Punjab-Haryana High Court
Vinod Kumar Datta vs State Of Haryana And Anr on 4 July, 2018
Bench: A.B. Chaudhari, Kuldip Singh
LPA No.1308 of 2016 -1-
215
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No.1308 of 2016
Date of decision: July 04, 2018
Vinod Kumar Datta
......Appellant
Versus
State of Haryana and another
....Respondents
CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI
HON'BLE MR. JUSTICE KULDIP SINGH
Present: Mr. Sanjay Kaushal, Senior Advocate with
Mr. Anurag Goyal, Advocate for the appellant.
Ms. Tanisha Peshawaria, DAG Haryana.
Mr. Naresh Prabhakar, Advocate for respondent No.2.
****
A.B. CHAUDHARI, J
This intra-court appeal, at the behest of the original petitioner,
the appellant herein, is directed against the judgment dated 30.03.2016 in
CWP No.10647 of 2015, by which the appellant-original petitioner's claim
for promotion to the post of General Manager of the Haryana Roadways
Engineering Corporation Ltd. (for short 'Corporation') was declined and
his writ petition was dismissed by the learned Single Judge.
FACTS
The appellant-original petitioner was initially appointed as
Foreman with respondent No.2-Corporation, on 27.08.1993 and was
promoted to the post of Works Manager on 23.06.1999. He possesses the
qualification of Diploma in Mechanical Engineering. The relevant
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Recruitment Rules 9(1)(l)(i) provides for appointment to the post of
General Manager by promotion from amongst Works Manager etc. and
the qualification is Diploma in Automobile and Mechanical Engineering
with five years experience as Works Manager. The appellant clearly
satisfied the said requirement and as such, upon completion of experience
of five years, he became eligible for promotion to the post of General
Manager, in June 2004. But his case was never considered for promotion
to the post of General Manager. The appellant had filed representation
dated 10.05.2005, 15.05.2007, but to no effect.
One Shri Joginder Sharma who was working as Works
Manager at Sirsa Depot under Transport Department was transferred as
officiating General Manager in the Corporation against the vacant post of
General Manager in the year 2008, which was put to challenge by the
appellant by filing CWP No.10164 of 2008 before this Court, but during
the pendency of the said writ petition, Joginder Singh was sent back to
Haryana Roadways as General Manager. Thereafter, Shri N.K. Garg, who
was working as Works Manager in the Transport Department was ordered
to be given officiating charge of the General Manager of the Corporation
vide order dated 11.08.2008. Aggrieved against the same, the appellant
left with no other option, withdrew the said writ petition with liberty to
challenge the appointment of Shri N.K. Garg. But before, appellant could
challenge the said appointment, one more order was passed on
07.08.2009, by which one Sh. Rajiv Nagpal who was working as a
Purchase Officer was promoted to the post of Deputy Transport Controller
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w.e.f. 11.12.2008 and was given posting as General Manager in the
respondent-Corporation. The appellant again challenged the said action by
filing writ petition bearing CWP No.19921 of 2009 in this Court with a
prayer to consider his case for promotion to the post of General Manager
w.e.f. 08.05.2008 or 11.05.2008. The said writ petition was decided on
18.03.2011 and again this Court directed the respondents to consider the
case of the appellant with further observation that respondent No.2 was
blowing hot and cold and taking contradictory stand only in the case of the
appellant. Pursuant to the said order to consider the appellant for
promotion, respondent No.2-Corporation passed one more order on
23.11.2011, wherein, it was stated that the Board of Directors on
16.03.2011 decided that the post of General Manager should be filled up
through deputation from the Transport Department and the said resolution
was approved. The appellant again challenged the said order dated
23.11.2011 in CWP No.3674 of 2012 before this Court and the same was
decided on 09.03.2015. This Court rejected all the contentions raised by
respondent No.2-Corporation and gave directions to consider the case of
the appellant for promotion after accepting eligibility, within one month.
Ignoring the said direction, the respondent-Corporation passed another
order dated 06.05.2015 changing the stand that the post of General
Manager shall be filled up by way of deputation from the Transport
Department, Haryana. The appellant filed CWP No.10647 of 2015 before
this Court against the said order dated 06.05.2015. The learned Single
Judge decided the same vide impugned judgment dated 30.03.2016.
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Hence, this appeal.
ARGUMENTS
In support of the appeal, learned Senior counsel for the
appellant vehemently argued that by the impugned judgment made by the
learned Single Judge, the effect of all the earlier judgments in favour of
the appellant has been nullified which is a substantial error of law and
contrary to the principle that the judgments are required to be
implemented unless set aside by the higher Court. According to him,
learned Single Judge has ignored all the earlier judgments and directions
issued at the behest of the appellant in this Court in various writ petitions
so also the findings and observations made therein and self-contradictory
stand has been taken by the Corporation only with a view to deprive the
appellant of his legal rights. According to him, findings and observations
and the judgments having become final earlier, learned Single Judge could
not have gone behind those judgments and found that the appellant was
given some post and therefore, he should be satisfied with the same rather
than agitating about it. This, according to the learned Senior counsel, is
wholly impermissible as the learned Single Judge could not have put the
appellant in jeopardy by nullifying all the judgments in his favour earlier.
Learned Senior counsel pointed out various contradictory stands as well as
findings recorded by this Court earlier, with which we will deal in a later
part of the judgment. Learned Senior counsel then submitted that the
learned Single Judge fell in error in dismissing the writ petition filed by
the appellant and that has caused miscarriage of justice to him. According
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to him, Mr. Nagpal was given a show-cause notice by this Court in the
present appeal and the suitable action needs to be taken. He further
submitted that the appellant has been put to undergo a harrowing
experience right after 2008, though, was entitled to the relief claimed by
him. He, therefore, prayed for allowing the appeal.
Per contra, learned counsel for the respondents vehemently
opposed the appeal and submitted that the learned Single Judge clearly
found that the appellant was given the post to which he was entitled to,
namely, Deputy General Manager (Production) in the scale of `9300-
34800 plus grade pay of `4800, which amounts to promotion for all
intents and purposes and therefore, the learned Single Judge was right in
declining to interfere with the rejection order dated 06.05.2015. According
to them, learned Single Judge was right in holding that the appellant did
not have any right to claim promotion to the post of General Manager,
particularly after the approval of the draft rules, which was the subject
matter of debate in all the earlier writ petitions filed by the appellant-
original petitioner. He submitted that the appellant cannot be granted any
relief and therefore, the present appeal needs to be dismissed.
CONSIDERATION
We have heard the learned counsel for the rival parties at
length. We have perused the entire record including the judgment
rendered by the learned Single Judge under challenge in the present
appeal. It is not necessary for us to turn to the entire history in the present
matter and cite all the details thereof. As a matter of fact, all the necessary
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details have been recorded by this Court in its order dated 05.07.2017. We
think quotation thereof would subserve the purpose and the same reads
thus:-
"The first writ petition that the petitioner filed was CWP No.19921 of
2009 wherein this Court passed the following order dated 18.03.2011:-
"Learned counsel for the petitioner has drawn my attention to
averment made in the writ petition and also the Rules which are
applicable for making promotion in the Corporation. As per the
counsel, the petitioner is fully eligible for promotion, but has been
denied his right to consideration only on the ground by applying Draft
Rules. Counsel has also referred to that portion of the petition, where
he has clearly made reference to earlier petition filed by another
employees, in which the stand taken by the respondents was that Draft
Rules would not be applicable and would apply for future promotions.
The respondent-Department cannot be allowed to take stand
according to its convenience. Either the Draft Rules will govern the
field or the Rules, which are applicable to the Corporation as has been
stand of the respondents earlier. In my view, case of the petitioner for
consideration is made. If he is found ineligible or unsuitable, it may be
possible for the department to take a person on deputation. In this
regard, the counsel for the petitioner has also made reference to the
case of Union of India versus Puranjit Singh and another, (CWP
No.18535 of 2007), decided on 14.12.2007.
Faced with this situation, counsel for the respondents says that
the Corporation has decided to take a person on deputation. This, has
been done without considering the claim of the petitioner. That may
not be legally proper. Let the claim of the petitioner for promotion be
considered and appropriate decision taken in accordance with law.
The respondents will intimate to the petitioner whether his case has
been considered under the Draft Rules or under the Rules, which are
applicable for Transport Department. The petitioner would be at
liberty to challenge the decision if any communicated to him and if it is
adverse to his interest.
The writ petition, is accordingly, disposed of in the light of
above observations."
Thereafter, the claim of the appellant was rejected on 23.11.2011 by
the Haryana Roadways Engineering Corporation Limited, Chandigarh, the
relevant portion of the order is extracted as under:-
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"Keeping in view the abovesaid reasons, the post of General Manager
in Haryana Roadways Engineering Corporation Limited, Gurgaon is
to be held on deputation from Transport Department, Haryana, as per
the draft rules of HREC as approved by Board of Directors and there
is no provision of promotion to the post of General Manager in HREC
from the post of Works Manager as claimed by Shri V.K.Dutta. Hence,
the claim of the petitioner is rejected." The petitioner once again
approached this Court by way of CWP No.3674 of 2012. Reply in the
said writ petition was filed by Sh. Rajiv Nagpal, General Manager,
Haryana Roadways Engineering Corporation Limited, Gurgaon and
relevant para 8 of the same is extracted here below:-
"That in reply to para No.8 it is submitted that the
Draft Service Rules of the Corporation are totally
different and distinct of the transport department. In
fact, the eligibility criteria under the Haryana
Roadways Engineering Corporation Limited, Rules is
as follows:-
A B C D
Sr. Name of By Direct By promotion Method of recruitment
No post Recruitment
1 General Degree in Degree in Mech/ i) Direct Recruitment
Manager Mech/Automobil Automobile
ii) On deputation from
(Tech) e Engg. with 10 Engg. with 10
State Govt. or any
years experience years experience
Public Undertaking
in Bus Body as Works
Fabrication Manager iii) Promotion from
Works Manager,
Works Manager
(quality control) and
Store Purchase Officer
Since, the petitioner was appointed under draft rules and was
promoted under draft rules and as such he is barred by his own act
and conduct from stating that the rule of Transport Department be
made applicable in the case of petitioner"
This Court vide order dated 09.03.2015, while disposing of CWP
No.3674 of 2012 negated the stand of the corporation by holding the
appellant eligible to mandate i.e. case be considered as per law within a
period of one month from the date of receipt of a certified copy of the order.
We may extract the relevant portion of the said order here below:-
"In view of this binding precedent even the third argument
raised by learned counsel for the respondents is rejected. In these
circumstances, the petition is allowed and the impugned orders are set
aside. The respondents are directed to consider the case of the
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petitioner for promotion after accepting his eligibility. Seeing the long
struggle and multiple litigation which the petitioner has had to endure
for this promotion, it is directed that necessary consideration be made
as per law within a period of one month from the date of receipt of a
certified copy of this order."
Subsequent to the aforesaid mandate, the respondents once again
rejected the claim of the appellant vide Office Order dated 08.05.2017 which
is extracted as under:-
"Now as per directions of the Hon'ble Court, the claim of the
petitioners is to be considered as per law. It will not be out of place to
mention here that while filing the Civil Misc. Application dated
03.07.2014, it was within the knowledge of the petitioner that the draft
rules of HREC titled as Haryana Roadways Engineering Corporation
Employees Service Rules were approved by the Board in its 103rd
Meeting held on 14.06.2013 with the concurrence of Haryana Bureau
of Public Enterprises (fD) obtained vide U.O.No.20/1/2013/Actt/HBPE
(FD) dated 23.04.2013 and circulated vide letter No.251/FC/HREC
dated 11.07.2013. These Rules were also placed on the website of
Transport Department, Haryana i.e. www.hartrans.gov.in. It appears
that the petitioner concealed this fact while filing the Civil Misc.
Application No.7648/2012 on 03.07.2014 before the Hon'ble High
Court. Presently, the Haryana Roadways Engineering Corporation
Employees Service Rules as approved by the competent authority are
applicable to decide the claim of the petitioner.
As per Appendix B of the rules dated 11.07.2013, the post of
General Manager (Technical), is to be filled up by way of following
mode:-
General Manager (Tech):-
"Deputation post to be filled up from Transport Deptt.,
Haryana. Incumbent should have a degree in Mechanical/Automobile
from a recognized University/Institute and holding analogous post. He
will get his salary in his own pay scale."
In this way, as per existing Service Rules of HREC, the post of
General Manager, HREC is to be filled up by the mode of deputation
only and not in any other manner. The fulfilling of the required
qualification by the petitioner or having higher education does not
have any force with regard to his claim for the promotion of the post of
General Manager in view of the afore-stated Service Rules."
Apropos the above discussion, we find that the Rules were
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approved by the resolution of the Board of Directors of the Corporation.
But when the claim of the appellant was rejected, on 23.11.2011, it was
stated by the Corporation that the post of General Manager was required
to be filled in on deputation from the Transport Department, Haryana, as
per the draft Rules as approved by the Board of Directors. That clearly
shows that in the year 2011, there was no approval by the Board of
Directors to the draft Rules, which as earlier stated, was granted only on
14.06.2013. This fact was never brought to the notice of the learned Single
Judge which decided CWP No.3674 of 2012, on 09.03.2015. Thus, in our
opinion, the concerned officers of the Corporation and in particular Mr.
Nagpal clearly played a game of hide and seek by placing contradictory
stand before this Court with only intention to somehow douse the claim of
the appellant. That appears to have been deliberately done by him with a
view to somehow thwart the eligibility claim of the appellant by hook or
crook. We, therefore, find that the rejection of the claim of the appellant
on 23.11.2011 was on a wrong premise and totally illegal and mala-fide.
It is significant to note that the aforesaid judgment and the
findings recorded by this Court in the earlier writ petitions could not have
been ignored by the learned Single Judge under the impugned judgment.
Similarly, the learned Single Judge could not have ignored the fact that the
post of General Manager was available first when the Corporation itself
posted Shri Joginder Singh as officiating General Manager as the post was
vacant w.e.f. 08.05.2008. Admittedly, the appellant was agitating his
claim right after 2004 on the ground that he had experience of five years
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so also the required qualifications, and therefore, he was required to be
promoted to the post of General Manager. But then, the crucial date was
08.05.2008 when the Corporation decided to fill up the post of General
Manager when it posted Shri Joginder Singh w.e.f. 08.05.2008. To say in
other words, it was the appellant who was entitled to be appointed to the
post of General Manager of the Corporation instead of Shri Joginder
Singh w.e.f. 08.05.2008 as the channel of promotion was available and the
appellant had qualification and experience required and further that
employer Corporation wanted to fill up the post of General Manager w.e.f.
08.05.2008. Not only that, the appellant was the candidate available in the
Department itself. It clearly appears to us that in order to defeat the claim
of the appellant who was the eligible qualified candidate for promotion to
the post of General Manager as per the promotion channel available by
way of sinister decision, Joginder Singh was brought from some other
Department i.e. Transport Department and was made officiating General
Manager. This mischief was clearly played with a view to deny the
legitimate claim of the appellant. What is surprising is that higher-ups in
the Corporation tacitly and rather casually supported these actions on
behalf of the Corporation in indulging in the aforesaid unwarranted and
uncalled activities of misleading the Court and taking contradictory stand.
It is really unfortunate that the higher-ups in the Corporation either were
mislead or were party to the entire events, which have taken place for so
many years. It is not the case of the respondent-Corporation that the
appellant had any bad service record or that he was not efficient or that he
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was not fit to be promoted to the post of General Manager, on merits. It is
regrettable that the appellant has been fighting for his right since 2008 and
now after 10 years, he is reaching the age of superannuation, as submitted
by the learned Senior counsel for the appellant. The Hobson's choice, the
post of Deputy General Manager given by the Corporation and accepted
by the learned Single Judge, is really an eye-wash.
It is seen from the record that this Court had on all occasions
directed the Corporation to consider the appellant's case for promotion and
every time, the Corporation took undue advantage of the word "consider"
and rejected his claim, and in this process, the appellant lost 10 valuable
years to occupy the post of General Manager. Now, this Court has realised
that it is no use directing the respondent-Corporation to consider his
promotion and therefore, this Court is inclined to pass affirmative order as
the appellant will attain the age of superannuation in the near future. The
appellant would also be entitled to costs from the respondents since the
respondents have been troubling him for the last so many years. We think,
costs in the sum of `1 lakh payable to the appellant would subserve the
interest of justice. To sum up, the present Letters Patent Appeal must
succeed. In the result, we make the following order:-
ORDER
(i) LPA No.1308 of 2016 is allowed;
(ii) The impugned judgment dated 30.03.2016 passed by the learned Single Judge, in CWP No.10647 of 2015 is set aside;
(iii) Respondent No.2-Corporation is directed to appoint the appellant, by promotion to the post of General Manager, 11 of 12 ::: Downloaded on - 19-08-2018 05:49:59 ::: LPA No.1308 of 2016 -12- Haryana Roadways Engineering Corporation Ltd., Gurugram and giving effect to his promotion w.e.f. 08.05.2008, with continuity of service, arrears of salary and all other monetary benefits, till the date of his superannuation;
(iv) The order of promotion of the appellant shall be made to the post of General Manager, Haryana Roadways Engineering Corporation Ltd., Gurugram on or before 20.08.2018;
(v) Respondent No.2 shall pay costs in the sum of `1 lakh to the appellant, within a period of 8 weeks from the date of receipt of certified copy of this order;
(vi) Respondent No.2 is at liberty to recover the cost from the officials responsible;
(vii) List on 21.08.2018 for compliance;
(viii) A copy of this order be given to the learned counsel for respondent No.2 under the signatures of the Bench Secretary.
(A.B. CHAUDHARI) JUDGE (KULDIP SINGH) JUDGE July 04, 2018 mahavir Whether speaking/ reasoned: Yes/No Whether Reportable: Yes/No 12 of 12 ::: Downloaded on - 19-08-2018 05:49:59 :::