Himachal Pradesh High Court
Sh. Taj Mohammad And Others vs The State Of Himachal Pradesh And Others on 3 August, 2023
Bench: Mamidanna Satya Ratna Sri Ramachandra Rao, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2004 of 2017 a/w CWP No. 629 of 2028 .
Reserved on: 24.07.2023 Decided on : 03.08.2023 CWP No. 2004 of 2017 Sh. Taj Mohammad and others ....Petitioners.
Versus The State of Himachal Pradesh and others ...Respondents. CWP No. 629 of 2018 State of Himachal Pradesh and another ....Petitioners.
Versus
Lekh Ram and others ...Respondents.
Coram
The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 CWP No. 2004 of 2017 For the petitioners : Mr. Nitin Thakur, Advocate.
For the respondents : Mr. Anup Rattan, Advocate General with M/s Navlesh Verma, Rakesh Dhaulta and Pranay Pratap Singh, Addl. AGs and M/s Gautam Sood, Arsh Rattan and Sidharth Jalta, Dy.
AGs. for respondents no. 1 and 2.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 03/08/2023 20:44:24 :::CIS 2 : Mr. Dilip Sharma, Senior Advocate
with Mr. Manish Sharma, Advocate
for respondents no. 3 to 11.
.
CWP No. 629 of 2018
For the petitioners : Mr. Anup Rattan, Advocate General
with M/s Navlesh Verma, Rakesh
Dhaulta and Pranay Pratap Singh,
Addl. AGs and M/s Gautam Sood,
Arsh Rattan and Sidharth Jalta, Dy.
AGs.
: Mr. Dilip Sharma, Senior Advocate
with Mr. Manish Sharma, Advocate
for respondents no. 1 to 9.
: Mr. Nitin Thakur, Advocate, for
respondents no. 10 to 22, 25 and 27 to
29.
: Respondents no. 23, 24, 26 and 30 ex
parte.
Ajay Mohan Goel, Judge
As both these writ petitions have been preferred by the petitioners feeling aggrieved by Order dt. 25.05.2017, passed by the erstwhile Himachal Pradesh Administrative Tribunal in Original Application No. 3337 of 2016, titled as Lekh Ram and others vs. State of Himachal Pradesh and others, the same were heard together and are being disposed of vide a common judgment.
2. Brief facts necessary for the adjudication of the present petitions are that the private respondents (hereinafter to be referred as 'the original applicants') filed an original application bearing No. ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 3 3337 of 2016, before the erstwhile Himachal Pradesh Administrative Tribunal, praying for the following substantive reliefs:-
.
"(i) That the impugned seniority list dated 15.3.2016, Annexure A-11, whereby private respondents have been assigned seniority above the applicants, may be quashed and set aside.
(ii) That the respondent department may be directed to re-draw the seniority list of Inspector Gr-
I in the respondent department, by counting the entire service rendered by applicants on contract basis in the cadre of Inspector Gr-I from the date of their initial appointment followed by their regularization, with all consequential benefits.
(iii) That if during the pendency of OA, any of the private respondents is promoted to the post of Food Supplies Officer, in that event the promotion of such of the private respondents may also be set aside and the respondent department may be directed to consider the applicants for promotion to the post of Food Supplies Officer from the date of promotion of their junior(s), with all consequential benefits, including arrears of salary and interest at market rate on delayed payments;
(iv) That respondent department may be directed to count the entire service rendered by applicants on contract basis, from the date of their initial appointment followed by their regularization, for the purpose of increments and all other service benefits, ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 4 from the date of their regularization, with all consequential benefits."
.
3. Their case before learned Tribunal was that they were initially appointed as Inspector Grade-I, on contract basis in the department of Food, Civil Supplies and Consumer Affairs, in the months of September, 2008, May, 2010 and November, 2010. Their recruitment was as per the provisions of the Himachal Pradesh Food, Civil Supplies and Consumer Affairs Department Inspector Grade-I Class-III Non-Gazetted Recruitment and Promotion Rules, 2007, issued vide notification dated 21.05.2007, through the Himachal Pradesh Subordinate Services Selection Board. Upon completion of five years of contractual service, they were regularized against the post of Inspector Grade-I in the years 2015 and 2016 as per the policies of regularization of the contract appointees issued by the State Government dt. 07.05.2015 and 22.04.2016, respectively. It was further the case of the original applicants that the private respondents in the original application, i.e. writ petitioners in CWP No. 2004 of 2017, were appointed in the respondent-Department as Clerks.
Thereafter, they were promoted against the posts of Food Inspector in between the years 2011 to 2015, i.e. after the appointment of the original applicants as Food Inspectors. It was further the case of the ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 5 original applicants that as their initial appointment, on contract basis, was as per the Recruitment and Promotion Rules and same was .
followed by regularization, therefore, they were entitled for service rendered by them on contract basis to be counted for seniority, over and above the private respondents in terms of the law laid down by this Court in CWP(T) No. 6785 of 2008, titled as Narender Singh Naik Versus State of Himachal Pradesh and others, decided on 14.09.2010, as upheld in LPA No. 271 of 2011, titled as State of Himachal Pradesh and others Versus Narender Singh Naik, decided on 09.04.2013, which judgments were based on the law laid down by Hon'ble Supreme Court of India in Direct Recruit Class-II Engineering Officer's Association Versus State of Maharashtra and others, (1990) 2 SCC 715. It was also their contention that the judgment passed by this Court in LPA was further assailed by way of Special Leave Petition before the Hon'ble Supreme Court, wherein the judgment of this Court was upheld.
4. The stand of the promotees before erstwhile learned Tribunal was that their promotion against the post of Inspector Grade-
I was on regular basis before the regularization of the original applicants, therefore, they were rightly assigned seniority over the direct recruits. It was further their contention that as the regularization ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 6 of the original applicants was with prospective effect, therefore, they were not entitled for service rendered by them on contract basis, to be .
counted for any benefit. The State also took the same stand as the promotees before the learned Tribunal.
5. Learned Tribunal in terms of order dt. 25.05.2017, allowed the original application by holding that in Narender Singh Naik's case, the contractually appointed Junior Engineers, who were subsequently regularized, were held to be senior to the subsequently appointed direct recruits on regular basis, which judgment was upheld in appeal as well as by Hon'ble Apex Court. Learned Tribunal further held that the precedents relied upon by the private respondents were distinguishable as in none of those cases, the issue was with regard to appointment on contract basis by following the regular process of recruitment in terms of the Recruitment and Promotion Rules.
Learned Tribunal also held that the original applicants were appointed as Inspectors Grade-I, though on contract basis, in the months of September, 2008, May, 2010 and November, 2010, as per the Recruitment and Promotion Rules by following the proper selection process, whereas the private respondents at the relevant time were in the cadre of Clerks and were not even borne in the cadre of Inspector Grade-I. Learned Tribunal also held that at the relevant time, the ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 7 private respondents were not even in the feeder cadre of Inspector Grade-I as their category was included in the promotion channel to the .
post of Inspector Grade-I only by way of amendment carried out in the Recruitment and Promotion Rules vide notification dated 15.06.2010. Learned Tribunal also held that it was nobody's case that duties performed by Inspectors Grade-I appointed on contract basis were different, as compared to those appointed on regular basis. It also held that the objection of the private respondents that the original applicants had neither challenged the regularization policy(s) nor previous seniority lists as earlier issued on 11.04.20214 and 31.08.2015, was without any merit because the original applicants were basing their claim for seniority from the date of initial appointment on account of their subsequent regularization, and as far as the seniority lists issued by the Department of the years 2011 and 2014 were concerned, the original applicants could not have challenged the same as they were at the relevant time serving on contract basis. Learned Tribunal allowed the original application by directing the department to count the entire service of the original applicants, including initial service on contract basis, followed by regularization towards seniority alongwith consequential benefits for further promotion.
::: Downloaded on - 03/08/2023 20:44:24 :::CIS 86. Feeling aggrieved the private respondents therein as well as the State, have filed the respective writ petitions.
.
7. Learned Counsel for the petitioners in CWP No. 2004 of 2017 argued that the order passed by learned Tribunal is not sustainable in the eyes of law for the reason that learned Tribunal erred in not appreciating that as the initial appointment of the original applicants was on contract basis, therefore, they were not entitled for counting of the said service for any purpose including seniority, as the regularization of the original applicants was with prospective effect and there was no challenge to the same by the original applicants.
Learned Counsel further argued that as the promotion of the petitioners against the post of Inspector Grade-I, was before the regularization of the original applicants, therefore also, the original applicants were not entitled to the relief as stood granted to them by the erstwhile learned Tribunal. Learned Counsel further argued that the benefit conferred upon the original applicants by learned Tribunal was otherwise also legally not sustainable in law as the same was against the law declared by Hon'ble Supreme Court in the following judgments:-
(i) Registrar General of India and Another vs. V. Thipa Setty and Others, (1998) 8 Supreme Court Cases 690;::: Downloaded on - 03/08/2023 20:44:24 :::CIS 9
(ii) R.K. Mobisana Singh vs. Kh. Temba Singh and Others, (2008) 1 Supreme Court Cases 747;
.
(iii) Surendra Kumar and Others Vs. Greateer Noida Industrial Development Authority and Others, (2015) 14, Supreme Court Cases 382;
8. Learned Advocate General submitted that the stand of the State in the writ petitions be construed to be the same as stood argued by the writ petitioners in CWP No. 2004 of 2017.
9. Defending the order passed by learned Tribunal, learned Counsel for the private respondents/original applicants argued that as the initial appointment of the original applicants was as per the Recruitment and Promotion Rules and made through the Subordinate Services Selection Board, which was the recruiting agency as per the Recruitment Rules, the original applicants were entitled for the benefit of seniority, once their services were regularized, from the initial date of their recruitment in terms of the law declared by Hon'ble Supreme Court of India in Direct Recruits case (supra) followed by State of West Bengal and Others Versus Aghore Nath Dey and others (1993) 3 Supreme Court Cases 371 and Narender Singh Naik's judgment of this Court supra. He also argued that the recruitment of the Original Applicants as Inspector Grade-I in between 2008 to 2010 was made ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 10 by following the rigors of the Recruitment Rules and simply because they were offered appointment on contract basis, the same cannot .
obliterate the reality that the recruitment was as per the Recruitment Rules and through the agency prescribed in the Rules for making recruitments. He further argued that when the original applicants were appointed on contract basis as Inspector Grade-I, the writ petitioners were not even borne in the cadre, and in fact were not even in the feeder category for the post of Inspector Grade-I as was rightly held by learned Tribunal. He further submitted that the order of regularization of the private respondents was not challenged by the petitioners, and therefore, they are estopped from assailing the order passed by the learned Tribunal as the order was in sync with the law declared on the subject by the Hon'ble Supreme Court of India.
Learned Counsel further argued that as the original applicants were already performing the duties of Inspector Grade-I when the writ petitioners were promoted against the said post and as their services were subsequently regularized by the State, therefore, the original applicants were entitled for the service rendered by them on contract basis, to be counted towards seniority and other consequential benefits, in view of the fact, that their initial recruitment on contract basis was as per the Recruitment Rules. He also submitted that the ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 11 judgments relied upon by learned Counsel for the petitioners had no bearing on the factual matrix of the present case and therefore, these .
petitions being devoid of merit be dismissed.
10. We have heard learned Counsel for the petitioners as well as learned Counsel for the private respondents and also gone through the pleadings as well as Order under challenge and the record of the erstwhile learned Tribunal.
11. It is not in dispute that the initial recruitment of the original applicants against the post of Inspector Grade-I in between the years 2008 to 2010, though on contract basis, was by following the Recruitment and Promotion Rules framed by the Department under the proviso to Article 309 to the Constitution of India for appointment to the post of Inspector Grade-I. It is further not in dispute that the recruitment process was undertaken by the Himachal Pradesh Subordinate Services Selection Board, i.e. the agency recognized by the Recruitment Rules. The original applicants were recommended for appointment to the department by the said Board. It is further not in dispute that the petitioners participated in the process by way of open competition in which, hundreds besides them, also participated. Thus, the recruitment of the original applicants against the post of Inspector Grade-I, though on contract basis, was not a backdoor entry but was ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 12 by following the Recruitment and Promotion Rules framed by the department for direct recruitment against the said post. The .
appointment of the original applicants on contract basis was a fortuitous circumstance, as the department took a decision not to grant regular appointment to the original applicants for reasons best known to it. It is also not in dispute that at the time when the original applicants were recruited as Inspector Grade-I, on contract basis, the writ petitioners were serving as Clerks and were not yet borne in the cadre of Inspector Grade-I. It is also not in dispute that before the issuance of notification dt. 15.06.2010, the post of Clerk in the Department was not even in the feeder category to the post of Inspector Grade-I. It is further not in dispute that the regularization of the original applicants against the post of Inspector Grade-I was never assailed by the writ petitioners.
12. A five judge Bench of the Hon'ble Supreme Court in Direct Recruit Class II Engineering Officer's Association Versus State of Maharashtra and Others, (1990) 2 Supreme Court Cases 715, while dealing with the issue of seniority and promotion inter se direct recruits and promotees, held that the principle for deciding inter se seniority has to confirm to the principles of equality spelt out by ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 13 Articles 14 and 16. In Para-13 of the judgment, Hon'ble Supreme Court held as under:-
.
"If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation 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. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary. This principle has been followed in innumerable cases and has been further elaborated by this Court in several judgments including those in Baleshwar Dass v. State of U.P. and others (1981) 1 SCR 449, and Delhi Water Supply and Sewage Disposal Committee and others v. R.K. Kashyap and others, (1989) Supp. 1 SCC 194, with which we are in agreement. In Narender Chadha and others vs. Union of ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 14 India and others, (1986) 1 SCR 211, the officers were promoted although without following the procedure .
prescribed under the rules, but they continuously worked for long periods of nearly 15-20 years on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16. There is considerable force in this view also. We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service."
Further, in Para-47 of the judgment, Hon'ble Supreme Court was thereafter pleased to hold as under:-
"(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 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 ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 15 continues in the post uninterruptedly till the regularisation of his service in accordance with the .
rules, the period of officiating service will be counted."
13. Thereafter, in State of West Bengal and Others Versus Aghore Nath Dey and Others, (1993) 3 Supreme Court Cases 371, a three Judges Bench of the Hon'ble Supreme Court, while dealing with the conclusions (A) and (B) in Para-47 of the Direct Recruit's case (supra), held as under:-
r to "21......... We shall now deal with conclusions (A) and (B) of the constitution bench in the Maharashtra Engineers' case, quoted above.
22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) can not 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 stop-gap 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 ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 16 initial appointment is only ad hoc and not according to rules, being made only as a stop-gap 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) 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 later expression 'till the regularisation of ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 17 his service in accordance with the rules'. We read conclusion (B), and it must be so read to re-councile .
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 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 ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 18 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 stop- gap 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)."
14. Hon'ble Supreme Court in Siraj Ahmad Versus State of Uttar Pradesh and Another, (2020) 19 Supreme Court Cases 480, by relying upon the principles laid down by it in Direct Recruit's case (supra) held as under:-
"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 eligible candidates and the appointee continues in the post ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 19 uninterruptedly till the regularisation 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 :
"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 ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 20 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 present appellant is squarely covered by the judgment of the Constitution Bench in the case of Direct Recruit Class II Engineering Officers Association (supra)."
15. The above judgments of the Hon'ble Supreme Court make it amply clear that if the initial appointment is made after considering the claims of all eligible candidates and the appointees continued on the post uninterruptedly till the regularization of the service in accordance with the Rules made for regular substantive appointments, there is no reason to exclude the officiating service for the purpose of seniority and same will be the position if the initial appointment itself is made in accordance with the Rules applicable to substantive appointments.
16. Coming to the facts of the present case, the initial ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 21 appointment of the original applicants admittedly was made in accordance with the Rules applicable to substantive appointment to .
the post in issue and through the Recruitment Agency prescribed in the Recruitment Rules. The only thing was that rather than offering appointment to the original applicants on regular basis, they were offered appointment on contract basis and their services were subsequently regularized, as has already been mentioned hereinabove.
17. Thus, in the backdrop of the factual scenario of the present case, learned Tribunal rightly held the original applicants to be entitled for seniority from the date of their initial appointment on contract basis, followed by regularization, as their initial appointment was made by following the Rules in vogue for making substantive appointment against the post and the process of recruitment was undertaken by the Subordinate Selection Board in which the claims of all eligible candidates were considered.
18. Now coming to the judgments relied upon by learned counsel for the petitioners, in Registrar General of India and Another Versus Thippa Setty and Others (supra), the issue before the Hon'ble Supreme Court was with regard to regularization of an ad hoc appointee who had worked as an ad hoc employee for a ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 22 sufficiently long time. In the backdrop of the factual matrix involved before the Hon'ble Supreme Court, it was pleased to hold .
as under:-
"If the ad hoc service is regularised from the back date in this manner, it will disturb the seniority of regularly appointed employees in the cadre and, therefore, ordinarily the regularisation must take effect prospectively and not retrospectively. It must also be borne in mind that ad hoc appointees, casual labour and daily-rated persons are not subject to strict discipline of service and it is a matter of common experience that their attendance is very often not regular and at times they do not even meet the qualification for appointment since they are taken on ad hoc basis. These deficiencies are overlooked by way of granting of relaxation and, therefore, care must be taken to see that they do not upset the seniorities of regular appointees. Whether they qualify in a given case or not is not relevant but what is relevant is that regularisation should be prospective and not retrospective as the chances of their upsetting the seniorities cannot be overlooked. The Tribunal must take care to see that when they pass orders of regularisation from retrospective dates, those who are likely to be affected on account of that order are not before that court and unwittingly their careers are not adversely affected. Ordinarily, therefore, the ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 23 regularisation must be prospective."
In the present case, neither the appointment of the original .
applicants was on ad hoc basis nor it was by either overlooking the basis of recruitment envisaged in the Recruitment Rules or by granting any kind of relaxation to them. Therefore, this judgment has no applicability as far as the present case is concerned.
19. In R.K. Mobisana Singh Versus KH. Temba Singh and Others (supra), again Hon'ble Supreme Court was seized with the case wherein the ad hoc promotions were made not only in excess of the quota in the absence of availability of any vacancy but also without consultation of the Recruitment Commission which had become defunct. In the backdrop of this factual matrix, Hon'ble Supreme Court by taking note of various judgments including the judgment of the Hon'ble Supreme Court in Direct Recruit's case (supra), was pleased to hold as under:-
"41.......... If they had been given regularisation with retrospective effect, the same by itself may not be a ground to apply the said order ipso facto for determining the inter se seniority. Seniority although is not a fundamental right but a civil right. Such a right of the direct recruits could not have been taken away without affording an opportunity of hearing to them.::: Downloaded on - 03/08/2023 20:44:24 :::CIS 24
42. It was obligatory on the part of the official respondents to take into consideration that the .
retrospective regularization could be granted only when there exists such a rule. If rules were not followed at the time of grant of promotion, question of grant of regularization with retrospective effect would not arise. Retrospective regularization whether in terms of the directions of the High Court or otherwise, thus, although could confer other service benefits to the officer concerned, but the same cannot be held to be of any assistance for reckoning seniority with retrospective effect."
20. Similarly, in Surendra Kumar and others Versus Greater Noida Industrial Development Authority and Others (supra), the Hon'ble Supreme Court was dealing with the case of contractual appointees whose appointment were not against any sanctioned posts and the Hon'ble Supreme Court observed that such appointees, on the basis of a policy decision of the Government for regularization of contractual employees, cannot seek regularization from a retrospective date.
21. All the three judgments relied upon by learned counsel for the petitioners were pertaining to either ad hoc or contractual appointees/promotions wherein appointments or promotions were not as per the Recruitment Rules nor was through ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 25 the agency prescribed in the Recruitment Rules for appointment and promotion. Therefore, the law laid down by the Hon'ble .
Supreme Court in the said cases has no applicability as far as the facts of the present writ petitions are concerned.
22. Before parting, we would like to refer to the judgment of this Court in CWPT No.6785 of 2008, titled as Narender Singh Naik Versus State of Himachal Pradesh and Others, decided on 14.09.2010, which was relied upon by the learned Tribunal for granting relief to the original applicants.
23. Learned Single Judge in CWPT No.6785 of 2008, titled as Narender Singh Naik Versus State of Himachal Pradesh and Others, decided on 14.09.2010, held that the petitioner therein was appointed as a Junior Engineer on contract basis by following the selection process on 03.01.1995 and his services were regularized in the year 2008. The grievance of the petitioner was that the department was not counting the period of service rendered by the petitioner on contract basis till the date of his regularization, which the learned Single Judge held, was an issue no more res integra, in view of the law laid down by the Hon'ble Supreme Court in Direct Recruit's case (supra) and learned Single Judge allowed the writ petition by directing the respondents therein, to ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 26 consider the case of the petitioner, for counting the period he had worked on contract basis w.e.f. the year 1995, till his regularization .
with all consequential benefits.
24. The judgment passed by the learned Single Judge was challenged by the State vide Letters Patent Appeal No.271 of 2011, titled as State of Himachal Pradesh and others Versus Narender Singh Naik. Said appeal was decided by the Hon'ble Division Bench of this Court vide judgment dated 09.04.2013, upholding the judgment passed by the learned Single Judge. Same was assailed before the Hon'ble Supreme Court by way of Petition(s) for Special Leave to Appeal (C) No(s). 34038 of 2012, titled as Surender Singh Versus State of H.P. Ors., which was dismissed by the Hon'ble Supreme Court.
25. Therefore, as the foundation of the order passed by the learned Tribunal, subject matter of these writ petitions, was the judgment of this Court in Narender Singh Naik's case (supra), which judgment itself was based on the Five Judge Bench judgment of the Hon'ble Supreme Court in Direct Recruit's case (supra), and as the learned Tribunal rightly held that the services rendered by the original applicants on contract basis were liable to be counted for the purpose of seniority and consequential benefits ::: Downloaded on - 03/08/2023 20:44:24 :::CIS 27 after their regularization, as the initial appointment of the original applicants on contract basis was after following the procedure .
prescribed in the Recruitment & Promotion Rules, we do not find any infirmity in the said findings and further as we do not find any merit in the writ petitions, the same are dismissed by upholding the order passed by the learned Tribunal. No order as to costs. Pending miscellaneous applications, if any, stand disposed of.
r (M.S. Ramachandra Rao)
Chief Justice
(Ajay Mohan Goel)
August 03, 2023 Judge
(narender/rishi)
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