Punjab-Haryana High Court
Satish Kumar vs State Of Haryana And Ors on 12 October, 2022
Author: Arun Monga
Bench: Arun Monga
CWP No.745 of 2008 (O&M)
Sr.No.1090
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.745 of 2008 (O&M)
Decided on: 12.10.2022
Satish Kumar ...Petitioner
Versus
State of Haryana and others ...Respondents
CORAM : HON'BLE MR. JUSTICE ARUN MONGA
Present : Mr. Sanjiv Ghai, Advocate and
Mr. Parminder S. Kaul, Advocate
for the petitioner.
Mr. R.D. Sharma, D.A.G., Haryana.
Mr. Jagtar Singh, Advocate
for respondent No.5.
***
ARUN MONGA, J.(ORAL)
Petition herein, inter alia, is for issuance of a writ in the nature of Certiorari seeking to quash office order/letter dated 06.06.2006 (Annexure P/16),whereby the relaxation granted for filling up post of Stenographer vide Memo dated 20.07.2005 (Annexure P/11) to the petitioner was withdrawn. Consequently, respondent No.3 was requested to withdraw the appointment letter dated 25.07.2005 (Annexure P/12) issued to the petitioner. Quashing of office order/letter dated 15.01.2008 (Annexure P/20) is also sought, whereby the petitionerwas ordered to relinquish the charge of Stenographer, O/o respondent No.4 at once and join back his parent organization i.e., respondent No.5.
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2. Succinct factual narrative first, as pleaded.
2.1. Petitioner is a Post Graduate in Sociology. He was initially appointed as P.A. in Bhuna Co-op. Sugar Millon 19.06.1991, in response to the advertisement of the said post after following due process. On 05.04.1994, he was appointed on transfer basis as Stenographer against vacant post in the office of Respondent No.5-District Rural Development Agency, Hisar(D.R.D.A). Petitioner being a Stenographer in DRDAwas also working as Additional Stenographer in the office of Respondent No.4-Deputy Commissioner, Hisar(DC, Hisar). Deputy Commissioner of the District also acts as the Chairman of D.R.D.A. He was working as Stenographer in the pay scale of Rs.5,000-7,850. Since 1991, the ACRs of the petitioner have all been "outstanding" and "excellent".
2.2. In 2002, post of Stenographer in the office of D.C, Hisar fell vacant as one Sh. Ramesh Chander Stenographer was promoted to the post ofAsstt. Supdt. (Revenue). Petitioner moved an application before D.C. Hisar for consideration of his case for absorption by way of transfer in the office of respondent No.4.His request was examined by respondent No.4 and forwarded to the office of respondent No.3-Commissioner, Hisar Division(Commissioner) with the observation that the said office had no objection if theservices of the petitioner are absorbed and he is appointed to the post of Stenographer in the said officeon a transfer basis.
2.3. Prior thereto, for over two years, the post in question was lying vacant since both Sh. Attar Singh and Siri Ram, who were working as Steno-typist in the Office of SDO(C) and D.C., Hisar respectively, could not pass the Stenography test in both languages i.e., Hindi and English. They werethus not eligible for being considered forpromotion to the post of Stenographer.
2.4. Hence, on 20.07.2005, the Commissioner, Hisar Division Page 2 of 9 2 of 9 ::: Downloaded on - 24-12-2022 07:04:58 ::: CWP No.745 of 2008 (O&M) recommended the case of the petitioner to respondent No.2/Financial Commissioner, Revenue Department(Financial Commissioner)for absorption of the services of petitioner by way of transfer as Stenographer in the office of DC, Hisar. In view of the material on record and after invoking the provisions of Rule 17 of the Haryana Revenue Department District Subordinate Group(C) Service Rules, 1988 (for short 'Rules, 1988'),the office of the Financial Commissioner (Revenue)vide letter dated 20.07.2005 (Annexure P-11) granted permission to fill up the post of Stenographer in the office of DC, Hisar by appointing the petitioner on transfer basis. The aforesaid Rule confer upon the Govt. the powers to relax any of the provisions of the said Rules with respect to any class/category of persons. 2.5. Accordingly, vide letter dated 25.07.2005 (Annexure P-12) issued by Commissioner, Hisar Division, the petitioner was appointed as Stenographer in the office of DC, Hisar by transfer. This was done subject to the approval of Haryana Staff Selection Commission"HSSC". Furthermore, petitioner was not to be entitled to any benefit of seniority in the District cadre and his seniority will be reckoned from the date of joining the office of respondent No.4. He was required to submit an affidavit to this effect, which he duly submitted vide Annexure P-13.On 02.08.2005, the Office of D.R.D.A., Hisar relieved the petitioner of his duty w.e.f. 25.07.2005vide order (AnnexureP-15)wherein it was mentioned that the petitioner will maintain his seniority and lien in the office of D.C., Hisar from the date of his joining or resuming the charge of the post of Stenographer, as per the terms and conditions of his appointment.The pay of the petitioner was fixed as per the provision of Rule 4.4(B) of C.S.R. Volume I Part I. 2.6. On 28.08.2005,the aforementioned two Steno-typistsSh. Attar Singh and Sh. Siri Ram Sharma filed a petition bearing CWP No.13821 of 2005 impugning the appointment of the petitioner as Stenographer by transfer.In the said writ petition, in thereply filed by the Page 3 of 9 3 of 9 ::: Downloaded on - 24-12-2022 07:04:58 ::: CWP No.745 of 2008 (O&M) Commissioner, Hisar Division (Annexure P-15/A) it was stated that the post of Stenographer became vacant in the O/o D.C, Hisar from August2002, and the tests for Stenography in both languages were held on 26.10.2004 and 15.03.2005 respectively. The petitioners therein could not pass the above-mentioned Stenography test in both languages and hence, they were not eligible for being considered for the post of Stenographer.It was further submittedthat the appointment of the petitioner (respondent No.4 therein) as Stenographer,was legal in light of the power of the State Govt. under Rule 17 of the Rules, 1988 to relax the application of the Rules. In pursuance of this provision, the Financial Commissioner (Revenue) vide letter dated 20.07.2005 had granted permission to fill up the post of Stenographer in the office of respondent No.4 and to appoint the petitioner by transfer subject to the approval of HSSC.
2.7. During pendency of the said writ petition, respondent No.2 vide impugned letter dated06.06.2006 (Annexure P-16) requested respondent No.4 to withdraw the appointment letter of the petitioner, stating therein, that HSSC while noting its objections, had advised that this casebe re-examined in light of the relevant Service Rules and Govt. Instructions dated 19.08.1982. Upon re-examination,the Govt. arrived at the conclusion that the instant case was not covered under the relevant Service Rules and instructions, and accordingly it was decided to withdraw the sanction/permission earlier granted vide Memo dated 20.07.2005.
2.8. Vide letterdated 25.07.2006 (AnnexureP-17), the then incumbent DC, Hisar referred the matter to the office of the Financial Commissioner for re-consideration mentioning that the petitioner had been working in the said office since 1991 and had been rated as an "outstanding" worker by all the Deputy Commissioners posted in the Hisar District. Consequently, grave injustice would be caused to the petitioner if his appointment were to be cancelled.A copy of this letter Page 4 of 9 4 of 9 ::: Downloaded on - 24-12-2022 07:04:58 ::: CWP No.745 of 2008 (O&M) was also forwarded to the Commissioner.
2.9. On 17.08.2006, case of the petitioner was forwarded by the Commissioner, vide letter (AnnexureP-17A) to the Financial Commissioner forreconsideration. On 04.10.2006, the Financial Commissioner and the Principal Secretary, Rural Development Department addressed memo (Annexure P-18) to all the D.C-cum- Chairman, DRDAs in Haryana, informing that the uniform staffing pattern mentioned therein shall be adopted for all the D.R.D.A.s. As per the said staffing pattern, there was to be onlyone post of Steno provided in a District Rural Development Agency. Resultantly, no post of Stenographer in the pay scale that was being drawn by the petitioner was available in D.R.D.A. On 27.12.2006, ADC-cum-CEO, D.R.D.A., Hisar vide letter (Annexure P-19) addressed to DC, Hisar stated, that in view of the implementation of the new staffing pattern in DRDAs, if the petitioner is to be repatriated back to DRDA, then his services will be terminated. Also, upon the appointment/absorption of the petitioner by the Govt. as Stenographer in theoffice of DC, Hisar, the DRDA had cancelled the lien of the petitioner at the time of him being relieved. 2.10. On 19.02.2007, the aforementioned writ petition bearing CWP-13821/2005, was disposed of with the direction that if the matter is already under active consideration of the Financial Commissioner, then the final decision be taken expeditiously. The matter with regard to reconsideration of the case of the petitioner was sent to the office of respondent No.1i.e., Chief Secretary, Haryana and vide impugned order dated11.01.2008 (extracted in para 24 of this petition) it was ordered that the petitioner cannot be considered for absorption in the office of respondent No.4 and he ought to be relieved from there to join his parent organization i.e.,DRDA.
2.11. As a consequence, vide impugned letter dated 15.01.2008 (Annexure P-20) Commissioner, Hisar directed the petitioner to relinquish the charge of Stenographer, O/o respondent No.4 and to join Page 5 of 9 5 of 9 ::: Downloaded on - 24-12-2022 07:04:58 ::: CWP No.745 of 2008 (O&M) back his parent organization-DRDA, mentioning therein that in compliance with the directions of the Financial Commissioner issued vide letter dated 06.06.2006 (Annexure P-16), appointment letter issued to the petitioner to the post of Stenographer in the office of DC, Hisar by transfer from DRDA was withdrawn at once.
3. In the return filed by the State, all the aforementioned facts have been accepted. However, the petition has been contested bystating that the appointment of the petitioner had not been ratified by HSSC as required under Govt. instruction dated 19.08.1982. Further, it has been stated that there is no provision in the relevant service rules providing for filling up a vacancy for the post of Stenographer by way of transfer.
4. I have heard the learned counsel for the parties and have perused the records.
5. This court cannot lose sight of the fact that at the time of relieving the petitioner, his lien in DRDA was terminated when he was appointed in the office of the Deputy Commissioner, Hisar. Further, in the written statement filed by respondent No.5-DRDA, it has been mentioned that the petitioner cannot be allowed to joinbackhis duty in the office of respondent No.5. This is so, as one Senior Stenographer already working in the officeis senior to the petitionerand unless and until another post of Senior Stenographer is created the petitioner cannot be permitted to rejoin.
6. In my opinion, once the Govt. had given relaxation byinvoking the provisions of Rule 17 of the 1988 Rules, the approval of the Haryana Staff Selection Commission was not required. The Haryana Staff Selection Commission could not have objected to the appointment of the petitioner on atransfer basis inasmuch as the power of relaxation Page 6 of 9 6 of 9 ::: Downloaded on - 24-12-2022 07:04:58 ::: CWP No.745 of 2008 (O&M) conferred upon the Govt. under Rule 17 of the 1988 Rules is not qualified with any such condition to the effect that even after exercising the said power, the approval of Staff Selection Commission is necessary.
As regards the letter/instructions dated 19.08.1982 relied upon by respondents No.1 to 4, it was submitted that it only contains administrative instructions which are prior in time to the framing of 1988 Rules. It is pertinent to mention here that the Govt., while framing the 1988 Rules had not laid down any such condition requiring approval of the Staff Selection Commission after the exercise of power under Rule 17, despite the fact that the instructions relied upon were issued prior to it on 19.08.1982. Moreover, it is asettled proposition of law that Administrative Instructions cannot override the Rules.
6.1. Further, the petitioner was appointed on a transfer basis in the office of respondent No.4 in the pay scale of Rs.5,000-7,850 which was the same pay scale in which the petitioner was already getting salary at the time of his appointment on transfer basis. Moreover, as per terms and conditions of the letter of appointment dated 25.07.2005, the petitioner had not been given any benefit of seniority in theCadre of the Deputy Commissioner's officeand his seniority was to be reckoned from the date of joining in the office of respondent No.4. Vide letter dated 01.02.1990 (Annexure P-21) a driver (Jagbir Singh) was absorbed in the office of Commissioner, Gurgaonandin another case a driver working in the office of D.R.D.A, Jind had been appointed on transfer basis in the office of D.C., Jind (Annexure P-22). Clearly, the case of the petitioner is also similar to the said employees.
6.2. Furthermore,while issuing notice of motion vide order dated 17.01.2008 operation of impugned order (Annexure P-20) wasstayed and Page 7 of 9 7 of 9 ::: Downloaded on - 24-12-2022 07:04:58 ::: CWP No.745 of 2008 (O&M) vide order dated 13.10.2009 matter was admitted and the aforementioned interim order was ordered to continue. From 25.07.2005 till 31.05.2019, the petitioner continued to work and performed his duties as Stenographer in the office of respondent No.4-DC, Hisar. Even the provident fund account of the petitioner had been opened with the office of Accountant General (A&E), Haryana and his contribution towards the provident fund was deducted from his salary w.e.f. August 2010 and deposited with the office of A.G. (A&E), Haryana. This is evidenced by the provident fund statement dated 16.06.2012 issued by the office of A.G. (A&E), Haryana.Therefore, I deem it appropriate to hold that petitioner's appointment on transfer basis in the office of respondent No.4-D.C., Hisar is not illegal.
7. The court has been apprised that as per office record, the petitioner upon attaining the age of superannuation retired as a Stenographer while working in the office of respondent No.4w.e.f.
31.05.2019, subject to the outcome of the present writ petition and case no. 214 dated 24.02.2017 registered against the petitioner under Section 120-B IPC and Section 7, 8, 10,12 & 13(1)(d) of the Prevention of Corruption Act, in Police Station Civil Line, Hisar. The said criminal case is stated to be still under investigation and the pendency of its investigation would have no effect on the merits of the claim in the present case.
8. Resultantly, the petition is allowed. Impugned orders repatriating the petitioner back to DRDA, Hisarare set aside, which even otherwise lost effect when the petitioner retired while working as Stenographer in the office of DC, Hisar.
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9. Pending civil miscellaneous application, if any, also stands disposed of.
October 12, 2022 (ARUN MONGA)
ashish JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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