Punjab-Haryana High Court
Tilak Raj Sharma And Others vs Haryana Financial Corporation And ... on 14 March, 2012
Author: K. Kannan
Bench: K. Kannan
C.W.P. No.2636 of 1990 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No.2636 of 1990
Date of Decision.14.03.2012
Tilak Raj Sharma and others .....Petitioners
Versus
Haryana Financial Corporation and others .....Respondents
2. C.W.P. No.11991 of 1990 Naresh Sharma and 25 others of Haryana Financial Corporation, Sector 17, Chandigarh .....Petitioner Versus The Haryana Financial Corporation, S.C.O. No.17, 18 and 19, Sector 17-A, Chandigarh and others .....Respondents Present: Mr. Subhash Ahuja, Advocate for the petitioners.
Mr. Kamal Sehgal, Advocate for the respondents.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
-.-
K. KANNAN J.
1. The genesis of dispute in the above two cases could be traced to a decision of the Board of Directors on 22.11.1984 to create a separate post as a Personal Assistant to the Managing Director that equated him to Stenographer Grade-I and yet another post as a Personal Secretary whose post was equivalent to an Assistant Manager with still higher scales. In the manner of working out the decisions taken by the Board of Directors, there C.W.P. No.2636 of 1990 -2- had been a breach with reference to accommodating some persons in the post of Personal Assistant and Personal Secretary drawn not merely on the basis of seniority but by the respective persons holding on to the post under fortuitous circumstances at the time when the Board decision was taken in the year 1984.
2. The opposition to the merger of the seniority had been on account of the fact that the general cadre employees at all times felt that if the Board resolution was put in place, every Stenographer would have two options: either to have seniority in his own cadre or to the general side, which was beneficial to him without taking into account the seniority of the employees of the general side senior to him. By such a process, he could bye-pass seniors in the general side. A person could have seniority in his own grade and it would not permissible to disturb the seniority of other classes at his discretion to bye pass the seniors. Once there had been a merger of seniority, the question of retaining the identity in their cadre would not arise and Stenographers could only be promoted when all his seniors were promoted from general side. On the other hand, the Stenographers were still claiming separate seniority in their own cadre so that they could take a benefit as and when it was suitable to them.
3. As illustrative of their apprehensions about the injustice that could arise, the petitioners would point out to the fact that in September, 1983 when the posts of Personal Assistants were lying vacant and the same were to be filled in by promoting senior-most Stenographers Grade-I at that time, they were promoted as Assistant Managers on the general side by giving them the benefit of merger of seniority with general cadre and a C.W.P. No.2636 of 1990 -3- junior employee was promoted as Personal Assistant by giving him the benefit of separate seniority. A Senior Assistant in the general cadre was superseded and two or more junior Stenographers Grade-I had become Personal Assistants and superseded many of the seniors (Assistants) on the general side. Stenographer Grade-II was also promoted as Assistant by giving him the benefit of merger of seniority and he had been promoted as Personal Assistant by giving him the benefit of separate seniority as Stenographer.
4. By a merger of the Stenographers with general cadre, there arose several other anomalies. The 2nd respondent S.P. Vashisht, who was a Personal Secretary to the Managing Director and O.P. Khurana, the 3rd respondent, who was a Personal Assistant,had joined as Stenographers Grade-I and Grade-II respectively and promoted as Personal Secretary/Personal Assistant without minding the fact that there were persons senior to him in Stenographers Grade-I and II. Subsequent to the decision in the year 1984 when a seniority list had been circulated on 01.08.1988, respondent Nos.2, 3, 4, 6 to 11 in C.W.P. No.2363 of 1990 had been placed above the petitioners. Respondent Nos.2, 3 and 4 happened to hold posts, which were higher to the posts of Assistants, which the petitioners held in the year 1985. The 5th respondent in C.W.P. No.2363 of 1990 (Asha) had been promoted on 15.01.1990 although petitioners No.2, 3 and 4 claimed themselves to be seniors and the promotion offered without considering any one of them was contended to be not justified.
5. In the Stenographers' cadre, the posts in the hierarchical ladder were Stenographers Grade II, Stenographer Grade I, Assistant C.W.P. No.2636 of 1990 -4- Manager and Manager in the order of ascendency. In the clerical cadre, the posts equivalent to Stenographer II upwards was Senior Clerk, Assistant, Assistant Accountant and Accountant, Accountant being equivalent to the post of Manager. There was however one important practical difficulty that while a person from the Stenographer cadre could switch easily to the clerical or the common cadre, the reverse was not possible, for, a person to move up the ladder in the Stenographers cadre had to acquire specific knowledge of stenography. When the Board, therefore, took a decision on 22.11.1984 by creation of two posts of Stenographers in Grade I and when the post of PA to Managing Director had been upgraded as Personal Secretary, the following were the results: Respondent Nos.3 and 5, who had been working as Stenographers Grade-I had been upgraded as Personal Assistants and put on a scale of Rs.700-1250 with Special Pay of Rs.75/- and when the Personal Assistant to Managing Director was upgraded as Personal Secretary, he was put on a scale of Rs.1,000-1500 with Special Pay as Rs.100/-. The 2nd respondent, who was a Personal Assistant to Managing Director at that time got the benefit of posting as Personal Secretary. Respondent No.3, who was Stenographer Grade-I became Personal Assistant to Managing Director but respondent No.5 did not assume charge instead in his place respondent No.4 assumed charged on 22.12.1984. The up- gradation of the post from Personal Assistant to Managing Director as Private Secretary itself was instituted according to the petitioner on special circumstances when the Managing Director was also the Secretary of the Government of Haryana and he was entitled to Personal Secretary. But when a Joint Secretary, Tej Pal became the Managing Director on 09.01.1989 corresponding to his rank, he was entitled only to Personal C.W.P. No.2636 of 1990 -5- Assistant but the Personal Secretary, who was attached to the Managing Director continued in the post as Personal Secretary and his own post was not downgraded as Personal Assistant, which was the proper posting to a Joint Secretary who was occupying the post as Managing Director. The objection from the petitioners could be therefore paraphrased as under:-
(i) The merger of Stenographer cadre and the clerical cadre reduced the possibilities for Assistants to be promoted.
(ii) The Personal Secretary had a higher scale than the Assistant Manager and in real terms the 2nd respondent got more pay than his senior occupying the Assistant Manager's post.
(iii) The joint seniority list circulated on 04.08.1988 contained merely a reference to the names of persons but did not deliberately give the post or the source from where that person had occupied with position.
(iv) Personal Assistant to Managing Director had actually been treated at par with Assistant Manager in terms of scales of pay. While the Assistant Manager's scale was Rs.750-1450, Personal Assistant to Managing Director was in the scale of Rs.700-1200 with Special Pay of Rs.75/-.
(v) Promotional avenue to Assistants were not always available when it was available more usually for Stenographers. While there had been upgradation of certain posts in the Stenographers Grade-I by giving post as Personal Assistant to Managing Director with Special Pay and Personal Secretary to Managing Director, who was holding a post equivalent to the Assistant Manager but with better scales, there was no corresponding upgradation of any post in the ministerial cadre.
(vi) The Personal Assistants and Personal Secretaries attached to the officers of the Corporation were always preferred to the ministerial cadre and persons, who joined later in the Stenographers cadre got earlier promotion to higher posts.
6. As if to confirm every one of the apprehensions of the petitioners, who are all from the ministerial cadre, the petitioners would point out to the following emerging situations. The 2nd respondent became a Personal Assistant w.e.f. 26.09.1983 and Personal Secretary w.e.f. C.W.P. No.2636 of 1990 -6- 01.12.1984 although the petitioners No.1 to 3 did not obtain any such benefit, being confirmed as Assistants even prior to respondent Nos.2; petitioners No.4 to 15 had been confirmed as Assistants even prior to respondent Nos.3 to 5 but respondent Nos.3 to 5 had become Personal Assistants w.e.f. 01.12.1984, 20.12.1984 and 15.01.1990 respectively. Petitioners No.6 to 21 had been confirmed prior to respondent Nos.4 and 5 but respondent No.2 had been shown as Manager and Respondent Nos.3 and 4 had been shown as Assistant Manager when the petitioners No.6 to 21 have still not attained to such a level. Prior to 30.03.1979, Assistants and Legal Assistants were at par but Legal Assistants had come by a higher post as Assistant Manager and after the joint seniority, Legal Assistants got promoted as Law Officers.
7. The management had its own reasons. The contention was that it was a policy that was adopted after Sub Committee had been appointed in the year 1972 to examine and decide about the merger of cadres of Stenographers with that of Supervisory/clerical cadre. It is further contended that the petitioners had been guilty and delay and laches. The merger of both the cadres had been suggested as early as in the year 1972 and when it came through the seniority list, which was prepared and circulated on 01.08.1988, it had never been challenged immediately. The posts of Assistant Manager and Personal Assistant were of the same rank and Manager and Personal Secretary were again of the same rank and hence they were placed in the same seniority list. Respondents themselves had been confirmed in higher scales or higher posts only on the basis of seniority list, which had been circulated.
C.W.P. No.2636 of 1990 -7-
8. In C.W.P. No.11191 of 1990, the petitioners, who were all Assistant Managers had a grievance that the petitioners who had been working as Assistant Managers w.e.f. 28.09.1983 were actually performing the duties as Stenographers but they had not been considered. The petitioners No.2, 5, 13, 14 and 15 were seniors to the 2nd respondent as they had been promoted as Stenographers Grade-I earlier to the appointment of 2nd respondent as a Stenographer Grade-I on 17.09.1979. Certain other petitioners, who had been working as Assistant Managers and who knew stenography and who had been working as Stenographers Grade-I had not been considered for promotion as Private Secretary, although they were also seniors to the 2nd respondent in the joint seniority list of the Assistants and Stenographers. The decision of the Board of Directors on 22.11.1984 that promotion to the post of Senior Private Secretary would be effected by promotion from amongst the senior-most Personal Assistants was actually motivated only to give the benefit to the 2nd respondent, who had been at that time working as Private Secretary with a Managing Director. The 2nd respondent, who had been appointed as a Personal Assistant w.e.f. 28.09.1983 was actually junior to the 1st petitioner Naresh Sharma and who knew stenography and was also a senior in the joint seniority list of the general side and the Stenographer Grade-I. Actually when the 2nd respondent was still working as Personal Assistant in a lower scale of Rs.700-1200, all the petitioners were holding the higher posts of Assistant Managers in the higher scale of Rs.750-1450.
9. The objections to the contentions raised by the petitioner are that the subject matter of challenge were the orders passed on 28.09.1983 C.W.P. No.2636 of 1990 -8- and 11.12.1984 through a writ petition filed in the year 1990 and that the petitioners were guilty of laches. The respondent would contend that all incumbents of the merged posts were entitled to promotion to higher posts and although employees from the general cadre were eligible for promotion to the posts which required the skill of stenography, it was made available to persons from the general cadre, who had acquired the aforesaid scale as per the prescribed norms. The respondents would however submit that the promotions, which the petitioners were complaining of had taken place in August 1972 to 1984 and none of these promotions had been challenged at any time. Creation of posts were within the exclusive domain of the administration and administrative exigency required the posts of Personal Assistants in the place of Stenographer Grade-I and consequently two posts of Stenographers were upgraded to that of Personal Assistants. All the persons, who were holding the posts of Assistant Managers were eligible for appointment to the post of Personal Assistants/Personal Secretaries but since none of them possessed the requisite qualification of stenography, they could not be promoted to the post of Personal Assistants/Personal Secretaries. Adverting to the challenge regarding the tentative seniority list, which was drawn and put up for circulation in August, 1988, it is contended by the respondents that the seniority was to be determined from the date of confirmation against the post in terms of Rule 22 and since one of the petitioners had questioned the date of confirmation of the persons placed in the seniority list, the mere representations complaining of the seniority list could not be considered. It is denied by the respondent that the post of Personal Assistants and post of Assistant Managers had been equated and that C.W.P. No.2636 of 1990 -9- Personal Assistants used to be promoted as Assistant Managers. Both Personal Assistant and Assistant Managers were eligible for promotion to the post of Manager or Personal Secretary as the case may be. The petitioners would not be entitled to claim benefits against the respondents merely because they had joined service earlier or that they were promoted to a higher post at an earlier date. Seniority shall always be determined at every stage in the hierarchy and that those persons, who had been placed higher to the petitioner in the seniority list were either holding the post in the higher pay scale to that of the petitioners or they had been confirmed in their pay scales with effect from the date earlier to the date on which the petitioners had been confirmed.
10. The fundamental issue that arises in both the cases is whether the Financial Corporation, which is governed by a specific enactment and the Regulations which have been framed in exercise of the powers conferred under Section 48 of the Act of 1951 could make changes in policy only on the basis of resolutions of the Board without formally adopting them through statutory regulations. This aspect has been brought directly through a decision of the Hon'ble Supreme Court in U.P. Financial Corporation Employees Association Vs. U.P. Financial Corporation 1998(6) SCC 482 that held that the pay scales as prescribed in the Appendix II to the Regulation 63 cannot be modified otherwise than through amendment to the regulations themselves. This Court has followed the dictum in Haryana State Electricity Board Vs. Rajinder Singh Roddu 2005(3) RSJ 121 that held while dealing with the recruitment regulations of the Punjab State Electricity Board that a Board decision considering the C.W.P. No.2636 of 1990 -10- claims of only the Junior Engineers working in the general cadre and ignoring the claims of those working in the generation cadre despite the fact that the Junior Engineers in the generation cadres were senior to those working in the general cadre was bad in law. The Division Bench was holding that a bifurcation of a common cadre would be impermissible and there would not be justification to deny the consideration for promotion to the respondents working in the generation cadre, who were admittedly senior to the Junior Engineers working in the general cadre. Even a prescription for holding post for promotion was held to constitute change in the conditions of service and such a change could not be brought through mere administrative instructions when the terms of service were spelt through Rules governing the same in the decision in State of Haryana Vs. Jang Bahadur 1972 SLR 441. The above decisions clearly say that in the manner in which the Corporation was accepting the recommendations of a Sub Committee, they were actually attempting to create a common cadre through resolution of the Board that had not been specifically approved through statutory regulations.
11. In Shakuntala Sharma Vs. High Court, Himachal Pradesh, the Hon'ble Supreme Court was dealing with the case of two sets of hierarchical posts in the establishment of the High Court namely Clerks, Translators and Revisors on the one hand and Clerks, Senior Assistants and Deputy Superintendents on the other. The above posts of the Revisors and Deputy Superintendents were common promotional posts. In the hierarchy of two streams, posts of Translators and the posts of Senior Assistants were also at par. It was perceived by the establishment that there was no more Deputy Superintendent's posts than Revisors and the Senior Assistants and C.W.P. No.2636 of 1990 -11- the Translators were, therefore, stagnating for want of a promotion post. The Rules were sought to be therefore framed by a Committee of Judges to provide for suitable avenues of promotions to both Deputy Superintendents and Revisors on the one hand and Senior Assistants and Translators on the other. The Hon'ble Supreme Court, however, intervened with the observation of the weakness of the rule (Rule 10 in that case) that put unequal sets of posts at par with each other and prescribed qualifying service also for the higher post. The post of Deputy Superintenents and Revisors were admittedly higher posts than that of Senior Assistants and Translators respectively. If the incumbents of both sets of posts were to be made eligible for promotion to the post of Superintendents, no qualifying period of service could be prescribed for the incumbents of the posts of Deputy Superintendents or Revisors. The Court found this to be violative of Article 14 since it sought to treat unequals as equals. The attempt of the petitioners is to show that by an alleged rationalization of policy and integration of seniority list for two different streams namely a person, who was in the Stenographers cadre and in the general cadre, two streams led to a common promotion post and the respective seniority in the feeder post had no role to pay in the manner of appointment to the promotion post.
12. In yet another position before the Hon'ble Supreme Court in Jagdish Parshad Singh and others vs. Bhagwati Parshad and others AIR 1984 SC 1794 a bifurcation was sought to be made as Teachers of Higher Secondary Grade and Secondary Teachers of upper division of subordinate education service. The bifurcation was evidently the outcome of an attempt to provide quick promotional avenues to those who were lower C.W.P. No.2636 of 1990 -12- down in the joint cadre and who could not come within the range of consideration but for such bifurcation. In such attempt, the seniority rule had been breached and the Court, therefore, found the notification bifurcating the cadre to be violative of Articles 14 and 16.
13. In all the above cases, the persons, who were drawn from Stenographer Grade I to the post of Personal Assistant or Personal Secretary to the Managing Director or the Chairman respectively obtained an upgradation of the post that made them eligible for further promotion although they were lower in rank to the petitioners. The decision to upgrade the posts was again done on resolution of the Board that had not seen any amendment to the regulation themselves. In its working, the resolution of the Board had caused serious prejudice to the petitioners, who were sidelined although they were seniors to persons, who held the same rank as Stenographer Grade I but by an upgradation of the post of the Personal Assistant and Personal Secretary, they were able to secure a march over the others. Having regard to the fact that the number of posts as Personal Assistant and Personal Secretary were less than the number of persons, who could have been considered for promotion, it shall not be possible to treat the petitioners as having been promoted from the day when the private respondents secured the upgradation of posts and the further promotions. I am informed that after the filing of the writ petition and during the pendency of the case for nearly three decades the private respondents have even occupied still higher posts and retired in higher posts, while the petitioners served in lower posts and some of them have also retired.
C.W.P. No.2636 of 1990 -13-
14. On an examination of the above facts and keeping in mind the proposition of law laid down by the Hon'ble Supreme Court through the judgments referred to above, restructuring of cadre is essentially an executive function and the Court will have limited jurisdiction unless the administrative instructions through which the restructuring is done are themselves contrary to any Act or Statutory Rules (Kazi Vs. Jurmaink AIR 1967 SC 276; N. Naraynan Vs. State of Mysore AIR 1967 SC 946) or where the instructions are irrational or mala fide or they are violative of the constitutional provisions themselves. In this case a sub-committee had been constituted to rationalize the cadre strength and for restructuring the same for better administrative efficiency by entrusting the work of examining the issue through highly qualified persons trained in administration. This has come about as early as in the year 1972 and only after they have been gradually put through in course of years from 1974 onwards, they have been challenged through the writ petition in the year 1990. Appointees have come and gone, it shall be impermissible to make judicial intervention at this length of time. There have been inevitably some teething troubles when seniors in the general cadre had to give way for relatively juniors from the Stenographer's grade. It is not always the seniority criterion that governs the issues of promotion and where higher qualifications or technical qualifications are necessary for higher posts, it might as well even exigent that persons relatively lower in the seniority still have gained higher posts. I had elicited from the counsel whether there were any of the persons in C.W.P. 2636 of 1990, who were qualified in stenography to be considered for being taken in the Stenographer's line either as Personal Assistant or a Personal Secretary. It is admitted by the C.W.P. No.2636 of 1990 -14- counsel that there had been none. Under the circumstances, I would hold that none of the petitioners is entitled to any relief. The point of law as laid down by the Supreme Court is not to be missed that where there exists statutory rules and regulations, they cannot be whittled by any administrative directions. Even while holding that the administrative instructions cannot be struck down at this length of time, I would direct that the respondents shall give legitimacy to the administrative instructions through appropriate amendment to the statutory regulations. The exercise shall be done within a period of 12 weeks and beyond that period, the administrative instructions will lapse and it shall not be permissible for the Food Corporation of India to give effect to the same without appropriate amendments.
15. As regards other C.W.P. No.11991 of 1990, it is clearly seen from the list, which is handed over to me by the respective counsel that petitioners No.1 to 26 are seniors to the private respondents, who had been promoted as Personal Assistants and Personal Secretaries before the institution of the writ petition. However, only petitioner nos.1, 4, 12, 13, 14, 15, 20 and 25 had the qualification of stenography and who could have been promoted as personal assistant or personal secretary. There are more number of persons amongst the petitioners than there were posts. It would not be therefore possible to accommodate all the petitioners to the higher posts or treat them as such by the only fact that the private respondents had been promoted to the post of Personal Assistant or Personal Secretary. Amongst the seniormost of the petitioners, the highest in the order of seniority who had the qualification of stenography will be treated as having C.W.P. No.2636 of 1990 -15- been promoted on the day when the private respondents were promoted as Personal Secretary and Personal Assistant respectively. The official respondents shall calculate the number of years of service to which the respective persons would have occupied the posts and their progression of the scales would be worked out and if there is any one amongst the petitioners next in the order of seniority, who was eligible to be promoted, the same shall be worked out and will be treated as promoted on that day. The names of the petitioners No.1, 4, 12, 13, 14, 15, 20 and 25, who were seniors to the private respondents will be considered for being accommodated in the post of Personal Secretary or Personal Assistant periodically till the entire list is exhausted. If all the petitioners cannot be accommodated to the promotion post by the fact that the respective seniors amongst them would not have vacated the office, those persons cannot be considered for promotion. This exercise shall also be undertaken by the respondents and an order shall be passed within a period of 12 weeks from the date of receipt of copy of the order.
16. The writ petition in C.W.P. No.2636 of 1990 is disposed of with the direction for merger of cadre to be given effect within 12 weeks by suitable amendment to Regulation and other reliefs claimed are dismissed. The writ petition in C.W.P. No.11991 of 1990 is allowed as above.
(K. KANNAN) JUDGE March 14, 2012 Pankaj*