Punjab-Haryana High Court
Rampal Malik And Another vs State Of Haryana And Others ... on 27 September, 2010
Author: Permod Kohli
Bench: Permod Kohli
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
1. CWP. No. 5327 of 1987 Date of Decision: 27.9.2010.
Rampal Malik and another --Petitioners
Versus
State of Haryana and others --Respondents
2. CWP. No. 287 of 1987
Teja Singh Sandhu and another --Petitioners
Versus
State of Haryana and others --Respondents
CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI.
Present:- Mr. R.K. Malik, Sr. Advocate with
Mr. Vishal Malik, Advocate.
Mr. D.S. Patwalia, Advocate.
Mr. R.S. Kundu, Addl. A.G., Haryana.
Mr. Satpal Bansal, respondent no.5 in person.
Mr. T.S. Dhindsa, Advocate.
Mr. R.N. Raina, Advocate.
***
PERMOD KOHLI.J (ORAL) Based upon common issues of law and facts, these petitions are being disposed of by this common order.
Petitioners in these petitions were appointed through direct recruitment to Haryana Agriculture Service Class-I (hereinafter called as the Service). Petitioners in CWP No. 5327 of 1987 were appointed in September, 1975 and 1976 respectively, whereas the petitioners in CWP No. 287 of 1987 were appointed in August, 1975 and 1976 respectively. Respondents in both the petitions are common. Respondents no.3 to 5 were CWP. No. 5327 of 1987 -2- promoted to H.A.S. Class-I on 5.11.1971 on ad hoc basis, whereas respondent no.6 Sh. S.T. Jaiswal was promoted to the service on ad hoc basis on 8.5.1973. Subsequently, some posts of Deputy Directors, Agriculture in the service were advertised. Respondents Sh. S.K. Sindhwani and Sh. Arjun Singh along with petitioner no.2 Sh. Bhanwar Singh in CWP No. 5327 of 1987 and petitioner no.2 Sh. Prem Chand Gupta in CWP No. 287 of 1987 applied for direct recruitment for these posts. Sh. Arjun Singh was rejected, whereas petitioner no.2 in CWP No. 5327 Sh. Bhanwar Singh and petitioner no.2 in CWP No. 287 of 1987 Sh. Prem Chand Gupta and Sh. S.K.Sindhwani were appointed as Deputy Directors, Agriculture on the recommendations of the H.P.S.C. In the gradation list of the service as on 1.4.1977 petitioners Sh. Rampal Malik and Sh. Bhanwar Singh are shown at Sr. Nos. 20 and 32, petitioners Sh. Teja Singh Sandhu and Sh. Prem Chand Gupta at Sr. Nos. 14 and 18 and respondents no. 3 to 6 at Sr. Nos. 19, 27, 26 and 34 respectively. Respondents no.4, 5 and 6 were shown to be working on ad hoc basis as is evident from the gradation list (Annexure P-2). It is alleged that respondents Sh. S.P. Bansal and Sh. S.T. Jaiswal were not eligible to apply for the post of Deputy Director, Agriculture. Respondent no.1, however, approached the H.P.S.C to convey their approval for continuance of the service of respondent Sh. S.T. Jaiswal in the service beyond six months. The Commission declined the request on the ground that Sh. S.T. Jaiswal was working against the post meant for direct recruits. The Govt., however, again requested the Commission for grant of approval regarding the ad hoc appointment of Sh. S.P. Bansal from 8.11.1973 to 30.4.1977 or till such time the post is filled up by direct recruitment vide letter dated 5.11.1976. The Govt. vide its letter dated CWP. No. 5327 of 1987 -3- 27.5.1975 and October, 1975 (Annexures P-6 & P-6/A) requested the Accountant General, Haryana to issue the salary slips in favour of S/Sh. S.P. Bansal and Sarwan Singh, H.A.S. Class-I officers for a further period of six months as the matter of promotion of these two officers to the post of H.A.S. Class-I is under consideration of the H.P.S.C. Respondent no.1 issued an order dated 2.2.1979, whereby Govt. Memo dated 5.11.1971 has been modified refusing conversion of the promotions of private respondents no.3,4 and 5 into officiating basis instead of ad hoc basis subject to the approval of the H.P.S.C with effect from the date of their promotion i.e. 5.11.1971. Vide another order dated 28.8.1986 (endorsed on 3.9.1986) promotion of respondents no.3 to 6 was made on regular basis in H.A.S. Class-I (Soil Conservation) retrospectively. In case of respondents no.3 to 5 the benefit of promotion was granted from 5.11.1971 and in case of respondent no.6 w.e.f. 8.5.1973 (Annexure P-8). A tentative seniority list up to 1.6.1984 was circulated in July, 1984. In this seniority list, the seniority is notified on sub cadre basis i.e. General Line, Statistics, Engineering, Ground Water and Research. However, the officers of General Line, Soil Conservation and Ground Water Cell have been clubbed together in the General Line. Petitioners in CWP No. 5327 of 1987 were shown at Sr. Nos 9 and 14, petitioners in CWP No. 287 of 1987 were shown at Sr. Nos. 10 and 11, whereas respondents no. 3 to 6 are shown at Sr. Nos. 5, 7, 4 and 18 respectively. The petitioners in both these petitions represented against the aforesaid tentative seniority list and also objected the promotions on the basis of the said seniority list. Petitioner Rampal Malik in CWP No. 5327 of 1987 and petitioners in CWP No. 287 of 1987 jointly filed CWP No. 3549 of 1985 in this Court claiming that the cadre of Soil Conservation CWP. No. 5327 of 1987 -4- was a separate cadre from General Administrative cadre and objected to the clubbing of two cadres for purposes of fixation of seniority. This writ petition came to be disposed of vide order dated 30.7.1985 on the undertaking of respondent no.1 that a fresh tentative seniority list would be circulated within three months. Pursuant to the aforesaid undertaking a fresh tentative seniority list came to be circulated depicting seniority as on 31.10.1985. In this seniority list the officers belonging to Hydrology, Statistics and other branches including Soil Conservation and Soil Testing were clubbed with the General Administrative cadre, however, objections were invited from the officers within 10 days. Petitioners Sh. Rampal Malik, Bhanwar Singh, Teja Singh Sandhu and Prem Chand Gupta were shown at Sr. Nos. 9, 13, 10 and 11 respectively, whereas, the private respondents no. 3 to 6 were shown at Sr. Nos. 5, 7, 4 and 18 respectively. Petitioners again represented against this tentative seniority list. This seniority list was later finalized vide Annexure P-9 as it stood on 30.1.1986.
The petitioners have, accordingly, filed this petition seeking following reliefs:-
" (i) Complete records of the case be called for;
(ii) a writ in the nature of certiorari or any other appropriate writ, order or direction quashing the seniority list, annexure P/9 and the orders annexures P/7 and P/8 be issued;
(iii) a writ in the nature of mandamus directing respondents no.1 and 2 to reframe and circulate the seniority of Haryana Agricultural Service Class I by making the same separately for each cadre, be issued. Respondent no.1 be directed to frame separate seniority of Administrative (General) cadre in the Haryana Agricultural Service Class I;
(iv) It is further prayed that during the pendency of the writ petition, no officer belonging to other cadre than the Administrative (General) be promoted to the post in the said cadre; CWP. No. 5327 of 1987 -5-
(v) condition regarding filing of certified copies of annexures be dispensed with;
(vi) costs of the petition be also awarded;
(vii) condition regarding service of advance notice of the writ
petition be dispensed with."
The petitioners have raised following contentions:-
1. Retrospective regularization of the private respondents from 1971 and 1973 is bad in law as they were appointed against direct recruitment quota posts.
2. The Soil Conservation cadre and other cadres are distinct and separate and promotions are to be made in their own line in terms of the Govt. Instructions dated 18.1.1971 and 30.3.1971 (Annexures P-10 & P-11)
3. The seniority position has been changed to the detriment of the petitioners without even providing them an opportunity of being heard.
Though, separate written statements have been filed by the official respondents in both the writ petitions, however, the contents of both the written statements are same. The private respondents have filed written statement in CWP No. 287 of 1987. The official respondents have pleaded that objections were invited in respect to the tentative seniority list dated 31.10.1985 within 10 days, though, the objections received even up to 30.11.1985 (i.e one month) were entertained and after hearing some of the officers a final seniority list was drawn by the Govt. according to Punjab Agricultural Services (Class-I) Rules, 1957. It has further been stated that the seniority list has been issued pursuant to the directions issued by the High Court in CWP No. 3549 of 1985. It is further pleaded that under the rules, there is no provision for the separate seniority for different branches there being only one cadre under service rules. In CWP No. 5327 of 1987 it is stated that petitioner no.1 was appointed as a direct recruit on 8.9.1975 as H.A.S.-I on the post of Chief Training Officer. He was promoted as Joint CWP. No. 5327 of 1987 -6- Director of Agriculture on 27.8.1981 and as an Additional Director on 6.10.1997. This petitioner retired on 31.10.2002. Petitioner no.2 was also appointed as Deputy Director, Agriculture on 23.9.1976. He was promoted as Joint Director, Agriculture on 31.3.1989 and also as A.D.A i.e Additional Director, Administration on 2.1.1998 and finally retired from service on 30.6.2001.
In respect to petitioners in CWP No. 287 of 1987, it is stated that the petitioner Sh.Teja Singh Sandhu was selected as H.A.S.-I in August, 1975 by direct recruitment as Chief Training Officer. It is further stated that Sh. S.K. Sindhwani, Sh. Arjun Singh (respondents), Sh. Prem Chand Gupta (petitioner no.2) applied for the post of Deputy Director, Agriculture. Sh. Arjun Singh was not selected, whereas Sh. S.K. Sindhwani and Sh. Prem Chand Gupta were selected and appointed in H.A.S. Class-I vide order dated 5.5.1986. In the merit list prepared by the H.P.S.C, Sh. Prem Chand Gupta was at Sr. No.1 and Sh.S.K. Sindhwani at Sr. No.2. It is further admitted by the respondents that a request was made to the H.P.S.C for continuing the services of some of the private respondents beyond six months. Respondent no.6 Sh. S.D. Jaiswal also made a representation to Govt. for regularizing his services in H.A.S. Class-I. His representation was under consideration of the Govt. and during this period he filed CWP No. 2502 of 1984 in this Court. Vide order dated 30.7.1985 the High Court directed the Govt to finalise the regularization case of Sh. S.D. Jaiswal within two months. The Govt. on examination of the entire case ordered the regularization of his services w.e.f. 5.8.1973 with the approval of the H.P.S.C vide Annexure P-8, whereas the services of respondents no. 3 to 5 were regularized on 5.11.1971 in consultation with CWP. No. 5327 of 1987 -7- the H.P.S.C. Regarding fixation of seniority, it is stated that respondents no.3 to 5 were promoted in H.A.S. Class-I on regular basis w.e.f. 5.11.1971 and Sh.S.T. Jaiswal w.e.f. 8.5.1973, whereas the petitioners Sh. Rampal Malik and Sh. Bhanwar Singh were appointed in H.A.S. Class-I by direct recruitment vide orders dated 21.8.1975 and 21.7.1976 respectively. Petitioner no.2 was appointed in the year 1986 through direct recruitment. It is, accordingly, stated that the private respondents having been appointed in the year 1971 and 1973 were senior to them. It is further stand of the State that the tentative seniority list of H.A.S. Class-I as on 1.6.1984 was circulated in July, 1984. This seniority list was prepared sub cadre wise viz General Line, Engineering, Statistics, Ground Water Cell and Research. Later another seniority list was prepared in which only two sub cadres i.e (a) sub cadre engineering and (b) sub cadre other posts i.e administrative were inducted. Later seniority list as it stood on 1.10.1985 with sub cadres was approved by the Govt.. According to respondents vide letter dated 19.2.1987 the Govt. desired that a fresh sub cadre wise seniority list of H.A.S. Class-I should be prepared with the following sub cadres:-
" (1) Sub Cadre Engineering.
(2) Sub Cadre other posts-Administrative.
There are following sub cadres in Punjab Agricultural Services (Class-I) Rules, 1947:-
(I) a) Research posts
b) Teaching
(c) Engineering
(II) Other posts-Administrative."
CWP. No. 5327 of 1987 -8-
It is also the stand of the respondents that under the Punjab Agriculture Services Class-I Rules, 1957 no ratio of filling up of the posts by direct recruitment or by way of promotion has been fixed and thus the Govt. is competent to make appointments either by promotion or by direct recruitment. The Govt. accordingly decided to fill up the posts by way of promotion and respondents no.3 to 6 were promoted on ad hoc basis vide order dated 5.11.1971 later modified to declare the ad hoc promotions as officiating in consultation with the H.P.S.C vide order dated 7.2.1979 (Annexure P-7). It is also stated that there is no provision in the rules for separate sub cadre by seniority.
Appointment to the H.A.S. Class-I is governed and regulated by the Punjab Agriculture Services, Class-I Rules, 1957. Direct recruitment is governed by Rule 3, whereas the promotion is governed by Rule 10. The qualification etc. are prescribed under the Appendix A to the rules. Rule 3 and 10 are reproduced hereunder:-
" 3.(1)- All recruitments to research, teaching and engineering posts shown in Appendix 'A' to these rules shall be by direct appointment through the Commission. An officer already in the service of the Central or Provincial Govt. may with the permission of the Govt. under which he is serving, apply for an appointment and his claim will be considered with those of the other candidates.
Provided that no relaxation of the academic quali, if demanded, shall be made in favour of Govt. servants applying for these posts.
(2) Appointments to posts shown in Appendix 'A' to these rules, other than research, teaching and engineering posts, shall be by direct appointment or by promotion as Govt. may in each case decide, provided CWP. No. 5327 of 1987 -9- that not less than fifty per cent of all permanent appointments to the posts of Deputy Directors of Agriculture shall be made by promotion from the Class II service. In the case of direct appointments, an officer already in the service of the Central or and provincial govt. may apply with the permission of the Govt. under whom he is serving and his claims will be considered along with other candidates.
10. Qualifications for appointment by promotion Appointments to the service by promotion of officers belonging to the Class II service, including temporary officers or the holders of temporary posts in the Class II service, will be made by selection on the advice of the Commission on the basis of;
i) Merit ii) Special training and experience required for the post and; iii) Approved Service.
Provided that the minimum academic qualifications and experience, if any, for appointment other than by direct recruitment to the following posts shall be as shown against each:-
Sr. No. Designation of post Academic qualification and experience if any, for appointment other than by direct recruitment.
1. Additional Director of Five years experience on the post of Joint Agriculture. Director of Agriculture or equivalent posts.
2. Joint Director of Agriculture. Five years experience on the post of Deputy Director of Agriculture or equivalent Class-I post.
3. Deputy Director of Agriculture. (i) A degree or diploma in Agriculture from a recognized Indian or foreign university.
(ii) Five years practical experience in Agriculture Research or extension or both.
4. Joint Director (statistics) Five years experience on the post of Deputy Director (Stat.) or equivalent Class-I post.
5. Agriculture Engineer Five years experience as Assistant Agricultural Engineer or Subject Matter Specialist (Engineering) or Sub Divisional Officer (Gobar Gass Plant) CWP. No. 5327 of 1987 -10- Notwithstanding anything contained in sub Rule (1) to (4) the minimum qualifications and experience in respect of the following posts shall be as under:-
Sr. No. Designation of post Academic qualifications and experience, if any for direct recruitment.
1. Deputy Director of Agriculture (a) At least 2nd class M.Sc in Agriculture from a recognized Indian or foreign university.
(b) Five years practical experience in Agriculture Research or Extension or both after acquiring the minimum basic qualifications.
(c) Adequate knowledge of Hindi.
These rules were, however, amended on 1.9.1978 and in the Appendix some changes were made. Since the appointments to the H.A.S. Class-I were made in the year 1975-76 the amended rules are not applicable.
It is nobody's case that the private respondents at the time of their ad hoc promotion to the H.A.S. Class-I were not eligible in any manner. It is also admitted position that they continued to man the promotional post uninterruptedly, respondents no.3 to 5 from 5.11.1971 and respondent no.6 from 8.11.1973. Vide order dated 2.2.1979 (Annexure P-7) the Govt. decided to treat the ad hoc promotion of private respondents as officiating subject to approval of Commission. The Commission subsequently granted approval and on such approval these private respondents were granted regular promotion retrospectively vide order dated 28.8.1987 (3.9.1987) (Annexure P-8).
The contention of the petitioners is two fold. Firstly, that Sh.S.T. Jaiswal, respondent no.6 was against the direct recruitment quota, whereas, other respondents were promoted on ad hoc basis. It is true that there are communications on record (Annexures P-6 & P-6/A) whereby the Govt. asked the Accountant General, Haryana to issue the salary slips in CWP. No. 5327 of 1987 -11- view of the continued ad hoc appointment or promotion of these respondents. However, from the statutory rules governing the recruitment to the service, it appears that no quota is prescribed for promotion or direct recruitment, rather, sub rule 2 of rule 3 prescribes that the posts shown in Appendix A other than the Research and Teaching posts shall be filled by direct recruitment or by promotion as Govt. may in each case prescribed. The proviso prescribes that not less than 50% of the permanent posts of Deputy Directors of Agriculture shall be filled up by promotion from Class- II service. The embargo of 50% promotion does not mean 50% by promotion. The rule only says not less than 50%, meaning thereby that the promotions can be made beyond 50% as well. Thus, there is no fixed quota for direct recruitment and it has been left to the wisdom of the Govt. to decide as to how many vacancies should be filled by direct recruitment and how many by promotions. The contention of the petitioners that the private respondents were working against the direct recruitment quota is not sustainable. It has also been seen that even when the petitioners were appointed against direct recruitment quota, there were vacancies against which the private respondents continued to work. Thus, despite direct recruitment there were enough vacancies to promote the private respondents. Their eligibility at the time of their initial promotion is not in dispute. Under such circumstances the orders Annexures P-7 & P-8 do not suffer from any legal or factual infirmity. The present case is squarely covered by a constitutional judgement of the Hon'ble Apex Court in case of the Direct Recruit Class-II Engineering Officers' Association and others Vs. State of Maharashtra and others reported as AIR 1990 SC 1607 wherein it has been held as under:-
CWP. No. 5327 of 1987 -12-
" (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."
The private respondents were eligible at the time of their ad hoc/officiating promotion to Class-I. The only requirement was procedural i.e the consideration of the Commission. The Commission accorded the approval for their promotion from the date of their officiation/ad hoc promotion as is evident from Annexure P-8.
These very rules i.e Haryana Agriculture Services Class-I, Rules, 1957 came up for consideration before the Hon'ble Supreme Court in case of Ram Pal Malik Vs. State of Haryana and others reported as 1994(4) SLR 608.
In the aforesaid case also ad hoc promotee was made regular to Class-I post retrospectively. His promotion was challenged. The Hon'ble Supreme Court considering the rules observed as follows:-
" (The Punjab Rules are applicable in Haryana also). It is not pointed out that the third respondent was not qualified or was not eligible for promotion to Class-II on the said date. The mere fact that he was promoted initially on ad hoc basis did not preclude the Govt. from treating the said date as the date of regular promotion if it was satisfied that it should be so done in the interests of justice. It may also be noticed that according to Rule 10 of Punjab Agriculture Service Class-I Rules, 1947, promotion to Class-I has to be effected by selection on the advice of the Commission on the basis of (i) merit (ii) Special training and experience required for the post and (iii) approved dismissed. No order as to costs services. The third CWP. No. 5327 of 1987 -13- respondent's promotion has been effected in consultation with the Public Service Commission and we must resume that the Commission must have been satisfied with the reasons for the regularization and retrospective promotion given to him."
The contention of the petitioners that they were not heard while disturbing their seniority, also cannot be accepted. From Annexure P-8, it is evident that objections were invited in respect to the tentative seniority list. Petitioners filed their objections. Not only this, the order further says that the concerned objectors were heard. The same stand is reiterated in the reply. Petitioners have not filed any replication to controvert the averments made in the impugned order and the reply. It can safely be presumed that the petitioners were heard or at least their representation has been taken into consideration while fixing the seniority.
I do not find any merit in this petition, which is accordingly, dismissed.
Copy of this order be placed on each connected file.
(PERMOD KOHLI) JUDGE 27.9.2010.
lucky Whether to be Reported? Yes.