Himachal Pradesh High Court
Sushant Singh Negi & Others vs Himachal Pradesh State Industrial ... on 7 December, 2022
Bench: Sabina, Sushil Kukreja
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.6183 of 2022 Reserved on: 30.11.2022 Pronounced on:07.12.2022 .
Sushant Singh Negi & Others ......Petitioners Versus Himachal Pradesh State Industrial Development Corporation Limited and Another ...Respondents _________________________________________________ Coram:
Hon'ble Ms. Justice Sabina, Judge. Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?
For the petitioners : Mr. Onkar Jairath & Mr. Shubham Sood, Advocates For the respondents : Mr. Mehar Chand, Advocate, for respondent No.1.
Mr. Sanjeev Bhushan, Senior
Advocate with Mr. Rakesh
Chauhan, Advocate, for
respondent No.2.
________________________________________________ Sabina, Judge Petitioners have filed the petition under Article 226 of the Constitution of India, seeking the following relief(s):-
"i) That this Hon'ble Court may be pleased to issue the Writ in the nature of Certiorari or any other appropriate writ order or direction quashing and setting ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 2 aside the impugned actions of respondents whereby Shri Rajesh Kumar has been promoted to the post of Assistant Engineer w.e.f. 08.09.2014 in .
violation of the Recruitment and Promotion Rules and settled law of land.
ii) That this Hon'ble Court may be pleased to issue the Writ in the nature of Certiorari or any other appropriate writ order or direction quashing the seniority assigned to Shri Rakesh Kumar Manhas in the seniority of Assistant Engineer as on 10.08.2022, over and above the petitioners, being patently illegal, arbitrary he has been wrongly assigned.
iii) That this Hon'ble Court may be pleased to issue the Writ in the nature of mandamus or any other appropriate writ order or direction directing the respondents to consider the case of the petitioners No.1 and 3 to the post of Executive Engineer as they have completed 8 years of service as Assistant Engineer in view of the settled law of the land or in alternate all the petitioners may be granted ad hoc promotion to the post of executive engineer."::: Downloaded on - 07/12/2022 20:34:09 :::CIS 3
2. Case of the petitioners, in brief, is that two posts of Assistant Engineers were lying vacant with the respondent-
.
Corporation in the year 2013. Petitioners No.1 & 3, being fully eligible in terms of the Recruitment and Promotion Rules, were selected after following due selection process as Assistant Engineers (Civil) vide order dated 30.07.2013. Petitioners No.1 & 3 were appointed against vacant and duly sanctioned posts on contract basis. Similarly, petitioners No.2 & 4 were appointed through due selection process initiated by Himachal Pradesh Public Service Commission on 13.12.2016. Since the initial date of their appointment, petitioners were discharging their duty to the best of their ability. Services of petitioner No.1 were regularized on 17.05.2017, services of petitioner No.2 were regularized on 12.05.2020, services of petitioner No.3 were regularized on 18.05.2017 and services of petitioner No.4 were regularized on 12.05.2020. The next promotional post from the post of Assistant Engineer was Executive Engineer and the same is to be filled up as per Himachal Pradesh Public Works Department Recruitment and Promotion Rules for the Post of Executive Engineer (Civil), Class-I (Gazetted), 2012 ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 4 (hereinafter referred to as the "Rules" in short). There were two sanctioned posts of Executive Engineers in the respondent-
Corporation and the same were to be filled up by way of .
promotion, i.e. 70% from amongst the degree holders Assistant Engineers (Civil) and 30% from amongst the diploma holders Assistant Engineers (Civil). As per rules, every member of service was required to pass the departmental examination.
Petitioners had cleared the departmental examination. As per the rules, for promotion to the post of Executive Engineer, Ten Point Roster had to be followed, i.e. first two posts were to go to Graduate Assistant Engineers and the third post was to go to diploma holder and likewise, the same process was to be followed for the subsequent vacancies. The respondent-
Corporation had filled up two posts of Executive Engineers from Graduate Assistant Engineers. Third post was filled up from diploma holder Assistant Engineer. However, fourth vacancy was also filled up from diploma holder Assistant Engineer as none from the Graduate Assistant Engineers' category was eligible. Now, the fifth vacancy, which had arisen, was to be filled up from graduate Assistant Engineer, but the same was being sought to be filled up by the respondent-Corporation from ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 5 diploma holder Assistant Engineer, i.e. respondent No.2.
Hence, the present petition.
3. Respondent No.1/Corporation, in its reply, has .
admitted the fact that the petitioners were appointed on contract basis, as stated by them in the writ petition. It was submitted that adhoc service rendered by an employee could be counted for the purposes of experience at the time of promotion.
Although, the post of Executive Engineer, lying at Point No.5, was earmarked for a Graduate Assistant Engineer (Civil), but there was no eligible incumbent in the feeder category as per Rules. In fact, none of the Assistant Engineer (Civil) and the petitioners fulfill the eligibility criteria of eight years regular service and condition of passing of departmental examination, as prescribed in the Rules. Presently, petitioner No.1, who was at Serial No.1 in the Seniority List of Assistant Engineers (Civil), has been given assignment on current duty basis vide office order dated 08.09.2017 against the vacant post of Executive Engineer (Civil), earmarked at Roster Point No.6 to diploma holder Assistant Engineer (A.E). Respondent No.2, who stood at Serial No.2 in the Seniority List of Assistant Engineers, vide office order dated 18.08.2021, has been ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 6 assigned current duty charge against the vacant post of Executive Engineer (Civil), earmarked at Roster Point No.5 to Graduate Assistant Engineer (A.E).
.
4. Respondent No.2, in his reply, has submitted that he was appointed as Junior Engineer with the respondent/Corporation in the year 1992 and his services were regularized on 13.10.2006. In fact, his services were liable to be regularized in the year 2002. Respondent No.2 was promoted as Assistant Engineer on 04.09.2014. Petitioners No.1 & 3, who were already in service as Assistant Engineers, had been only appointed on contract basis, whereas, the other two petitioners had joined the service in the year 2016. So far as petitioners No.1 & 3 are concerned, their services were regularized in May, 2017, whereas, services of petitioners No.2 & 4 were regularized in May, 2020. As per Rules, Assistant Engineer, who had eight years experience, could be promoted to the post of Executive Engineer. Since all the petitioners did not have the necessary experience, they could not be promoted to the post of Executive Engineer.
5. Learned counsel for the petitioner has submitted that he does not press the relief Nos.1 & 2 claimed by the ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 7 petitioners. Learned counsel has further submitted that a direction be issued to the respondent-Corporation to consider the case of petitioners No.1 & 3 for promotion to the post of .
Executive Engineer, as they had completed eight years of service as Assistant Engineers. Learned Counsel has further submitted that in the Rules, it has been mentioned that for promotion to the post of Executive Engineer from amongst the degree holders, they required eight years of regular service or regular combined with continuous adhoc service rendered, if any in the grade, failing which, by promotion from amongst the diploma holders in the grade of adhoc service rendered, if any.
Learned counsel has further submitted that so far as the term of adhoc service in the Rules is concerned, the same is deemed to include service rendered by the Assistant Engineer (Graduate) on contract basis.
6. In support of his arguments, learned counsel for the petitioners has placed reliance on decision of the Hon'ble Supreme Court in Direct Recruit Class II Engineering Officers' Association versus State of Maharashtra and Others, reported in (1990) 2 SCC 715, wherein, it was held as under:-
::: Downloaded on - 07/12/2022 20:34:09 :::CIS 8"47. To sum up, we hold that:
(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 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. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 9 is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in .
excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.
::: Downloaded on - 07/12/2022 20:34:09 :::CIS 10(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any .
possible error. It is not in the interest of Service to unsettle a settled position.
With respect to Writ Petition No. 1327 of 1982, we further hold:
(K) That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final.
In view of the above and the other findings recorded earlier, we do not find any merit in any of the civil appeals, writ petitions and special leave petitions which are accordingly dismissed.
There will be, however, no order as to costs."
7. Learned counsel for the petitioner has further placed reliance on decision of the Hon'ble Supreme Court in State of W.B. and Others versus Aghore Nath Dey and Others, alongwith connected matters, reported in (1993) 3 SCC 371, wherein, it was held as under:-
::: Downloaded on - 07/12/2022 20:34:09 :::CIS 11"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, .
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 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."
8. Learned counsel for the petitioner has further placed reliance on decision of a Division Bench of this Court in ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 12 Baldev Singh & Ors. versus State of H.P. & Ors., reported in Latest HLJ 2009 (HP) 293, wherein, it was held as under:-
"16. In view of the above discussion, we dispose of .
the writ petitions by summarizing our findings as follows:
i) that the State should normally not make any appointment without following the R&P rules;
ii) that in a situation where the State or its instrumentalities are forced to make public employment without following the R&P rules, we recommend that the approval of the Administrative Secretary not below the rank of Principal Secretary should normally be obtained after given complete reasons, in respect of each post, as to why the post could not be filled up by following the R&P rules;
iii) that the appointees on contract basis are to be treated at par with the ad hoc appointees;
iv) that this court has no power to direct the State to regularize the services of any employee appointed without following the R&P rules cannot direct the State to frame a policy of regularization; and
v) that the State must follow the principle of 'last come first go' as enumerated above vis-a-vis the employees who are appointed dehors the rules;::: Downloaded on - 07/12/2022 20:34:09 :::CIS 13
vi) that normally the State should not regularize the employees appointed without following the rules since this adversely affects the rights of many eligible candidates."
.
9. Learned counsel for the respondent/Corporation has submitted that as per rules an Assistant Engineer (Graduate) required eight years regular service or regular combined with continuous adhoc service to be eligible for promotion to the post of Executive Engineer. However, petitioners No.1 & 2 did not have the necessary regular service to their credit for consideration to the post of Executive Engineer.
10. Learned counsel for respondent No.2 has submitted that petitioners No.1 & 3 did not have the necessary qualification for promotion to the post of Executive Engineer.
Contract service rendered by the petitioners could not be counted towards regular service as required under the rules.
11. Clause 11 of the Rules dealing with promotion to the post of Executive Engineer, reads as under:-
"11. In case of (i) 70% by promotion from recruitment by amongst the Degree Holder promotion, Assistant Engineers (Civil) ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 14 deputation, with 05 years regular transfer, grade service or regular combined from which with continuous adhoc promotion/ service rendered, if any, in .
deputation/ the grade, failing which, by
transfer is to be promotion from amongst the
made Diploma Holder Assistant
Engineers (Civil) with 05
years regular service or
regular combined with
continuous adhoc service
rendered, if any, in the
r grade and vice versa.
(ii) 30% by promotion from
amongst the Diploma
Holder Assistant Engineers
(Civil) with 05 years regular
service or regular combined
with continuous adhoc
service rendered, if any, in
the grade failing which by
promotion from amongst the
Degree Holder Assistant
Engineers (Civil) with five
years regular service or
regular combined with
continuous adhoc service
rendered, if any, in the
grade and vice versa.
(iii) Failing both above on
secondment basis from
::: Downloaded on - 07/12/2022 20:34:09 :::CIS
15
amongst the incumbents of
this post working in the
identical pay scale from
other identical pay scale
.
from other H.P. Government
Departments.
Provided that for filling
up the posts in the cadre of
Executive Engineer (Civil),
the following 10 points post
based roster shall be
followed:-
r 1st Post Graduate AE
2nd post Graduate AE
3rd post Diploma AE
4th post Graduate AE
5th post Graduate AE
th
6 post Diploma AE
7th post Graduate AE
8th post Graduate AE
9th post Diploma AE
10th post Graduate AE
NOTE:- This roster shall be
repeated after every 10th
point. The point shall be
filled up by the category
which vacates the point, if
otherwise eligible.
(1) Provided that for the purpose of promotion every employee shall have to serve at least one term in the Tribal/ Difficult area subject ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 16 to adequate number of post(s) available in such area:-
Provided further that the proviso (1) supra shall not be applicable in the case of those .
employee who have five years or less service, left for superannuation; Provided further that Officer/Officials who have not served at least one tenure in Tribal/ Difficult areas shall be transferred to such areas strictly in accordance with his/her seniority in the respective cadre. Explanation-I:- For the purpose of proviso 1 supra the "term" in Tribal/ Difficult areas shall mean normally three years or less period of posting in such areas keeping in view the administrative requirements and performance of the employee.
Explanation-II:- For the purose of proviso I supra the Tribal/Difficult Areas shall be as under:-
1. District Lahaul & Spirit.
2. Pangi and Bharmour Sub Division of Chamba District.
3. Dodra Kwar Area of Rohru Sub Division.
4. Pandrah Bis Pargana, Munish Darkali, and Gram Panchayat Kashapat, Gram Panchyats of Rampur Tehsil of District Shimla.
5. Pandrah Bis Pargana of Kullu District.
6. Bara Bhangal Areas of Baijnath Sub Division of Kangra District.
7. District Kinnaur.::: Downloaded on - 07/12/2022 20:34:09 :::CIS 17
8. Kathwar and Dorga Patwar Circle of Kamrau Sub Tehsil Bhaladh and Sangna Patwar Circles of Renukaji Tehsil and Kota Pab Patwar Circes of Shillai Tehsil in .
Sirmour District.
9. Khanyol Bagra Patwar Circle of Karsog Tehsil, Gada-Gussaini, Mathyani, Ghanyar, Thachi, Baggi, Somgad and Kholanal of Bali-Chowd Sub Tehsi Jharwar, Kutgarh, Graman, Devgarh, Trailla, Ropa, Kathog, Shilh-Badhwani, Hastpur, Ghamrehar and Bhatehr Patwar Circle of Padhar Tehsil, Chjuni, r Kalipar, Mangarh, Tach-Bagra, North Magru and Sought Magru Patwar Circle of Thunag Tehsil and Batwara Patwar Circle of Sunder Nagar Tehsil in Mandi District.
(1) In all cases of promotion, the continuous adhoc service rendered in the feeder post, if any, prior to regular appointment to the post shall be taken into account towards the length of service as prescribed in these rules for promotion subject to the condition that the adhoc appointment/ promotion in the feeder category had been made after following proper acceptance process of selection in accordance with the provisions of R&P Rules;
Provided that in all cases where a junior person becomes eligible for consideration by virtue of his total length of service including the ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 18 service rendered on adhoc basis, followed by regular service/appointment in the feeder post in view of the provision referred to above, all persons senior to him in respective category/ .
post/ cadre shall be deemed to be eligible for consideration and placed above the junior person in the field of consideration;
Provided that all incumbents to be considered for promotion shall possess the minimum qualifying service of at least 3 years or that prescribed in the R&P Rules for the post whichever is less.
Provided further that where a person becomes ineligible to be considered for promotion on account of the requirements of the preceding-proviso, the person(s) junior to him shall also deemed to be ineligible for consideration for such promotion.
EXPLANATON:- The last proviso shall not render the junior incumbents ineligible for consideration for promotion, if the senior ineligible persons happened to be ex-
servicemen recruited under the provision of Rule-3 of Demobilized Armed Forces Personnel (Reservation of vacancies in Himachal State Non-Technical Services) Rules, 1972 and having been given the benefit of seniority thereunder or recruited under the provision of Rule-3 of Ex-servicemen (Reservation of vacancies in Himachal Pradesh Technical Services) Rules, 1985 and ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 19 having been given the benefit of seniority thereunder.
(2) Similarly, in all cases of confirmation continuous adhoc service rendered on the .
feeder post, if any, prior to the regular appointment/promotion had shall be taken into account towards the length of service, if the adhoc appointment/ promotion had been made after proper selection and in accordance with the provision of the R&P Rules.
Provided that inter se seniority as a result of confirmation after taking into account adhoc service rendered as referred to above shall remain unchanged."
12. Vide Notification dated 30th September, 2013, Clause 11 of the Rules was amended and the term 'five years' service as Assistant Engineer (Civil), was substituted by 'eight years' in respect of degree holder and diploma holder Assistant Engineers.
13. A perusal of Annexure P-7 reveals that the first post of Executive Engineer (Civil) was filled up by Graduate Assistant Engineer and the second post was also filled up by Graduate Assistant Engineer. So far as the third post is concerned, it was filled up by diploma holder Assistant Engineer. Fourth post was also filled up by diploma holder ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 20 Assistant Engineer, although, as per Roster Point, the said post came to the category of Graduate Assistant Engineer. It is the case of the respondent-Corporation that no graduate Assistant .
Engineer was eligible at the time of filling up of the fourth post, based on roster. Now, fifth post of Executive Engineer (Civil) is to be filled up and the same falls in the category of Graduate Assistant Engineer as per Ten Point Roster.
14. The question that requires consideration is as to whether petitioners No.1 & 3 are eligible for consideration to the said posts as per Rules.
15. So far as Rule 11 is concerned, it prescribes that 70% of the posts of Executive Engineers are to be filled up by way of promotion from amongst degree holder Assistant Engineers with eight years regular service or regular combined continuous adhoc service.
16. So far as petitioners No.1 & 3 are concerned, they were admittedly appointed on contract basis after following due selection process in July, 2013. The services of petitioners No.1 & 3 were regularized in May, 2017. In case the contract service rendered by petitioners No.1 & 3 is combined with their regular service, they have requisite eight years service as Assistant ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 21 Engineer (Civil). The Rule talks about combining regular service with continuous adhoc service and does not specifically say that regular service could be combined with contact service, but .
a perusal of the judgments relied upon by learned counsel for the petitioners, lead to the inference that appointees on contract basis are to be treated at par with adhoc appointees.
17. In Baldev Singh's case (supra), this Court was dealing with the preposition as to whether the contract appointees were to be treated at par with adhoc appointees for regularization of their services. This Court came to the conclusion that the appointees on contract basis were to be treated at par with the adhoc appointees.
18. In Direct Recruit Class II Engineering Officers Association's case (supra), the Hon'ble Supreme Court was dealing with the matter relating to seniority and promotion of direct recruits and promotees. It was held that once an incumbent is appointed to a post according to rules, then his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
19. The decision of Hon'ble Supreme Court rendered in Direct Recruit Class II Engineering Officers Association's ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 22 case (supra), was later followed in State of West Bengal and Others' case (supra).
20. The Hon'ble Supreme Court in K. Ragupathi .
versus State of Uttar Pradesh and Others, reported in (2022) 6 SCC 346, while dealing with a case relating to termination of service of a contract employee, held that as per the University, though, the employment was contractual but the employee was entitled to get all the benefits of a regular employee, then the services of the said employee could not have been terminated without following the Principle of Natural Justice. Para10 of the said judgment, reads as under:-
"10. It is thus clear that the appellant was appointed after he underwent the entire selection process. Even as per the University, though the appointment shows that it is on a contractual basis, for all the purposes, it is on a regular basis. It could thus be seen that even for the appointment on a contractual basis in the said University, a candidate is required to undergo the entire selection process. Though he is appointed on a contractual basis, his terms and conditions are almost like a regular employee. It will be relevant to note that the Annual Performance Assessment Report (for short "APAR") of the ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 23 appellant during the period 2012-2013 show his performance to be outstanding. Every other parameter in his APAR is shown as excellent. With regard to his integrity, it is mentioned that .
there is nothing against the appellant adversely reflecting his integrity. It is further stated in his APAR that he enjoys a good reputation and his integrity is good."
21. Thus, although in the present case, petitioners No.1 & 3 were appointed on contract basis, but they had been appointed after following due selection process. Necessary permission was sought by the respondent-Corporation from the competent authority for initiating the process of filling up the two posts of Assistant Engineers and Selection Committee was constituted. After fair and transparent selection process, petitioners No.1 & 3 were appointed as Assistant Engineers (Civil) vide order dated 30.07.2013 on contract basis.
Thereafter, services of petitioners No.1 & 2 were regularized w.e.f. 17.05.2017/ 18.05.2017, respectively. The services rendered by petitioners No.1 & 2 on contract basis are liable to be treated at par with adhoc service.
22. Hence, we are of the opinion that the petitioners No.1& 3 have eight years regular service to their credit by ::: Downloaded on - 07/12/2022 20:34:09 :::CIS 24 adding the service rendered by them on contract basis to their regular service. Thus, petitioners No.1 & 3 are liable to be considered for promotion to the post of Executive Engineer .
(Civil) as per rules.
23. Accordingly, this petition is disposed of with a direction to respondent No.1/Corporation to consider the case of petitioners No.1 & 3 for the post of Executive Engineer which is presently lying vacant, falling to their category as per roster point. r
24. Pending miscellaneous application(s), if any, shall also stand disposed of.
( Sabina )
Judge
( Sushil Kukreja )
December 07, 2022 Judge
(Yashwant)
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