Himachal Pradesh High Court
Hans Raj Thakur And Others vs State Of Himachal Pradesh And Others on 22 September, 2023
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 5509 of 2020
.
Decided on : 05.09.2023
Hans Raj Thakur and others ....Petitioners
Versus
State of Himachal Pradesh and others ...Respondents
Coram
of
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the petitioners
rt : Mr. Dilip Sharma, Senior Advocate with
Mr. Manish Sharma, Advocate.
For the respondents: Mr. Pratush Sharma, Addl. AG with Mr.
Sidharth Jalta, Deputy Advocate
General for respondents no. 1 to 3/
State.
: Mr. Praveen Chauhan, Advocate for
respondents No. 20, 21, 24, 33, 47 and
80 to 83.
: Mr. Shubham Sood, Advocate vice Mr.
Onkar Jairath, Advocate, for
respondent No. 39.
: Mr. Gambhir Singh Chauhan,
Advocate, for respondent No. 63.
: Respondents No. 4 to 17, 19, 22, 25 to
32, 34 to 38, 41, 43 to 46, 48, 49 and
53 to 61, 64 to 71, 73, 74, 76 and 79
are ex parte.
: Respondents No. 18, 23, 40, 42, 62,
75, 77 and 78 in person.
1 Whether reporters of the local papers may be allowed to see the judgment?
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2
Ajay Mohan Goel, Judge (Oral)
By way of this petition, the petitioners have prayed .
for the following substantive reliefs:-
"(i) That the impugned condition No. 9contained in letter dated 04/05/2017, Annexure A-10, which stipulates that the of regularization would be with prospective effect only, may be either read down or struck down rt being in violation of the provisions of the Articles 14 & 16 of the Constitution of India, so that the same does not come in the way of counting the pre-regularization service of applicants towards seniority and other service benefits.
ii) That the impugned seniority list dated 23.07.2018, Annexure A-14, whereby private respondents/RFOs, promoted after the contractual appointment of the applicants and before their regularization, have been placed senior to them, may be quashed and set aside;
iii) That the respondents may be directed to re-
draw the seniority list of RFOs in the ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 3 respondent department by counting the service rendered by applicants in the cadre of RFOs .
from the date of their initial appointment on contract basis, followed by regularization without interruption, with all consequential benefits;
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iv) That if during the pendency of OA, any of the private respondents/RFOs promoted after rt the contractual appointment of the applicants and their regularization, is promoted to the post of RFO, in that event such promotion may also be set aside and the respondent department may be directed t consider the applicants for promotion to HPFS (ACF) cadre from the date of promotion of their junior(s), with all consequential benefits, including arrears of salary and interest at market rate on delayed payments;
v) That respondent department may be directed to take into account the service rendered by applicants from the date of their initial appointment followed by their regularization, ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 4 towards increments and all other service benefits, notionally by giving the actual .
benefits thereof from the date of their regularization, with all consequential benefits."
2. The case of the petitioners is that they were appointed as Range Forest Officers, on contract basis, in the of year 2012, pursuant to a selection process undertaken as per the relevant rtRecruitment and Promotion Rules. They underwent the necessary training from the Central Academy for State Forest Service, Burnihat (Assam), and on completion of their respective training, they reported back for duty.
Annual agreements were duly executed by the petitioners in terms of their conditions of appointment. Thereafter, services of the petitioners were regularized vide order dated 29.05.2017 (Annexure A-11). A provisional seniority list of Range Forest Officers, as on 31.12.2017, was circulated by the Department vide letter dated 11.04.2018 (Annexure A-12).
In this provisional seniority list, the petitioners were placed junior to the Range Forest Officers, who were promoted to the said post after the appointment of the petitioners on contract basis. This was objected to by the petitioners by way representations separately filed by them. One such ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 5 representation is appended with the petition as Annexure A-13. However, vide memo dated 23.07.2018 (Annexure A-
.
14), the final seniority list of Range Forest Officers, as on 31.12.2017, was circulated by the Department, maintaining the provisional seniority list, hence the petition by the petitioners, praying for the reliefs already enumerated of hereinabove.
3. It is pertinent to mention at this stage that initially rt the petitioners filed Original Application (OA) No. 6669 of 2018, which after the abolition of the learned Tribunal was transferred to this Court and re-registered as CWPOA No. 5509 of 2020.
4. Mr. Dilip Sharma, learned Senior Counsel appearing for the petitioners has submitted that the act of the respondent-Department of reflecting the petitioners below the private respondents in the seniority list of Range Forest Officers is bad in law for the reason that though the initial appointment of the petitioners was on contract basis but it was by following the procedure prescribed in the Recruitment and Promotion Rules and as ultimately the services of the petitioners were regularized, therefore, the benefit of the service rendered by them on contract basis has to be given to ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 6 the petitioners for the purpose of seniority etc. and the act of the respondent-Department of not doing so and reflecting the .
petitioners below the private respondents, who admittedly were promoted against the post of Range forest Officers, after the induction of the petitioners on contract basis, is bad in law. Learned Senior Counsel also submitted that this issue is of no more res integra and recently the Hon'ble Division Bench of this Court in CWP No. 2004 of 2017, titled as Sh. Taj rt Mohammad and others vs. The State of Himachal Pradesh and others and other connected matter, has decided similar issue and this judgment is squarely applicable on the facts of this case, which was pronounced by Hon'ble Division Bench by relying on the judgment of Hon'ble Supreme Court of India in Direct Recruit Class-II Engineering Officer's Association vs. State of Maharashtra and others2.
Accordingly, he has prayed that the present petition be allowed in terms of the prayer clause.
5. Learned Additional Advocate General has submitted that though it is matter of record that the petitioners, initially appointed on contract basis, were appointed as per the Recruitment and Promotion Rules but the petitioners are not entitled for counting their seniority 2 (1990) 2 SCC 715 ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 7 from the date of their initial appointment on contract basis and their seniority in the impugned seniority list has been .
rightly reflected, as seniority can be claimed by them only from the date of their regularization. He further submitted that as the regular service of the petitioners commenced from the date of their regularization, therefore, service rendered by of them prior to their regularization, cannot be counted for drawing seniority or any other benefit, as this kind of relief is rt not contemplated in the Recruitment and Promotion Rules.
6. Learned Counsel for the represented private respondents have adopted the arguments advanced on behalf of the respondents-State.
7. I have heard learned Counsel for the parties and also carefully gone through the pleadings as well as documents appended therewith.
8. The facts narrated hereinabove demonstrate that it is an admitted position that the initial appointment of the petitioners, though on contract basis, was as per the Recruitment and Promotion Rules and that too through the H.P. Public Service Commission. It is also not in dispute that all the private respondents at the time when the petitioners were appointed as Range Forest Officers on contract basis, ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 8 were serving in the feeder cadre post thereto. It is also not in dispute that all the private respondents were promoted to the .
post of Range Forest Officer after the appointment of the petitioners against the said post on contract basis. It is also not in dispute that the contractual service of the petitioners was regularized by the State subsequently.
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9. A five judge Bench of the Hon'ble Supreme Court in Direct Recruit rt Class II Engineering Officer's Association Versus State of Maharashtra and Others, (1990) 2 Supreme Court Cases 715, while dealing with the issue of seniority and promotion inter se direct recruits and promotees, held that the principle for deciding inter se seniority has to confirm to the principles of equality spelt out by Articles 14 and 16. In Para-13 of the judgment, Hon'ble Supreme Court held as under:-
"If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 9 claims of all eligible candidates and the appointee continues in the post uninterruptedly till the .
regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in of accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and rt arbitrary. This principle has been followed in innumerable cases and has been further elaborated by this Court in several judgments including those in Baleshwar Dass v. State of U.P. and others (1981) 1 SCR 449, and Delhi Water Supply and Sewage Disposal Committee and others v. R.K. Kashyap and others, (1989) Supp. 1 SCC 194, with which we are in agreement. In Narender Chadha and others vs. Union of India and others, (1986) 1 SCR 211, the officers were promoted although without following the procedure prescribed under the rules, but they continuously worked for long periods of nearly 15-20 years on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16. There is considerable force in this view also. We, therefore, confirm the principle of counting towards seniority the period of ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 10 continuous officiation following an appointment made in accordance with the rules prescribed for .
regular substantive appointments in the service."
Further, in Para-47 of the judgment, Hon'ble Supreme Court was thereafter pleased to hold as under:-
"(A) Once an incumbent is appointed to a post of according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
rt The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted."
10. Thereafter, in State of West Bengal and Others Versus Aghore Nath Dey and Others, (1993) 3 Supreme Court Cases 371, a three Judge Bench of the Hon'ble Supreme Court, while dealing with the conclusions (A) and (B) in Para-47 of the Direct Recruit's case (supra), held as under:-
::: Downloaded on - 25/09/2023 20:33:59 :::CIS 11"21......... We shall now deal with conclusions (A) and (B) of the constitution bench in the .
Maharashtra Engineers' case, quoted above.
22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) can not cover cases which are expressly excluded by conclusion (A). We may, of therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and rt not according to the date of confirmation, the incumbent of the post has to be initially appointed, according to rules'. The corollary set out in conclusion (A), then is, that 'where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such posts cannot be taken into account for considering the seniority. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stop-gap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority.
23. This being the obvious inference from conclusion (A), the question is whether the present case can also fall within conclusion (B) which ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 12 deals with cases in which period of officiating service will be counted for seniority. We have no .
doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other.
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24. The question therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the rt corollary in conclusion (A).
25. In our opinion the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, 'if the initial appointment is not made by following the procedure laid down by the rules' and the later expression 'till the regularisation of his service in accordance with the rules'. We read conclusion (B), and it must be so read to re-councile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 13 of regularisation, the appointee being eligible and qualified in every manner for a regular .
appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the of provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first rt available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not-being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stop-gap ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 14 arrangement and not according to rules. It is, therefore, not correct to say, that the present .
cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A)."
11. Hon'ble Supreme Court in Siraj Ahmad Versus State of Uttar Pradesh and Another, (2020) 19 Supreme of Court Cases 480, by relying upon the principles laid down by it in Direct Recruit's case (supra) held as under:-
rt "18. The constitution bench in unequivocal terms holds that, if an appointment is made by way of stopgap arrangement without considering the claims of all the eligible persons and without following the rules of appointment, the experience of such appointment cannot be equated with the experience of a regular appointee, because of qualitative difference in the appointment. It however holds, that if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority.
19. The constitution bench concludes thus :
"47. To sum up, we hold that:::: Downloaded on - 25/09/2023 20:33:59 :::CIS 15
A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted .
from the date of his appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stopgap of arrangement, the officiation in such post cannot be taken into account for considering the seniority.
rt B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. ......."
20. It can thus clearly be seen, that the Constitution Bench in unequivocal terms holds that, if the initial appointment is not made by following the procedure laid down by the rules, but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
21. It is not in dispute, that except the concurrence of the U.P. Public Service Commission the appointment of the appellant has been made after following the procedure ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 16 prescribed under the said Rules. The appellant has uninterruptedly served till the regularisation .
of his service which was made in accordance with the rules. It can thus be seen that the case of present appellant is squarely covered by the judgment of the Constitution Bench in the case of Direct Recruit Class II Engineering Officers of Association (supra)."
12. The above judgments of the Hon'ble Supreme Court make it amply clear that if the initial appointment is rt made after considering the claims of all eligible candidates and the appointees continued on the post uninterruptedly till the regularization of the service in accordance with the Rules made for regular substantive appointments, there is no reason to exclude the officiating service for the purpose of seniority and same will be the position if the initial appointment itself is made in accordance with the Rules applicable to substantive appointments.
13. Coming to the facts of the present case, the initial appointment of the petitioners admittedly was made in accordance with the Rules applicable to substantive appointment to the post in issue and through the Recruitment Agency prescribed in the Recruitment Rules.
The only point was that rather than offering appointment to ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 17 the petitioners on regular basis, they were offered appointment on contract basis and their services were .
subsequently regularized, as has already been mentioned hereinabove.
14. In the backdrop of the factual scenario of the present case, this Court is of the considered view that the of petitioners are entitled for seniority from the date of their initial appointment rt on contract basis, followed by regularization as their initial appointment admittedly was made by following the Recruitment and Promotion Rules for making substantive appointment against the post and the process of recruitment was undertaken by the Public Service Commission, in which claims of all eligible candidates were considered.
15. The Hon'ble Division Bench of this Court in Sh.
Taj Mohammad and others vs. The State of Himachal Pradesh and others and other connected matter (supra), decided on 03.08.2023, while upholding the judgment passed by the learned Tribunal, giving benefit of seniority to the direct appointees, whose direct recruitment was in consonance with the Recruitment and Promotion Rules, has been pleased to hold as under:-
::: Downloaded on - 25/09/2023 20:33:59 :::CIS 1823. Learned Single Judge in CWPT No.6785 of 2008, titled as Narender Singh Naik Versus .
State of Himachal Pradesh and Others, decided on 14.09.2010, held that the petitioner therein was appointed as a Junior Engineer on contract basis by following the selection of process on 03.01.1995 and his services were regularized in the year 2008. The grievance of rt the petitioner was that the department was not counting the period of service rendered by the petitioner on contract basis till the date of his regularization, which the learned Single Judge held, was an issue no more res integra, in view of the law laid down by the Hon'ble Supreme Court in Direct Recruit's case (supra) and learned Single Judge allowed the writ petition by directing the respondents therein, to consider the case of the petitioner, for counting the period he had worked on contract basis w.e.f. the year 1995, till his regularization with all consequential benefits.
24. The judgment passed by the learned ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 19 Single Judge was challenged by the State vide Letters Patent Appeal No.271 of 2011, titled as .
State of Himachal Pradesh and others Versus Narender Singh Naik. Said appeal was decided by the Hon'ble Division Bench of this Court vide judgment dated 09.04.2013, upholding the of judgment passed by the learned Single Judge.
Same
rt was assailed before the Hon'ble
Supreme Court by way of Petition(s) for Special Leave to Appeal (C) No(s). 34038 of 2012, titled as Surender Singh Versus State of H.P. Ors., which was dismissed by the Hon'ble Supreme Court.
25. Therefore, as the foundation of the order passed by the learned Tribunal, subject matter of these writ petitions, was the judgment of this Court in Narender Singh Naik's case (supra), which judgment itself was based on the Five Judge Bench judgment of the Hon'ble Supreme Court in Direct Recruit's case (supra), and as the learned Tribunal rightly held that the services rendered by the original applicants on ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 20 contract basis were liable to be counted for the purpose of seniority and consequential benefits .
after their regularization, as the initial appointment of the original applicants on contract basis was after following the procedure prescribed in the Recruitment & of Promotion Rules, we do not find any infirmity in the said findings and further as we do not find rt any merit in the writ petitions, the same are dismissed by upholding the order passed by the learned Tribunal. No order as to costs.
Pending miscellaneous applications, if any, stand disposed of."
16. This preposition of law in fact has not been disputed even by learned Counsel for the State as well as represented private respondents in the course of arguments.
Therefore, in the backdrop of the above discussion, this Writ Petition is allowed and the act of the respondent-Department of not counting the service rendered by the petitioners in the cadre of Range Forest Officers from the date of their initial appointment on contract basis, followed by regularization, without interruption, is held to be bad in law. The ::: Downloaded on - 25/09/2023 20:33:59 :::CIS 21 respondent-Department is directed to re-draw the seniority list of Range Forest Officers, as it stood on 31.12.2017, afresh .
by withdrawing the final seniority list dated 23.07.2018 (Annexure A-14), which is held to be bad in law and set aside and count the seniority of the petitioners from the date of their initial appointment on the said post on contract basis, of followed by their regularization, without interruption, however, the counting of the said service shall only be for the rt purpose of seniority and consequential promotional benefits but not for any monetary benefits.
With these observations, this Writ Petition stands disposed of. Pending miscellaneous application(s), if any, also stand disposed of accordingly.
(Ajay Mohan Goel)
September 05, 2023 Judge
(narender)
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