Himachal Pradesh High Court
Rajesh Jaswal And Others vs State Of Himachal Pradesh And Others on 8 December, 2016
Bench: Chief Justice, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA LPA No. 108 of 2010 Reserved on: November 23, 2016 Decided on: December 8 , 2016 .
Rajesh Jaswal and others ................Appellants Versus State of Himachal Pradesh and others ..........Respondents Coram Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice of Hon'ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting? Yes.
For the appellants : Mr. K.D. Shreedhar, Senior Advocate with Mr.
For the respondents
rt Yudhbir Singh, Advocate.
: Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan and Mr. Romesh Verma, Additional Advocate Generals and Mr. J.K. Verma, Deputy Advocate General, for respondents No. 1 and 2.
Mr. Dilip Sharma, Senior Advocate with Ms. Nishi Goel and Mr. Om Pal, Advocate, for respondents No. 11, 55, 69, 111, 115, 116 and 120. Respondents No. 3 to 10, 12 to 54, 56 to 68, 70 to 110, 112 to 114, 117 to 119 and 121 to 157, ex parte.
Per Sandeep Sharma, Judge Instant Letters Patent Appeal under clause 10 of the Letter Patents of Delhi High Court as applicable to the Himachal Pradesh High Court has been filed against judgment dated 23.6.2010 passed in CWP No. 1861 of 2009 by a learned Single Judge of this Court, with the following main relief:
::: Downloaded on - 15/04/2017 21:42:02 :::HCHP 2"It is, therefore, prayed that this appeal may kindly be accepted and the judgment dated 23.6.2010 passed in CWP No. 1861/2009 (sic 1861/2010) by Hon'ble Single Judge, whereby writ petition filed by the present appellants stand may kindly be set aside in the interest of law and justice."
.
2. Briefly stated the facts of the case, as emerge from the record are that the petitioners were appointed as Inspectors Grade-I in the year 1998, in accordance with Rules, Annexure P-1 of the writ petition. Mode of recruitment under Rule 10 of the relevant Rules, notified in 1986, is as of under:
10% by direct recruitment, 50% by promotion from Sub Inspectors/ Sub Inspectors rt (Audit), 30% by promotion from amongst Clerks, and, 10% by promotion from amongst Gram Sewaks.
3. On 1.6.1996, a notification (Annexure P-2 of writ petition) was issued, merging 147 posts of Inspectors Grade-II in the Cooperation Department in the cadre of Inspector Grade-I (General and Audit), i.e. the cadre to which the appellants were appointed by direct recruitment in 1998. Consequently, respondents No. 3 to 156, who were working as Inspectors Grade-II, on the date of issuance of that notification in the Cooperative Department, became Inspectors Grade-I. Aforesaid respondents were initially appointed as Sub Inspectors but later redesignated as Inspectors Grade-II. Annexure P-2 of the writ petition besides merging two cadres also provided for regulating the seniority of the incumbents of the posts of two cadres in the integrated cadre. It was provided that the persons already working as Inspectors Grade-I would ::: Downloaded on - 15/04/2017 21:42:02 :::HCHP 3 rank senior, en bloc, to the persons, who became Inspector Grade-I, by virtue of the order of merger. Appellants, who were appointed in 1998 and 1999 challenged the tentative seniority list of Inspectors Grade-I, .
(Annexure P-5 of the writ petition), by filing CWP No. 1861 of 2009, seeking following main relief(s):-
"(b) That the Hon'ble court may kindly be pleased to issue a writ of certiorari or any other appropriate writ, direction or order in favour of the petitioners and of against the respondents to the effect that the provisional tentative seniority list, i.e. from Sr. No. 58 rt to 211, contained in Annexure P-5, be quashed and set aside as there is an error apparent on the face of record in drawing up the seniority list.
(c) That the Hon'ble court may be pleased to issue a writ or mandamus or writ in the nature of mandamus to the effect that the respondents may kindly be directed to draw up seniority list as per the Recruitment and Promotion Rules and the Notifications, which have been issued by the respondents from time to time."
4. Respondents No.1 and 2 filed reply to the writ petition, which was also adopted by the private respondents. In the reply, locus standi of the appellants to assail Notification Annexure P-2, which was admittedly issued prior the date of their appointment to the cadre in question was questioned.
5. The writ Court, after hearing the arguments of both the sides, dismissed the petition mainly on the ground that the persons (appellants), ::: Downloaded on - 15/04/2017 21:42:02 :::HCHP 4 who were not even in service on the date of integration of different cadres, can not seek seniority above the persons, who are/were already borne on the integrated cadre and as such they have no locus standi to .
assail the order of integration.
6. Now, feeling aggrieved by aforesaid judgment rendered by the writ Court, appellants-petitioners have approached this Court, by way of present appeal, seeking reliefs as have been reproduced above.
of
7. Crux of the arguments having been made by Mr. K.D. Shreedhar, learned Senior Advocate duly assisted by Mr. Yudhbir Singh, rt Advocate, is that notification, vide which two cadres were ordered to be merged deserves to be quashed and set aside being contrary to the Rules framed by the respondents. As per Mr. Shreedhar, there could not be any merger of cadres merely by issuance of a notification, without there being amendment in the Rules. Apart from above, Mr. Shreedhar also contended that learned Single Judge failed to appreciate that the mergerists could not claim status of promotees and as such in no situation, they could be placed above direct recruits in the seniority list, especially when it stands duly proved on record that the petitioners being direct recruits had joined as Inspector Grade-I in 1998/1999, whereas respondents, though became Inspector Grade-I pursuant to notification issued on 1.6.1996, for all intents and purposes, they assumed charge of the post of Inspector Grade-I in the year 1998/1999 i.e. after the appointment of the petitioners in the cadre of Inspector Grade-I. While ::: Downloaded on - 15/04/2017 21:42:02 :::HCHP 5 inviting attention to the notification of merger issued by the respondents, Mr. Shreedhar further contended that the judgment passed by learned Single Judge is also vitiated because it failed to take note of the .
stipulation contained in the notification, wherein it was specifically provided that after merger, Inspector Grade-2 shall rank junior to the Inspector Grade-I i.e. General and Audit and after merger, they shall not claim seniority over and above the already appointed Inspectors Grade-I. of
8. Mr. Shrawan Dogra, learned Advocate General, duly assisted by Mr. Anup Rattan, Additional Advocate General, supported the rt judgment passed by the learned Single Judge. As per Mr. Dogra, there is no illegality or infirmity in the judgment passed by the learned Single Judge and the same is based on correct appreciation of Rules as well as notification issued in this regard by the appropriate authority. While refuting arguments having been advanced by Mr. Shreedhar, Mr. Dogra while inviting attention to the Notification of merger issued by the respondents, stated that two cadres of Inspector Grade-I and Inspector Grade-2 were ordered to be merged with effect from 1.7.1995. Mr. Dogra, further contended that the State Government on 1.6.1996 vide notification No. Coop.A(1)-1/95 merged entire cadre of Inspector Grade-2 with existing cadre of Inspector Grade-I with effect from 1.7.1995 and thereby enhanced total sanctioned strength of the cadre of Inspector Grade-I from 388 to 535. Mr. Dogra also invited the attention of this Court to the subsequent orders passed by learned Single Judge in another set of cases ::: Downloaded on - 15/04/2017 21:42:02 :::HCHP 6 i.e. CWP(T) No. 2162/2008, CWP(T) No. 3189/2008 and CWP(T) No. 4244/2008, filed by the Himachal Pradesh Cooperative Department Inspector Grade-2 Union, Roshan Lal and others and Association of .
Inspector Grade-2, Cooperative Societies, whereby placing reliance upon the supplementary affidavit of the Joint Secretary (Cooperation) dated 7.7.1997, petitions were disposed of on the basis of 'working formula', suggested as per supplementary affidavit. Mr. Dogra, further contended of that in terms of aforesaid judgment passed by the learned Single Judge, aforesaid notification of merger dated 1.6.1996, merging Inspector Grade-
rt 2 with existing cadre of Inspector Grade-I, was made effective with effect from 1.8.1995 instead of 1.7.1995. While refuting the contentions raised on behalf of the learned counsel for the petitioners that as per Notification of merger dated 1.6.1996, Inspectors Grade-2 were to rank junior to the Inspector Grade-I, General and Audit, after merger, Mr. Dogra, strenuously argued that no benefit can be drawn by the appellants from para (iv) in the aforesaid notification, because same relates to the Inspector Grade-I, who were already working in the Department as such, at the time of issuance of notification i.e. 1.6.1996, appellants who were admittedly appointed as direct recruits in 1998-99 can not claim any benefit on the basis of aforesaid stipulation. While concluding his arguments, Mr. Dogra forcefully contended that after notification of merger, all the consequential benefits of pay scale and arrears of pay were given to both the employees, direct and merged with effect from ::: Downloaded on - 15/04/2017 21:42:02 :::HCHP 7 1.6.1996, as a result of which promotees and merged inspectors acquired status of Inspector Grade-I from that date and as such there is no illegality in the judgment passed by the learned Single Judge and same deserves to .
be upheld.
9. We have heard the learned counsel for the parties and also gone through the records.
10. Before proceeding to decide the present appeal, it would be of appropriate to refer to order dated 31.8.2010 passed by this Court in the present appeal, which is reproduced below:
rt "No notice needs to be issued to private respondents at this stage. There will be direction to second respondent to file an affidavit as to whether any person, who has been promoted to the cadre of Inspector Grade-I after the petitioners joining duty, have been given a place above the petitioners in the seniority list and if so what is the reason thereof. The affidavit, as above, shall be filed by the second respondent within a period of six weeks. There will also be a direction to respondents No.1 and 2 that in case any promotion is made during the pendency of LPA, it shall be made clear in the proceedings that promotion is subject to the outcome of the LPA. Post on 25.10.2010."
11. Pursuant to aforesaid direction issued by this Court, Additional Registrar Cooperative Societies, Himachal Pradesh filed affidavit stating therein as under:
"2. That in compliance of the directions of the Hon'ble High Court referred in para 1 supra it is submitted that the Department had circulated the final seniority list of Inspector Cooperative Societies on 03-04-1998 showing the seniority position of Inspectors appointed/ promoted prior to 31-12-1995. It is further submitted that after the petitioners joining duty as Inspector Grade-I in the Department, no seniority list ::: Downloaded on - 15/04/2017 21:42:02 :::HCHP 8 of the cadre of Inspector Grade-I could be finalized till date due to the complications that arose on account of merger of the cadre of Inspector Grade-2 with the cadre of Inspector Grade-I on 01-06-1996 and the promotion orders of Inspector Grade-I issued on same date. The detail submissions with regard to merger and .
promotion order dated 01-06-1996 have been made in succeeding paras. However, this department has prepared a tentative/provisional seniority list of Inspector Cooperative Societies showing the seniority position as on 31-12-2007 and circulated vide this office letter No. 4-64/2003 Coop.(Estt.) dated 22-2- 2008. In this tentative/provisional seniority list, no incumbent who has been promoted to the cadre of of Inspector Grade-I after the petitioners joining duty has been given place over and above the petitioners.
3. That it is worth stating here that on 01.06.1996, 38 Inspector Grade-2 and 23 Junior Assistants/Senior rt Clerks were promoted as Inspector Grade-I vide this office order No. 4-91/87-Coop.(Estt.) dated 01.06.96.
The State Government on the same date i.e. 01.06.96 vide Notification No. Coop.A(1)-1/95 dated 01.06.96 merged entire cadre of Inspector Grade-2 with existing cadre of Inspector Grade-I, w.e.f. 01.07.95 and thereby enhanced the total sanctioned posts of Inspectors (General/Audit) from 388 to 535.
4. That due to the retrospective effect of the merger notification dated 01.06.96 some administrative complications arose and O.A. No. 879/96 was filed in the Hon'ble Administrative Tribunal by the promoted Inspectors from amongst the cadre of Clerks against the Notification of merger with effect from 01.07.95. The erstwhile Tribunal clubbed above-mentioned O.A. with O.A. No. 1369/93 and O.A. No. 533/97 which were filed by the Association of the Inspector Grade-II for merger of cadre of Inspector Grade-II with Inspector Grade-I on Punjab pattern. Subsequently, the Government of Himachal Pradesh vide Notification No. Coop.A(1)-1/96 dated 09.03.99 modified the date of merger w.e.f. 01.06.96 instead of 01.07.95 with the condition that this decision as well as inter-se- seniority of all the parties to this dispute shall be subject to the decision in O.As No. 1369/93, 879/96 and 533/97 and promotions orders issued on 01.06.96 were also implemented w.e.f. 01.06.96 vide this office ::: Downloaded on - 15/04/2017 21:42:02 :::HCHP 9 order No. 4-109/92-Coop.(Estt.) dated 17th March, 1999. As such the merger orders as well as the promotion orders issued on 01.06.96 could not be implemented till 9th March, 1999 and 17th March, 1999 respectively.
5. That after the modification of merger date i.e 01-6- .
1996 instead of 01-07-1995 all the consequential benefits of pay scale of Inspector and arrears of pay were given to both the set of employees i.e. the promoted and merged Inspectors w.e.f. 01-06-1996.
Accordingly, the promotees and merged Inspectors have the status of Inspector Grade-I w.e.f. 01-06-1996. Therefore, 23 Clerks promoted on 01.06.96 and 147 Inspector Grade-II merged with the cadre of Inspector of Grade-I on 01.06.96 have been placed above the petitioners in the tentative/provisional seniority list circulated on 22-02-2008.
6. That all the O.As No. 1369/93, 879/96 and 533/97 rt referred above were transferred to the Hon'ble High Court after scrapping of the erstwhile Tribunal and listed before the Hon'ble High Court as CWP(T) No. 2162/08 in O.A. No. 1369/93, CWP(T) No. 4244/2008 in O.A. No. 533/1997 and CWP(T) No. 3189/2008 in O.A. No. 879/96. The above referred CWPs have been disposed off by the Hon'ble High Court on 07.08.2009 by a common judgment. This Hon'ble High court in its judgment dated 07-08-2009 has relied upon the supplementary affidavit of Joint Secretary (Cooperation) to the Government of Himachal Pradesh filed in O.A. No. 879/96 on 07-07-1997. For the sake of brevity, operative portion of the affidavit is reproduced as under: -
"6(i) The Government notification No. Coo.A(1)-1/95, dated 01.06.96 merging the Inspector Grade-II with that of Inspector Grade-I shall be effective w.e.f. 01.08.95 instead of 01.07.95. In this way, the promotion orders issued on 24.07.95 whereby the services of 12 Inspectors were regularized shall remain intact.
(ii) The present applicants in O.A. No. 879/96 as well as other similarly situated persons promoted on 01.06.96 will not reverted and they will be entitled for ::: Downloaded on - 15/04/2017 21:42:02 :::HCHP 10 benefits available under F.R. 22-C while fixing their pay.
(iii) That the inter-se- seniority of the applicants (Clerks) promoted on 01.06.96 and the merged Inspector cadre will be based on the length of service of the .
concerned Clerks and Inspectors. This will be done in relaxation of the exiting provision of the R&P Rules for the post of Inspector Grade-I.
(iv) That the State Government contemplates framing of new R&P Rules for the category of Inspector Grade-I wherein we are proposing to increase the promotion of to a reasonable level of Clerks against 30% quota as available at present."
Consequently, the Hon'ble High Court has directed the respondent State to do the needful as per rt the supplementary affidavit in O.A. No. 879/1996 converted to CWP(T) 3189/2008. Copy of the judgment passed by the Hon'ble Court on 7.08.2009 is enclosed herewith as Annexure A-I.
7. That Sh. Roshan Lal and others have filed an LPA No. 10/2010 before this Hon'ble Court against the judgement dated 7.08-2009, which is pending adjudication."
12. Perusal of aforesaid affidavit having been filed on behalf of the respondent-State suggests that vide notification dated 1.6.1996, 38 Inspector Grade-II and 23 Junior Clerks/Senior Clerks were promoted as Inspector Grade-I. State Government on the same date merged entire cadre of Inspector Grade-II with that of existing cadre of Inspector Grade-I with effect from 1.7.1995. OA No. 1369/93 and OA No. 533/97 were filed for merger of cadre of Inspector Grade-II with Inspector Grade-I on Punjab Pattern and State Government issued notification merging cadre of Inspector Grade-II with Inspector Grade-I, with effect ::: Downloaded on - 15/04/2017 21:42:02 :::HCHP 11 from 1.8.1995, on 1.6.1996. Another set of employees being aggrieved by issuance of notification dated 1.6.1996, also approached Himachal Pradesh Administrative Tribunal by filing OA No. 879/96. Aforesaid .
decision of the Government of merging cadre of Inspector Grade-II with Inspector Grade-I in the State of Himachal Pradesh, was stayed by the Himachal Pradesh Administrative Tribunal in OA No. 879/1996 at the stage of admission, as a result of which, merger order as well as of promotion order issued on 1.6.1996 could not be implemented till 9.3.1999 and 17.3.1999, respectively. It also emerges from the record that rt the Himachal Pradesh Administrative Tribunal clubbed aforesaid Original Applications i.e. OA No. 879/1996 and 1369/1993. During the pendency of the aforesaid Original Applications, which later came to be heard by the learned Single Judge of this Court, after abolition of Himachal Pradesh Administrative Tribunal, Government of Himachal Pradesh, vide notification No. Coop.A(1)-1/95 dated 9.3.1999 modified the date of merger from 1.7.1995 to 1.8.1995, subject to the condition that this decision as well as inter-se seniority of all the parties to the petition shall be subject to decision of OA No. 1369/93, OA No. 533/1997 and OA No. 879/1996 and promotion orders issued on 1.6.1996 were also implemented from 1.6.1996 vide office order dated 17.3.1999.
13. At this stage, it may be noticed that later on aforesaid Original Applications (CWP(T)'s) came to be decided by the learned Single Judge of this Court on 7.8.2009, wherein learned Single Judge ::: Downloaded on - 15/04/2017 21:42:02 :::HCHP 12 while placing reliance upon supplementary affidavit of Joint Secretary (Cooperation) filed on 7.7.1997, disposed of the petitions by recording the statement of the counsel for the parties, on the basis of working .
formula suggested in the supplementary affidavit. It would be apt to reproduce herein the operative portion of judgment passed by the learned Single Judge:
"The judgment was reserved by this Court on 10.7.2009. The of learned counsel for the parties have failed to point out the supplementary affidavit dated 7.7.1997 in OA No. 879/1996 to the Court. It is in these circumstances the matters have been listed for speaking to the minutes to permit the learned rt counsel for the parties to assist the Court after the filing of this affidavit. The Court has ascertained from the learned counsel appearing on behalf of the parties whether these petitions can be disposed of on the basis of the working formula suggested as per the supplementary affidavit. The learned counsel appearing on behalf of the parties in all the three petitions have fairly submitted that the formula evolved by Mr. V.C. Katoch by way of his affidavit is acceptable to the parties.
The learned counsel appearing on behalf of the petitioner in CWP (T) 2162/2008 and CWP (T) No. 4244/2008 have submitted that their clients are stagnating on the same post for more than two decades. It is settled law by now that there should be two to three promotional avenues available to every category of employees to remove the stagnation and to improve the efficiency in public service.
Accordingly, the interest of justice will suffice by directing the respondent-State to consider this plea of the petitioners in accordance with law laid down by their Lordships in A. Satyanaryana and others versus S. Purushotham and others, (2008) 5 SCC 416 within a reasonable period.
Consequently, the respondent-State is directed to do the needful as per the supplementary affidavit filed by Mr. V.C. ::: Downloaded on - 15/04/2017 21:42:02 :::HCHP 13 Katoch in O.A. No. 879/1996 converted to CWP (T) No. 3189/2008.
In view of the observations made hereinabove, the petitions are disposed of. No costs."
.
14. The working formula as mentioned in the aforesaid judgment is as under :
"6(i) The Government notification No. Coo.A(1)-1/95, dated 01.06.96 merging the Inspector Grade-II with that of Inspector Grade-I shall be effective w.e.f.
of 01.08.95 instead of 01.07.95. In this way, the promotion orders issued on 24.07.95 whereby services of 12 Inspectors were regularized shall remain intact.
(ii) The present applicants in O.A. No. 879/96 as well as rt other similarly situated persons promoted on 01.06.96 will not reverted and they will be entitled for benefits available under F.R. 22-C while fixing their pay.
(iii) That the inter-se- seniority of the applicants (Clerks) promoted on 01.06.96 and the merged Inspector cadre will be based on the length of service of the concerned Clerks and Inspectors. This will be done in relaxation of the exiting provision of the R&P Rules for the post of Inspector Grade-I.
(iv) That State Government contemplates framing of new R&P Rules for the category of Inspector Grade-I wherein we are proposing to increase the promotion to a reasonable level of Clerks against 30% quota as available at present."
15. This Court after carefully examining the affidavit filed by the Additional Registrar Cooperative Societies as well as judgment delivered by the learned Single Judge dated 7.8.2009, is of the view that cadre of Inspector Grade-II existing as on 1.6.1996 was actually merged with cadre of Inspector Grade-I with effect from 1.7.1995 but in view of pendency of litigation before the Himachal Pradesh Administrative ::: Downloaded on - 15/04/2017 21:42:02 :::HCHP 14 Tribunal, notification of merger could be given effect on 9.3.1999 and 17.3.1999, respectively.
16. True it is that the learned Himachal Pradesh Administrative .
Tribunal while taking cognizance of the averments contained in OA No. 789/1996 (CWP(T) No. 3189/2008) filed by a set of employees aggrieved by notification dated 1.6.1996, stayed the operation of notification at the stage of admission but as has been discussed above the Original of Application having been preferred by the affected parties including those employees, who were aggrieved by issuance of aforesaid notification, rt were later on disposed of by the learned Single Judge of this Court on 7.8.2009, on the basis of working formula suggested in the supplementary affidavit of Joint Secretary (Cooperation) on 7.7.1997, reproduced herein above. As per working formula, all the parties including those who were aggrieved by issuance of notification of merger, agreed that notification dated 1.6.1996 merging cadre of Inspector Grade-II with that of Inspector Grade-I shall be effective from 1.8.1995 instead of 1.7.1995, as a result of which, promotion orders dated 1.7.1995, whereby services of 12 Inspectors were regularized, were to remain intact.
17. Crux of the working formula suggests that all the parties, who had filed Original Application before the Court, agreed to abide by notification of merger, merging cadre of Inspector Grade-II with Inspector Grade-I with effect from 1.8.1995. Since, in the final adjudication of the Original Applications, wherein Himachal Pradesh ::: Downloaded on - 15/04/2017 21:42:03 :::HCHP 15 Administrative Tribunal had stayed operation of notification of merger dated 1.6.1996, was upheld with minor modifications of date of application i.e. 1.8.1995 instead of 1.7.1995, it can be safely concluded .
that respondents, who were Inspector Grade-II had merged with the cadre of Inspector Grade-I with effect from 1.7.1995 in terms of notification of merger for all intents and purposes. Perusal of affidavit having been filed by Additional Registrar Cooperative Societies, clearly suggests that of immediately after issuance of notification dated 1.6.1996, entire cadre of Inspector Grade-II had merged with that of existing cadre of Inspector rt Grade-I with effect from 1.7.1995, which was later on ordered to be modified with effect from 1.8.1995, in terms of judgment dated 7.8.2009 passed by the learned Single Judge in aforesaid Original Applications/CWP(T)'s. It may also be noticed at this stage that judgment dated 7.8.2009 passed by the learned Single Judge in CWP(T)'s No. 2162, 3189 and 4244 of 2008 was further upheld by this Court in LPA No. 10/2010, vide judgment dated 6.9.2016. Further perusal of appointment letters issued to the appellants at the time of their joining as Inspector Grade-I, which were made available to this Court, during the hearing by the learned Advocate General, clearly suggests that their appointment was subject to final decision of OA No. 1369/1993 filed by the State Cooperative Inspectors Grade-II Association. Appointment letter further suggests that in case offer of appointment, wherein aforesaid stipulation with regard to final decision of OA No. 1369/1993 was ::: Downloaded on - 15/04/2017 21:42:03 :::HCHP 16 incorporated, was acceptable to the appointees, they were directed to report for duty to the Assistant Registrar Cooperative Societies Solan, on or before 21.9.1998, meaning thereby that present appellants were fully .
conscious about the pendency of OA No. 1369/1993, wherein issue of notification of merger was involved. Since appellants were fully aware that in terms of notification of merger dated 1.6.1996, Inspector Grade-II would be merged into cadre of Inspector Grade-I and they would be of placed en bloc below Inspector Grade-I already working in the Department, on the basis of notification, in seniority, they can not be rt allowed to rake up the issue at this belated stage. But despite above, no steps were ever taken by the appellants to lay challenge to the notification of merger and as such there is no force in the contentions put forth by Mr. Shreedhar that respondents who were Inspector Grade-II, could not be placed above the appellant in seniority by virtue of notification of merger.
18. Perusal of writ petition preferred by the appellants nowhere suggests that the appellants laid any challenge to notification of merger which was effective from 1.6.1996 and as such they can not be allowed at this stage to state that respondents could not be placed over them in the seniority on the basis of notification of merger issued in 1996 i.e. prior to their direct recruitment. This Court, after perusing documents available on record has no hesitation to conclude that for all intents and purposes, respondents were merged with the existing cadre of Inspector Grade-I with effect from 1.7.1995 and during the pendency of the Original ::: Downloaded on - 15/04/2017 21:42:03 :::HCHP 17 Applications having been filed by affected parties before Himachal Pradesh Administrative Tribunal, merger orders as well as promotion orders issued on 1.6.1996 were implemented on 9.3.1999 and 17.3.1999, .
respectively. Moreover, appointment of the appellants was subject to outcome of OA No. 1369/1993, wherein notification of merger dated 1.6.1996 was upheld vide judgment dated 7.8.2009, on the basis of working formula suggested by the Government, which was acceptable to of all the parties.
19. There is no force in the contention of the appellants that rt merging of cadres could not take place by issuance of notification without there being any amendment in the rules, because perusal of Rules, Annexure P-1, nowhere prohibits merger of cadres. Apart from above, it is the prerogative of the State Government to merge two or more cadres into one cadre or to disintegrate cadres into different cadres or to abolish a cadre exercising powers under Article 162 of the Constitution of India.
In the present case, though this Court is of the view that notification of merger was issued prior to the appointment of the present appellants as Inspector Grade-I and appellants had no occasion to lay challenge to aforesaid notification admittedly issued in 1996 i.e. prior to their appointment but as emerges from the record, matter with regard to notification of merger remained pending in the Himachal Pradesh Administrative Tribunal and thereafter in this Court, as noticed above, till August, 2009 yet, it is not understood that if appellants were aggrieved ::: Downloaded on - 15/04/2017 21:42:03 :::HCHP 18 with the issuance of notification of merger, what prevented them to lay challenge to the same either by becoming party in the pending proceedings or by way of a substantive petition before the competent .
court of law, and as such this Court sees no force in the contention put forth on behalf of the appellants that there could be no merger of cadres.
20. It is amply clear from the facts and circumstances above that on the date of appointment of the appellants, as direct recruits (Inspector of Grade-I), respondents were already borne on the integrated cadre of Inspector Grade-I in terms of notification of merger dated 1.6.1996 and as rt such this Court sees no illegality or infirmity in the judgment passed by the learned Single Judge which appears to be based on correct appreciation of facts as well as law and as such same deserves to be upheld.
21. Now, this Court would be dealing with case law referred by the learned counsel for the appellants, in support of his arguments.
Learned counsel for the petitioner has relied upon the following case law in support of his contentions:
1. P. Sudhakar Rao & Ors Vs U. Govinda Rao and Ors reported in (2013) 8 SCC 693
2. State of Uttaranchal and Another Vs Dinesh Kumar Sharma reported in (2007) 1 SCC 683
3. A.P. Manchanda Vs State of Haryana reported in 1994 Supp (2) SCC 44
4. State of Bihar Vs Akhouri Sachindra Nath & ors reported in 1991 Supp (1) SCC 334
5. National Agricultural Coop. Marketing Federation of India Vs Union of India reported in (2003) 5 SCC 23 ::: Downloaded on - 15/04/2017 21:42:03 :::HCHP 19
6. Uttaranchal Forest Rangers' Assn (Direct Recruit) & Ors Vs State of U.P. & Ors reported in (2006) 10 SCC 346
7. Chairman, Railway Board Vs C.r. Rangadhamaiah reported in (1997) 6 SCC 623
8. S.P. Shivprasad Pipal Vs Union of India & Ors reported in (1998) 4 SCC 598 .
22. This Court carefully perused aforesaid law having been cited by the learned Senior counsel for the appellants, perusal whereof clearly suggest that retrospective seniority can not be given to the employees of from a date, when they were not borne on the cadre. Similarly, aforesaid judgments suggests that seniority needs to be counted against rt promotion/appointment in the cadre from the date of issuance of order of substantive appointment. Judgment passed by Apex Court in National Agricultural Cooperative Marketing Federation of India vs. Union of India (supra) further lays down that legislative power either to introduce enactment for the first time or to amend the enacted law with retrospective effect is not only subject to the question of competence but is also subject to several judicially recognized limitations.
23. There can be no quarrel with the aforesaid law having been laid down by the Apex Court in aforesaid judgments that seniority can be given only from the date of substantive appointment. There can be no automatic promotion or appointment to a post on the recommendations of Public Service Commission unless the Government sanctions such promotion and appointment. Similarly, there can be no dispute that promotees not borne on the cadre at the time when direct recruits came to ::: Downloaded on - 15/04/2017 21:42:03 :::HCHP 20 be appointed, can not be given seniority in service over direct appointees.
This Court sees no dispute that retrospectivity while giving effect to any notification must not adversely trench upon the entitlement of seniority of .
others. Retrospective seniority can not be given to employee from the date when he was not even borne in the cadre.
24. This Court, with due respect to aforesaid judgments having been passed by Apex Court, is of the view that the same are not of applicable in the present case, for the reasons detailed herein above. In the present case, all the respondents were Inspector Grade-II prior to rt issuance of notification dated 1.6.1996 and subsequent to issuance of notification of merger, they were merged with the cadre of Inspector Grade-I from 1.7.1995 for all intents and purposes and as such, by no stretch of imagination, it can be said that at the time of appointment of the appellants as direct recruits, against the posts of Inspector Grade-I, respondents were not even borne on the cadre of Inspector Grade-I. Rather, in the present case, after modification of notification dated 1.6.1996, all consequential benefits of pay scale and arrears of pay were given to the respondents with effect from 1.6.1996.
25. True it is that aforesaid notification of merger could not be implemented till 9.3.1999 and 17.3.1999 due to pendency of the Original Applications having been filed by affected parties before Himachal Pradesh Administrative Tribunal and thereafter before this Court, but the fact remains that in the aforesaid proceedings, notification of merger was ::: Downloaded on - 15/04/2017 21:42:03 :::HCHP 21 upheld, as a result of which all the respondents stood merged with the cadre of Inspector Grade-I with effect from issuance of notification dated 1.6.1996.
.
26. As far as issue of retrospectivity is concerned, notification of merger dated 1.6.1996 was initially made applicable with effect from 1.7.1995, but later on respondent-State with a view to balance equities between the parties, took a conscious decision to make notification of of merger effective from 1.8.1995 instead of 1.7.1995, that too with a view to protect promotion of 12 Inspectors ordered on 24.7.1995. Aforesaid rt decision was also taken by the respondent-State to avoid reversion of similarly situated persons, who were promoted on 1.6.1996, to ensure that they get benefit of FR-22 while fixing their pay. In the instant case, there is no question of retrospective operation of notification of merger but same was only made applicable from 1.8.1995 for the reasons stated above to protect interests of a few employees, who could be adversely affected by the issuance of notification of merger.
27. The Apex Court in S.P. Shivprasad Pipal vs. Union of India and others reported in (1998) 4 SCC 598, held that decision to merge cadres is essentially a matter of policy. The power to regulate recruitment and conditions of service is wide and includes the power to constitute a new cadre by merging the existing cadres. The Apex Court has held as under:
::: Downloaded on - 15/04/2017 21:42:03 :::HCHP 22"5. However, when different cadres are merged certain principles have to be borne in mind. These principles were enunciated in the case of State of Maharashtra and Anr. V. Chandrakant Anant Kulkarni & Ors. (1982 1 SCR 665 at page 678) .
while considering the question of integration of government servants allotted to the services of the new States when the different States of India were reorganised. This Court cited with approval the principles which had been formulated for effecting integration of services of different States. These principles are: In of the matter of equation of posts, (1) where there were regularly constituted similar cadres in the different integrating units the cadres will ordinarily be integrated on that basis but (2) where rt there were no such similar cadres, the following factors will be taken into consideration in determining the equation of posts:-
(a) Nature and duties of a post;
(b) Powers exercised by the officers holding a post the extent of territorial or other charge held or responsibilities discharged;
(c) The minimum qualifications, if any, prescribed for recruitment to the post and;
(d) the salary of the post.
This court further observed that it is not open to the court to consider whether the equation of posts made by the central Government is right or wrong. This was a matter exclusively within the province of the Central Government. Perhaps the only question the Court can enquire into is whether the four principles cited above had been properly taken into account. This is the narrow and limited field within which the supervisory jurisdiction of the Court can operate.
::: Downloaded on - 15/04/2017 21:42:03 :::HCHP 2315. A decision to merge such cadres is essentially a matter of policy. Since the three cadres carried the same pay scale at the relevant time, merging of the three cadres cannot be said to have caused any prejudice to the members of any of the cadres. The total .
number of posts were also increased proportionately when the merger took place so that the percentage of posts available on promotion was not in any manner adversely affected by the merger of the cadres."
28. Viewed thus, the impugned judgment is upheld, accordingly, of there is no merit in the present appeal, as such, same is dismissed.
Pending applications, if any, are also disposed of.
rt (Mansoor Ahmad Mir) Chief Justice (Sandeep Sharma) Judge December 8, 2016 (vikrant) ::: Downloaded on - 15/04/2017 21:42:03 :::HCHP