter joined the bank as Assistant Managers on contract basis.
5. Clause 7(n) of the Rules provide for certain benefits of the past service to the employees of bank in case of their appointment to the higher post. However, in the case of the petitioners, their appointments as Assistant Managers were made by excluding the benefit of Clause 7(n) of the Rules.
6. Petitioners made repeated representations to the bank w.e.f. 08.08.2013 to 31.07.2018 without any success. The bank finally rejected the claim of the petitioners, vide communication dated 2.04.2019, Annexure P-9. Hence, this petition.
7. I have heard learned counsel for the parties and have also gone through the record of the case carefully.
8. It is contended on behalf of the petitioners that the exclusion of the benefits as per Clause 7(n) of the Rules in their case was illegal for the reasons firstly, that there was no mention of such exclusion clause in the advertisement dated 27.02.2009 and the petitioners were taken by surprise at the time of their appointments and since they had no bargaining power as against the bank, they had to submit the undertaking as required by the bank, secondly, the bank was estopped from denying the benefits to Clause 7(n) of the Rules to the petitioners as the rules had statutory recognition having been framed on the strength of the provisions of H.P. State Cooperative Societies Act, 1969 and lastly, it has been co
AI
Inter-se seniority between promotees and direct recruits determined by date of actual appointment to grade, not eligibility or process initiation date; direct recruits appointed earlier senior despit....
The main legal point established in the judgment is the principle of delay and laches in seeking relief after retirement, emphasizing that such claims should be made within a reasonable time and that....
Delay in filing a writ petition can bar claims for relief, especially in service matters, as established by the principles of delay and laches.
Claims for promotional increments must be raised within a reasonable time, particularly before retirement; delay can bar relief.
Claims for additional increments post-retirement are barred by delay and laches, emphasizing the need for timely action by employees.
Representations relating to a stale claim or dead grievance does not give rise to a fresh cause of action.
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