Punjab-Haryana High Court
Jyoti Bala vs State Of Haryana And Others on 21 November, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.17943 of 2004 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Date of decision: 21.11.2013
I.
Civil Writ Petition No.17943 of 2004
Jyoti Bala
..... Petitioner(s)
Versus
State of Haryana and others
..... Respondent(s)
II.
Civil Writ Petition No.7339 of 2006 (O&M)
Jyoti Bala
..... Petitioner(s)
Versus
State of Haryana and another
..... Respondent(s)
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.Raj Mohan Singh, Advocate,
for the petitioner (CWP No.17943 of 2004).
Mr.Deepak Sibal, Advocate,
for the petitioner (CWP No.7339 of 2006)
Mr.Harish Rathee, Sr. DAG, Haryana
*****
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
RAJIV NARAIN RAINA, J.
This order will dispose of two writ petitions i.e. CWP No.17943 of 2004 and CWP No.7339 of 2006 both filed by the petitioner. Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 2
2. The inter se seniority of the petitioner and the private respondents is the lis mota in the first writ petition. The second writ petition was filed against an impugned order which compelled the petitioner to opt to serve on the lower post to secure re-transfer to parent department. If the first writ petition is allowed, there would be little left to do in the subsequent petition except to declare the action taken against the petitioner as bad upon correction of disputed seniority inter se the parties i.e. the petitioner and the private respondents in the respondent Hospitality department. This Court would first take up CWP No.17943 of 2004 for decision.
3. There are a large number of facts involved in both the cases which call for step by step narration to reach at the core issues which this court is called upon to adjudicate. The petitioner was appointed as a Salesgirl in 1985 in the Hospitality Department/Organization, Haryana, Chandigarh (for short 'HO'). While she worked as a Salesgirl HO upgraded the post of Salesgirl to that of Counter Clerk on 28.11.1986. The petitioner and three other salespersons became Counter Clerks by process of upgradation of four posts and not by way of promotion. In due course the petitioner was promoted as an Assistant in the HO on 16.4.1992. The HO maintained a joint cadre of Accountants, Assistants and Junior Auditors in the pay scale of ` 5000-8000/-. The seniority was also joint. In the joint seniority list circulated as on 1.4.1994, the name of the petitioner figures at Serial No.14 while that of the 4th respondent, Raghbir Singh figures next below her at Serial No.15. The petitioner was thus senior to Raghbir Singh with reference to date of appointment to service.
Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 3
4. On 31.7.2001, the petitioner was sent on deputation to the Haryana Rural Development Fund Administration Board, Chandigarh without taking her consent. This was done on 31.7.2001. The petitioner was one amongst five persons who were sent on deputation vide order dated 28.6.2001 to Panchayat department including the 4th respondent. This was caused due to downsizing HO because of sickness experienced in the tourism sector and resulting in privatization of a substantial part of the HO. The Board found that the petitioner and some others from her parent department were not acceptable to it. The petitioner was sent back to HO on 3.8.2001. It is, thereafter, that the petitioner was sent on deputation to the Directorate of Development and Panchayats, Haryana. This was also done without consent. However, her lien was ordered to be maintained in HO. The deputation period was fixed at one year. It was extended to 9.8.2003. In January, 2003, the petitioner represented to HO praying for repatriation to her parent department. This request was made in the background that while both the petitioner and the 4th respondent Raghbir Singh were sent together on deputation, Raghbir Singh had succeeded in securing return to his parent organization i.e HO on 13.2.2003. The repatriation was sought on the ground that Raghbir Singh was junior to her in HO and would succeed in occupying the promotional post of Assistant. Instead of recalling the petitioner to HO, the 2nd respondent promoted the 5th respondent Santro Devi from the post of Clerk to that of Assistant vide order dated 30.1.2003. In this process she lost out to Raghbir Singh and now Santro Devi who had remained serving in HO and was foisted on her while the petitioner remained on deputation. Santro Devi's name was not even mentioned in the joint seniority list (supra).
Kumar Paritosh2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 4
5. The request of the petitioner for return to her parent department was rejected on 25.4.2003 on the allegedly imaginary ground that there was no post of Assistant/Accountant available with the HO to accommodate her claim. Aggrieved by denial of repatriation the petitioner and one other person namely Raman Kumar Sharma filed a joint writ petition before this Court bearing CWP No.9849 of 2003 challenging the order dated 25.4.2003. That writ petition was pending motion hearing when the present writ petition was filed by the petitioner against disturbing of the old joint seniority list to her detriment. During the pendency of the joint petition Raman Kumar Sharma was repatriated to parent department on 30.6.2004 without Court intervention.
6. The 4th respondent Raghbir Singh belongs to the backward class category while the petitioner is a general category candidate. It is pleaded that the petitioner was promoted to the post of Assistant with effect from 16.4.1992 and Raghbir Singh was promoted to the post of Accountant with effect from 14.8.1992. Later on, vide order dated 7.4.1998, the 4th respondent Raghbir Singh was granted promotion to the post of Accountant with retrospective effect from 16.4.1992 against a vacancy reserved for the backward class category. Thus the petitioner and the 4th respondent came to occupy the same cadre posts on the same day; one as Assistant the other as Accountant. It is this retrospective promotion afforded to Raghbir Singh that has become the bone of contention in the present writ petition.
7. The order dated 7.4.1998 passed by the Director, HO, Haryana promotes Raghbir Singh, Counter Clerk to the post of Accountant ordering that his seniority would be fixed as an Accountant as per rules. In her representation dated nil (P-3), the petitioner's grievances have been set out. Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 5 She states therein that there were 16 posts of Accountants/Assistants in the HO at the time of promotion of Counter Clerks on 16.4.1992. Out of 16 posts, only one post could be earmarked for the quota of backward class candidates. It is submitted that one Dhyan Singh who belonged to the Ahir caste was entitled for promotion to the post of Accountant and was accordingly promoted against the reserved post of BC category thereby exhausting the backlog then accumulated. Raghbir Singh had produced a backward class caste certificate in 1989 much after his initial entry into service upon which he laid his claim for promotion on reserved roster point earmarked for the backward classes in promotion. His case was considered on the strength of being BC. He was promoted with effect from 28.8.1992, to which the petitioner would have no objection since she stood promoted earlier. But then Raghbir Singh 4th respondent submitted a representation six years thereafter claiming promotion with retrospective effect from 16.4.1992 on account of the backlog of BC category vacancies. With this change of events, the HO proposed to fix his seniority at Serial No.46-A below Raman Kumar Sharma and Dhyan Singh and several others. In this way, settled seniority was sought to be disturbed. Raghbir Singh was issued a show cause notice dated 18.9.2000. Raghbir Singh was informed that the reservation policy permitted only roster points 10, 16 and 22 as reserved for BC category and all the three roster points were already occupied. The show cause notice was issued after checking the roster register in the light of the Government policy instructions on reservation dated 18.9.1979. It was found that three general category candidates had occupied roster points 10, 16 and 22 reserved for the backward classes. It was discovered that roster point 4 was earmarked for Scheduled Caste Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 6 category and 9, 11 and 12 earmarked for general category candidates were in fact occupied by 4 backward class candidates i.e. Shri Subhash Chander, Gurnam Singh, Baljit Singh and Ved Parkash. Thus, one backward class candidate was sitting in excess of quota. The Director, HO, Haryana sought reasons from the 4th respondent Raghbir Singh on show cause as to why his promotion with effect from 16.4.1992 granted vide order dated 7.4.1998 be not withdrawn since there was no vacant post of Assistant/Accountant as on 16.4.1992. The show cause notice remained pending without decision. There was change of guard on the post of Director, HO, Haryana. An office order dated 8.7.2004 was issued in favour of the 4th respondent Raghbir Singh by the new incumbent. The reason given to support the promotion with effect from back date i.e 16.4.1992 was for the reason that Subhash Chander was promoted as an Accountant on 14.8.1986 and Shri Gurnam Singh on the same post on 11.5.1988 but their backward class certificates were issued by the competent authority after the date of their promotion, i.e., on 11.5.1988 and 20.11.2002 respectively. By this process of reasoning and by excluding the said two BCs from the scene, it was held that there was a shortfall of one reserved vacancy of backward class on 16.4.1992 which was said to be duly mentioned in the roster register. In addition, Dhyan Singh was shown promoted with effect from 16.4.1992 against the reserved vacancy of backward class category whereas he too had submitted his BC caste certificate on 12.6.2001 and he had also to be excluded from the head count. To achieve the purpose, Haryana Government letter dated 6.10.1989 was pressed and relied upon by the Director HO. The advice contained in the letter dated 6.10.1989 reads as follows : -
"GENERAL ADMINISTRATION DEPARTMENT Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 7 The matter has been examined by the Chief Secretary to Government Haryana in General Services Branch III.
The Administrative Department advised that if a candidate belonging to SC/BC does not claim the benefit of reservation at the time of initial appointment, it is to his disadvantage and he cannot be forced to claim the same. If he claims any benefit on this basis at any subsequent stage, the same cannot be denied. But such benefit will be admissible only for future and not retrospectively.
Sd/-
Under Secretary General Administrative, for Chief Secretary to Government Haryana"
8. The 5th respondent Santro Devi's case has been explained by such that she was promoted as Counter Clerk with effect from 28.11.1986 and as an Assistant with effect from 16.4.1992 by giving her the benefit of reservation vide office order dated 30.1.2003. In this order, the seniority position was altered/disturbed. Santro Devi, Raghbir Singh, Dhyan Singh, Dharambir Singh and petitioner Jyoti Bala were all clubbed as Assistants/Accountants with effect from the same date, i.e., 16.4.1992. In the new order of seniority, Santro Devi was placed at Serial No.11 and below her Raghbir Singh, Dhyan Singh, Dharambir Singh and Jyoti Bala in that order. Santro Devi has since retired from service. It may be remembered that in the 1994 seniority list the petitioner was at Serial No.14 and Raghbir Singh at 15 but Santro Devi's name was not borne on that list at all. In the impugned office order, there is no mention of Baljit Singh and Ved Parkash or what happened to their claims based on belonging to the Backward Class category and whether they had submitted backward class certificates or not or at what stage.
Kumar Paritosh2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 8
9. Mr. Raj Mohan Singh learned counsel appearing for the petitioner submits that the clarificatory letter dated 6.10.1989 has been seriously misapplied to give undue benefit retroactively to Raghbir Singh by dislodging the claims of backward class candidates promoted earlier by rejecting their claims based on rule of reservation only to accommodate him by granting him retrospective promotion with effect from 16.4.1992. He further urges that the earlier show cause notice issued by the previous Director, HO had neutralized the adverse effect flowing from unlawful retrospective promotion of the 4th respondent Raghbir Singh and was based on good and sufficient cause for withdrawal of retroactive promotion from the 4th respondent. The new Director, HO, Haryana while passing the impugned final order arising out of the show cause notice issued by the previous Director relied on the basic policy instructions of Government of Haryana on reservation dated 18.9.1979 and that they were correctly applied to the case to reach the desired result. The impugned order has been passed completely distorting the inter se seniority by introduction of new found principles of reservation in promotion to postpone promotion of Subhash Chander and Gurnam Singh to the dates when they submitted their backward class certificates, dislodging them from dates of actual promotion as Assistants/Accountants, granted to them in the past realizing little that a backward class certificate cannot be created except by birth mark and any certificate issued by the competent authority to a backward class candidate relates back to his birth.
10. After the present writ was filed in October, 2004, the writ petition filed by the petitioner with co-petitioner Raman Kumar Sharma i.e. CWP No.9849 of 2013 came to be decided by the Division Bench of this Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 9 Court on 7.12.2004. The following order was passed : -
" The instant writ petition survives only qua petitioner No.2. Petitioner No.2 is a substantive employee in the cadre of the Hospitality Department. She was however, sent on deputation to the department of Pancahyats, Haryana. Unhappy with her posting by way of deputation in the Department of Panchayats, Haryana, the petitioner has been representing to the respondents claiming repatriation to her parent cadre. Since the claim of the petitioner No.2 was not being adjudicated upon at the hands of the respondents, the aforesaid issue was raised by the petitioner by filing this writ petition.
Learned counsel for the respondents has handed over to us in Court photocopy of memorandum dated 8.10.2004 addressed by the Director, Hospitality Organisation, Haryana to the petitioner expressely indicating that the post againt which the petitioner was substantively appointed in the Hospitality Department has been rendered surplus and that the petitioner on her repatriation to the Hospitality department will have to be accommodated on a lower post of Counter Clerk etc. A copy of the aforesaid memorandum has been taken on record and marked as Annexure-A. In response to Annexure-A the petitioner is stated to have addressed letter dated 8.10.2004 to the Director, Hospitality Organisation, Haryana accepting his repatriation to the Hospitality Organisation against a lower post. Learned counsel for the petitioner has handed over to us in Court today photocopy of the letter addressed by the petitioner to the Director, Hospitality Organisation, Haryana. Same is also taken on record and marked as Annexure-B. In view of Annexure-B, learned counsel for the respondents states that the petitioner will be repatriated to his parent department, if necessary, against a lower post than the post occupied by him within two weeks from today.
In view of the statement made by the learned counsel for Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 10 the respondents, the instant writ petition has been rendered infructuous. The aforesaid position is acknowledged by the learned counsel for the petitioner. The instant writ petition is disposed of as having been rendered infructuous. The respondents shall be bound by the undertaking given in the Court on their behalf by learned counsel representing them."
11. It was given out before this Court during the proceedings in the above writ petition through a written memo dated 8.10.2004 that since the post against which the petitioner was substantively appointed in HO has been rendered surplus her only way to return to her parent department (HO) would be to accommodate her on the lower post of Counter Clerk. The petitioner had accepted the repatriation to HO against lower post in the above scenario. Even though the petitioner returned to HO on reduced rank Dharam Singh and Dhyan Singh secured repatriation to HO after the petitioners reversion and both joined back on 23.11.2005.
12. Mr.Raj Mohan Singh points out from this order to vital words i.e. "if necessary" underlined in the above reproduced order for emphasis. The petitioner should thus be viewed at the time when she accepted the offer on 8.10.2004 as a person who seemed to have no option left in a cul de sac but to accept any condition, however onerous, for her return to her parent department i.e. from Panchayats to HO. It is for this reason that the Court did not accept memo dated 8.10.2004 in toto but acted on the statement of the learned counsel for the State that the 2nd petitioner (petitioner herein) will be repatriated to her parent department, if necessary, against a lower post within two weeks from the date of the order i.e. 7.12.2004.
Kumar Paritosh2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 11
13. The repatriation was thus secured through judicial order only to return to HO to confront the mess created by the impugned office order dated 8.7.2004 passed in HO while the petitioner was away on deputation serving in the Department of Panchayats only to return after the order of the Division Bench was passed on 7.12.2004. The direct inference clearly is that the petitioner was not heard in HO when the order adverse to her interest was passed since she was on forced deputation with the Department of Panchayats and struggling to return to her parent organization through lawful means. The letter of the Director addressed to the petitioner on the question of repatriation to parent department mentioned in the order of the Division Bench deserves reproduction : -
"From Director Hospitality Organization, Haryana Chandigarh To Smt.Jyoti Bala, Assistant (Presently working on deputation to the office of Zila Parishad, Panchkula) Hospitality Organisation, Haryana Memo No.DHOH-2004/OA-I/3821 Dated 8.10.2004 Subject : Repatriation to Parent Department Please refer to your appeal made in Hon'ble Punjab & Haryana High Court vide C.W.P. No.9849 of 2003, in connection with the repatriation to the parent department Hospitality Organization, Haryana.
2. In this regard you are hereby informed that due to privatisation of nine units of Hospitality Organization, Haryana Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 12 about 200 employees became surplus and were sent on deputation to various departments, Boards and Corporation of Haryana Govt. to save their services from retrenchment/reversion. Government vide letter No.14/4/2003- 7PP, Dt. 29.9.2004 has also decided to absorb the surplus staff permanently already sent on deputation to the various departments/boards/corporations and the action for permanent absorption of surplus employees in the Boards/corporation is under process with the department.
3. You are the junior most employee in the cadre of Assistant/Accountant/J.A. as intimated to you by seniority list circulated vide letter No.DHOH-2004/OA-I/2670-2708 dated 8.7.2004. Your name falls in surplus category being junior most in the cadre and your services are not required in this department. If you are willing to seek reversion to the lower post then you can be adjusted on a lower post in this department after repatriation. Therefore, if you are interested to join in the Hospitality Organization, Haryana on the lower post you may sent your option to this department by return post today positively otherwise it will be presumed that you are interested to continue to serve in Zila Parishad Panchkula.
Sd/-
Director Hospitality Organization, Haryana"
14. The petitioner's response to and acceptance of the memo dated 8.10.2004 is significant and is reproduced as under : -
"To The Director, Hospitality Organization Haryana, Chandigarh Subject : Repatriation to the Parent Department It has reference to your letter no.DHOH-2004/OA-Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 13
I/3821, dated 8.10.04 vide which you have sought my option for repatriation in the department of Hospitality Organization. I give my option for repatriation in the Hospitality Organization without prejudice to my right to challenge the seniority list circulated on 8.7.2004 vide which I have been termed junior most employee in the cadre of Assistant/Accountant/Junior Auditor.
Hence, I submitted my joining as your directions.
Thanking you.
Yours faithfully sd/-
Dated 8.10.2004 (Jyoti Bala) Assistant
O/o Hospitality Organisation
Sec-17, Chandigarh."
15. By letting the petitioner join HO without enforcing the terms of the letter dated 8.10.2004 it can verily be said that its effect was whittled down considerably. The deleterious condition apparently stood waived by official conduct as no further order was passed on the subject either way.
The petitioner had preserved her right to challenge the seniority list finalized/circulated on 8.10.2004 by which her seniority was downgraded as she had been made to stand as the junior-most employee in the cadre of Assistants, Accountants and Junior Auditors vis-a-vis the contesting parties before this Court. In this manner the acceptance by her of the offer of repatriation based on declaration of surplus has to be read without prejudice to her existing rights in her parent organization and it may be for this reason that this Court in its wisdom had recorded in the order from the statement of the learned counsel for the State that she would be put to lower post, if necessary. The words, "if necessary" thus to my mind assume great Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 14 significance. It means that it was not absolutely necessary to do so, that is, to reduce the petitioner in rank in HO on repatriation as an inevitable result of the orders passed. Was her post really surplus to justify the action is one of the issues arising for decision. Action taken would thus remain subject to judicial review.
16. Mr.Raj Mohan Singh has argued the case of the petitioner with clarity marshaling facts effectively. He submits that Raghbir Singh 4th respondent could not have been given the benefit of seniority with effect from 16th April, 1992 retrospectively and that that action of the respondents is legally and factually bad. The impugned order was passed on a show cause notice dated 18th September, 2000 (P-4) issued to Raghbir Singh to show as to why his retrospective promotion be not withdrawn. Both Subhash Chander and Gurnam Singh were BC candidates. Their BC certificates were received in the Department in 2002 after the show cause notice was issued to Raghbir Singh 4th respondent. It is his further submission that 15 persons were occupying posts in a cadre of 11. Four of those posts arose from upgrading posts of salesmen to that of Counter Clerks. Santro Devi, at that time, was nowhere in sight and was dropped on the cadre posts of Assistants/Accountants just to disturb the apple cart. It is argued that there appears to be something strange that Raghbir Singh 4th respondent although junior to Raman Kumar Sharma was repatriated to HO, Haryana earlier than the latter though Raman Kumar Sharma was senior to him in the first joint seniority list issued as on 1st April, 1994 and has now stolen a march over him as well.
17. Mr.Singh submits on the strength of facts that two persons came prior to reversion of the petitioner and two came afterward to HO.Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 15
Raman Kumar Sharma was repatriated to HO on 30th September, 2004 without awaiting the result of joint petition filed by him and the petitioner while the petitioner was left alone to prosecute the case and to receive the order dated 7th December, 2004 of the Division Bench of this Court as elaborately narrated above. Raman Kumar Sharma was made to walk out of the petition without court orders since a favourable administrative order was passed in his favour removing his grievance.
18. The pith and substance of the argument of Mr.Singh is that the letter and spirit of the memos dated 28th June, 2001 and 29th September, 2004 deserved to have been implemented in letter and spirit. If they were implemented strictly, relief would come by to the petitioner naturally. The proceedings dated 28th June, 2001 is found on the record of the subsequent writ petition filed by the petitioner bearing CWP No.7339 of 2006 at Annexure P-3. In Annexure P-3 are the text of the proceedings of the meeting of the Standing Committee of the Bureau of Public Enterprises held on 28th June, 2001 under the chairmanship of Shri Vishnu Bhagwan, Chairman, Haryana Bureau of Public Enterprises and of the Standing Committee. Agenda Item No.1-A dealt with filling up of 15 posts of different categories in the Haryana Rural Development Fund Administration Board where the petitioner was first sent on deputation but returned only to be diverted to the Panchayat Department. The proposals put up were considered by the Standing Committee and it was decided to fill up 5 posts of Accountants which were lying vacant on deputation from the Hospitality Department. The recommendations were made to fill up 8 posts of Accounts Clerks which were also lying vacant on deputation from HO. It was also decided to create posts of Accounts Clerks which were abolished due to Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 16 vacancy existing for more than 3 years which may be filled on deputation from HO. The Hospitality Department was advised to recommend the senior most employees from surplus pool for the above posts. It was also decided that no direct recruitment be made or will be allowed and resultant vacancies due to deputation in HO will not be filled by any mode of recruitment including promotion.
19. The Standing Committee considered further Agenda Item No.1- B which dealt with creation of 11 posts in Haryana Panchayat Bhawan. The proposal was considered and it was decided as under : -
"1. To create two posts of Supervisors in the pay scale of Rs.5450-8000 and to be filled up on deputation from the Hospitality Department.
2. To create one post of Additional Store Keeper in the pay scale of Rs.3050-4350 and to be filled up on deputation from the Hospitality Department.
3. To create 4 posts of Receptionist-cum-
Clerk-cum-PBX Operator in the pay scale of Rs.3050-4590 and to be filled up on deputation from the Hospitality Department.
4. To create 4 posts of Waiters/Room Attendants in the pay scale of Rs.2550-3200 and to be filled up on deputation from the Hospitality Department.
20. The riders put under Agenda Item No.1-A were imposed for this agenda as well.
21. Mr.Singh's next reliance is on the decision dated 29th September, 2004 taken 3 months before the decision of the Division Bench of this Court passed the orders dated 7th December, 2004. This decision Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 17 dated 29th September, 2004 is found at Annexure P-11 with the connected CWP No.7339 of 2006. The memo dated 29th September, 2004 is from the Chief Secretary to Government of Haryana addressed to the Director, HO, Haryana. It deals with re-structuring of the working and steps towards right sizing of HO, Haryana. The memo reveals the decision of the Governor of Haryana according sanction to the continuation of 248 posts out of total 393 sanctioned posts in the HO. At Item No.10, 11 posts of Assistants/Accountants/Junior Auditors were permitted to be continued together with 27 posts of Counter Clerks. Sanction of the Governor of Haryana was also accorded to the absorption of surplus employees of HO in the respective departments/Boards/Corporations where they are presently working on deputation basis. 4 posts of Assistants/Accounts were abolished. Resultantly, the original cadre strength of 15 was reduced to 11. The competing interest of the petitioner and the private respondents has to be accounted for from the figure of 11 representing the then existing strength of the cadre of the posts of Assistants/Accountants. The remaining decisions taken vide memo dated 29th September, 2004 would not effect the result of this case. This memo however contains a vital decision relevant to this case inasmuch as 4 posts on which the employees are working on deputation were to be abolished as soon as each employee is absorbed in the respective departments/Boards/Corporations etc. but until that period, the posts will remain in tact. The proceedings and the decisions taken on 28th June, 2001 and the Chief Secretary's memo dated 29th September, 2004 and especially the last one were not available to the petitioner when she filed the earlier writ petition on 7th October, 2004 in which a prayer was made for quashing of the order dated 8th July, 2004 dismissing her representation and according Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 18 promotion to respondent No.4 by giving the benefit of unfounded reservation to the 5th respondent. It was also prayed that the retrospective promotion of the 5th respondent Santro Devi on the post of Counter Clerk with effect from 28th November, 1986 be declared illegal as there was no 5th post of Counter Clerk in existence as on 28th November, 1986. Consequently, her promotion to the post of Assistant with effect from 16th April, 1992, the date when the petitioner was promoted as Assistant, deserves to be set aside. The impact of the proceedings of 2001 and the decisions taken by the Chief Secretary on 29th September, 2004 had material bearing on the case of the petitioner which deserved to have been brought to the notice of the Court when the order was passed on 7th December, 2004 which gave partial relief on the statement of the Government Counsel that the post of Assistant/Accountant in HO stood abolished and therefore the petitioner was rendered surplus.
22. Mr.Raj Mohan Singh persuades this Court with the false statement made before it by the officials of the State Government instructing. The respondents being private parties would not have brought these facts to notice of the Court even if they knew of it as it may be read against them.
23. Learned counsel points out from the deputation order (P-4) that 5 persons in the cadre of Assistants/Accountants/Junior Auditors were sent on deputation i.e. Raman Kumar Sharma, Dhyan Singh, Dharamvir Singh, Jyoti Bala (petitioner) and Raghbir Singh. Raghbir Singh was dissatisfied with his deputation and challenged his deputation by filing a writ petition before this Court. During the pendency of that writ petition, the respondents issued letter dated 13.2.2003 recalling on their own Raghbir Singh to HO Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 19 from the Panchayat department. There may be little doubt on reading the decision dated 29th September, 2004 that 11 posts were retained in the HO in the cadre of Assistants/Accounts/Junior Auditors. One post was decided to be abolished. It may be useful to notice that two out of the 5 persons sent on deputation had already been recalled by the HO. Even on 8th October, 2004, more than 11 persons were in the HO in the cadre in question. Since the petitioner did not know of the cadre position, she was inclined to opt to return to HO on lower post. But with new found facts, she returned to Court in the second petition. Raman Kumar Sharma and Raghbir Singh had already had the benefit of repatriation orders before the administrative decision dated 29th September, 2004. After the decision, Dhyan Singh and Dharamvir Singh were also recalled vide order dated 23rd November, 2005. On the strength of this, it argued that the decisions dated 28th June, 2001 (P-
3) and 29th September, 2004 (P-11) issued by the Chief Secretary were never implemented qua any employee except the petitioner. Therefore, undue benefit was given to Raghbir Singh and others. It was only on her return to HO that she learnt of the decision of the Government dated 29th September, 2004 and the unwarranted discrimination which had resulted when seen in the background of recall orders in favour of two persons one of whom Raghbir Singh 4th respondent was junior to her in the joint seniority list. The fact of the matter was that in the cadre of Assistants/Accountants/Junior Auditors, there were people working beyond sanctioned posts. This also proves that the Chief Secretary's decision dated 29th September, 2004 was never worked. The result of all this was that the petitioner was singled out for adverse treatment in a most illegal and arbitrary manner practiced by virtue of rejecting her request for repatriation in line with the cases of Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 20 Raghbir Singh and Raman Kumar Sharma. This factual position could not be pleaded when the writ petition was dismissed as infructuous but with the protection of the two words, "if necessary".
24. The factual position as it existed on the date of filing the 2nd writ petition, i.e., in May, 2006 obtaining in HO, Haryana has been tabulated by the petitioner in para. 12 which is reproduced : - Total Posts 16
As per decision dated 29.9.2004 which has been implemented only in the case of the petitioner To be retained : 11 posts To be abolished : 1 post Persons to be 4 posts absorbed by the Department/Corpn./ Board to which they were sent on deputation Present position 14 persons are working in the cadre of Assistant/ Accountant/Junior Auditors The details of the same are given below :
Sr.No. Name Date of
joining/promotion
1 Sh.Nahar Singh 23.6.89
2 Sh.Nihar Singh 23.6.89
3 Sh.Rajesh Kumar 23.6.89
4 Sh.Jatinder Kumar 23.6.89
Sh.Jai Kishan 24.5.90
5 Pandey
6 Sh.Parshotam Dass 24.5.90
7 Sh.K.L.Malik 24.5.90
8 Sh.Naresh Kumar 24.5.90
9 Sh.Vipan Kumar 31.7.91
10 Sh.Raman Kumar 31.7.91 Recalled in the
Hospitality Deptt.
w.e.f. 30.6.04
Kumar Paritosh 11 Smt.Santro Devi 16.4.92
2013.12.23 14:04
I attest to the accuracy and
integrity of this document
CWP No.17943 of 2004 21
Total Posts 16
12 Sh.Raghbir Singh 16.4.92 recalled in the
Hospitality Deptt.
w.e.f. 13.2.03
13 Sh.Dhyan Singh 16.4.92 Recalled in the
Hospitality Deptt.
w.e.f. 23.11.05.
14 Sh.Dharamvir Singh 16.4.92 Recalled in the
Hospitality Deptt.
w.e.f. 23.11.05.
25. If the cadre strength has been destroyed by the HO and people are sitting in excess of cadre, general or backward class, then if the relief is denied to the petitioner, it would result in hostile discrimination which may not be capable of being justified on the touchstone of Articles 14 and 16 of the Constitution. If the discrimination results from administrative action, the powers of this Court to review is primary not secondary. It is one thing to say that the action is arbitrary, it is another to say that it is discriminatory.
Arbitrariness has to be examined on principles of proportionality and by application of wednesbury principles but when discrimination is alleged and shown or proved, the writ Court has to look neither left nor right but to sett about to restore the balance of equality of opportunity and make all transactions which caused the imbalance and led to actionable injury as non est and void ab initio which were discriminatory in nature and effect. This is part of the constitutional function entrusted to this court to see that discrimination is removed by judicial orders when brought to its notice, which duty it cannot abdicate for any reason whatsoever. Assuming that the petitioner had been repatriated on her request or was given similar treatment as was given to Raghbir Singh who had also filed a writ petition but did not wait for orders and secured a repatriation order, the petitioner would also have found herself sitting in HO on the date when Raghbir Singh was Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 22 repatriated in 2003 and all this mess would not have come to pass. Therefore, the theory of surplus propounded before this Court on 7th December, 2004 was tragically incorrect. I have no doubt had the Court been informed of the factual position candidly, a different opinion may have formed and rights declared either which called for determination. The matter may not have been rendered infructuous but yet the Court in its intuitive wisdom granted protection by the words, "if necessary". I respectfully bow to such intuitive reflex which only wisdom and long experience on the Bench create.
26. On his part, Mr.Harish Rathee, Sr. DAG, Haryana in defence of the writ petition submits that the fulcrum of the case against the petitioner is indeed the order passed by this Court on 7th December, 2004 in CWP No.9849 of 2003 and thus, the State was helpless and thus justified in repatriating the petitioner on the lower post and taking away her promotion as Assistant ordered as long back as on 16th April, 1992 i.e 22 years after her legal and valid promotion as Assistant. Mr.Rathee has however no satisfactory answer as to what prompted Government to repatriate Raghbir Singh 4th respondent without awaiting orders on his writ petition, though he was similarly situated as the petitioner besides being junior to her on the date of his repatriation. His subsequent promotion retrospectively is under challenge in this petition. This is what happened in the case of Raman Kumar Sharma also who strangely was a co-petitioner of the present petitioner but was able to free himself by securing a repatriation order without Court orders. It was only the petitioner who was left alone to face the brunt of the ill-conceived stand of the State that her post in HO was abolished and therefore her services were rendered surplus. Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 23
27. It may also be well remembered that Raghbir Singh 4th respondent woke up after a long delay of 6 years to wake up and claim ante dated promotion and was able to secure it. There is no valid explanation as to why the case of Santro Devi was dealt with who was not even on the landsite on 16th April, 1992.
28. Mr.Raj Mohan Singh may be right in pointing out that good reason was assigned in the show cause notice dated 18th September, 2000 issued to Raghbir Singh. The roster register had been checked in the light of the policy instructions from where it was found that 3 general category candidates were holding reserved quota posts meant for BCs at roster point 10, 16 and 22. 5 Backward Class candidates were found to have been promoted against the general category posts without de-reservation. This had neutralized the effect by and large and the equities between the general cadre and reserved cadre had been balanced out. There was, thus, no shortfall of vacant posts for BC candidates to be adjusted in the manner done in the impugned order dated 8th July, 2004 (P-5). In this order, the petitioner's seniority has been downgraded below Santro Devi and Raghbir Singh. Raman Kumar Sharam was senior to the petitioner without doubt and no claim is made against him. Raghbir Singh was adjusted at roster point No.24 against reserved vacancy. 5 persons were assigned the samer date of promotion , i.e., 16th April, 1992. As to how Santro Devi was adjusted on the date i.e. 16th April, 1992 when only 4 posts were upgraded to Counter Clerks, appears to defeat logic as worse still how her case was separated with effect from 16th April, 1992 as Counter Clerk in excess of sanctioned strength. If she was given the benefit of reservation in promotion as Assistant vide order dated 30th June, 2001 retrospectively with effect from Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 24 16th April, 1992, this confounds confusion even more which has not been satisfactorily explained by the State before this Court. The Director, HO, Haryana in the impugned order dated 8th July, 2004 has done a rather clumsy job of assigning roster point No.24 to a backward class candidate. Roster point No.24 in terms of Haryana reservation policy is meant for scheduled caste category candidate and thus Raghbir Singh could not have been adjusted against roster point No.24.
29. I am told that Santro Devi had retired form service on reaching the age of superannuation. Nothing said in this order will disturb her in her retirement with respect to service law issues.
30. Mr.Deepak Sibal, learned counsel appearing for the petitioner in CWP No.7339 of 2006 made a statement that he adopts the arguments put forth by Mr.Raj Mohan Singh, learned counsel for the petitioner in the first writ petition and has thus nothing more to say or add.
31. For the foregoing reasons, both the aforesaid petitions are allowed. The impugned order dated 8th July, 2004 is quashed. The retrospective appointment of the 4th respondent Raghbir Singh is set aside. His date of promotion as Accountant in the cadre of Assistants/Accountants/Junior Auditors will now be re-fixed by keeping in mind that he is junior to the petitioner in the cadre of Assistant/Accountants in terms of the seniority list as on 1st April, 1994. Since the 5th respondent has retired, this order will have no effect on her or her pension. A fresh seniority list be cast and circulated in terms of this order by showing the 4th respondent Raghbir Singh one step junior to the petitioner. The petitioner will be deemed to be validly holding the post of Assistant with effect from 16th April, 1992. She may be given all consequential benefits flowing Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document CWP No.17943 of 2004 25 therefrom including arrears of pay with effect from the date Mr.Raghbir Singh was repatriated, however, without any order as to costs. Let the needful be done within 2 months from the date of receipt of a certified copy of this order.
(RAJIV NARAIN RAINA) JUDGE November 21, 2013 Paritosh Kumar Kumar Paritosh 2013.12.23 14:04 I attest to the accuracy and integrity of this document