Himachal Pradesh High Court
Rajeev Mankotia vs State Of H.P. & Ors on 22 June, 2022
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, AT SHIMLA
.
ON THE 22nd DAY OF JUNE, 2022.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
LETTERS PATENT APPEAL NO. 20/2020
BETWEEN:-
1. RAJEEV MANKOTIA,
SON OF LATE BHUPINDER SINGH,
RESIDENT OF SHANTINIKETAN BUILDING,
NEAR BLOCK-1, NEW SHIMLA, 171009.
2. RAKESH CHAND THAKUR,
SON OF LATE RUP SINGH THAKUR,
RESIDENT OF CHAUHAN VILLA, FIRST FLOOR,
SWEET HOME, VIKAS NAGAR, SHIMLA.
3. RAM CHAND SON OF SHRI BIDHI CHAND,
RESIDENT OF BLOCK 'C' TYPE-1,
SET NO. 1/19, NABHA SHIMLA.
4. DEVDUTT SON OF LATE RAM SINGH THAKUR,
RESIDENT OF TYPE-1, SET NO. 215,
BLOCK 'D', KASUMPTI, SHIMLA.
......APPELLANTS
(BY MR. R.K. BAWA, SR. ADVOCATE
WITH MR. AJAY KUMAR SHARMA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL SECRETARY (PERSONNEL)
TO THE GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-2.
2. HIMACHAL PRADESH PUBLIC SERVICE COMMISSION,
NIGAM VIHA, CHHOTA SHIMLA,
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2
SHIMLA, HIMACHAL PRADESH
THROUGH ITS SECRETARY.
3. SHRI VINOD KUMAR SHARMA,
.
SENIOR ASSISTANT,
HIMACHAL PRADESH PUBLIC SERVICE COMMISSION,
NIGAM VIHAR, SHIMLA-2.
4. SHRI CHAMAN LAL THAKUR,
SENIOR ASSISTANT,
HIMACHAL PRADESH PUBLIC SERVICE COMMISSION,
NIGAM VIHAR, SHIMLA-2.
5. SHRI SURENDER PAL,
SENIOR ASSISTANT,
HIMACHAL PRADESH PUBLIC SERVICE COMMISSION,
NIGAM VIHAR, SHIMLA-2.
6. SHRI AMIT KUMAR,
SENIOR ASSISTANT,
HIMACHAL PRADESH PUBLIC SERVICE COMMISSION,
NIGAM VIHAR, SHIMLA-2.
7. SHRI OM PRAKASH MEHTA,
SENIOR ASSISTANT,
HIMACHAL PRADESH PUBLIC SERVICE COMMISSION,
NIGAM VIHAR, SHIMLA-2.
8. SHRI SATYENDER SINGH VERMA,
SENIOR ASSISTANT,
HIMACHAL PRADESH PUBLIC SERVICE COMMISSION,
NIGAM VIHAR, SHIMLA-2.
9. SHRI PRAKASH CHAND,
SENIOR ASSISTANT,
HIMACHAL PRADESH PUBLIC SERVICE COMMISSION,
NIGAM VIHAR, SHIMLA-2.
10. SMT. KIRAN RAJ,
SENIOR ASSISTANT,
HIMACHAL PRADESH PUBLIC SERVICE COMMISSION,
NIGAM VIHAR, SHIMLA-2.
......RESPONDENTS
(BY MR. ASHOK SHARMA, A.G.,
WITH MR. RAJINDER DOGRA, SR. ADDL. A.G.,
MR. SHIV PAL MANHANS, ADDL. A.G.,
MR. BHUPINDER THAKUR, DY.A.G.,
MR. YUDHVIR SINGH THAKUR, DY.A.G. FOR R-1
MR. VIKRANT THAKUR, ADVOCATE FOR R-2
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3
MR. B. C. NEGI, SR. ADVOCATE
WITH MR. NITIN THAKUR, ADVOCATE,
FOR R-3, 5 TO 9 & 10)
.
11. SMT. BIMLA CHANDEL,
WIFE OF LATE LACHHI RAM CHANDEL,
RESIDENT OF CHANDEL VILLA,
KASUMPATI KOTHI,
SHIMLA, HIMACHAL PRADESH.
12. SHRI NAGESH KUMAR RAM,
SON OF SHRI LAKHU RAM,
RESIDENT OF QUARTER NO.72,
TYPE-II, NABHA ESTATE, SHIMLA.
RESERVED ON: 13.6.2022
____________________________________________________________
This petition coming on for admission after notice
this day, Hon'ble Mr. Justice Tarlok Singh Chauhan,
passed the following:
JUDGMENT
The appellants are the writ petitioners, whose writ petition was ordered to be dismissed by the learned writ court vide order dated 19.12.2019, constraining them to file the instant appeal.
The parties shall be referred to as the "writ petitioners" and the "writ respondents".
2 The facts of the case are that writ petitioners No.1, 2, 3, 4, 5, 6 were appointed as Clerks in Himachal Pradesh Public Service Commission (for short, the Commission) on 1.5.2003, 29.1.2004, 31.1.2004, 18.1.2005, January 2006 ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 4 and September 2016 respectively and were later on promoted as Senior Assistants on 31.10.2013, 1.2.2014, 1.2.2014, .
20.1.2015, 2.1.2016 and 30.4.2016 respectively.
3 The post of Clerk is a feeder category for promotion to the post of Senior Assistant and as per existing Recruitment and Promotion Rules, which were later on amended by the official respondents on 18.4.2012, mode of appointment promotion to the post of Senior Assistant was 100% by as is evident from column No. 11, which is reproduced here-in-below:-
"by promotion from amongst the common clerical cadre of Clerks/Junior Assistant of concerned Departments possessing ten years regular service or regular combined with continuous adhoc service rendered, if any, in the grade.
Provided that all such incumbents will be eligible for promotion to the post of Senior Assistant, only if, they possess the minimum educational qualification of 10+2 as prescribed for direct recruits or Clerks absorbed against direct recruitment post."
4 Since all the writ petitioners were eligible, they came to be promoted to the post of Senior Assistants. On 2.2.2013, the Commission circulated a letter to all the Heads ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 5 of the Departments in Himachal Pradesh Government for filling up posts of Senior Assistants (Class-III) on secondment .
basis in the Commission and in pursuance to this letter, 8 persons i.e. private respondents, who were working in the Education Department joined the Commission as Senior Assistants on secondment basis, which was initially for only one year.
5Secretary (Personnel) However, on 22.1.2016, the Commission wrote a letter to the writ respondent No.1 to the Government i.e. Additional Chief of Himachal Pradesh, regarding absorption of private respondents in the Commission in relaxation to R&P Rules. This was followed by another letter dated 26.7.2016 and in response to the letter dated 26.7.2016, respondent No.1 raised a query with respondent No.2 as to how at the first place, private respondents were taken on secondment basis from Education Department as the method of recruitment of Senior Assistants on secondment basis was already withdrawn by the State Government vide common R&P Rules notified on 18.4.2012. Respondent No.1 also asked respondent No.2 to clarify as to how the Senior Assistants were taken on ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 6 secondment basis when there was no such provision in the R&P Rules at that relevant time.
.
6 Yet, respondent No.2 again requested respondent No.1 vide letter dated 30.8.2016 for absorption of private respondents in relaxation of R&P Rules. Respondent No.1, without consulting the Law Department, issued letter dated 19.11.2016 giving approval to the absorption of private the writ petitioners respondents by relaxing R&P Rules.
7 Aggrieved by the action of the official respondents,
approached the learned erstwhile
Tribunal by filing O.A. No. 1416/2017, titled Bimla Chandel & ors. vs. State of H.P. & ors., claiming therein following substantive reliefs:-
I. That the impugned order dated 19.11.2016 i.e. (Annexure A-8) may very kindly be quashed and set aside in the interest of justice.
II. That if the 8 Senior Assistants are presently taken on absorption in that eventuality, they may be placed junior to all the applicants in the seniority list.
III. That all the Senior Assistants who joined on secondment basis with the respondent No.2 may kindly be repatriated to their parent department ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 7 as they were appointed on secondment basis which was against the existing R&P Rules.
.
8 Respondent No.2-Commission was the first to file its reply to the original application, wherein it was averred that the Commission was facing acute shortage of staff because as against 18 sanctioned posts of Senior Assistants, only 8 posts were filled up and 10 posts were lying vacant. It Personnel, Senior r to was on the basis of Himachal Pradesh, Department of Assistant, Class-III (Non Ministerial Services) Common Recruitment and Promotion Gazetted Rules, 2011, (for short, the R&P Rules of 2011) that the Commission drafted the R&P Rules for the post of Senior Assistants, wherein there was a provision for appointment on secondment basis. The draft R&P Rules for the post of Senior Assistants duly approved by the Commission were sent to the government vide letter dated 31.1.2013 for approval and notifying the same in the official gazette.
9 Simultaneously, the Commission decided to fill up these posts on secondment basis and on 2.2.2013 a letter was issued to all the Heads of Departments in H.P. Government showing its intention to fill up 10 posts of ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 8 Senior Assistants on secondment basis from amongst the incumbents of this post working as Senior Assistants in .
identical pay scale.
10 However, the Government vide notification dated 18.4.2012 had amended the R&P Rules of 2011 and withdrew the provision of recruitment on secondment basis.
But in the meantime, in response to the letter dated 11 r to 2.2.2013, 18 applications were received from the candidates of various departments.
On scrutiny of the documents, candidature of one candidate was rejected and 17 candidates were called for interview and finally 10 candidates working in the Education Department were selected after going through the selection process and were issued appointment letters on 1.4.2013.
Out of 10 selected candidates, only 8 joined the Commission, who were discharging their duties to the entire satisfaction of the superiors. It was keeping in view the satisfactory services rendered by all 8 Senior Assistants as well as increasing workload that the Commission decided to absorb them permanently in the cadre of the Commission and accordingly ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 9 all of them were asked to submit their consent and NOC(s) from their parent department.
.
12 It is further averred that the government did not approve separate R&P Rules in respect of the Commission and instead advised the Commission to adopt the common R&P Rules in respect of all the categories and hence, matter of absorption was again taken up with the government in the Department of Personnel for according one time relaxation in R&P rules for permanent absorption of private respondents in the Commission because of acute shortage of staff. The matter was accordingly placed before the council of Ministers, which granted its approval and the same was communicated vide letter dated 19.11.2016.
13 It is lastly averred that since all private respondents taken on secondment basis were proposed to be absorbed with effect from the date of issuance of order of their absorption in the commission, they would consequently be placed below all the other officials working as Senior Assistants in the Commission.
14 Respondent No.1 thereafter filed its reply, wherein it was reiterated that the provision of appointment on ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 10 secondment basis to the post of Senior Assistants was withdrawn by the government vide notification dated .
18.4.2012, but since the Commission was facing difficulty in absorbing the private respondents, therefore, the matter was placed before the cabinet, which granted its approval in relaxation of the provision of common R&P Rules for the post of Senior Assistants.
15contained under:-
It was contended that power to relax in Rule 18 of the R&P Rules, which reads as r a rule is "18. Power to relax - Where the State Govt. is of the opinion that it is necessary or expedient to do so, it may, by order for reasons to be recorded in writing and in consultation with the H.P. Public Service Commission, relax any of the provisions of these Rules with respect to any class or category of person(s) or post(s)."
16 It was further contended that the State Government had decided and conveyed to the Commission that private respondents after absorption would be assigned seniority in the cadre of Senior Assistants from the date of their absorption and they would be placed below all officials (Senior Assistants) appointed earlier regularly in the grade in the office of the Commission on the date of their absorption.::: Downloaded on - 22/06/2022 20:04:57 :::CIS 11
Lastly, it is claimed that in the matter of relaxation of Rules, it is not mandatory to seek opinion of the law Department.
.
17 Learned writ court, after relying upon the draft R&P Rules and placing reliance on judgment rendered by the Hon'ble Supreme Court in Gujarat vs. Gujarat Kishan Mazdoor Panchayat, 2003(4) SCC 712, dismissed the petition by concluding that since the draft R&P Rules were intended to be acted upon in near future by the State Government, therefore, mere fact that the draft Rules were unpublished or un-notified would not render them to be not workable.
It is against this judgment that the writ petitioners have filed the instant appeal.
18 It is vehemently argued by Mr. R.K. Bawa, learned Senior Advocate assisted by Mr. Ajay K. Sharma, Advocate, representing the writ petitioners, that the findings recorded by the learned writ court are not at all sustainable, more particularly, when the same are based on the interpretation of the applicability of the draft R&P Rules, which too is contrary to the settled proposition of law. It is further contended that even relaxation granted by the Government was contrary to ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 12 law as there was no provision in the Rules for making appointment other than by way of promotion to the posts in .
question and once there was no such provision, then obviously, it is not the question of relaxation of Rules, rather it is a case of giving complete go bye to the R&P Rules and by doing so, the officials respondents have resorted to a new mode of recruitment, which is not provided in the R&P Rules.
by government Further, it is argued that even if the appointment of private respondents is to be protected, then as per the decision taken (respondent No.1) and also by the Commission, then they are to rank juniors to the writ petitioners.
19 On the other hand, Mr. Ashok Sharma, learned Advocate General, would argue that the decision to absorb private respondents was taken in extreme compulsion as working of the Commission, for the reasons set out in the reply to the original application, was being seriously affected, but nonetheless, interest of the writ petitioners has been adequately safeguarded as these private respondents were to rank junior to the writ petitioners.
::: Downloaded on - 22/06/2022 20:04:57 :::CIS 1320 This contention of the respondent-State is duly supported by employer, i.e. respondent No.2-commisison.
.
21 As regards private respondents, Mr. B.C. Negi, learned Senior Advocate assisted by Mr. Nitin Thakur, Advocate, is at great pains to urge that no fault can be found with the order of absorption of the private respondents in respondent No.2-Commission and further the private when the respondents are entitled to their seniority as was prevalent in their parent department i.e. Education Department, more particularly, private respondents had been promoted as Senior Assistants in their parent department in the year 2010, whereas the writ petitioners were promoted as Senior Assistants in the year 2013, 2014, 2015 and 2016 respectively.
22 We have heard the learned counsel for the parties and have also gone through the material placed on record.
23 The first and foremost question required to be determined is whether private respondents could have been absorbed as Senior Assistants.
24 It is not in dispute that the decision for filling up the posts of Senior Assistants on secondment basis was ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 14 taken in view of the common R&P Rules, notified on 3.8.2011, but admittedly method of recruitment of Senior Assistant on .
secondment basis stood withdrawn by the government vide common R&P Rules, notified on 18.4.2012, therefore, in such circumstances, respondent No.1 was justified in seeking explanation from respondent No.2 as to how private respondents were taken on secondment basis when there was no such provision in the R&P Rules at that point of time and further asking for explanation as to with the approval of which authority relaxation in the R&P Rules was being sought for as the same vests with the Council of Ministers.
25 It would be apt here to reproduce letter dated 16.8.2016, which reads as under:
"I am directed to refer to your office letter No. 04-71/84 PSC dated 26-07-2016 on the subject cited above and to say that 08 Senior Assistants were taken on secondment basis from the Education Department during the year, 2013-14 in view of the common R&P Rules notified on 3rd August, 2011. But the method of recruitment of Senior Assistants on secondment basis was already withdrawn by the Govt. vide common R&P Rules notified on 18th April, 2012. You are, therefore, requested to clarify as to how the senior assistants were taken on secondment basis when there was no ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 15 such provision prevailing in the related R&P rules at that point of time and with the approval of which authority as the relaxation of recruitment rules lies only .
with the Council of Ministers."
26 Noticeably, there was protracted correspondence between respondents No. 1 and 2, but respondent No.2 could not justify its action and eventually the matter was placed to the Council of Ministers, which granted the so called relaxation in the R&P Rules.
27 Here, it shall be pertinent to mention that after being selected on secondment basis, private respondents had approached this Court seeking direction to the Directorate of Higher Education to relieve them with a further direction to the Commission to accept their joining. Their petitions were allowed and the Directorate of Higher Education was directed to relieve the private respondents and the Commission, in turn, was directed to accept their joining. Further to this, there is no adjudication to the rights of the parties.
28 Therefore, question still remains at large as to whether the Government at the first place could have relaxed the Rule, which does not exist in the R&P Rules. As is evident from perusal of column No.11 (supra), the mode of ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 16 appointment to the post of Senior Assistant was 100 per cent by way of promotion from amongst the common clerical cadre .
of Clerks/Junior Assistant of concerned Departments possessing ten years regular service or regular combined with continuous adhoc service rendered, if any, in the grade;
provided that all such incumbents would be eligible for promotion to the post of Senior Assistant, only if, they prescribed for direct r to possess the minimum educational qualification of 10+2 as recruits or Clerks absorbed against direct recruitment post. There was no provision whatsoever in the R&P Rules for absorption of Senior Assistants taken on secondment basis by the Commission, therefore, absorption of the private respondents as Senior Assistants is clearly in violation of the R&P Rules.
29 In coming to such conclusion, we draw support from the judgment rendered by the Hon'ble Supreme Court in Arun Kumar & ors. Vs. Union of India & ors. (2007) 5 SCC 580, wherein it was held that power cannot be exercised to relax the rule, which does not exist in the Rules. It shall be apt to reproduce para 11 of the judgment, which reads as under:-
::: Downloaded on - 22/06/2022 20:04:57 :::CIS 1711. Before we proceed further, we may make it clear that, in our judgment, we have observed earlier that we do not find any infirmity in the action of the State .
Government in absorbing Respondent 4 as Deputy Superintendent of Police in Punjab Police Service. However, there is a caveat. According to us, strictly on interpretation of the said 1959 Rules, there is no scope for opening of a third mode of recruitment. Deputation is not the source of recruitment under the said 1959 Rules. It is only as an exceptional case that Respondent 4 was given the benefit of absorption in Punjab Police Service as Deputy Superintendent of Police and we do not find any fault with that exercise. It is the genuine exercise. However, when her services are regularised by the State not from 16-8-1993/17-8-1993, when she stood appointed as a deputationist, but from 9-6-1989, when she was appointed as Assistant Commandant in CRPF, then infirmity in the action of the State Government crept in. CRPF functions cannot be compared with Punjab Police Service. Apart from policing, an officer of Punjab Police Service has to do the work of investigation of crime detection, which is not within the purview of CRPF. A Deputy Superintendent of Police in CRPF need not have the knowledge of CrPC, IPC, etc. which an officer in Punjab Police Service needs to possess. The Service Rules governing CRPF are different from the Service Rules which governed Punjab Police Service. Therefore, even functionally, the two cadres are different. In fact, Respondent 4 Ms Amrit Brar, has not undergone training as contemplated ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 18 under the Punjab Police Service Rules. However, she has put in 5 years' service as Deputy Superintendent of Police in Punjab Police Service between 16-8-1993/17- .
8-1993 and 11-9-1998. That experience should be given due weightage. In our view, having examined the above Punjab Police Service Rules, 1959, it is clear that deputation is not the source of recruitment. Direct recruitment is the source. Promotion is the source. However, deputation is not the source for recruitment.
Moreover, in the present case, we are concerned with the rights of the appellants. We are concerned with the inter se seniority in the said post of Deputy Superintendent of Police since that seniority ultimately counts for promotion to the next higher cadre. The post of Deputy Superintendent of Police is a feeder post in that sense and when the post is a feeder post, the inter se seniority has the role to play. In the circumstances, if deputation is not the source of recruitment, then even in exceptional cases of this nature, weightage cannot be given, in the absence of the Rules, to the services rendered by Ms Amrit Brar in CRPF. Rule 14 talks of relaxation. However, Rule 14 is not applicable to the rules which do not provide for recruitment through deputation. Rule 14 would have applied if the said 1959 Rules had a third source of recruitment, namely, deputation. There is no such third source of recruitment. Hence, Rule 14 has no application. Rule 14 refers to relaxation of Rules. Rule 14 contemplates existence of a rule of recruitment. If there is no such rule providing for third source of recruitment, the Government cannot ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 19 relax a non-existent rule. Therefore, the High Court had erred in treating deputation as a third source of recruitment. There is a difference between direct .
appointment as a source of recruitment and deputation/transfer as a source of recruitment. In certain cases, cited before us, weightage has been given to the service put in by the transferee. However, in all those cases, the third source of recruitment was transfer/deputation. In the present case, there is no such rule to that extent. There is an error in the impugned judgment of the High Court. As stated above, Ms Amrit Brar has put in 5 years' service as a deputationist in Punjab Police Service between 16-8- 1993/17-8-1993 and 11-9-1998. She is certainly entitled to the weightage for the services rendered by her during these 5 years. However, she is not entitled to weightage of service between 9-6-1989 and 16-8- 1993/17-8-1993, as held by the High Court, for the fixation of inter se seniority.
30 However, it needs to be noticed that this issue cannot be said to be conclusively decided by the Hon'ble Supreme Court as the same has been referred to a larger bench in Harpinder Pal Singh vs. Rajiv Prashar and ors., 2017 (12) SCC 807. It is apt to reproduce relevant observations as contained in paras 5 to 10, which read as under:
::: Downloaded on - 22/06/2022 20:04:57 :::CIS 205. Challenging the said decision of the Government of Punjab and consequent appointment orders of the respondents, writ petition came to be filed before the High Court which .
eventually culminated in the impugned judgment herein.
6. The matter was heard at some length. Apart from other submissions, the basic submission made by Mr. P.P. Rao, learned senior counsel appearing for the appellants was the judgment of this Court in Suraj Prakash Gupta and Others vs. State of J&K and Others reported in 2000 (7) SCC 561 wherein a Bench of this Court declared the law as follows:
"31. The result of the discussion, therefore, is that the wholesale regularisation by order dated 2-1-1998 (for the Electrical Wing), by way of implied relaxation of the Recruitment Rule to the gazetted category is invalid. It is also bad as it has been done without following the quota rule and without consulting the Service Commission. Further, the power under rule 5 of the J&K (CCA) Rules, 1956 to relax the Rules cannot, in our opinion, be treated as wide enough to include a power to relax rules of recruitment."
7. On the other hand it is submitted on behalf of the respondents that some earlier decisions of this Court held to the contra, viz. Ashok Kumar Uppal vs. State of J&K (1998) 4 SCC 179, Sandeep Kumar Sharma vs. Arvind Kumar (1997) 10 SCC 298 and Narender Chanha vs. Union of India (1986) 2 SCC 157 and one of them is a decision of the Larger Bench (three Judge Bench) in the case of J.C. Yadav v. State of Haryana (1990) 2 SCC 189. However, those pronouncements of the earlier Larger Bench were also considered by the Division Bench in Suraj Prakash Gupta's case (supra).
8. In fact subsequent to the above mentioned decision, in another decision of this Court in Arun Kumar. vs. Union of ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 21 India, reported in (2007) 5 SCC 580, took a different view of the matter, more in context of some special treatment granted in favour of the members of the victims of extremist violence .
in Punjab. This Court opined that appointments such as one made in the above mentioned case are not compassionate appointments but "exceptional appointment" and legal.
9. We are constrained to record that the earlier decision of this Court in Suraj Prakash Gupta's case does not appear to have been brought to the notice of the Bench which decided Arun Kumar's case (supra).
10. Prima facie, we are of the opinion that an absolute embargo on the authority of the State to grant relaxation under of any one of the conditions of the rules of recruitment appears to be inconsistent with the constitutional authority of State. The legality of the exercise of such a power in a given case is a different matter altogether. However, in view of the above mentioned divergence of opinion on the subject, we deem it appropriate that the matter be authoritatively considered by a Bench of appropriate strength. We are also obliged to observe that the appointments in question pertain to the years 1993 and 1994 approximately a quarter century ago. In the circumstances, we are of the opinion that it is desirable that these matters be resolved at an early date.
31 Once the issue is still sub judice before the Hon'ble Supreme Court, therefore, further question required to be determined is whether private respondents can be assigned seniority above the writ petitioners on the sheer strength of their seniority as was assigned to them as Senior Assistants in their parent department.
::: Downloaded on - 22/06/2022 20:04:57 :::CIS 2232 As observed above, specific stand of the State government as also the employer i.e. respondent No.2 is that .
the private respondents after absorption would be assigned seniority in the cadre of Senior Assistants from the date of their absorption and they would be placed below all officials (Senior Assistants) appointed earlier regularly in the grade in the office of the Commission on the date of their absorption.
33Even though Mr. B. C. Negi, learned Senior Advocate, would claim that the private respondents were not aware of any such decision taken by the official respondents, however such stand is belied from the reply filed on behalf of respondent No.2 to the original application, more particularly, para 7(iii) thereof, which reads as under:-
"In reply to this sub-para it is submitted that since all the 08 Senior Assistants taken on secondment are proposed to be absorbed w.e.f. the date of issuance of order of their absorption in HPPSC, they will consequently be placed below all the other officials working as Senior Assistants in HPPSC, as has been prayed by the applicants in Para 7 (ii) of this O.A. 34 That apart, the Commission has, with its reply, annexed copy of the letter dated 25.4.2017 sent by ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 23 respondent No.1 to respondent No.2 (Annexure R-2/C, text whereof reads as under:
.
I am directed to refer to your letter No. 04 71/84-PSC dated 12th April, 2017 on the subject cited above and to clarify that the 08 (eight) officials have to be assigned seniority in the cadre of Senior Assistants from the date of their absorption and they will be placed below all official » (Senior Assistants) appointed earlier regularly in the grade in the office of the Commission on the date of their absorption.
35 In Union of India vs. Deo Narain, (2008) 10 SCC 84, it was held by the Hon'ble Supreme Court that the employees, who voluntary forego their seniority and join another cadre with open eyes are placed below all the employees in the transferred cadre and cannot make a grievance later on regarding the seniority.
36 No doubt, in the instant case, the learned erstwhile Tribunal on the first day of hearing had stayed operation of the letter dated 19.11.2016 (Annexure A-8), text whereof reads as under:-
I am directed to refer to your letter No.04-71/84-PSC dated 22-01-2016 on the subject cited above and to convey the sanction of the Governor, Himachal Pradesh for the permanent absorption of 08 (eight) Senior ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 24 Assistants in relaxation of the provisions of the HP, Department of Personnel, Senior Assistant, Class- III(Non-Gazetted, Ministerial Services) Common .
Recruitment and Promotion Rules, 2011, in the office of HP Public Service Commission whose services have been taken on secondment basis from the Department of Higher Education, HP. 2.
This is being issued with the prior concurrence of the Finance Department obtained vide their U.O.No.53757481-Fin(C)A(3)-1/2016 dated 21-10-2016.
37 Nonetheless, reply on behalf of respondent No.2 was filed on 9.5.2017 and similar stand was thereafter taken by respondent No.1 in its reply dated 8.6.2017 and, therefore, the private respondents knew that even if they are absorbed in the Commission, then on the basis of the communication dated 25.4.2017 (supra), they would be placed below all official (Senior Assistants) appointed earlier regularly in the grade in the office of the Commission on the date of their absorption. Yet, they did not choose to assail the action of the official respondents, therefore, cannot at this time turn around and question the action of the official respondents.
38 Now, adverting to the impugned judgment passed by the learned writ court, it would be noticed that the ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 25 judgment is based solely on the basis of the applicability of the draft R&P Rules, that too, relying upon the judgment of .
the Hon'ble Supreme Court, in Gujarat Kishan Mazdoor Panchayat's case (supra).
39 As regards applicability of the draft R&P Rules, it would be noticed that there were already R&P Rules validly framed before draft R&P Rules and once that be so, then as per settled law, a rule validly made even if it has become unworkable unless repealed or replaced by another rule or amended, continue to be in force. This was so held by the Hon'ble Supreme Court in Union of India through Govt. of Pondicherry and anr. Vs. V. Ramakrishnan and Ors., (2005) 8 SCC 394, that too, after taking into consideration the judgment relied upon by the learned writ court in Gujarat Kishan Mazdoor Panchayat's case (supra).
40 That apart, draft R&P Rules, on the basis of which services of private respondents were taken on secondment basis from the Education Department during the year 2013- 14, were in view of the common R&P Rules notified on 3.8.2011, but then admittedly these Rules stood withdrawn by the government vide common R&P Rules, notified on ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 26 18.4.2012 and once that be so, then obviously, the official respondents could not have even taken services of the private .
respondents on secondment basis after 18.4.2012. Therefore, there was no question of further absorption of the services of the private respondents.
41 Mr. B. C. Negi, learned Senior Advocate, would however argue that after observing services of the private respondents, they were to entitled to claim absorption would not wipe out length of service in the post, from which they have been transferred. In support of such seniority as contention, strong reliance is placed upon the judgment dated 22.11.2019, rendered by this Court in LPA No. 157/2011, titled Kultar Chand Sharma vs. State of H.P. & ors.
42 However, we are clearly of the view that the judgment in Kultar Chand Sharma's case (supra) is distinguishable. The facts there were that the writ petitioner had challenged the office order dated 19.5.2005, whereby writ respondent No.2 issued a revised final seniority list of Senior Assistants wherein he was placed lower than the writ respondents No.3 to 5.
::: Downloaded on - 22/06/2022 20:04:57 :::CIS 27All the private respondents were initially appointed in the Department of Rural Development. The .
writ petitioner was appointed on 2.3.1987 as a Clerk and after his promotion as Senior Assistant on 10.4.1997 was placed on deputation as Senior Assistant with respondent No.2 Board where he continued to officiate as such till he was absorbed with writ respondent No.2 on 1.5.2001.
43rAs regards the private respondents they were promoted in the parent Department as Senior therein, Assistants much later to the writ petitioner on 28.6.1997, 30.4.1997 and 21.2.1999 respectively. The writ petitioner was likewise absorbed on 1.5.2001 i.e. after the private respondents. On 11.2.2002 respondent No.2 issued a tentative seniority list, wherein private respondents were shown senior to the writ petitioner and aggrieved thereby the petitioner filed writ petition, which was allowed by the learned writ court, however decision so taken was assailed in LPA by one of the private respondents and it was in this background, that after taking into consideration that the writ ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 28 petitioner as also private respondents were similarly situated, the court dismissed the LPA by observing as under:-
.
10. Only the writ respondent No.3 has filed the instant appeal on the ground that at the time when the services of the writ petitioner had been taken on deputation, the services of private respondents were also taken on deputation and regular selection had been conducted by the respondent No.2 and in support of such contention strong reliance is placed on the meeting of the HP Subordinate Services Selection Board held on 19.5.1999 (Annexure R-5).
11. To say the least, the reliance placed on the meeting held on 19.5.1999 to claim seniority is absolutely fallacious as the Selection Board had nowhere conducted 'selection' in accordance with the Rules and thus, the same would not clothe such proceedings to be termed as a 'selection'.
12. That apart, rule of service jurisprudence is that if a government servant holding a particular post is transferred to same post in the same cadre, the transfer will not wipe out his length of service in the post from which he has been transferred and the period of his service in the post before this transfer has to be taken into consideration in computing the seniority in the transferred post.
13. Equally settled is the proposition that there is not much difference between deputation and transfer. When the deputationist is permanently ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 29 absorbed in the transferred department, he is under the rule of transfer, in other words deputation may be regarded as a transfer from one .
government department to the another.
14. It will be against all the rules of Service Jurisprudence, if a government servant holding a particular post is transferred to the same or an equivalent post in another government department, the period of the service in the post before his transfer is not taken into consideration in computing his seniority in the transferred post.
15. As observed above, the transfer cannot wipe out his length of service in the post from which he has been transferred. Therefore, it is reasonable to accept that a deputationist when his service is sought to be absorbed in the transferred department would certainly have accepted that the seniority in the parent department would be counted, meaning thereby, the post held in the parent and the post held in the transferred department are analogous one is entitled to count, for the purpose of seniority for the service rendered by him on regular basis in the parent department.
16. In fact, in A.K. Bhataganar Vs. Union of India & Ors, JT (1990) 4 SC,the Hon'ble Supreme Court has held that in the absence of a provision, ordinarily the length of service is taken into account in determining seniority.::: Downloaded on - 22/06/2022 20:04:57 :::CIS 30
17. In addition to what has been observed above, it will be noticed that official respondents No.1 and 2 have themselves issued office Memorandum dated .
27.3.2001 which reads as under:
"Subject: Seniority of persons absorbed after being on deputation.
The undersigned is directed to say that according to our O.M. No.20020/7/80-Estt.(D), dated May 29, 1986(copy enclosed) in the case of a person who is initially taken on deputation and absorbed later (i.e. where the relevant recruitment rules provide for "transfer on deputation/transfer") his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has, however, been holding already(on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from the date he has been holding the post on deputation, OR the date from which he has been appointed on a regular basis to same or equivalent grade in his parent department, whichever is later"
2. The Supreme Court has in its judgment dated December 14, 1999 in the case of Shri S.I. Roop Lal & others vs. Lt. Governor through Chief Secretary, Delhi, JT 1999(9) SC 597 has held that the words "whichever is later" occurring in the Office ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 31 Memorandum dated May 29, 1986 and mentioned above are violative of Articles 14 and 16 of the Constitution and, hence those words have been .
quashed, from that Memorandum. The implications of the above ruling of the Supreme Court have been examined and it has been decided to substituted the term "whichever is later" occurring in the Office Memorandum dated May 29, 1986 by the term "whichever is earlier".
3. It is also clarified that for the purpose of determining the equivalent grade in the parent department mentioned in the Office Memorandum dated May 29, 1986, the criteria contained in this Department Office Memorandum No.14017/27/75- Estt(D)(pt) dated March 7, 1984 (copy enclosed), which lays down the criteria for determining analogous posts, may be followed.
4. These instructions shall take effect from December 14, 1999 which is the date of the judgment of Supreme Court referred to above.
5. In so far as personnel serving in Indian Audit and Accounts Departments are concerned, these instructions are issued in consultation with the Comptroller and Auditor General of India. However, these orders (in keeping with paragraph 4 of the Office Memorandum dated May 29, 1986 as referred to above) will not be applicable to transfers within the Indian Audit and Accounts Department which are governed by orders issued by the C&AG from time to time.
::: Downloaded on - 22/06/2022 20:04:57 :::CIS 326. The above instructions may be brought to the notice of all concerned for information, guidance and necessary action."
.
18 Learned writ court has rightly relied upon the aforesaid Memorandum as also the judgment of the Hon'ble Supreme Court in Roop Lal and another Versus Lt. Governor through Chief Secretary, Delhi and others, (2000) 1 SCC 644 case 'supra.
19 To conclude that the Memorandum itself provides that seniority has to be determined from the date on which one is appointed on regular basis in the equivalent grade in his parent department and since the seniority list Annexure A-6 has been issued by ignoring the service rendered by the petitioner with parent department, therefore, the same is liable to be set aside. 20 It is really surprising to note as to why the writ respondent/appellant has filed the appeal when the legal position is settled, rather we are of the considered view that the instant petition is nothing but an abuse of process of Court.
21. Accordingly, the present appeal is dismissed with costs of Rs. 30,000/- to be paid to respondent No.3 within six weeks. Pending application(s), if any, also stands dismissed.
44 Adverting to the facts of the instant case, it would be noticed that writ petitioners and the private respondents are not similarly situated. The writ petitioners are regular ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 33 employee recruited by respondent No.2, whereas private respondents have been appointed in the Commission only by .
way of secondment.
45 That apart, private respondents were well aware from the very beginning that in terms of the decision taken by the official respondents, as otherwise reflected and indicated in the letter dated 25.1.2017 (supra), after absorption they would be assigned seniority in the cadre of Senior Assistants from the date of their absorption and would be placed below all officials (Senior Assistants) appointed earlier regularly in the grade in the office of the Commission on the date of their absorption in the Commission. Clearly, in such circumstances, the judgment rendered by the learned writ court is not at all sustainable in the eyes of law.
41 As observed above, decision for filling up posts of Senior Assistants on secondment basis was taken in view of the common R&P Rules, notified on 3.8.2011, but then admittedly these Rules, which provide for recruitment of Senior Assistants on secondment basis, stood withdrawn by the government by common R&P Rules, notified on 18.4.2012, whereas entire process for filling up posts of ::: Downloaded on - 22/06/2022 20:04:57 :::CIS 34 Senior Assistant on secondment basis was virtually commenced after Rules were withdrawn on 18.4.2012 as is .
evident from the fact that the applications for filling up posts in question, in terms of un-amended Rules, were received in pursuance to the letter dated 2.2.2013, yet the Commission, has, for some strange reasons, virtually bulldozed its way by giving complete go bye to the Rules and without caring for 16.8.2016 (supra).
42 r to
explanation, as was otherwise sought vide letter dated
However, nonetheless the fact remains that the
writ petitioners would not be affected by the absorption of the private respondents in any manner save and except in case they are granted seniority over and above the writ petitioners.
43 In the given circumstances, we are not inclined to set aside order of absorption of the private respondents, which has been necessitated and effected on account of exigency of the Commission, whereas as against 18 sanctioned posted of Senior Assistants, only 8 were filled up while 10 were lying vacant.
::: Downloaded on - 22/06/2022 20:04:57 :::CIS 3544. Additionally, we are of the considered view that since by now the private respondents have lost their lien with .
the parent department, it would not be fair to disturb their appointment in the Commission as Senior Assistants, however in terms of the decision taken by the Commission as also the State Government, the private respondents would be placed at the bottom of the seniority list.
45. In view of aforesaid discussions, the order passed by the learned writ court is quashed and set aside. Though, absorption of the private respondents is not impugned being disturbed, for the reasons stated above, however these respondents shall rank junior to the writ petitioners and place at the bottom of the seniority list 46 The appeal is disposed of, in the aforesaid terms, so also the pending application(s), if any.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 22nd June, 2022.
(pankaj) ::: Downloaded on - 22/06/2022 20:04:57 :::CIS