Himachal Pradesh High Court
Raj Kumar vs Of on 25 April, 2016
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 206 of 2014-A .
Judgment Reserved on: 19.04.2016
Date of Decision: 25.04 2016
Raj Kumar ...Petitioner
Versus
of
State of Himachal Pradesh & others ...Respondents
Coram:
rt
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes. 1 For the petitioner : Ms. Archana Dutt, Advocate, for the Petitioner.
For the respondent : Mr. Ramesh Thakur, Deputy Advocate General with Mr. Pankaj Negi Deputy Advocate General, for respondent No. 1.
Ms. Sunita Sharma, Advocate, for the respondent No. 2.
Mr. Ashwani Pathak, Senior Advocate, with Mr. Sandeep K. Sharma, Advocate, for respondents No. 3 & 4.
Vivek Singh Thakur.
In the present case, the petitioner has claimed that he was appointed as Peon in the Court of Civil Judge(Junior Division), Ghumarwin in the year, 2004 and was promoted on 26.06.2006 as Process Server from the post of Peon which is a Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:10:07 :::HCHP 2feeder post for the post of Process Server, however in reply the respondent No.2 has clarified that the date of promotion .
shown as 26.6.2006 in the promotion order was clerical mistake and in fact the petitioner had been promoted as Process Server on 26.06.2010.
2. The respondents No. 3 and 4 were directly of appointed as Process Servers on 16.07.2005 and 21.12.2005 respectively.
3. rt In the year, 2013, the District & Sessions Judge, Bilaspur had invited applications for two posts of Clerks vide advertisement notice dated 4.6.2013 (Annexure P-1) to be filled in by selection/promotion from amongst the Class-IV officials working in Civil and Sessions Division, Bilaspur having minimum 3 years service as on 01.06.2013 with minimum educational qualifications of 10+2 standard.
4. The petitioner alongwith respondents No. 3 & 4 and others had applied for the post through proper channel and the petitioner had been invited for Screening Test vide Memo.
dated 28.06.2013 (Annexure P-2) and after completing the process of selection, the District and Sessions Judge, Bilaspur had promoted the respondents No. 3 and 4 and had posted ::: Downloaded on - 15/04/2017 20:10:07 :::HCHP 3 them as Criminal Ahlmad vide Office Order dated 26.09.2013 (Annexure-P-3) as Clerks.
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5. Aggrieved by the selection/promotion of respondents No. 3 & 4 and non-selection/promotion of the petitioner, the petitioner has preferred present petition for quashing and setting aside the promotion and posting order of issued by the order dated 26.09.2013 (Annexure P-3) on the ground that the Selection/Promotion to the post of Clerk was rt to be made on the basis of Seniority-cum-Merit amongst the eligible candidates serving under 'Class-IV Cadre' whereas the respondent No. 2 has ignored the seniority of the petitioner from the date of his posting as Peon in the year, 2004 in Class-IV Cadre and has treated the petitioner Junior to respondents No. 3 & 4 on the basis of date of appointment of the respondents No. 3 & 4 as Process Servers prior in time to the promotion of the petitioner as Process Server. The contention of the petitioner is that for the purpose of promotion as a Clerk entire service in 'Class-IV' cadre whether as Peon or as Process Server was to be accounted for the purpose of deciding seniority for recruitment/promotion to the post of Clerk and the respondent No. 2 has committed an ::: Downloaded on - 15/04/2017 20:10:07 :::HCHP 4 illegality by ignoring the service period of the petitioner as peon.
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6. The stand of the respondent No.1 is that the petitioner had been appointed as Process Server on 26.06.2010, whereas the respondents No. 3 & 4 had been appointed as Process Servers in the year, 2005 much prior to of the promotion of the petitioner as Process Server. It has been further stated in the reply that on promotion as Process rt Server, the petitioner has become junior in the category of Process Server because the seniority list of the Process Servers and Peons are prepared separately keeping in view the separate unit in the cadre. Therefore the petitioner is not liable to be treated senior against Class-IV official for Clerk from amongst the Class-IV employees against 25% quota provided for them. As per reply of the respondent No. 2 seniority list of Class-III and Class-IV officials of Civil Division Bilaspur was prepared on 01.06.2013 in which the petitioner has been shown at Sl. No. 79 in the seniority list and in the category of Process Server he is junior to 21 Process Servers including the respondents No. 3 & 4 and inspite of having knowledge about his position in seniority list, the petitioner has not objected of his being placed junior to the respondents No. 3 & 4. In the ::: Downloaded on - 15/04/2017 20:10:07 :::HCHP 5 reply on merit it has been stated that the Peons, Chowkidars and Process Servers are all of Class-IV categories but their .
identity and unit are separate, as per the Rule 4 of "The Himachal Pradesh Subordinate Court Staff (Recruitment, Promotion and Conditions of Service), Rules, 2012, (hereinafter referred as 'R & P Rules' ) wherein the Cadre means "the total of strength of posts sanctioned as a separate unit as shown in Schedule-I attached to these Rules". As per reply in the rt Schedule-I from Sr. No. 29 to 36, the category of Class-IV has been shown and its bare perusal would make it clear that both the categories, i.e. Peon and Process Servers are having separate unit and different grade pay. It has been further averred in the reply that the nature of duties of Process Server altogether gets changed because the post of Process Server carries higher responsibilities than the post of Peon and the grade pay of the Process Server is also higher than the Peon. It has also been stated that the Process Server has an opportunity and is eligible to become bailiff whereas peon is not entitled for the same.
7. Lastly, it has been sated that the candidatures of the petitioner and respondents No. 3 & 4 was duly considered by Screening Committee and respondents No. 3 & 4 have been ::: Downloaded on - 15/04/2017 20:10:07 :::HCHP 6 promoted on the recommendation of the Committee on the basis of Seniority-Cum-Merit and therefore, the petitioner has .
no case for seeking quashing of promotion of respondents No.3 and 4.
8. Ms. Archna Dutt, learned counsel for the petitioner and Ms. Sunita Sharma, counsel for the respondent No. 2 has of strenuously argued in support of their respective contentions in the petition and in the reply. The counsel for the rt respondents No. 3 & 4 has adopted the arguments of respondent No. 2.
9. The petitioner has also placed on record information received under RTI from the office of District and Sessions Judge, Una and Chamba, for fortifying his contention for counting his service as peon for determining seniority amongst Class-IV officials for the purpose of promotion as Clerk, as according to him, in these Districts period of service as Peon has also been considered for determining the seniority of the candidates as Class-IV officials. Counsel for the respondent No. 2 has submitted that the orders pertaining to the Districts Chamba and Una are not in question in the present writ petition and therefore, these documents are of no help to the petitioner. I am of the view that even without ::: Downloaded on - 15/04/2017 20:10:07 :::HCHP 7 considering these documents, the petitioner has made out a case for quashing the promotion of respondents No. 3 and 4 .
and for considering the petitioner for promotion as Clerk by reconsidering impugned appointments/promotions to the post of Clerk by counting the services of all the candidates in Class-
IV classification irrespective of post of the candidates at of different times, as warranted in view of R & P Rules, especially, classification provided in Schedule-1 and eligibility rt criteria for promotion as Clerk amongst Class-IV officials provided at Sl. No. 8 of Schedule-II of R & P Rules.
10. The respondent No.1 has notified 'The Himachal Pradesh Subordinate Court Staff (Recruitment, Promotion and Conditions of Service), Rules, 2012 vide notification dated 12th March, 2013, (referred to as R & P Rules) the copy of which has been placed on record (Annexure P-4) by the petitioner and R-2/4 by the respondent No. 2.
11. The Rule 2 (4) of the R & P Rules defines the cadre as "the total strength of posts sanctioned as a separate unit as shown in Schedule-I attached to these Rules".
12. The Rule 15 (4) of the R & P Rules provides 'The relative seniority-cum-merit to the various posts shall be ::: Downloaded on - 15/04/2017 20:10:07 :::HCHP 8 determined on the basis of their length of service in the feeder cadre'.
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13. The Schedule-I annexed with R & P Rules provides classifications of Process Servers, Daftri, Orderly, Chowkidar, Safai Karamchari and Malis as Class-IV officials.
16. The Schedule-II annexed with the R & P Rules of provides qualification and feeder cadre for promotion to the various posts. At Sl. No. 8 in Schedule-II, 25% of the available rt vacancies of Clerks are provided to be filled on the basis of Seniority-cum-Merit amongst 10+2 'Class-IV' Court Officials on the basis of test as per part-II of Annexure-A and by considering ACRs of three years. It has been further provided that the promotes shall have to qualify typing test at the speed of 50 W.P.M. on computers within one year. In this Schedule also classification of Process Server, Daftri, Peon, Orderly/Chowkidar, Safai Karamchari and Mali has been shown as 'Class-IV' at Serial No. 12 to 15.
15. As per Annexure P-1, Advertisement Notice, dated 04.06.2013, the applications had been invited from Class-IV officials and not from the Process Servers only. Schedule-I and Schedule-II unambiguously indicate Classification of different post as Class-I, II, III and IV. Schedule-I indicates that ::: Downloaded on - 15/04/2017 20:10:07 :::HCHP 9 persons serving in respective posts at Sl. Nos. 29 to 36 of the said Schedule are of Class-IV Classification. Similar .
Classification has also been mentioned in Schedule-II at Serial No. 12 to 15. As per Schedule-II, all Class-IV Court Officials having minimum eligibility, as mentioned at Sl. No. 8 of the said Schedule, are to be considered on the basis of Seniority-
of cum-Merit for promotion to the post of Clerk.
16. So far as the contention raised by the counsel for rt the respondent No. 2 with regard to maintaining separate seniority list of Process Servers and Peons are concerned, it is evident from perusal of R & P Rules that the same is maintained for the reason that there are certain posts for which all Class-IV officials are not eligible to be considered and one of such example is the post of Bailiff mentioned at Sl.
No.11 of Schedule-II for which recruitment by promotion on the basis of seniority from amongst only the Process Servers serving in the Division has been provided.
17. From the perusal of qualification provided for Clerk at Sl. No. 8 and qualification provided to Bailiff at Sl. No. 11 of Schedule-II, it is evident that the intention of the authority is clear that for the post of Clerk, all 'Class-IV' officials are eligible and for the post of Bailiff only Process Servers are ::: Downloaded on - 15/04/2017 20:10:07 :::HCHP 10 eligible therefore, for promotion to Clerk entire service of the employee as 'Class-IV' is to be counted whereas for promotion .
to the post of Bailiff only service as Process Server is to be counted. Hence, for maintaining the separate seniority list for Process Servers and peons has no effect on the merit of the contentions raised by the petitioner as for the purpose of of promotion to the post of Clerk, the entire continuous service of an incumbent served as Class-IV whether as Peon, as Process rt Server or holding any other post(s) in the said cadre is to be taken into consideration for determining the seniority as Class-
IV official.
18. Keeping in view the factual matrix of the case, it is evident that legitimate right of the petitioner has been frustrated because of inappropriate action of the respondent No.2 and such action deserves to be interfered to do complete Justice. But before granting relief it would be necessary to consider the prayer of the petitioner which is as under:-
"i) That the impugned annexure P-3 may very kindly be quashed and set aside with the direction to the respondent to consider the petitioner for promotion to the post of Clerk".
ii) That record of the case may be summoned for the kind perusal of this Hon'ble Court.
::: Downloaded on - 15/04/2017 20:10:07 :::HCHP 11iii) Any other and further order which this Hon'ble Curt deems fit and proper be also passed".
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The relief as prayed for in main prayer cannot be granted in toto because office order dated 26.09.2013 (Annexure P-3) contains transfer and posting of nine Clerks three officials including respondents No. 3 and 4. From Serial of No. 1 to 7 are transfers/posting of employee which are not in question in the present petition and only promotion and rt posting of respondents No.3 and 4 which is at Serial No. 8 and 9 of the impugned order is under challenge. Therefore, relief for quashing of Annexure P-3, as prayed for, cannot be granted. However, once conclusion has arrived that the petitioner has been deprived from his legitimate promotion for no fault on his part it would be necessary to mould the relief for ends of justice and fair play, particularly, when the respondents have not taken any objection regarding the relief as prayed for.
19. It is also settled law that technicalities ought to take back seat in the interest of justice. It is trite that Courts can exercise judicial discretion in moulding relief and such discretion should be exercised to avoid perpetuating illegality and to discourage the same. Moreover, Annexure P-3 contains ::: Downloaded on - 15/04/2017 20:10:07 :::HCHP 12 the posting of newly promoted respondents No. 3 and 4 and lesser relief can always be granted and therefore,in the interest .
of equity, the promotion and posting of the respondents No. 3 and 4, only, can be quashed instead of quashing entire Annexure P-3.
20. Thus, in my considered view, the stand taken by of the respondent No. 2 is not tenable in the eye of law whereas the petitioner has made out a case for interference of this Court.
rt Consequently, writ petition is allowed. Promotion of respondents No. 3 and 4 as Clerk is quashed and respondent No.2 is directed to consider the petitioner, respondents No. 3 and 4 alongwith other applicants in the light of observations made here-in-above within two months positively from the date of decision of the present petition.
Pending application(s), if any, also stand disposed of.
(Vivek Singh Thakur), Judge.
April 25, 2016 'brb' ::: Downloaded on - 15/04/2017 20:10:07 :::HCHP 13 .
of rt ::: Downloaded on - 15/04/2017 20:10:07 :::HCHP