1 2025:HHC:26118-DB IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA LPA No. 228 of 2014 Date of decision: 30.07.2025 ________________________________________________________ Kapil Dev Sharma …..Appellant Versus Chairman Board of Directors & others . …Respondents _______________________________________________________ Coram: The Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice. The Hon’ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting?1 Yes ________________________________________________________ For the Appellant: Mr. Sarvedaman Rathore, Advocate. For the Respondents: Mr. Vivek Sharma, Advocate, for respondents No. 1 & 2. Respondents No. 3, 7, 8, 10, 11, 18, 19, 21 & 24 ex-parte. Mr. Sidharth Jalta, Deputy Advocate General, for respondents No. 4 & 5. Mr. Shekhar Badola and Mr. Rupesh Kumar, Advocates, for respondents No. 13, 14 & 15. G.S. Sandhawalia , Chief Justice ( O ral) Challenge in the present Letters Patent Appeal is to the order dated 09.09.2014, passed by the 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 learned Single Judge in CWP No. 1140 of 2001, titled Kapil Dev Sharma Vs. The Chairman Board of Directors & others, whereby the writ petitioner was given the benefit as such of seniority being fixed at Sr. No. 14 by up-grading from Sr. No. 23 in the List of Clerks, under Point No. 1. However, for Point No. 2 regarding the consequential monetary and promotional benefits which were claimed, the learned Single Judge was of the view that the relief could not be granted since in the earlier round of litigation inter-se the parties, the order had been passed in Civil Review Petition No.50 of 1996, titled Kapil Dev Vs. H.P. Stae Small Industries and Export Corporation & others, on 05.11.1997, which arose out of Civil Writ Petition No. 144 of 1993, titled H.P. State Small Industries and Export Corporation Limited Shimla vs Kapil Dev decided on 27.12.1995, that the employee would not be entitled to the consequential monetary benefits and other benefits and the said order had not been challenged by the present appellant by way of SLP before the Apex Court. 3 2. The employee as such has thus agitated the non-grant of the consequential benefits, though his seniority had been fixed at the higher place in the List of Clerks, as mentioned above. 3. The short argument which has been raised by Mr. Rathore, Counsel for the appellant, is limited to the extent that by virtue of the grant of seniority by the learned Single Judge, the appellant would be entitled to the benefits after the date of the judgment on 05.11.1997, passed in Civil Review Petition No. 50 of 1996 till the date of his retirement on 31.10.2012. 3A. It is thus contended that if the appellant is entitled to be considered for promotion on account of the seniority being up-graded, he has to be given the benefits of the higher pay scale thereafter and, therefore, his case would have to be considered afresh by the Corporation to that extent, especially when some juniors to the appellant had been promoted/placed in higher scale and if such relief is granted, the arrears of pay would also have to be awarded. 4 4. Counsel for the Corporation, on the other hand, has placed reliance upon the order dated 05.11.1997, passed in the aforesaid Review Petition as such, whereby the rider had been put. The relevant part of the order reads as under: “Taking into account totality of the facts and circumstances of this case, we feel that the claim of the petitioner regarding assigning him appropriate place in the seniority of Clerks in the Head Office of respondent No. 1, needs to be adjudicated upon and thereafter assign him his rightful place in the concerned list. Accordingly, this review petition is allowed and consequently, the writ petition is restored to its original number. Since we have taken the view that the petitioner is entitled to assigning of his proper place in the seniority list of Clerks from the date he was transferred to the Head Office, the matter is ordered to be remanded back to the Labour Court, Himachal Pradesh, Shimla with a direction to adjudicate the claim of the petitioner regarding his placement in the seniority list of Clerks maintained by respondent No. 1 after he had been transferred to Head Office from HIPTRON Factory. It is further ordered that the petitioner shall implead such other persons as respondents before the Labour Court above whom he is 5 claiming to be placed in the seniority list. It is made clear that except for being assigned his proper place in the seniority list, he shall not be entitled to any other consequential seniority or other benefit. Subject to the aforesaid, the writ petition is also disposed of without effecting the judgment already given in CWP No. 144 of 1993 in any manner. Costs on the parties.” 5. In order to understand the controversy in question, it is necessary to go into the factual matrix of the case. We are inclined to grant the benefit as such, keeping in view the fact that the rider as such could not operate for the future, once the benefit had been granted by the Division Bench itself that the case of the writ petitioner would be considered for seniority by giving opportunity to contest whether he was entitled to the seniority or not. 6. The appellant was appointed as a Store Keeper on 04.08.1980 in HIMTRON, a Unit of respondent No. 1-Corporation, after his name was sponsored by the District Employment Exchange, Solan. On account of closer of the aforesaid Unit, he had been adjusted against the post of Clerk on 02.02.1984 at the 6 Headquarter, at a lower pay scale as such. Resultantly, he had raised an industrial dispute as such whether his placement to the post of Clerk at the Headquarter was legal and justified being lower in status. An award came to be passed in favour of the appellant on 25.07.1992, whereby he was held entitled to the pay- scale of Rs. 160-400 (pre-revised) w.e.f. 04.08.1980, with all subsequent revisions and arrears. 7. The Corporation had chosen to challenge the said award in Civil Writ Petition of 144 of 1993, which was decided in its favour on 27.12.1995 on the ground that there was a principle of estoppel as such and the post of Store Keeper was not available in the Head Office. There was a purpose to accommodate the employee that he is not left on the road high and dry, therefore, the principle of “Equal Pay for Equal Work” as such was rejected on the ground that his services could have been dispensed with at the time, when the unit was closed and he was transferred and adjusted in the Head Office. Resultantly, the Award was set aside and the Writ Petition was allowed. 7 8. The matter was thereafter taken to the Apex Court by the present appellant in Special Leave to Appeal (Civil) No. No. 8104 of 1996, which was withdrawn on 08.04.1996 (Annexure P-3 annexed to the Writ Petition), with a liberty to approach this Court by filing a Review Petition, as the point of seniority before the High Court had not been gone into. The relevant part of the aforesaid order reads as under:- “Learned Counsel for the petitioner submits that he had agitated the point of the seniority of the petitioner before the High Court but the Court has not gone into that question. He, therefore, seeks to withdraw this petition to approach the High Court. Learned Counsel is permitted to withdraw this petition with the liberty to file review petition before the High Court within three weeks. In the event, the review petition is filed within three weeks, the question of limitation shall not be raised and during this period of three weeks, no recovery shall be made from the petitioner.” 9. The Review Petition was then allowed on the limited terms on 05.11.1997, as reproduced above in para 4. 10. The Labour Court as such vide its order dated 16.03.2001 (Annexure P-1) annexed to the Writ 8 Petition) came to the conclusion that the order of the High Court dated 05.11.1997 as such was binding and therefore, the benefit as such of seniority was denied on the ground that the private respondents had not been arrayed at the earlier point of time. The appellant having been given appropriate seniority at Sr. No. 23 in the Clerical Cadre on 02.02.1984 and private respondents No. 6 to 25 having joined prior at point of time while deciding Issues No. 3-A and 3-C, which were regarding the seniority as such prevailed with the Labour Court. 11. The petitioner had then preferred CWP No. 1140 of 2001, out of which, the present appeal has arisen. The said Writ Petition was decided on 09.09.2014. While deciding the said Writ Petition, the learned Single Judge, however, was of the considered opinion that since the appellant had been recruited on the higher post of Store Keeper, he had to be given seniority as such and his seniority should have been fixed at Sr. No. 14 on the ground that Clerks as such were having lower pay scale and the post of Store 9 Keeper was a higher post. The relevant portion of the order reads as under:- “Findings on point No.1 7. Submission of learned Advocate appearing on behalf of the petitioner that services rendered by the petitioner in higher cadre of Storekeeper w.e.f. 4.8.1980 to 01-02-1984 should be calculated for calculating seniority list of Clerical cadre which is lower cadre than Storekeeper is accepted for the reasons hereinafter mentioned. In the present case it is proved on record that petitioner was appointed as Storekeeper on dated 4.8.1980. It is also proved on record that thereafter petitioner worked as Storekeeper w.e.f. 4.8.1980 to 1.2.1984. It is proved on record that thereafter petitioner was transferred to the post of clerk w.e.f. 2.2.1984. It is proved on record that a proposal to establish a unit in the electronic estate at Solan for manufacturing of T.V. tuners was submitted and it is also proved that Board had 6 approved the said proposal and Board ordered the creation of following posts in the establishment:- 1) Manageger (Electronic Engineer Senior Level) Consolidated pay around Rs. 2,000/- per month (Pre-revised One ii) Assistant Manager (Electronic Engineer) in scale of Rs. 400-1100 (Pre-revised) One iii) Foreman (Die-maker) in the sale of Rs. 300-600 (Pre-revised One 10 iv) Junior Accountant in the scale of Rs. 160-400 (Pre-revised) One v) Storekeeper in the scale of Rs. 160-400 (Pre-revised) One vi) Clerk in the scale of Rs. 110-250 (Pre- revised) One vii) Peon in the scale of Rs. 70-95 (Pre- revised) One viii) Garekeeper in the scale of Rs. 70-95 (Pre-revised) One iv) Sweeper-cum-Chowkidar in the scale of Rs. 70-95 (Pre-revised) One It is proved on record that cadre of Storekeeper was shown as separate cadre from the post of Clerk and it is also proved on record that salary of Storekeeper was shown in pay scale of 160- 400 (Pre revised) whereas salary of Clerk was shown in the pay scale of Rs.110- 250 (Pre-revised). It is proved on record that petitioner was holding the higher post of Storekeeper than Clerk. It is also proved on record that petitioner was recruited for higher post of Storekeeper than cadre of Clerk. It is also proved on record that cadre of Storekeeper and cadre of Clerk is not the same cadre but are two different cadres. It is well settled law that when a person is posted from higher cadre to lower cadre due to exigencies of circumstances then person who had rendered services in higher cadre is legally entitled for calculation of his service rendered in higher cadre for seniority in the lower cadre. It is proved on record that petitioner had served in higher cadre w.e.f. 4.8.1980 till 11 1.2.1984. It is also proved on 7 record that thereafter petitioner was transferred from the post of Storekeeper to the post of lower cadre Clerk w.e.f. 2.2.1984. It is proved on record that thereafter respondents have shown the seniority of the petitioner in the cadre of Clerk w.e.f. 2.1.1984 from the date of appointment as Clerk and it is also proved on record that respondents have not considered the service rendered by the petitioner on the post of Storekeeper w.e.f. 4.8.1980 to 1.2.1984 for the purpose of seniority. Court has carefully perused the seniority list prepared by respondents in the cadre of Clerks. The petitioner has been shown at Sr. No. 23 in the seniority list of Clerks and appointment of the petitioner as Clerk has been shown w.e.f. 2.2.1984. It is held that petitioner is entitled for calculation of his service rendered by him in higher post i.e. Storekeeper for calculation of his seniority in the clerical cadre. Hence it is held that seniority of the petitioner ought to have been fixed at Sr. No. 14 after giving him the benefit of service rendered by the petitioner in the post of Storekeeper which is higher post than Clerical cadre.” 12. However, as noticed above, on account of the earlier order passed by the Co-ordinate Bench, at that point of time, whereby the consequential benefits alongwith monetary benefits had been restricted, the 12 learned Single Judge did not grant the same under Point No.2. 12A. In such circumstances, we are of the considered opinion that the limited issue before the earlier Bench as such keeping in view the order passed in the SLP, was whether the seniority issue had to be decided. The issue before the Division Bench at that point of time was regarding the payment of the higher pay scale on the post of Store Keeper from 02.02.1984, as the appellant had been shifted to the Head Office on a lower post of Clerk. The Co-ordinate Bench at that point of time, was not seized of the issue of seniority. The issue of consequential benefits would have arisen in case the petitioner had got the relief of seniority. Rather, it was in such circumstances, the relief was restricted, as at that point of time, the seniority issue had not been thrashed out. The Co-ordinate Bench itself had relegated the matter to the Labour Court to decide the issue of seniority after giving due opportunity to all concerned and to implead the affected parties as private respondent before the Labour Court. 13 13. As noticed, the relief was declined by the Labour Court on 16.03.2001. The appellant was still in service at that point of time. He went on to retire on 31.10.2012 and the notional relief was granted by the learned Single Judge on 09.09.2014, by placing him at higher place in Seniority List by up-grading him from Sr. No. 23 to Sr. No.14. 14. In such circumstances, we are of the considered opinion that it was never the intention of the Co-ordinate Bench on 05.11.1997 at that point of time to deny the petitioner fruits of litigation which had yet to fructify and a finding had to be recorded as to whether he was entitled to seniority. 15. The finding recorded by the learned Single Judge on the basis that being appointed as a Store Keeper, the petitioner was entitled to be placed at a senior position in comparison to the private respondents, who though were appointed prior to him. Neither the Corporation nor the private respondents have challenged the said finding and, therefore, the same has become final in favour of the appellant. 14 16. In such circumstances, Counsel for the appellant has rightly relied upon the judgment passed by the Apex in Kanishk Sinha & another Vs. State of West Bengal & another, 2025 SCC Online SC 443, wherein it has been held that a law made by the legislature is always prospective in nature unless it has been specifically stated in the statute itself about its retrospective operation and the reverse is true for a law which is laid down by a Constitutional Court or law as it is interpreted by the Court. The judgment of the Court will always be retrospective in nature unless the judgment itself specifically states that the judgment will operate prospectively. The prospective operation of a judgment is normally done to avoid any unnecessary burden to persons or to avoid undue hardships to those who had bona fidely done something with the understanding of the law as it existed at the relevant point of time. 17. In our opinion, it could not have been the intention of the Division Bench at that point of time to give relief to one extent by remanding the matter for 15 the purpose of seniority and deny the financial benefits and it was only in the earlier round of litigation that the denial was there. In such circumstances, once the learned Single Judge was of the opinion that the petitioner was entitled to seniority, the consequential benefits must flow. 18. Accordingly, the appeal is allowed and the order of the learned Single Judge at Point No. 2 is modified. The Corporation shall consider the case of the appellant for promotion to the higher post keeping in view his placement at the higher place at Sr. No. 14, in the List of Clerks. 19. Needless to say that if the juniors to the appellant have been promoted and the appellant has come into the zone of consideration for promotion to the higher post, the promotion orders shall accordingly be passed and the appellant will be entitled to consequential monetary benefits from the date, the promotion is granted to him till the date of his retirement. 16 20. It is also made clear that since the post is not pensionable, the benefits shall only accrue till the date of the retirement of the appellant. 21. Pending application(s), if any, also stands disposed of. (G.S. Sandhawalia) Chief Justice. July 30, 2025 (Ranjan Sharma) (hemlata) Judge.