Rajasthan High Court - Jaipur
Amar Nath Pareek vs State Th.Secretary Finance Dep on 30 May, 2017
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Special Appeal Writ No. 261 / 1998
Amar Nath Pareek S/o Shri Man Mohan Lal Pareek Aged about 55
years, R/o H. No. 3367, Govind Rajiyon ka Rasta, Near Masjid,
Purani Basti, Jaipur
----Appellant
Versus
1. The State of Rajasthan through The Secretary Finance
Deptt., Government of Rajasthan, Jaipur.
2. The Commissioner, Commercial Taxes, Rajasthan, Jaipur.
3. The Dy. Commissioner (Admn. II), Commercial Taxes
Department, Rajasthan, Jaipur.
4. Shyam Sunder Misra, U.D.C., Office of Commercial Taxes
Officer, Check Post ShahJahanpur, Distt. Alwar.
5. Satya Narain Sharma, U.D.C., Office of Dy. Commissioner
(Administration), Commercial Taxes Department, Ambedaker
Circle, Kar Bhawan, Jaipur.
6. Jagdish Tiwari, U.D.C., Office of Commercial Taxes Officer,
Circle-D, Jaipur.
----Non-petitioners.
_____________________________________________________
For Appellant(s) : Mr. Manoj Pareek
For Respondent(s) : Mr. Nikhil Simlote
_____________________________________________________ HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment Reserved on 25/05/2017 Pronounced on 30/05/2017 (Per: Sanjeev Prakash Sharma, J.)
1. The case in hand has a chequered history.
2. Certain facts which need to be noted are that appellant joined as LDC in Commercial Taxes Department on 29/01/1965. While he was working as LDC, he had proceeded on one month's (2 of 8) [SAW-261/1998] leave on 23/06/1969. Respondent No.4 (Shyam Sunder Misra) was appointed against the leave vacancy of the appellant on the said date. Later on, respondent No.4 was transferred on the appellant having joined back to Kota office and thereafter to the headquarters. The appellant was confirmed on the post of LDC on 12/09/1969. Respondents No.4 to 6 are juniors to the appellant. While appellant was posted in the office of Commercial Taxes Officer, Group-D, Jaipur, the respondents No. 4 to 6 were promoted as Upper Division Clerks (UDC) at the headquarters vide order dt. 18/06/1981. The appellant assailed the order of promotion by preferring an appeal bearing No.578/1981 before the Rajasthan Civil Services Appellate Tribunal, Jaipur pointing out that while he has been denied promotion, the persons junior to him & appointed later in point of time have been promoted by the head office on the post of UDC wrongfully. It was his case that the seniority list of LDCs was being maintained zone wise and separate seniority list of head office was being maintained which had resulted in the said anomaly and the seniority list ought to have been prepared department wise and not district wise or zone wise. He relied on judgment passed by the Tribunal in the case of Nanak Ram Vs. The Commissioner, Commercial Taxes Department, Rajasthan, Jaipur (Appeal No.1016/1979) where the appeal of the said Nanak Ram was allowed by the Tribunal holding seniority list to be drawn department wise.
3. The respondents after notices appeared and pointed out that the department had been maintaining two different seniority lists, one at the headquarters' level and the other at the zonal level and (3 of 8) [SAW-261/1998] since the appellant was not working at the headquarters, he could not have been promoted and there could not have been lis in between the appellant and the respondents as the respondents are working at headquarters. It was further pointed out that under Rule 27-B of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (hereinafter referred as the 'Rules of 1957'), the appellant could claim his right of seniority and promotion in the zone where he was confirmed. He could not compare his seniority with respondents No.4 to 6 who were employed at head office/headquarters.
4. A notification dt.31/08/1982 had been published by the Government adding Rule 27-C in the Rules of 1957 directing to maintain separate seniority lists zone wise and of head office of LDCs. The amendment in the provisions of the Rules of 1957 were made retrospectively w.e.f. 20/06/1957. Rule 27-C of the Rules of 1957 reads as under:-
"27-C. Subject to the provisions contained in Rule 27 in case powers of appointing authority have been delegated by the Head of Department concerned to the District/Divisional/Zonal/ Regional/ Range level authority for appointment and/ or promotion to the categories of posts of Ministerial cadre of a Department, the seniority of persons appointed by such an authority shall be determined on the basis of District/Divisional/Zonal/ Regional/ Rang basis.
Provided that in case such persons are transferred by the Head of Department concerned from District/Division/Zonal Region/ Rang/Department on the same post in accordance with the provisions contained in proviso (1) to sub rule (1) of rule 7 on higher posts in accordance with the provisions contained in sub-rule (2) of the rule 26, as the case may be, the official so transferred shall continue to retain his, lien, seniority and right of promotion in his (4 of 8) [SAW-261/1998] parent District/ Division/ Zone/ Region/ Range/Department and in case such persons attain the age of superannuation while working in another District/ Division/ Zone/ Region/ Range/ Department, the vacancy caused by their retirement shall, for the purpose of appointment and promotion, he deemed to have occurred in their parent District/ Division/ Zone/ Region/ Range/ Department as the case may be."
5. The Tribunal, considering the submissions raised by the respondents, vide judgment dated 15/02/1983 reached to the conclusion that the executive orders whereby seniority list was being drawn separately for zone wise and at the level of headquarters, were contrary to the provisions of the Rules of 1957. It was further observed that the amendment brought into force vide notification dt.31/08/1982 whereby Rule 27-C was added to Rules of 1957, could not have been retrospective in nature and could only be considered having prospective operation i.e. w.e.f. 31/08/1982. Additionally, the Tribunal also found that the facts of the appeal preferred by the petitioner were similar to that of Nanak Ram (Appeal No.1016/1979) and held that the order passed by the Tribunal therein would squarely apply to the present case of the appellant also.
6. Incidentally, the State preferred SB Civil Writ Petition No.805/1981 before this Court challenging order of the Tribunal passed in Appeal No.1016/1979 (Nanak Ram Vs. Commissioner, Commercial Taxes, Rajasthan, Jaipur and ors. This Court set aside the order passed by the Tribunal in terms of the joint request made by the counsel for Nanak Ram as well as of the State and intervener allowing the respondents to prepare seniority list in (5 of 8) [SAW-261/1998] terms of the amended Rule 27-C of the Rules of 1957 with a rider that the objections would be considered before preparing final seniority list zone wise, headquarter wise as the case may be. The said decision was rendered by the Single Bench of this Court on 03/05/1983.
7. It may be noted that no writ was filed by the State challenging the Tribunal's judgment dated 15/02/1983 passed in favour of the appellant. He therefore preferred a Contempt Petition No.15/1984 which was dismissed by the Tribunal.
8. The appellant preferred SB Civil Writ Petition No.1078/1988 praying therein to seek enforcement of the order passed by the Tribunal dt.15/02/1983. The writ petition was dismissed vide order dt.12/02/1998 by the learned Single Judge against which the present DB Special Appeal (Writ) No.261/1998 was preferred. This Court vide its judgment dt.17/12/2007 allowed the said appeal.
9. The State preferred an SLP before the Apex Court and the leave was granted which was allowed to as Civil Appeal No.76/2013 vide order dt.04/01/2013 holding the order passed by this Court is a non-speaking order and remanded the matter back to the Division Bench for reconsideration of the entire facts on merits. The Division Bench vide its judgment dt.09/10/2013, after considering various submissions made at bar, dismissed the special appeal holding that the judgment of the Tribunal could not be implemented as the order passed in the appeal of Nanak Ram has been set aside by the High Court.
10. In view thereof, the present appellant preferred SLP before the Apex Court. The SLP was decided by the Apex Court vide order (6 of 8) [SAW-261/1998] dt.27/03/2017 and the matter was again remanded to this Court with following observations:-
"Leave granted.
We have heard learned counsel for the parties. Claim of the appellant is for parity with Mr. Shyam Sunder Mishra who was junior to the appellant. This aspect may call for fresh consideration by the High Court.
Accordingly, we set aside the order passed by the High Court and remit the matter to the High Court for fresh consideration in accordance with law.
The appeal is disposed of accordingly. No costs. We make it clear that we have not expressed any opinion on the merits of the case.
The parties are directed to appear before the High Court for further proceedings on Monday, the 24th April, 2017.
Pending applications, if any, shall also stand disposed of."
11. It is in the aforesaid facts, we are dealing with the present petition again.
12. We have heard learned counsel for the parties at length and perused the record.
13. The basis of the appellant claiming seniority over respondents No. 4 to 6 is by calculating his earlier date of appointment. It is an admitted position that the appellant was working in a zone while all the three respondents i.e. respondents No. 4 to 6 herein were working as LDCs at the headquarters. The confirmation of the appellant was also made at the zonal level while apparently the confirmation of the respondents has been done at the headquarters against the posts available at the headquarters. Admittedly, the seniority list has been drawn (7 of 8) [SAW-261/1998] separately for the employees at headquarters and the employees at zonal level and therefore, there cannot be any comparison of the inter-se seniority between the appellant, who was working at zonal office and the respondents No. 4 to 6 who were working at headquarters.
14. We also notice that the promotion granted to the respondents No.4 to 6 was at the headquarters while the appellant would be granted promotion at the zonal level on the basis of the seniority drawn at the zonal level. Thus, the concept of inter-se seniority between the appellant and the respondents No. 4 to 6 does not arise.
15. It is also noted that Rule 27-C of the of the Rules of 1957, which came to be introduced vide notification dt.31/08/1982, has been made effective from 20/06/1957. This amendment has not been challenged by the appellant and holds the field. The observation of the Tribunal that the seniority of an individual could not have been taken away retrospectively, could only relate to executive instructions. After coming into force of a substantive rule, which directs to prepare seniority list zone wise and headquarter level separately w.e.f. 20/06/1957, no fault can be attributed to the department in preparing separate seniority list and making promotions separately, moreso in absence of challenge to the retrospectivity of such rule. The Tribunal's order was therefore contrary to the rule and ineffective.
16. The other aspect, which has also come on record, is with regard to the judgment passed in the case of Nanak Ram Vs. The Commissioner, Commercial Taxes Department, Rajasthan, Jaipur (8 of 8) [SAW-261/1998] (supra). Admittedly, the judgment in the case of Nanak Ram (supra) was passed prior to coming into force of the amendment wherein Rule 27-C was introduced with retrospective effect. Thus, the benefit of Nanak Ram judgment would not be applicable to the appellant, moreover when the judgment passed in the case of Nanak Ram (supra) by the Tribunal, has been set aside by the High Court in the writ petition preferred
17. In the circumstances, the order passed by the Tribunal in the appeal of the appellant has been rendered otiose due to the subsequent events and coming into force of Rule 27-C of the Rules of 1957 with retrospective effect. The appellants' claim for parity on the ground of seniority vis-a-vis respondents No. 4 to 6 including Shri Shyam Sunder Mishra is not tenable as they are posted in the zone and headquarters respectively. We concur with the view taken by the learned Single Judge.
18. The appeal is accordingly dismissed. No costs. (SANJEEV PRAKASH SHARMA)J. (PRADEEP NANDRAJOG),C.J. Raghu