Himachal Pradesh High Court
Rattan Chand vs State Of H.P And Others on 7 August, 2019
Bench: Dharam Chand Chaudhary, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No.16 of 2010 Reserved on:22.07.2019 Decided on: 07.08.2019 .
Rattan Chand ....Appellant/Petitioner.
Versus State of H.P and others ...... Respondents.
................................................................................................ Coram The Hon'ble Mr. Justice Dharam Chand Chaudhary, (J) The Hon'ble Ms. Justice Jyotsna Rewal Dua, (J).
Whether approved for reporting?1 Yes.
For the appellant: Mr. R.K. Gautam, Sr. Advocate,
with Ms.Megha Kapur Gautam.
For the respondents: Mr. Vikas Rathore and
Mr.Narinder Guleria, Additional
Advocate Generals, with Mr. J.S.
Guleria, Deputy Advocate General.
Jyotsna Rewal Dua,(J)
Instant appeal has been preferred against the
judgment dated 9.9.2009, passed by the learned Single Judge, dismissing the writ petition of the appellant.
2(i). Initially this Letter Patent Appeal was dismissed vide judgment dated 12.06.2013. The judgment was assailed by the writ petitioner before the Hon'ble Apex Court, where the matter was remanded for fresh decision with following directions dated 20.03.2018 :-
1Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 2
"Having heard the learned counsel for the appellant we find that the High Court was not justified in denying the relief to the appellant on the ground that he had approached the Court in the year 2000. The appellant was communicated the seniority list .
sometime in 2000 itself and, therefore, could not have approached the court earlier. Moreover, he had raised the issue of seniority before the Administrative Tribunal in the year 1991 itself.
Secondly, the High Court has observed that the appellant had even failed to challenge the seniority list dated 15.01.1992 whereby respondent Nos. 3 to 5 were shown senior to the appellant. This is obviously incorrect. There is a specific prayer made by the appellant in respect of the seniority list dated 15.01.1992.
The matter has, thus, not been considered properly by the High Court. We, therefore, set aside the judgment and order of the High Court and remit the matter to the High Court for fresh decision in accordance with law. We impress upon the High Court to decide the matter within one year.
The appeal is, accordingly, allowed."
2(ii). As per the direction of Hon'ble Apex Court, the instant appeal had to be decided within one year, however, the matter came to be listed in the Court only on 28.5.2019. The explanation for putting up the matter very late has been called from the Registry and the matter in that regard is being dealt with separately.
3. The petitioner is praying for quashing of seniority lists of Head-Clerks as well as is seeking seniority over the one assigned to his alleged juniors i.e. respondents No.3, 4 & 5. He is also praying for grant of consequential service benefits, including promotion to the higher post of Block Development Officer, from the date, given to his alleged juniors. It may be noticed here that appellant presently is about 85 years of age. Vide order dated ::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 3 17.10.2012, passed in CMP No.1370 of 2012 moved by the appellant in the instant appeal, names of private respondents were deleted from the array of parties, without any other change.
.
All the parties stand retired years ago. In fact, record of original application reflects that M.A.(D) No.337 of 2003, moved for deletion of name of Original respondent No.4, was allowed, vide order dated 02.01.2004.
For sake of convenience, parties are referred hereinafter, as they were in writ records.
4. Petitioner's case:
4(i) For discussing the petitioner's claim of seniority over the original private respondents, the service rendered by the petitioner can be considered under following headings i.e. (I) Under District Board (ii) Under Panchayat Samiti and (iii) Government service.
4(ii) District Board:
(a) On 8.10.1952, petitioner was appointed as vaccinator under the District Board.
(b) In August 1956, petitioner was promoted as clerk.
(c) District Board was abolished vide order dated 16.2.1962. The staff of District Board was allocated and transferred to Panchayat Samiti vide order dated 7.3.1962.::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 4
4(iii) Panchayat Samiti:
(a) On 7.3.1962, the petitioner joined his duties as .
clerk in Panchayat Samiti, Nagrota Bhawan.
(b) On 4.9.1962, the petitioner was promoted as Head-Clerk in the office of Panchayat Samiti, Nagrota Bagwan.
(c) Petitioner though was serving continuously, yet was being given one day fictional break in service. However, vide order dated 3.9.1965 his services w.e.f. 4.9.1962, were ordered to be treated as continuous.
(d) Vide office letter dated 7.11.1967, petitioner was ordered to be confirmed in service w.e.f. 4.9.1963. This confirmation order was issued in compliance to Panchayat Samiti, Nagrota Bagwan, resolution No.9 dated 21.10.1967.
4(iv) Government service:
4(iv)(a) Vide notification dated 14.3.1978, the State of
Himachal Pradesh, took over the services of employees of Panchayat Samiti, from the date of issuance of notification i.e. dated 14.03.1978. The relevant portion of notification is reproduced hereinafter:-
"The Governor, Himachal Pradesh is pleased to order the taking over of Panchayat Samiti employees given in Annexure "A" from the date of issue of this notification and place their services at the disposal of the Rural Integrated Development Department for absorption in that department. The appointment, seniority and other service conditions of Panchayat Samiti employees so taken over shall be regulated by the Rural Integrated Development Department."::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 5
4(iv)(b) The appointment, seniority and other conditions of the employees of Panchayat Simiti, so taken over by the .
Government, were to be regulated by the Rural Integrated Development Department (in short 'RIDD'). Services of the petitioner and original respondent No.5 (both employees of Panchayat Samiti), in this manner, were taken over by the Government.
4(iv)(c) For regulating appointment, seniority & other conditions of service of staff, so taken over in terms of notification dated 14.3.1978, the RID department issued an order on 26.09.1981 to the following effect :-
"--------------------------------
1. That the following categories of the panchayat Samiti Employees where services were taken over by the Govt. will be given seniority w.e.f. 14.3.1978, in the Department of R.I.D. amongst their counterparts, as shown against each category:-
2. That the service rendered by the Panchayat Samiti Employees in the Panchayat will be counted towards pension and gratuity only.
--------------------------------"
Thus, the services of the employees of Panchayat Samiti were taken over on the conditions that;- (i) they will be assigned seniority in the RID department only with effect from the date of taking over i.e. 14.3.1978, (ii) the service rendered by them prior to 14.3.1978 though will not be counted towards seniority but will be counted towards pension & gratuity.::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 6
5. Seniority Lists issued after 1978:
5(i) 26.9.1981:
(a) On 26.9.1981, first joint seniority list of Head-
.
Clerks of RID department as well as Head-Clerks of Panchayat Samiti, whose services were taken over was issued, depicting the position as on 14.3.1978.
(b) In this seniority list, names of original respondents No.3 & 4 figured at Serial Nos. 27 & 31, whereas, name of original respondent No.5 figured at Serial No.42.
Petitioner figured at Serial No.47 of the list.
(c) Feeling aggrieved against the position assigned to him in this seniority list, the petitioner preferred a representation dated 2.2.1982.
5(ii) 01.01.1990:
(a) The next seniority list of Head-Clerks of RID
Department was a tentative list, issued on 1.1.1990, depicting the position as on 1.1.1987.
(b) Original respondents No. 3 & 4, figured in this list at Serial No. 13 & 14, whereas original respondent No.5 and petitioner were reflected at Serial No. 23 & 27.
(c) Petitioner preferred representations dated 3.2.1990 & 12.9.1990, against this seniority list, claiming for assigning him seniority over those persons, whose services were ::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 7 taken over like his, but who were regularized in the parent Panchayat Samiti, later than the petitioner.
5(iii) 10.01.1991:
.
(a) Tentative seniority list was issued on
10.01.1991, depicting the seniority positions of Superintendent
Grade-II. This seniority list of Head-Clerks (earlier Superintendent Grade-IV and now Superintendent Grade-II), showed the position as on 31.12.1990.
(b) Original respondents No.3, 4 & 5 were shown in this list at Serial No. 5, 6 & 10, whereas, petitioner was shown at Serial No. 14 of the seniority list.
(c) Petitioner represented against this list as well on 1.2.1991.
6. Promotions of private respondents:
6(i) No action on the representations of the petitioner was taken by the official respondents. On the basis of their position in the impugned seniority lists, original respondents No.3 & 4 were promoted as Block Development Officers vide order dated 18.7.1991.
6(ii) Original respondent No.5, was also promoted as Block Development Officer, vide separate order of even date i.e. 18.7.1991.
6(iii) Petitioner submitted another representation dated 13.8.1991, requesting official respondents for assigning him ::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 8 appropriate place in the seniority list and for his promotion as Block Development Officer on the ground that his juniors have been promoted as such, ignoring his claim of seniority and .
promotion over them.
Retirement of petitioner:
6(iv) Petitioner attained the age of superannuation and retired on 30.9.1991.
OA No.1673 of 1991:
6(v) rHowever, since his representations against the tentative/seniority lists were not decided and his grievance for claiming his placement in the seniority list over original respondents No.3, 4 & 5, as well as for claiming consequential promotion to the post of Block Development Officer from the date of promotions of his alleged juniors was not considered by the official respondents, therefore, the petitioner filed OA No.1673 of 1991, before the erstwhile Himachal Pradesh Administrative Tribunal, Shimla. Reply to this original application was filed by the official respondents. Vide order dated 23.6.2000, learned Tribunal disposed of the original application on the ground that in the interregnum, the final seniority list of Head-Clerks has been issued on 15.01.1992; therefore, the original application does not survive; and the petitioner can seek appropriate remedy in accordance with law against the final seniority list.::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 9
6(vi) The final seniority list of Head-Clerks dated 26.12.1991/15.1.1992, reflecting the seniority positions as on 31.12.1990, was supplied to the petitioner on 11.8.2000, on his .
application dated 20.07.2000.
7. New Original Application (CWP (T) No.2604 of 2008):
7(i) Petitioner filed transferred writ petition (earlier Original application) OA(D) No.548 of 2000), before the erstwhile following relief:-
r to Himachal Pradesh Administrative Tribunal, Shimla, praying for
-------------------------------------------------
"7.Relief(s) sought:
I) That keeping in view the orders dated 23.6.2000 vide Annexure A-18 passed by the Hon'ble Tribunal, The final seniority list of Head Clerks issued on 15.1.1992 vide Annexure A-21 which was supply to the applicant for the Ist Time on 11.8.2000(A-20) may kindly be quashed and set aside.
ii) That the Respondents may be directed to redraw the final seniority list of Head Clerks i.e. Annexure A-21, by showing the applicant as senior to the Respondents 3 to 5 as Head Clerk (now Supdt. Grade-IV/II) forthwith.
iii) Or in the alternative, The Respondents may be directed to show the applicant as senior to the Respondent No.5 as Head Clerk (now Supdt- Grade-IV/II) in the tentative seniority list and also in the Final seniority list of the Head Clerks dated 15.1.1992 forthwith.
iv) That after redrawing the seniority list of Head Clerks (now Supdt. Grade-IV/II), the Respondents may be directed to consider and promote the applicant as Block Development Officer w.e.f. the date the junior i.e. the Respondents 3 to 5 were promoted as such on 18.7.1991 vide Annexures A-11/A-12 without considering the applicant with all consequential benefits like pension, gratuity etc., including the increased pension w.e.f. the date of his retirement on 30.9.1992 till today forthwith.::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 10
v) That the action of the Respondents in promoting the Respondents 3 to 5 as BDO's on 18.7.1991 vide Annexures A-11 & A-12, merely on the basis of the tentative seniority list vide Annexures A-1, A-6 & A-9 which were incorrect and against which the applicant .
had submitted a representations and without finalizing the same may be declared ultra-vires Articles 14, 16 & 21 of the Constitution of India."
7(ii) (a) A perusal of relief clause extracted above makes it clear that the petitioner is seeking quashing of final seniority list of Head-Clerks issued on 15.01.1992.
(b) Petitioner is also praying for re-drawl of final seniority list of Head-Clerks by showing him senior to original respondents No.3 to 5. In the alternative, petitioner is claiming seniority at least over original respondent No.5 in the seniority list of Head-Clerks dated 15.1.1992.
(c) Petitioner is also praying for consequential benefits including his promotion as Block Development Officer w.e.f. the date his juniors, original respondents No. 3 to 5 were promoted as such.
7(iii). Stand of respondents:
7(iii)(a) The official respondents No.1 & 2 in their reply have
contended that services of the employees of Panchayat Samiti including that of petitioner were taken over by the Government, vide notification dated 14.3.1978. This notification specifically stipulated that the services of such staff would be taken over w.e.f. 14.03.1978. Consequent to above notification dated ::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 11 14.3.1978, the RID Department, vide order dated 26.9.1981, framed terms and conditions governing the appointment, seniority and other conditions of services of employees of Panchayat .
Samiti. This order (extracted earlier) clearly stipulated that after taking over of their services, the employees of Panchayat Samiti were to be assigned seniority w.e.f. 14.3.1978 and further that past service of such employees was not to be counted for the purposes of seniority, but, was to be counted only towards pension and gratuity. Notification dated 14.3.1978 and order dated 26.9.1981 are not under challenge.
7(iii)(b). Stand vis-a-vis seniority over original respondents No.3 & 4:
In view of above, respondents No. 1 & 2, have pleaded that original respondents No. 3 & 4, were already confirmed employees of RID Department, at the time petitioner's services were taken over on 14.3.1978 in the RID Department and therefore the petitioner, necessarily had to figure below these two permanent employees of RID Department.
7(iii)(c). Stand Viz-a-viz seniority over original respondent No.5:
(a) Original respondent No.5 was an employee similarly situated as the petitioner. Services of original respondent No.5 was also taken over by the Government under notification dated 14.3.1978.::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 12
(b) The stand of respondent-State is that service of original respondent No.5 was regularized by the Panchayat Samiti on 6.4.1966, whereas services of the petitioner was regularized on .
28.1.1967; this being a case of determination of inter se seniority of those Head-Clerks, whose services were taken over by the Government on 14.3.1978, therefore, the seniority amongst them was determined on the basis of their dates of regularization.
Accordingly, the respondent-State has sought to justify assigning higher seniority and consequent promotion to original respondent No.5, on the basis of his earlier date of regularization by Panchayat Samiti as Head-Clerk.
8. We have heard learned counsel for the parties and carefully gone through the record. We observe as under:-
8(i) Petitioner's Claim of seniority over original respondents No.3 and 4:
8(i)(a) It is undisputed that original respondents No.3 & 4, were employees of RID Department. Original respondents No.3 & 4 were confirmed employees in RID Department at the time services of the petitioner were taken over by the State on 14.3.1978, in terms of notification dated 14.3.1978.
8(i)(b) Notification dated 14.3.1978, read with order dated 26.9.1981, makes it abundantly clear that services of the employees of Panchayat Samiti were taken over w.e.f. 14.03.1978, with clear stipulation that seniority in RID Department was to be ::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 13 available to them only w.e.f. 14.3.1978 and that their service prior to 14.3.1978 were to be counted towards pension & gratuity, but not towards seniority. Therefore, the claim of the petitioner .
seeking seniority over and above original respondents No.3 & 4 is not justified.
8(i)(c) The petitioner can not even contend to count his previous service rendered in Panchayat Samiti for claiming seniority over original respondents No.3 & 4, for the simple reason that there was a clear stipulation in the order dated 26.9.1981, to the effect that the past service prior to 14.03.1978, will not be counted towards seniority, though it will be available towards pension and gratuity. Hence, the claim of the petitioner seeking seniority over original respondents No.3 & 4, consequently seeking promotion to the post of Block Development Officer from the dates of promotion of original respondents No.3 & 4, is rejected.
9 Petitioner's Claim of seniority over original respondent No.5:
As is borne out from the records:-
9(i) Original respondent No.5 was an employee of Panchayat Samiti, serving as Head-Clerk, whose services were taken over by the State on 14.03.1978, just like the case of the petitioner.
9(ii) The stand of official-respondents, is that dates of their respective regularization as Head-Clerks in Panchayat Samiti, ::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 14 was made the basis for determining the inter-se seniority of those Head-Clerks, whose services were taken over in RID Department, in terms of notification dated 14.03.1978, read with order dated .
26.9.1981. The respondent-State has therefore, argued that original respondent No.5, was regularized on 6.4.1966, and the petitioner was regularized on 28.1.1967, therefore, the petitioner had to rank junior to original respondent No.5.
9(iii) Even if we go by the stand taken by the respondent-
State, that inter se seniority of original respondent No.5 and the petitioner, had to be determined on the basis of their dates of regularization by Panchayat Samiti and on that basis they had to be assigned placements in the Joint Seniority list of Head-Clerks.
Then also, it is noticeable:-
9(iii)(a) Vide minutes of meeting of Panchayat Samiti, convened on 7.6.1966, vide resolution No.5, the petitioner was resolved to be confirmed as Head Clerk w.e.f. 4.9.1962 (Annexure MA/3) 9(iii)(b) Services of the petitioner were however confirmed vide Annexure A-3 dated 7.11.1967 we.f. 4.9.1963. This was issued on the basis of meeting of Panchayat Samiti convened on 21.10.1967.
9(iii)(c) Considering above position with appended record of the case, it is evident that:-
::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 15a) Petitioner was promoted as Head-Clerk on 4.9.1962, whereas original respondent No.5, was promoted as Head-Clerk on 14.3.1963.
.
b) Petitioner was confirmed as Head-Clerk though on 7.11.1967, but w.e.f. 4.9.1963. Where as, as per stand taken by official respondents in their reply, original respondent No.5 was regularized as Head-Clerk on 6.4.1966.
c) Therefore even going by the stand of official-
respondents that Head-Clerks (of Panchayat Samiti) regularized prior in time had to rank senior to the ones regularized later, petitioner had to rank senior to original respondent No.5, having been confirmed earlier. It appears that official respondents have perhaps mixed dates of regularization of petitioner by considering another person, Sh. Rattan Chand-namesake of petitioner figuring in document at Annexure A-25, as has been pleaded in the writ petition.
10. Impugned seniority list depicting petitioner as junior to original respondent No.5 is thus illegal and is quashed as such.
Consequently petitioner will be entitled to promotion to the post of Block Development Officer w.e.f. 18.07.1991, from which date original respondent No.5 was promoted as such along with all consequential benefits. Since parties have retired long back & are aged over 85 years; since some of the parties (original respondent No.4) have died; since petitioner has also not pressed ::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 16 for withdrawing any benefit given to original respondent No.5;
since litigation is continuous since 1992, therefore, it is ordered that benefit given to original respondent No.5 shall not be .
withdrawn. And for giving due benefits to petitioner, if need arises supernumerary post be created for the required duration.
It is apt to refer to the judgment passed in (2009) 14 SCC 173, titled Union of India and others Vs. Parul Debnath and others, wherein it was held as under:-
"45. On the question of creation of supernumerary posts, it may be indicated that while it is no doubt true that creation of posts is the prerogative of the executive, in order to meet certain special exigencies such a course of action has been resorted to by this Court and in our view this is one such case where such a direction does not need any intervention."
In view of the above, the impugned judgment passed by learned Single Judge is set aside and instant appeal is allowed to the extent that impugned seniority lists at Annexure/A-21 dated 26.12.1991/15.1.1992, to extent that reflects petitioner as junior to original respondent No.5, is quashed. Respondents No.1 & 2 are directed to re-draw the seniority list by reflecting the name of the petitioner over original respondent No.5.
Consequently, petitioner shall be entitled to all consequential service benefits on the basis of his new seniority position including his promotion to the post of Block Development Officer w.e.f. 18.7.1991 i.e. date on which, original respondent No.5 was promoted as such. Considering, appellant is presently aged ::: Downloaded on - 29/09/2019 01:53:58 :::HCHP 17 around 85 years, all his service benefits including pension etc., be worked out and paid to him within a period of three months from today, failing which he shall be entitled to interest @6% per .
annum, from the date it fell due till its realization. Appeal stands disposed of, so also, pending application(s), if any.
(Dharam Chand Chaudhary),
Judge
07th August 2019 (rohit)
to (Jyotsna Rewal Dua),
Judge
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