Himachal Pradesh High Court
Narender Naik And Ors vs State Of H.P. And Ors on 26 July, 2024
Neutral Citation No. ( 2024:HHC:5868-DB ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. : 4973 of 2021 .
Reserved on : 12.07.2023
Decided on : 26.07.2024
Narender Naik and Ors.
....Petitioners.
Versus
State of H.P. and Ors.
...Respondents.
Coram
The Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 Yes For the petitioners : Ms.Radhika Gautam, Advocate.
For the respondents : Mr. Pranay Pratap Singh, Additional Advocate General, for respondents No. 1 to 5.
: Mr. K.S. Banyal, Sr. Advocate,
with Mr. Uday Singh Banyal,
Advocate, for respondents No.
6 and 7.
: Mr. Hamender Singh Chandel,
Advocate, for respondents No.
8 to 13.
: Mr. Deepal Kapil, respondent
No.14, in person.
1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 26/07/2024 20:36:25 :::CIS
2
.
Satyen Vaidya, Judge
Aggrieved against office orders dated
06.04.2018 and 24.12.2019, petitioners have prayed
for following substantive reliefs:-
(i) Issue a writ of certiorari or any other writ, order or direction of similar nature quashing the orders dated 6.4.2018, 4.10.2017 and 24.12.2019 r passed by respondents No. 1 to 5 and ;
(ii) Issue a writ of certiorari or any other writ, order or direction of similar nature directing the respondents No. 1 to 5 to regularize the services of the petitioners with effect from their initial appointment dated 3.1.1995, 11.12.1997 and 11.12.1997 respectively and grant all consequent service benefits accordingly.
2. Petitioner No. 1 was appointed as Junior Engineer in H.P.P.W.D., vide appointment letter dated 03.01.1995 and petitioners No. 2 and 3 were appointed as Junior Engineers in the Department of Irrigation and Public Health, vide appointment letters dated 11.12.1997. The initial appointment of petitioners was ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 3 on contract basis for one year, which eventually continued.
.
3. Petitioner No.1 apprehending termination of services, approached the erstwhile State Administrative Tribunal by filing an original application No. 2496 of 2000 and was granted an interim stay on 18.7.2000.
4.
No.1, on
r closure to
The original application filed by of the Tribunal, came petitioner to be transferred to this Court as CWP-T No. 6785 of 2008.
This Court, vide judgment dated 14.09.2010, disposed of CWP-T No. 6785 of 2008 in following terms.
"Petitioner was appointed as Junior Engineer vide order dated 3.1.1995 on contract basis by following due selection process. He has been regularised as per submission of Mrs. Ranjana Parmar in the year 2008.
2. Mrs. Ranjana Parmar submits that the respondents are not counting the period the petitioner has worked on contract basis with effect from 1995 till the date of his regularization.
3. The issue raised in this petition is no more res integra in view of the law laid down by their Lordships of the Hon'ble Supreme Court in Direct Recruit Class II Recruit Engineering Officers' Association versus State of Maharashtra and others, (1990) 2 SCC 715.::: Downloaded on - 26/07/2024 20:36:25 :::CIS 4
4. Accordingly, the petition is allowed. Respondents are directed to consider the case of the petitioner for counting the period he has worked on contract basis with effect from 1995 .
till regularization with all the consequential benefits in view of the principles laid down in the judgment cited hereinabove. Needful be done within a period of ten weeks after the receipt of certified copy of this judgment by the petitioner. No costs."
5. Respondents preferred Letters Patent Appeal No. 271 of 2011 against the said order, which was dismissed by Hon'ble Division bench of this Court vide order dated 09.04.2013. The SLP No. 7064 of 2014 filed against the judgment passed in LPA No. 271 of 2011 was also dismissed by Hon'ble Supreme Court on 26.4.2017.
6. In the meanwhile, petition filed by petitioners No. 2 and 3 being CWP No. 6544 of 2013 for identical relief, as sought by petitioner No.1, was also disposed of by this Court in following terms:-
"1. The Learned Counsel for the petitioners, under instructions of the petitioners, do not press present petition on the ground that the petitioners shall approach the respondents clearly bringing out the circumstances under which his case is covered by the decision rendered by the Division Bench of this Court vide judgment dated 14.9.2010 passed in CWP (T) No. 6785/2008, titled as Narender Singh Naik versus State of Himachal Pradesh & others.::: Downloaded on - 26/07/2024 20:36:25 :::CIS 5
2. Leaving the questions of law open, it is open for the petitioners to approach the respondents, as prayed for. As and when any request is received by the appropriate .
authority, the same shall be considered on its merits, in accordance with law, within a period of eight weeks, by affording adequate opportunity of hearing/representation to the petitioners. Needless to add, the authorities shall pass reasoned order which shall be communicated to all concerned.
With the aforesaid observations, petition is disposed of, so also the pending application
(s), if any."
7. On 6.4.2018, respondent No.3 rejected the case of petitioner No.1 and subsequently the representation of petitioners 2 and 3 was also rejected by respondent No.5 vide order dated 24.12.2019.
8. Petitioner No. 1 in the first instance filed Contempt Petition (COPC No. 88 of 2018) alleging non-implementation of directions issued by this Court vide judgment dated 14.09.2010 in CWP-T No. 6785 of 2008. The contempt petition was dismissed. Petitioners also availed the remedy by filing execution petition for implementation of abovesaid orders. A Division Bench of this Court by a common judgment dated 15.10.2020, passed in Execution Petition No. 14 of ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 6 2019 in the case of petitioner No. 1 and Execution Petition No. 121 of 2019 in the case of petitioners No. 2 .
and 3, held as under:-
" 21. In the present case, the judgment is for consideration of the case of the Execution Petitioners in the light of the judgment of the Hon'ble Supreme Court. There is no binding direction to the respondents to grant a specific relief in a particular manner. The direction was to extend the benefits in case, the petitioners are entitled to and further to take decision in support of their entitlement. The respondents have considered their case by passing a detailed order and rejected the case of the Execution Petitioners.
22. Under these circumstances, we are not inclined to grant any relief to the petitioners in these Execution Petitions, at this stage. Hence the Execution petitions are dismissed alongwith all pending applications, if any. However, it goes without saying that it is for the Execution Petitioners to challenge the consideration order, in case, they are still aggrieved, in accordance with law."
9. Petitioner No. 1 assailed the judgment dated 15.10.2020, before Hon'ble Supreme Court in SLP No. 1536-1539 of 2021. Hon'ble Supreme Court affirmed the judgment passed by Division Bench of this Court, however, it was observed as under:-
"In our view, the text of the consequential order, at best, may afford a further cause of action for the petitioner to maintain appropriate proceedings in accordance with law."::: Downloaded on - 26/07/2024 20:36:25 :::CIS 7
10. Therefore, petitioners have filed the instant petition.
.
11. Petitioners have been claiming that their initial appointments, though on contract, were in accordance with the rules and as mandated by way of judgment passed by Constitutional Bench in Direct Recruit Class II Engineers Association Vs State of Maharashtra (1990) 2 SCC 715, their entire service till regularization was liable for consideration r for the purposes of seniority etc.
12. Noticeably, at the time of initial appointments of the petitioners, the Recruitment and Promotion Rules governing their service as framed in the year 1997 were in vogue (for short "1997 Rules").
The State Government framed recruitment and promotion rules for the post of Junior Engineer (Civil), Class-III (Non-Gazetted) in the Department of Public Works, Himachal Pradesh, vide notification dated 19.02.2004, whereby 1979 Rules were repealed (for short "2004 Rules"). Clasue-10 of 2004 Rules, reads as under:-
::: Downloaded on - 26/07/2024 20:36:25 :::CIS 8"10. Method of recruitment whether by direct recruitment or by promotion, deputation, transfer and the percentage of posts to be filled in by various methods.
.
a) 90% by direct recruitment in the following manner:
(i) By direct recruitment on merit basis through concerned recruiting agency i. e. Himachal Pradesh Public Service Commission or the Himachal Pradesh Subordinate Service Selection Board or as prescribed by the Government from time to time .......45% r (ii) By direct recruitment on batch-
wise basis at departmental level from amongst the candidate(s) possesses the requisite professional qualification from the who recognized technical Institutions on the basis of seniority of the batch.
.............22.5%
(iii) By appointment from amongst the candidates who were/are appointed on contract basis by the department by adopting proper procedure and who possesses requisite professional qualification from the recognized technical institution having 7 years of continuous contract service in Himachal Pradesh Public Works Department. If their performance and conduct during con- tract service has been found satisfactory:
Provided that for the purpose of appointment under this sub column the year wise combined seniority list shall be pre- pared wherein the candidate senior in batch in such recruitment year shall be reckoned senior to the candidate who has obtained diploma in Civil Engineering in subsequent batch:::: Downloaded on - 26/07/2024 20:36:25 :::CIS 9
Provided further that where in a recruitment year more than one candidate of the same batch are eligible to be considered for .
appointment then their inter-se-
seniority will be determined with reference to their date of appointment in that recruitment year, or the merit, if any prepared at the time of making selection for recruitment on contract basis, as the case may be.
........ 22.5%
(b) 10% by promotion."
13. The services of the petitioners were, thus, regularized as Junior Engineers in terms of Clause-
10(a)(iii) of 2004 Rules. The date of regularization of services in the case of petitioner No.1 is 28.2.2004, whereas the petitioners Nos. 2 and 3 were regularized on 28.12.2004.
14. The claim of petitioner No. 1 was rejected, on the grounds that the initial appointment of the said petitioner was not in accordance with the 1997 Rules.
It has been held that 1997 Rules did not provide for appointment on contract basis and also the recruitment process had not been undertaken by the State Public Service Commission. It was also observed that the initial appointment of petitioner ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 10 No. 1 was for a period of one year only. Respondent No. 3 placed reliance upon the interpretation of the .
mandate in para-47(B) of Direct Recruits case rendered by a three judge bench of Hon'ble Supreme Court in State of West Bengal Vs. Aghore Nath Dey, (1993) 3 SCC 371, to hold that the initial appointment of petitioner No.1 being de hors the rules, was covered under corollary-1 to Clause-A of para-47 of Direct Recruits and thus, not entitled to any benefit of such service. Respondent No. 3 also relied upon judgments passed by Hon'ble Supreme Court in C.A. No. 5947 of 2012, titled State of Haryana Vs. Vijay Singh and C.A. No. 4916 of 2015, titled Surender Singh Vs. Greater NOIDA Ind. Development Authority. The probable burden on state exchequer also weighed in the mind of respondent No.3 while passing the impugned order.
15. Respondent No. 5, vide office order dated 24.12.2019, followed the pursuit and rejected the case of petitioners No. 2 and 3 simply on the ground that ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 11 respondent No. 3 had already rejected the case of petitioner No.1.
.
16. Apprehending their supersession in seniority on success of the claim of petitioners, certain direct recruits of the year 1997, had intervened in the petition filed by petitioner No. 1 at the stage when the Special Leave Petition (SLP) was pending before Hon'ble Supreme Court.
The objectors had unsuccessful, however, Hon'ble Supreme Court while r remained dismissing the SLP of the State Government had allowed the intervenors to avail appropriate legal remedy. Thereafter, a writ petition was filed by respondents No. 6 and 7 before this Court being CWP No. 2105 of 2017. A Division Bench of this Court, vide judgment dated 02.06.2017, dismissed the petition.
The Review Petition No. 64 of 2017 filed by respondents No. 6 and 7 also met the same fate and their SLP No. 22970 of 2017 was also dismissed by Hon'ble Supreme Court, vide order dated 08.11.2017.
Respondents No. 6 and 7 also unsuccessfully sought review of the order dated 08.11.2017, passed by ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 12 Hon'ble Supreme Court, but the same was also dismissed on 24.01.2018.
.
17. The private respondents No. 8 to 14 came on record of this petition by way of impleadment on their application(s).
18. Some of the private respondents have also been contesting the claim of the petitioners before the impugned r office to official respondents, which finds mention in the orders dated 06.04.2018 and 24.12.2019.
19. I have heard learned counsel for the parties and have also gone through the record of the case carefully.
20. In the factual backdrop, as noticed above, the petitioner No.1 has once again been exposed to exploration of his claim against the principles laid down in Direct Recruit Class II Engineers Officers Association Vs. State of Maharashtra, (1990) 2 SCC 715 (hereinafter referred to as 'Direct Recruits case'). The issue that arises for determination is whether the impugned orders dated 06.04.2018 and ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 13 24.12.2019 are confirming to the judgment passed by Constitutional Bench in Direct Recruits Case?
.
21. The relevant extract from Direct Recruits case is reproduced hereunder:-
"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 r 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 regularization of his service in accordance with the rules, the period of officiating service will be counted."
22. Learned counsel for petitioners has placed reliance upon the judgments passed by Hon'ble Supreme Court in Union of India Vs. Lalita S. Rao, (2001) 5 SCC 384, Amarendra Kumar Mohapatra Vs. State of Orissa, (2014) 4 SCC 583 and Siraj Ahmad Vs. State of U.P., (2020) 19 SCC 480 to ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 14 support of her contention that the case of the petitioners is covered by clause (B) of paragraph 47 of .
Direct Recruits case. The following excerpt from Lalita S Rao supra has been specifically referred to:
3. ....... Obviously the Court had in mind Principle 'B' evolved by the Constitution Bench in Direct Recruit Engineering Officers' Assn. case . If the initial appointment had not been made in accordance with the prescribed procedure laid down by the Recruitment Rules, and yet the appointee Medical Officers were allowed to continue in the post uninterruptedly and then they appeared in the selection test conducted by the Union Public Service Commission, and on being selected their services stood regularised then there would be no justification in not applying Principle 'B' of Direct Recruit Class II Engineering Officers' Assn. case [ Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348] and denying the period of officiating services for being counted for the purpose of seniority.
23. Petitioners have also cited the following observations in Amarendra Kumar Mohapatra Vs. State of Orissa, (2014) 4 SCC 583:-
70. In Direct Recruit case this Court reviewed and summed up the law on the subject by formulating as many as 11 propositions out of which Propositions A and B stated in para 47 of the decision in the following words are relevant for our purposes:
"47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 15 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."
71. There was some debate at the Bar whether the case at hand is covered by corollary to Proposition A or by Proposition B (supra). But having given our consideration to the submissions at the Bar we are inclined to agree with Mr Rao's submission that the case at hand is more appropriately covered by Proposition B extracted above. We say so because the initial appointment of ad hoc Assistant Engineers in the instant case was not made by following the procedure laid down by the Rules. Even so, the appointees had continued in the posts uninterruptedly till the Validation Act regularised their service. There is, in the light of those two significant aspects, no room for holding that grant of seniority and other benefits referred to in Section 3(3) of the impugned Act were legally impermissible or violated any vested right of the in-service Assistant Engineers appointed from any other source.
72. Proposition A, in our opinion, deals with a situation where an incumbent is appointed to a post according to the rules but the question that arises for determination is whether his seniority should be counted from the date of his appointment or from the date of his confirmation in the said service. The corollary under Proposition A, in our opinion, deals with an entirely different situation, namely, where the appointment is ad hoc and made as a stop- gap arrangement in which case officiation in ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 16 such post cannot be taken into consideration for seniority. Be that as it may, as between Propositions A and B the case at hand falls more accurately under Proposition B which .
permits grant of seniority w.e.f. the date the appointees first started officiating followed by the regularisation of their service as in the case at hand.
73. We may also refer to a three-Judge Bench of this Court in Union of India v. Lalita S. Rao (2001) 5 SCC 384 where doctors appointed by Railway Administration on ad hoc basis had been upon regularisation granted seniority from the date of their ad hoc appointment. This Court held that Proposition B stated in Direct Recruit case permitted such seniority being granted."
24. Further learned Counsel for petitioners placed strong reliance on Siraj Ahmad Vs. State of U.P., (2020) 19 SCC 480, with special reference to following paragraphs:-
"18. The Constitution Bench in unequivocal terms holds that, if an appointment is made by way of stopgap arrangement without considering the claims of all the eligible persons and without following the rules of appointment, the experience of such appointment cannot be equated with the experience of a regular appointee, because of qualitative difference in the appointment. It however holds that if the appointment is made after considering the claims of all the eligible candidates of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority.
19. The Constitution Bench concludes thus :
(Direct Recruit Class II Engg. Officers' Assn. [Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 17 715 : 1990 SCC (L&S) 339] , SCC pp. 744-45, para 47) "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 stopgap 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."
20. It can thus clearly be seen that the Constitution Bench in unequivocal terms holds that 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.
21. It is not in dispute that except the concurrence of the U.P. Public Service Commission the appointment of the appellant has been made after following the procedure prescribed under the said Rules. The appellant has, uninterruptedly, served till the regularisation of his service which was made in accordance with the Rules. It can thus be seen that the case of the present appellant is squarely covered by the judgment of the Constitution Bench in Direct Recruit Class II Engg. Officers' Assn. [Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715."
::: Downloaded on - 26/07/2024 20:36:25 :::CIS 1825. On the other hand, it has been contended on behalf of respondents that the case of petitioners is .
covered under corollary to clause (A) of para 47 of judgment in Direct Recruits case and have placed reliance on following judgments:
"State of W.B. v. Aghore Nath Dey, (1993) 3 SCC 371
21. We shall now deal with conclusions (A) and (B) of the constitution bench in the Maharashtra Engineers case [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348 : (1990) 2 SCR 900] quoted above.
22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot 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 stopgap 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 stopgap 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.
23. This being the obvious inference from conclusion (A), the question is whether the present case can also fall within conclusion (B) ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 19 which deals with cases in which period of officiating service will be counted for seniority.
We have no doubt that conclusion (B) cannot include, within its ambit, those cases which .
are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other.
24. The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A).
25. In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, 'if the initial appointment is not made by following the procedure laid down by the 'rules' and the latter expression 'till the regularisation of his service in accordance with the rules'. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 20 such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being .
limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A).
26. In view of the above, it is clear that the claim of the writ petitioners (respondents in all these appeals) for treating their entire period of service prior to February 26, 1980 as regular service for the purpose of seniority, and fixation of their seniority accordingly, is untenable. The submission of Shri Sanghi that their initial ad hoc appointment must be treated as having been made in accordance with the rules since the selection by an alternative mode, namely, by a committee of five Chief Engineers was resorted to on account of the emergency, cannot be accepted.
Rule 11 of the 1959 Rules provides for appointments to be made during emergency, and lays down that such appointments during emergency can be made only 'by advertisement and interview, through the Public Service Commission, West Bengal'. Admittedly, this express requirement in Rule 11 was not followed or fulfilled subsequently, and, therefore, the initial ad hoc appointments cannot be treated to have been made according to the applicable rules. These ad hoc appointments were clearly not in accordance ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 21 with the rules, and were made only as a stopgap arrangement for fixed period, as expressly stated in the appointment order itself.
.
Rashi Mani Mishra v. State of U.P., (2021) 17 SCC 399
24. Now so far as the reliance placed upon the decision of this Court in Direct Recruit Class II Engg. Officers' Assn. [Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L&S) 339] , relied upon by the learned Senior Advocate appearing on behalf of the ad hoc appointees is concerned, it is required to be noted that even in the said decision also, it is observed and held that where initial appointment was made only ad hoc as a stop-gap arrangement and not according to the rules, the officiation in such post cannot be taken into account for considering the seniority. In the case before this Court, the appointments were made to a post according to rule but as ad hoc and subsequently they were confirmed and to that this Court observed and held that where appointments made in accordance with the rules, seniority is to be counted from the date of such appointment and not from the date of confirmation. In the present case, it is not the case of confirmation of the service of ad hoc appointees in the year 1989. In the year 1989, their services are regularised after following due procedure as required under the 1979 Rules and after their names were recommended by the Selection Committee constituted under the 1979 Rules. As observed hereinabove, the appointments in the year 1989 after their names were recommended by the Selection Committee constituted as per the 1979 Rules can be said to be the "substantive appointments". Therefore, even on facts also, the decision in Direct Recruit Class II Engg. Officers' Assn shall not be applicable to the facts of the case on hand. At the cost of repetition, it is observed that the decision of this Court in Direct Recruit Class II Engg. Officers' Assn. [Direct Recruit Class II Engg.
::: Downloaded on - 26/07/2024 20:36:25 :::CIS 22Officers' Assn. v. State of Maharashtra was considered by this Court in Santosh Kumar Santosh Kumar v. G.R. Chawla, (2003) 10 SCC 513 when this Court interpreted the .
very 1979 Rules."
26. The rival contentions of parties takes this Court to the factual assessment of the case to find out the answer.
27. One of the reasons that weighed with the authority to pass the impugned rejection order dated 6.4.2018 was; that the initial appointment of petitioner No.1 was bad for want of any provision for contract appointment in 1997 rules. The respondents herein have also raised similar plea in their defence.
28. Admittedly, at the time of initial appointments of the petitioners, 1997 Rules were applicable. The said rules provided for recruitment to the post of Junior Engineer by two modes i.e. direct and promotion. 90% posts were to be filled by direct recruitment and remaining 10% by promotion. As per Clause-8 of 1997 Rules, all appointments to the service were to be made by the Chief Engineer, H.P.P.W.D. or by any other officer authorized by the ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 23 Chief Engineer from time to time. 'Direct Recruitment' was defined as 'an appointment made otherwise than .
by promotion'. The 1997 Rules did not provide for any particular mode for conduct of recruitment process, nor was any specified agency mentioned in the said rules to undertake such selection process.
29. In view of 1997 Recruitment Rules, it cannot be said that the appointment on contract basis was barred or prohibited. Direct recruitment is a process of recruitment irrespective of the nature of employment. In support reliance can be placed on following observations made by Hon'ble Supreme Court in Union of India Vs. N. Murugesan, (2022) 2 SCC 25:
"32. The Rules per se do not prohibit a tenure appointment. The definition of direct recruitment would mean recruitment through a process stipulated under the Rules. Therefore, by no stretch of the imagination, one can interpret that all direct recruitments are to be made by regular employment. Therefore, direct recruitment can also be made for filling up the post on a tenure basis. Hence, in the absence of any statutory bar under the Rules, a tenure appointment made through direct recruitment by following the due procedure cannot be termed as contrary to law. In a direct recruitment the appointment on a regular or tenure basis is the discretion of the employer, especially when the Rules do not prohibit. Rule ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 24 48 speaks of the age of superannuation for a regular employee, which will be the completion of sixty years. There is no difficulty in appreciating the said rule, which deals with a .
regular employee alone and therefore can have no application while dealing with an appointment made on a tenure basis. After all, a court of law cannot give a different status to an employee than the one which was conferred and accepted especially when the same is not prohibited under the Rules."
30. Another objection against petitioners is that their selection was not made through the H.P Public Service Commission (HPPSC) in terms of 1997 Rules.
Respondents have placed reliance on a communication dated 17.12.1983 to contend that vide said communication the selection process for direct recruitment to the post of Junior Engineer was to be conducted by State Public Service Commission.
Through aforesaid communication addressed by the Commissioner-cum-Secretary (Personnel) to all Secretaries, Head of Departments and Deputy Commissioners in the State, it was conveyed that the government had decided to make direct recruitment to all Class-III posts except the category of Driver, Patwari, Constable, Home Guard, Pharmacist, Staff ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 25 Nurse and Midwifery through Himachal Pradesh Public Service Commission. Accordingly an advise .
was rendered to all addressees of the said communication to place requisition to the State Public Service Commission for filling-up all such posts.
31. As noticed earlier, there was no mandate in the 1997 Rules for conduct of selection process for direct recruitment of Junior Engineers through Public Service Commission. The 1997 Rules were framed under proviso to Article 309 of the Constitution and thus were statutory in nature. It is not shown that 1997 Rules were amended so as to incorporate the requirement of selection process being conducted through Public Service Commission. The communication dated 17.12.1983 is not more than administrative instructions. It is more than settled that administrative instructions cannot supersede the statutory Rules. The 1997 Rules being in latter category cannot be said to have been superseded by administrative instructions dated 17.12.1983. In this ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 26 view of the matter, the objections raised by the respondents as to validly of initial appointment of .
petitioners on above ground cannot be sustained.
32. Further, as per respondents, since the petitioners were initially employed for one year on contract basis, an inference that their appointments were as stop-gap arrangement is to be drawn.
However, the fact that the petitioners had continued to be employed as Junior Engineers for about five years continuously cannot be ignored. Petitioners have made a specific averment in the petition that after execution of contract for one year of their service, no other agreement was signed or executed by them.
The necessity of employing petitioners for such a long period has not been disputed by the official respondents. It is also not the case of any of the respondents that the engagement of petitioners was not against sanction post or their engagement was in excess of the sanctioned cadre strength.
33. It is specific case of the petitioners that official respondents had issued advertisement for ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 27 appointments of Junior Engineers on contract basis, which fact has not been denied by the respondents. A .
copy of an advertisement has also been placed on record not only by the petitioners but by private respondent No. 8 also. A copy of advertisement on record does not reveal that the applications were invited from a particular class of persons, rather, it be said r to was open to all to apply and for such reason it cannot that the appointments of the petitioners were made without affording opportunity of competition to similarly situated persons. It has specifically been averred in the petition that in pursuance to advertisement, thousands of incumbents had appeared for interview, which fact again has not been denied by the respondents.
34. Another aspect that has been completely missed out by respondents No. 3 and 5 while passing impugned orders is the acquiescence of State Government in considering the contract employment of petitioners as lawful while regularizing their services w.e.f. 28.02.2004 and 28.12.2004, ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 28 respectively. Admittedly, the services of petitioners were regularized in terms of Clause 10(a) (iii) of 2004 .
Rules. The said provision provided a quota of 22.5% for appointment to the service i.e. Junior Engineer from amongst the candidates who were/are appointed on contract basis by the department by adopting proper procedure with seven years of continuous contract service in H.P.P.W.D. Respondents No. 1,3 and 4 in their reply have categorically admitted that the services of petitioners were regularized by the government in 2004 as 2004 Rules were formulated in order to accommodate Junior Engineer appointed on contract basis. The common employer of petitioners is the State of Himachal Pradesh. In light of the specific provision made in 2004 Rules and the stand taken by employer, as noticed above, the findings to the contrary recorded by respondents No. 3 and 5 in the impugned orders cannot be sustained.
35. Learned Advocate General has raised an arguments that it was not a case of contract employment culminating into regularization, rather it ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 29 was a case of fresh appointment for petitioners and for such reason also, their contract service cannot be .
counted towards seniority or other service benefits.
The arguments, so raised, is clearly against the specific stand of respondents No. 1, 3 and 4 taken in their reply, as referred earlier. The fact that the services of petitioner No.1 were regularized under 2004 Rules has also been recorded in the impugned order dated 6.4.2018. Be that as it may, whether it was regularization or appointment, the fact remained that the petitioners had already served for more than seven years continuously as Junior Engineers on contract basis and their said service had merged into regularization under 2004 Rules. It is the period so served by the petitioners which is the subject matter of consideration. If the initial appointment of petitioners is found to be in accordance with rules, their contract period is liable to be considered for the purposes of seniority etc.
36. Learned Advocate General further argued that the petitioners were not entitled to relief as they ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 30 cannot be allowed to approbate and reprobate. It has been submitted that the petitioners having received .
benefit under 2004 rules cannot claim any benefit for the period prior thereto.
37. The fact that the respondents/State regularized the services of the petitioners in terms of 2004 Rules is sufficient to infer that the official respondents had considered the contract appointment of petitioners to be legal and valid and by adoption of proper procedure. The 2004 Rules have not been challenged by the private respondents. There is no question raised on the qualification of the petitioners either. The following observations by Hon'ble Supreme Court in Santosh Kumar Vs. State of A.P. (2003) 5 SCC 511, will not be out of place here:-
"10. A Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. case (1990) 2 SCC 715 after considering various aspects and earlier decisions, summed up the conclusions in para 47 of the judgment. For our purpose paras (A) and (B) of the said paragraph are relevant, which are extracted hereunder : (SCC pp. 744-45) "47. To sum up, we hold that :::: Downloaded on - 26/07/2024 20:36:25 :::CIS 31
(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 stopgap 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."
The respondent and others were appointed as Sub-Inspectors out of seniority looking to the outstanding merit and record prior to the direct recruits like the appellant. Their services were admittedly regularised by relaxing the Service Rules in exercise of power available under Rule 47 of the General Rules. The appellant did not challenge the validity of Rule 47 and no mala fides were established against the authorities in exercise of powers of relaxation under the said Rule. The Tribunal has recorded a finding that the Rule relating to the method of recruitment was not relaxed but only the conditions which had to be fulfilled for the purpose of promotion to the category of Sub-Inspector were relaxed; this finding is not disturbed by the High Court; there was no relaxation as to the basic qualification; the State Government regularised the services of the respondent and others with retrospective effect from the date they were temporarily appointed as Sub-Inspectors (OSSIs). It is also not disputed that they continued in service uninterruptedly for about 12-13 years till their services were regularised with retrospective effect. This being the factual position it could not be said that the corollary to para 47(A) of the aforementioned Constitution Bench judgment applies to the facts of the present case. Once their services were regularised it ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 32 cannot be contended that their initial appointment was only on ad hoc basis and not according to the rules and made as a stop gap arrangement. On the other hand para 47(B) .
supports the case of the respondent."
38. Viewed from another angle, respondents again are faced with a legal impediment to question the legality of initial appointments of petitioners. In the earlier round of litigation i.e. the petition filed by petitioner r No. 1, learned Single Judge while disposing of the said petition had clearly recorded that the petitioner was appointed as Junior Engineer, vide order dated 03.01.1995, on contract basis, by following due selection process. In LPA No. 271 of 2011 filed by the State against the judgment passed by learned Single Judge, a Division Bench of this Court recorded as under:-
"We are unable to accept these contentions, on the first, we note that petitioner having been appointed on contract basis after following due process of selection. It is not open to the State to urge that his regularization is not in accordance with the law."
39. The above finding of fact was not interfered by Hon'ble Supreme Court and hence, having attained ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 33 finality again cannot be re-agitated by the respondents.
.
40. Thus, to say that the cases of petitioners were not covered by Clause-B of para-47 of judgment in Direct Recruits case will not be proper and justifiable.
41. It has further been contended by private r affected to respondents that in the absence of all the persons likely to be by outcome of this petition, same is not maintainable. It is stated that the cadre of Junior Engineer includes more than 300 persons who will be directly affected by the grant of relief to the petitioners as it will have direct consequence on the seniority position.
42. To test the above argument, it is necessary to have glance at the legal position. In Post Graduate Institute of Medical Education and Research and Anr. Vs. A.P. Wasan and Ors. (2003) 5 SCC 321, it has been held as under:-
"23. The arguments of the appellants appear plausible but do not bear close scrutiny. It was not necessary for the respondent No. 1 to have impleaded the interveners nor can the High ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 34 Court's decision be criticized because they were not made parties. The grievance of the respondent No. 1 was against the appellant/ Institute and its alleged policy to promote .
Technologist Grade-II section-wise. It was for the appellant/Institute to have justified its action. The justification would serve to protect the interests of other employees if it were legally sustainable. If it is not legally sustainable it must be negated and not hearing of employees who may be affected as a result of the rejection of the justification, would not vitiate such negation. See General Manager, S.C. Railway v. Siddhantti (1974)ILLJ312SC, A. Janardhana v. Union of India and Ors. (1983)IILLJ175SC and V.P. Shirvastava v. State of M.P. [1996]2SCR59 .
Furthermore, both K.S. Sharma and R.K. Goel whose stand on the promotional policy of the Appellant Institute coincides with those of the interveners, were partners and had the opportunity of presenting their case. Besides, the Division Bench had merely reiterated the view taken in 1989 by the learned Single Judge when he granted relief to R.K. Sareen holding that promotions should be made cadre wise and not section wise. No protest was made by the interveners at that stage. They were content to allow the appellant/Institute to appoint R.K. Sareen on such basis. They cannot now make a grievance that they were not heard before the Division Bench granted the respondent No. 1 the same relief ."
43. In V.P. Shrivastava and Ors. Vs State of Madhya Pradesh and others, (1996) 7 SCC 759, it has been held as under:-
"14. The conclusion of the Tribunal that non- inclusion of the affected parties is fatal to the appellants' case is also unsustainable in law. It is to be stated that the appellants do not challenge the so-called ad hoc appointments of the promotee respondents but they do ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 35 challenge the position of the said ad hoc promotee respondents over the appellants in the seniority list. In other words the very principle of "determination of seniority" made .
by the State Government is under challenge and for such a case State is the necessary party who has been impleaded. It has been held by this Court in the case of G.M., South Central Rly. v. A.V.R. Siddhantti [(1974) 4 SCC 335 : 1974 SCC (L&S) 290 : (1974) 3 SCR 207] : (SCC pp. 341-42, para 15) "As regards the second objection, it is to be noted that the decisions of the Railway Board impugned in the writ petition contain administrative rules of general application, regulating absorption in permanent departments, fixation of seniority, pay etc. of the employees of the erstwhile Grain Shop Departments. The respondents-petitioners are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of government servant is assailed. In such proceedings the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. In the present case, the relief is claimed only against the Railway which has been impleaded through its representative. No list or order fixing seniority of the petitioners vis-à-vis particular individuals, pursuant to the impugned decisions, is being challenged. The employees who were likely to be affected as a result of the readjustment of the petitioner's seniority in accordance with the principles laid down in the Board's decision of 16-10-1952, were, at the most, proper parties and not necessary parties, and their non-joinder could not be fatal to the writ petition."
15. In the case of A. Janardhana v. Union of India [(1983) 3 SCC 601 : 1983 SCC (L&S) 467 : (1983) 2 SCR 936] , a similar contention was ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 36 also repelled by this Court in the following words: (SCC pp. 625-26, para 36) "In this case, appellant does not claim .
seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents."
16. Further in view of the finding of the Tribunal that Respondents 3 and 4 successfully safeguarded the interest of the promotees, the Tribunal erred in law in holding that non-inclusion of the affected parties is fatal to the proceeding. It has been held by this Court in the case of Prabodh Verma v. State of U.P. [(1984) 4 SCC 251 :
1984 SCC (L&S) 704 : (1985) 1 SCR 216] , that: (SCC Headnote p. 256) "A High Court ought not to hear and dispose of a writ petition under Article 226 without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually."
17. Even in Janardhana case [(1983) 3 SCC 601 : 1983 SCC (L&S) 467 : (1983) 2 SCR 936] referred to supra, this Court also rejected a similar objection on the ground that 9 of the direct recruits having been impleaded as party, the case of direct recruits has not gone unrepresented and therefore the non-inclusion ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 37 of all the 400 and odd direct recruits is not fatal to the proceedings.
18. In the aforesaid circumstances we have no .
hesitation to come to the conclusion that the Tribunal was wholly in error in coming to the conclusion that the appellants' application becomes unsustainable in the absence of all the promotees being impleaded as party."
44. In A. Janardhana Vs. Union of India and Ors. (1983) 3 SCC 601, it has been held as under:-
"36. It was contended that those members who have scored a march over the appellant in 1974 seniority list having not been impleaded as respondents, no relief can be given to the appellants. In the writ petition filed in the High Court, there were in all 418 respondents. Amongst them, first two were Union of India and Engineer-in-Chief, Army Headquarters, and the rest presumably must be those shown senior to the appellants. By an order made by the High Court, the names of respondents 3 to 418 were deleted since notices could not be served on them on account . Of the difficulty in ascertaining their present addresses on their transfers subsequent to the filing of These petitions. However, it clearly appears that some direct recruits led by Mr. Chitkara appeared through counsel Shri Murlidhar Rao and had made the submissions on behalf of the directs. Further any application was made to this Court by 9 direct recruits led by Shri T. Sudhakar for being impleaded as parties, which application was granted and Mr. P. R. Mridul, learned senior counsel appeared for them. Therefore, the case of direct recruits has not gone unrepresented and the contention can be negatived on the short ground. However, there is a more cogent reason why we would not countenance this contention. In this case, appellant does not claim seniority over particular individual in the background of any particular fact controverted by that person ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 38 against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing-up the impugned seniority list are invalid and illegal and the .
relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents. We may in this connection refer to General Manager, South Central Railway, Secunderabad & Anr. etc. v. A.V.R. Sidhanti and ors. etc.(l) Repelling a contention on behalf of the appellant that the writ petitioners did not implead about 120 employees who were likely to be affected by the decision in this case, this Court observed that the respondents (original petitioners) are impeaching the validity of those policy decisions on the ground of their being violative of Arts. 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating the seniority of government servants is assailed. In such proceedings, the necessary parties to be impleaded are these against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by anyone individual against another particular individual and therefore, even . if technically the direct recruits were not before the Court, the petition is not likely to fail on that ground. The contention of the respondents for this additional reason must also be negatived."
45. Petitioners have claimed a right of consideration of their contract employment for the ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 39 purpose of service benefits in light of the Constitutional Bench judgment in Direct Recruits .
case. In case of petitioners succeeding in their claim, the change in seniority position will be a mere consequence. Keeping in view the cascading effect as one of the implication in determination of legal rights of the petitioners it can never be ascertained that who would be affected to and in what manner, more particularly when challenge r simplicitor is to the validly of administrative action/decision. Nonetheless, some of the private respondents had intervened in the legal proceedings initiated by petitioners long back. Others have sought their impleadment. In view of the pendency of litigation for about twenty-five years, it cannot be presumed that the other persons likely to be affected were not aware of its pendency.
The private respondents are opposing the prayers of petitioners The private respondents, thus, cannot have any possible grievance as they have been heard and as regard espousal of the rights of others in the cadre, they have sufficiently represented the alleged cause ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 40 of others. Thus, petitions cannot be defeated on the ground of non-impleadment of necessary parties.
.
46. Another objection raised by private respondents is that petitioner No. 1 belonged to Department of H.P.P.W.D. and remaining petitioners were employed by Department of Irrigation and Public Health, hence, the petition was bad for mis-joinder of causes of action. This objection also deserves to be rejected for the reason that all the petitioners r are employees under the same employer. There is nothing on record to suggest that the service rules were different in the Departments of P.W.D. and I & P.H. It has not been denied by the respondents that petitioners were initially employed on contract basis in pursuance to similar method adopted by the employer. Thus, the alleged mis-joinder of causes of action is not going to prejudice the rights of respondents in any manner. Moreover the impugned orders herein have more than one common factor requiring adjudication on facts and law.
::: Downloaded on - 26/07/2024 20:36:25 :::CIS 4147. It was also contended for respondents that the petitioners continued to serve as contract .
employees on the strength of interim order passed by the erstwhile State Administrative Tribunal and for such reason, they can not take benefit of long continued service. In support of their contention reliance has been placed on judgment passed by Hon'ble Supreme Court in Registrar General of India Vs. Thippa Setty, (1998) 8 SCC 690.
48. The argument so raised deserves to be rejected for the reasons firstly that even before the passing of interim order in favour of petitioner No.1, the petitioners had already served for more than 5 years on contract basis, secondly, there was no interim order in favour of petitioners 2 and 3 thirdly, the contract services of petitioners had been regularized during the pendency of OA filed by the petitioner No.1 and lastly the State Government itself had chosen to grant the benefit of contract services to the petitioners for purposes of their regularization under 2004 Rules. As regards the judgment relied ::: Downloaded on - 26/07/2024 20:36:25 :::CIS 42 upon by the petitioners, the same is distinguishable;
as in that case the Tribunal had allowed the .
regularization of claimants from retrospective date and also the claimants therein were ad hoc employees.
49. In view of above discussion, the petition is allowed. The impugned orders dated 06.04.2018 and 24.12.2019, are quashed and set-aside. Official respondents are directed to consider the contract service of petitioners for the purpose of r entire seniority, qualifying service and other related service benefits. The entire exercise shall be done by the official respondents within eight weeks from the production of the copy of this order. The arrears, if any, payable to the petitioners shall also be paid within the aforesaid period.
50. The petition, is accordingly, disposed of in the aforesaid terms. Pending miscellaneous application(s), if any. shall stand disposed of.
(Satyen Vaidya)
26th July, 2024 Judge
(sushma)
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