Himachal Pradesh High Court
Satish Chander Thakur vs State Of H.P. And Another on 24 August, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No.134 of 2010
Reserved on: 08.08.2016
.
Pronounced on: August 24, 2016.
Satish Chander Thakur ..........Appellant.
versus
State of H.P. and another ...........Respondents.
___________________________________________________________________
Coram
of
The Hon'ble Mr.Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes.
For the Appellant:
rt Mr.Sunil Mohan Goel, Advocate.
For the Respondents: Mr.Shrawan Dogra, Advocate General,
with M/s Romesh Verma & Anup Rattan,
Addl.A.Gs. and Mr.J.K. Verma & Kush
Sharma, Dy.A.Gs.
____________________________________________________________
Mansoor Ahmad Mir, C.J.
This appeal is directed against the judgment, dated 13th July, 2010, passed by a learned Single Judge of this Court in CWP No.2872 of 2008, titled Satish Chander Thakur vs. State of H.P. and others, whereby the writ petition, filed by the petitioner (appellant herein), came to be dismissed, (for short, the impugned judgment).
2. Facts of the case, giving rise to the instant Letters Patent Appeal, in brief, are that the writ petitioner was appointed as Director of Prosecution, Himachal Pradesh, vide notification dated 3rd March, 2007, (Annexure P-3), relevant portion whereof is extracted below:
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"In exercise of powers conferred under sub section (2) of .
Section 25-A of the Code of Criminal Procedure, 1973, the Governor, Himachal Pradesh, is pleased to appoint Shri Satish Chander Thakur, Joint Director, Prosecution, H.P. as Director of Prosecution, Himachal Pradesh in the pay scale of Rs.14,300-400-15,900-450-18600 with immediate effect."
of
3. Thereafter, notification dated 28th March, 2007, (Annexure P-3A), was issued by the Government, whereby it was rt provided that the petitioner shall retire from service on 30th April, 2007. It is apt to reproduce relevant portion of the said notification as under:
"The Governor, Himachal Pradesh, is pleased to order that Shri Satish Chander Thakur, Director of Prosecution, Himachal Pradesh, Shimla shall retire from Government service on 30.04.2007 (AN) on attaining the age of superannuation."
4. Afterwards, vide office order, dated 16th April, 2007, (Annexure P-7), the respondents fixed the pay of the petitioner against the post of Director Prosecution.
5. As stated above, the writ petitioner was to retire from service, on attaining the age of superannuation, on 30th April, 2007, however, the State Government, vide notification, dated 30th April, 2007, (Annexure P-4), granted extension in service for a period of one year in favour of the petitioner w.e.f. 1st May, 2007 to 30th April, ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...3...
2008. It is apt to reproduce the relevant portion of the said .
notification, hereunder:
"The Governor, Himachal Pradesh, in exercise of the powers vested under Rule-56 of the Fundamental Rules as amended vide Notification No.Fin(C)A(3)-3/98, dated 30.07.1998, is pleased to grant extension in service to Shri Satish Cahander of Thakur a substantive holder of the post of Joint Director (Prosecution), Himachal Pradesh for one year w.e.f. 1.5.2007 to 30.4.2008 in the public interest in supersession of this rt Department notification of even number dated 20.5.2006."
Emphasis applied.
6. Subsequent to the notification, dated 30th April, 2007, referred to above, another notification, dated 1st May, 2007, (Annexure P-4A), was issued by the State Government, providing that the petitioner shall also hold the charge of the routine duties of the Director (Prosecution), Himachal Pradesh. Notification dated 1st May, 2007, reads as under:
"The Governor Himachal Pradesh, is pleased to order that Sh.Satish Chander Thakur substantive holder of the post of Joint Director (Prosecution) Himachal Pradesh shall also hold current charge of the routine duties of the Director (Prosecution) Himachal Pradesh with immediate effect in the public interest till further orders."::: Downloaded on - 15/04/2017 21:04:32 :::HCHP
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7. One Harmohinder Singh Rana, the then Joint Director, .
Prosecution, feeling aggrieved by the issuance of aforesaid two notifications, filed Original Application before the State Administrative Tribunal alongwith miscellaneous application for grant of interim relief, which was not granted constraining him to of question the said order by the medium of writ petition, being CWP No.871 of 2007, before this Court.
8. rt This Court passed a detailed order, dated 11th October, 2007 and in compliance thereto, the respondents issued notification, dated 31st December, 2007, (Annexure P-6), whereby the extension granted in favour of the petitioner was withdrawn and it was ordered that the petitioner would retire from service w.e.f. 31st December, 2007, afternoon. Relevant portion of Annexure P-6 is extracted below:
"The Governor, Himachal Pradesh, is pleased to order that the extension in service granted w.e.f. 1.5.2007 to 30.4.2008 in favour of Satish Chander Thakur, a substantive holder of the post of Joint Director, Prosecution, Himachal Pradesh vide notification of even number dated 30th April, 2007 shall stand terminated with immediate effect. Sh.Thakur shall stand retired from service w.e.f. 31.12.2007 (A.N.)."
9. Vide letter, dated 2nd January, 2008, (Annexure P-8), written by the Deputy Secretary (Home) to the Government of ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...5...
Himachal Pradesh, to the Director of Prosecution, it was clarified .
that since the petitioner was given extension in service against the post of Joint Director, therefore, his case be processed accordingly. Annexure P-8 is reproduced below:
"I am directed to refer to your letter No.DPr-B(3)4/86-10945, of dated 30th November, 2007, on the subject cited above and to enclose Medical Leave application w.e.f. 27.11.2007 and C/L of Sh. Satish Chander for 29.10.2007 received in the rt office. However, it is clarified that Sh.Satish Thakur has been given extension on the post of Joint Director, Prosecution. His cases may, therefore, be processed accordingly please."
Emphasis applied.
10. Thereafter, the Principal Secretary (Home), to the Government of Himachal Pradesh, issued letter to the Director Prosecution, Himachal Pradesh, dated 5th/6th February, 2008, (Annexure P-11), whereby it was clarified that the petitioner would be treated to have retired from the post of Director Prosecution and the pension case of the petitioner was ordered to be processed accordingly. However, pension case of the petitioner was returned by the Principal Secretary (Home) to the Government of Himachal Pradesh, vide letter dated 20th March, 2008, to the Director Prosecution, (Annexure P-15), with a request to process the pension case of the petitioner as Joint Director. Relevant portion of Annexure P-15 is extracted below:
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.
".................
2. You are, requested to process the pension cases of Sh.
Satish Chander as Joint Director, Prosecution at your end as per the provisions of rules under intimation to this Department immediately. The leave encashment may also be of sanctioned at your end please."
Emphasis applied.
11. rt In the above backdrop, feeling aggrieved by the action of the respondents of treating him as retired from the post of Joint Director Prosecution and not from the post of Director of Prosecution, Himachal Pradesh, the petitioner filed the instant writ petition, for the following reliefs:
"(i) This Hon'ble Court may be pleased to quash the communication, dated 20.3.2008 (Annexure P 15) vide which respondent State directed respondent number 2 to process the pension case of the petitioner as Joint Director Prosecution rather than as Director Prosecution as was directed by respondent State vide communication dated 5th/6th February, 2008 by way of issuance of a writ of mandamus to treat the petitioner as having retired form the post of Director Prosecution Himachal Pradesh and accordingly fix and pay to him pensionary benefits due and admissible to a retired Director Prosecution Himachal Pradesh w.e.f. 1.1.2008 onwards with interest including ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...7...
interest on the delayed payment of pension to the petitioner .
even by treating him as Joint Director.
(ii) Direct the respondent State by way of issuance of a writ of mandamus to pay to the petitioner pay and allowances in lieu of three months notice as is envisaged in the provisions of Fundamental Rule 56 for terminating vide notification dated 31.12.2007 the one extension granted in service in of favour of the petitioner w.e.f. 30.4.2007 with interest @ 9 percent from 31.12.2007 till the date of actual payment."
12. rt Respondents contested the writ petition and filed reply.
13. The learned Single Judge, vide the impugned judgment, after referring to the provisions contained in the Financial Rules (FR for short), held that the petitioner was given extension in service against the post of Joint Director and not against the post of Director Prosecution, and as such dismissed the writ petition.
14. Feeling aggrieved, the writ petitioner filed the instant appeal.
15. We have heard the learned counsel for the parties, perused the impugned judgment and have gone through the writ record.
16. The core questions involved in this appeal are -
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(i) Whether the Writ Court has rightly made the impugned .
judgment by upholding the action of the State Government whereby all service benefits stand granted to the writ petitioner/appellant by treating him to have retired as Joint Director (Prosecution)?
(ii) Whether the writ petitioner has retired from the post of Director of Prosecution and the retiral benefits are to be of released in his favour accordingly?
17. In order to determine the said questions, it is necessary rt to have a glance of the gist of the facts and the Rules occupying the field.
18. As per "Prosecution Manual", in the State of Himachal Pradesh, Prosecution Agency was a part of Police Organization till the year 1973, when it came to be separated from Police and in the year 1974, the Secretary (Law)-cum-Legal Remembrancer was given the charge of Director of Prosecution.
19. In the year 1996, a notification dated 5th October, 1996 was issued by the State Government, whereby Prosecution Directorate was brought under the control of Home Department.
On 14th February, 1997, a fulltime Director of Prosecution came to be appointed.
20. The Apex Court in National Human Rights Commission vs. State of Gujarat and others, (2009) 6 SCC 767, has dilated upon ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...9...
the history as to under what circumstances, a need was felt for .
creating an Independent Prosecution Agency. It is apt to reproduce paragraph 29 of the said decision hereunder:
"29. The Law Commission in 1958 had recommended that a Director of Prosecutions be set up having its own cadre, though this recommendation was not included in the Code of then. Again in 1996 the Law Commission in its 154th report identified as Independent Prosecuting Agency as one of the several areas within the Code which required redesigning rt and restructuring. The Law Commission supported most of the proposed amendments to the Code as contained in the proposed Code of Criminal Procedure Amendment Bill 1994. Recommendations related to the structure of a Directorate of Prosecutions at the State level, to be adopted by a State Government in the event it decided to set up a cadre of prosecutors. The Law Commission further recommended that the structure of State level Directorates of Prosecution be given statutory status through an amendment to the Code. Despite the absence of such a requirement and inadequacy of the Provisions in the Code a number of states mainly, Delhi, Andhra Pradesh, Bihar, Goa, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Orissa, Tamil Nadu and Uttaranchal, established a Directorate of Prosecution."
21. Vide notification, dated 22nd May, 2002, the State Government promulgated the Rules known as "The Himachal Pradesh, Prosecution Department, Director (Prosecution) Class-I ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...10...
(Gazetted) Recruitment and Promotion Rules, 2002", (hereinafter .
referred to as the Rules). As per Column 10 the said Rules, method for recruitment provided for the post of Director of Prosecution is "100% by promotion failing which by deputation". Columns 11 of the said Rules provides as under:
of "By promotion from amongst the Joint Director (Prosecution) who possess three years regular service or regular combined with continuous ad hoc (rendered upto 31-03-1998) service rt in the grade failing which by deputation of an incumbent of the cadre of Indian Administrative Service Officers........:"
22. In terms of the Rules ibid, the writ petitioner was given the additional charge of Director of Prosecution w.e.f. 3rd March, 2005, while holding the post of Joint Director, was subject matter of Writ Petition bearing No.231 of 2005 filed by Jiwan Lal Sharma, the then Joint Director, was decided on 19th October, 2005, with a command to the Government to appoint the Director of Prosecution by considering three senior-most Joint Directors by relaxing the rigors of 3 years experience as contained in the Rules ibid. It is apt to reproduce the relevant portion of the order, dated 19th October, 2005, hereunder:
"Even though all the parties in this case are agreeable to the aforesaid arrangement, we, on our part, do wish to observe that it shall be entirely upto the State Government to decide, ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...11...
of course, after and upon due consideration as directed .
hereinabove, whether to relax the rigor of three years' experience or not to relax it. Such decision, of course, has to be taken in public interest but the responsibility to take a decision shall vest with the State Government. Only after the State Government has taken such decision of relaxing the rigor of three years' experience, shall an occasion arise for of interviewing the three senior most Joint Directors as directed hereinabove. Not otherwise."
23. rt Consequent thereto, a contempt petition was filed by Jiwan Lal Sharma which was registered as COPC No.8 of 2006. In the said Contempt Petition, this Court passed a detailed order on 13th September, 2006, and directed the State Government to do the needful and file compliance report and the matter was posted on 22nd September, 2006, on which date the contempt petition came to be disposed of by providing that the respondents have filed affidavit and have complied with the directions. It is apt to reproduce paragraphs 2 to 4 of the said affidavit hereunder:
"2. That in pursuance to the aforesaid directions passed by the Hon'ble Court, the respondent/State issued a notification dated 13.9.2006 ordering Sh. Ashwani Kapoor, IAS to cease functioning as Director of Prosecution, Himachal Pradesh, Shimla w.e.f. 13.9.2006. Photocopy of said notification is placed at Annexure R-1. Accordingly, Sh. Ashwani Kumar ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...12...
Kapoor relinquished the charge of Director, Prosecution, .
Himachal Pradesh on the said date.
3. That the State Government further by way of notification dated 14.9.2006 (placed as Annexure R-2) entrusted, till further orders, the current charge of the routine duty of Prosecution (Headquarters) and by way of notification dated 20.9.2006 (placed as Annexure R-3) has constituted a of Committee under the Chairmanship of Chief Secretary, Himachal Pradesh, comprising of Pr. Secretary (Home), Pr. Secretary (Law) as members and Secretary (Personnel) to rt the Government of Himachal Pradesh as Member Secretary, to suggest a suitable person who could be considered for appointment as Director, Prosecution in conformity with the requirements of section 25A of Cr.PC. The first meeting of the Committee has been fixed for 21st September, 2006. The Committee is likely to submit its recommendation within a month's time.
4. That the Government has also started the process of amending/replacing the existing Recruitment & Promotion Rules under provision to Article 309 of the Constitution of the India for the post of Director, Prosecution, so as to bring them in consonance with the provisions of section 25A of Cr.PC. The Rules will be framed in consultation with Department of Personnel, Finance Department and Law Departments, concurrence of H.P. Public Service Commission and approval of Council of Ministers and the process may take about four months."::: Downloaded on - 15/04/2017 21:04:32 :::HCHP
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24. In compliance to the order, dated 13th September, .
2006, read with the averments contained in the affidavit supra, a Search Committee was constituted for selecting a candidate for appointment as Director of Prosecution, the said Committee recommended the writ petitioner/appellant to be appointed as of Director (Prosecution). The recommendation so made by the Search Committee was accepted by the State Government and rt forwarded to the then Chief Justice of this Court, and his Lordship was pleased to grant concurrence. Accordingly, notification was issued on 3rd March, 2007, relevant portion of which stands already extracted above, whereby and whereunder the present appellant was appointed as Director of Prosecution.
25. The writ petitioner/appellant herein was to superannuate on 30th April, 2007, but, in terms of Rule 56 of the FR, extension for one year as per notification, dated 30th April, 2007, (Annexure P-4), reproduced above, was granted in favour of the writ petitioner w.e.f. 1st May, 2007 to 30th April, 2008. A perusal of the aforesaid notification discloses that extension was granted in favour of the writ petitioner against substantive post of Joint Director. Thereafter, vide notification dated 1st May, 2007, reproduced above, it was clarified by the Government that the appellant/writ petitioner, who was substantive holder of the post of ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...14...
Joint Director, shall also hold the charge of the routine duties of the .
Director (Prosecution). He accepted the said extension order without any murmur and without any protest.
26. A perusal of the record also reveals that feeling aggrieved by the issuance of notifications, i.e. dated 3rd March, of 2007, whereby the appellant/writ petitioner was appointed as Director (Prosecution), dated 30th April, 2007 giving extension to rt the petitioner and dated 1st May, 2007 whereby he was also given the charge of the post of Director of Prosecution, one Harmohinder Singh Rana questioned the same by the medium of Original Application before the State Administrative Tribunal, was not able to get any interim direction, constraining him to file writ petition, being CWP No.871 of 2007, titled Harmohinder Singh Rana vs. State of H.P. and another, whereby following main reliefs were prayed for:
"(i) ............. .................. .........
(ii) That this Hon'ble Court may kindly order that during the pendency of Original Application 822 of 2007, the operation and implementation of the order dated 1.5.2007, made by the respondents, annexed alongwith Annexure P21, ordering that the respondent No.2, shall also hold current charge of the routine of Director Prosecution, Himachal Pradesh, may kindly be stayed.::: Downloaded on - 15/04/2017 21:04:32 :::HCHP
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(iii) That, this Hon'ble Court, may kindly direct the .
respondents that till a regular Director Prosecution is appointed, the charge of Director Prosecution be given to the Senior most person in the cadre of Joint Director Prosecution. "
27. A Division Bench of this Court passed a detailed order, of dated 11th October, 2007, (Annexure P-5), holding that the extension was not granted in favour of the petitioner as Director rt (Prosecution), but as Joint Director. It was also held that the charge of the post of Director (Prosecution), (Annexure 4A) was not given in accordance with the Rules occupying the field at that time, and was without obtaining the concurrence of the Chief Justice. Hence, the notification was held to be illegal and bad in law and, as an interim measure, till a person was appointed as Director Prosecution as per the mandate of Section 25 of the Cr.P.C., directed the respondents to appoint said Harmohinder Singh Rana as Director Prosecution on ad hoc basis. Relevant portion of the said order Annexure P-5 is reproduced below:
"We are constrained to observe that despite the clear cut observations of the Chief Justice of this Court that respondent No.2 Satish Chander Thakur could not have been granted extension in service without first obtaining the concurrence of the Chief Justice, the State has totally sidelined the valuable opinion of the Chief Justice and ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...16...
respondent No.2 continues to hold this post till date. The .
Chief Justice has also clearly held that Shri Jawaharlal Sharma is not better suited and there are no reasons for superseding petitioner Shri H.S. Rana. Section 25A(2) of the Cr.P.C. clearly lays down that the appointment to the post of Director Prosecution can only be made with the concurrence of the Chief Justice of the High Court. When of the Chief Justice does not agree with the name of particular person then it would be totally inappropriate and inexpedient to permit him to continue on ad hoc basis.
rt Accordingly we are of the considered view that till a person is appointed as Director of Prosecution in consonance with Section 25A of the Cr.P.C., only the senior most person in the department should be permitted to discharge the functions of the said post on ad hoc basis. We accordingly order that respondent No.2 shall cease to hold the charge of the post of Director Prosecution forthwith and we further direct that the petitioner who is the senior most officer in the department presently working as Joint Director Prosecution, shall discharge the duties and functions of Director Prosecution till regular appointment is made in terms of Section 25 A of the Cr.P.C. The application is disposed of in the aforesaid terms."
Emphasis applied.
28. The said writ petition was finally disposed of vide order dated 30th June, 2008, as having become infructuous for the reason that the writ petitioner Harmohinder Singh Rana was ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...17...
appointed as Director of Prosecution. It is apt to reproduce the .
said order dated 30th June, 2008 as under:
"CWP No.871/2007 & CMP No.1513/2008 The petition is stated to have become infructuous, on account of the writ petitioner having been appointed as Director of Prosecution. Hence, the same is dismissed as of infructuous.
Both the petition and he application stand disposed of.
Other pending application(s) also stands disposed of."
rt
29. As has been stated by the learned counsel for the parties, it appears that the main Original Application filed by Harmohinder Singh Rana was transferred to this Court, on abolition of the erstwhile Tribunal, which was diarized as CWP(T) No.14929 of 2008, on establishment of the State Administrative Tribunal, again the writ petition was sent back to the Tribunal and has been diarized in the Tribunal as TA No.322 of 2015.
30. In terms of the direction passed by this Court in CWP No.871 of 2007, the notification issued by the State Government giving extension in service to the appellant/writ petitioner was terminated vide order dated 31st December, 2007 (Annexure P-6) reproduced above. Thereafter, the petitioner applied for retiral benefits i.e. pension, gratuity etc. The respondents somewhere ordered to consider the writ petitioner as retired from the post of ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...18...
Director (Prosecution) and pursued his pension case accordingly .
and in some communications, his case was ordered to be processed as having retired from the post of Joint Director, constraining the petitioner to make representations.
31. Thereafter, the Government issued a communication, of Annexure P-15, whereby it was provided that the case of the petitioner was to be processed as Joint Director Prosecution as per rt the Rules occupying the field, constraining the petitioner to question Annexure P-15 by the medium of the writ petition, came to be dismissed, which has given birth to the instant appeal.
32. Respondents have filed the reply, wherein they have admitted that the petitioner was appointed as Director of Prosecution after following due process of law and as per the Rules occupying the field read with Section 25-A of the Cr.P.C. It is apt to reproduce paragraphs 11, 13 and 14 of the reply hereunder:
"That the contents of para 11 are wrong and denied. In fact, the petitioner was appointed Director (Prosecution) in terms of Section 25-A Cr.P.C. only till the date of his regular superannuation i.e. 30.4.2007. However, vide Annexure P-4, the petitioner was given extension for one year w.e.f. 1.5.2007 to 30.4.2008 as a substantive holder of the post of Joint Director (Prosecution) and not as Director (Prosecution). In case, the petitioner was to continue as Director (Prosecution) during the aforesaid extended period, ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...19...
concurrence of the Chief Justice of the Hon'ble High Court .
was mandatory in terms of Section 25-A Cr.P.C. as had been done earlier while he was appointed as regular Director (Prosecution) on 3.03.2007, failing which the Petitioner continued as Joint Director (Prosecution) only from 1.5.2007 to 31.12.2007. Since, extension given by Annexure P-4 was without any justification, therefore, the same was lawfully of withdrawn by the replying Respondent vide Annexure P-6 in terms of the Policy decision taken by the State Govt. in respect of case relating to extension of service. It is also rt relevant to submit that even routine duty charge of the post of Director (Prosecution) which was earlier held by the petitioner during the extended period of service ceased to be held by him in view of the orders dated 11.10.2007 passed by the Hon'ble High Court in CMP No.1506 of 2007 (already placed on record as Annexure P-5). Accordingly, the petitioner is not entitled for the benefit under FR-56 against the post of Director (Prosecution) being a substantive holder of the post of Joint Director (Prosecution). Furthermore, in terms of the aforesaid orders dated 11.10.2007, Shri H.S. Rana, who was senior most Joint Director (Prosecution) vide order/Notification dated 19.10.2007 (Photocopy of the same submitted as Annexure R-2) and thereafter vide Notification dated 3.01.2008 (Photocopy of the same submitted as Annexure R-3) regular appointment of Director (Prosecution) in terms of Section 25-A Cr.P.C. was made.
12. ........ .........
13&14. That the contents of para 13&14 of the petition are wrong and denied. It is humbly submitted that the petitioner ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...20...
was holding the charge of Director Prosecution w.e.f.
.
3.03.2007 (AN) to 30.04.2007 and not upto 3.12.2007, as alleged. It is further submitted that the petitioner stood appointed as Director (Prosecution) with the concurrence of Hon'ble the Chief Justice of Himachal Pradesh, High Court in terms of Section 25A till the date of his superannuation only i.e. 30.4.2008. The petitioner was given extension in service of from 1.05.2007 to 30.04.2008 as a substantive holder of the post of Joint Director (Prosecution) as for his continuation as Director (Prosecution) concurrence of the Hon'ble Chief rt Justice of Himachal Pradesh High Court in terms of Section 25A Cr.P.C. was mandatory. The Government had recommended the name of the petitioner to the Hon'ble Chief Justice for granting concurrence for the extended period, which was refused by the Hon'ble Chief Justice. As such, it is wrong to suggest that the petitioner was holding the substantive post of Director (Prosecution), entitling him for fixation of pensionary benefits attached to said post. The petitioner retired as Joint Director (Prosecution), which post he was holding in substantive capacity. Accordingly, the pensionary benefits of the petitioner have been worked out on the basis of average emoluments paid for the last 10 months of service rendered as Director of Prosecution w.e.f. 4.03.2007 to 30.04.2007 and as Joint Director of Prosecution w.e.f. 1.05.2007 to 31.12.2007."
Emphasis applied.
33. While going through the orders made by the State Government from time to time, referred to above, read with the ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...21...
pleadings, it is admitted fact that the appellant/writ petitioner was .
appointed as Director (Prosecution) w.e.f. 3rd March, 2007 and was holding the post till 30th April, 2007, when he reached the age of superannuation. It is also borne out from the records that the writ petitioner came to be appointed as Director of Prosecution after of following due process as envisaged under the Rules and also following the judgment made by the Division Bench of this Court.
rt At the cost of repetition, the Search Committee, after examining the case of three senior most eligible Joint Directors, recommended the name of the writ petitioner for being appointed as Director (Prosecution). Upon the said recommendation having been accepted by the State Government, the petitioner came to be appointed as such with the concurrence of the Chief Justice.
The writ petitioner continued to hold the post of Director of Prosecution till he reached the age of superannuation i.e. till 30th April, 2007. Thus, till 30th April, 2007, by no stretch of imagination, it can be said that the petitioner was not holding the post of Director of Prosecution.
34. No doubt, the Rules of 2002 were amended in the year 2006, however, the amendment brought was insignificant and not relevant for the present discussion. Thereafter, the Rules of 2002 were amended in the year 2013, which envisage full mechanism ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...22...
how to appoint a Director (Prosecution) from the hierarchy of Joint .
Directors i.e. feeding cadre. Under the Rules of 2013, the concurrence of the Chief Justice for appointing Director of Prosecution has been made mandatory. However, that aspect of the Rules is not before us and we are not delving into the same.
of
35. In the given circumstances, it can safely be held that the appellant/writ petitioner was holding the post of Director rt (Prosecution) and retired as such on attaining the age of superannuation i.e. 30th April, 2007.
36. It is also held that the petitioner has served the Department against the post of Joint Director w.e.f. 1st May, 2007 till 31st December, 2007 for the simple reason that he was given extension against the post of Joint Director, which he accepted, is caught by conduct and estoppel. He cannot be permitted to turn around and seek writ of mandamus directing the respondents to treat him as having retired from the post of Director of Prosecution as on 31st December, 2007. The said extension of the petitioner was held to be illegal by this Court by directing the respondents State to appoint Shri Harmohinder Singh Rana, the then senior most Joint Director, as Director Prosecution. The writ petitioner worked as Joint Director for the said period and has received emoluments accordingly.
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37. The Apex Court in Anjanappa vs. State of Karnataka, .
2013 AIR SCW 6681, held that an employee is entitled to retiral service benefits against the post which he was occupying at the time of superannuation as per the Rules occupying the field. In that case, the employee was getting higher scale of pay while on of deputation. After repatriation to parent Department, on selection, he was given higher scale of pay and his pay was fixed in view of rt pay drawn by him while he was working in the ex-cadre post. Such fixation was held to be erroneous and it was held that the employee was not entitled to get pay on the basis of the pay drawn by him before his retirement, but was held entitled to pay and salary to which he was entitled as per the Rules occupying the field in his parent department and the retiral service benefits were to be granted to him accordingly. It is apt to reproduce paragraphs 19 and 22 of the said decision hereunder:
"19. It is not in dispute that the respondent was sent on deputation and his lien in the parent department continued and hence, it was obligatory on the part of the authorities in the parent department to intimate him when the selection process for the higher post was undertaken as he had already come within the zone of consideration. In this context, we may refer with profit to the authority in D.M. Bharati v. L.M. Sud and others, 1991 Supp (2) SCC 162 wherein the Court was dealing with a case whether the ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...24...
employee had got a promotion in the department to which .
he was sent on deputation. While considering the effect of the said promotion after repatriation the Court observed thus:-
"that the appellant's promotion as junior draftsman and proposed promotion as Surveyor-cum-Draftsman in the Town Planning Establishment cannot confer any rights on him in his parent department. When he left of the Municipal Corporation and joined the Town Planning Establishment he was a tracer and he can go back to the Estate Department or any other rtdepartment of the Municipal Corporation only to his original post i.e. as tracer, subject to the modification that, if in the meantime he had qualified for promotion to a higher post, that benefit cannot be denied to him."
Thus, the repatriation has to be to the original post and benefit of promotion in the department to which an employee is deputed is of no consequence subject to his entitlement of status otherwise available in the parent department.
............ .............. .............
22. In the case at hand, as stated earlier, the respondent was getting higher scale of pay in the post while he was holding a particular post as a deputationist. After his repatriation to the parent cadre on selection to a higher post he was given higher scale of pay as it was fixed keeping in view the pay scale drawn by him while he was working in the ex-cadre post. Such fixation of pay, needless to say, was erroneous and, therefore, the authorities were within their domain to rectify the same. Thus analysed, the irresistible conclusion is that the tribunal and the High Court have fallen ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP ...25...
into error by opining that the respondent would be entitled .
to get the pension on the basis of the pay drawn by him before his retirement."
38. Applying the tests, it is held that the petitioner was holding the post of Director of Prosecution as on 30th April, 2007, of (actual date of superannuation) and is entitled to all retiral benefits against the said post.
39. In view of the above discussion, the impugned rt judgment needs to be set aside and the same is set aside, writ petition is granted with a command to the respondents to grant all retiral service benefits to the writ petitioner/appellant as Director Prosecution upto 30th April, 2007 as per the last pay drawn by him as on 30th April, 2007.
40. The appeal stands disposed of accordingly, so also the pending CMPs, if any.
(Mansoor Ahmad Mir) Chief Justice.
August 24, 2016. (Tarlok Singh Chauhan) (Tilak) Judge ::: Downloaded on - 15/04/2017 21:04:32 :::HCHP