Himachal Pradesh High Court
Satish Kumar And Ors vs State Of H.P. And Ors on 12 October, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPOA Nos. 39 & 41/2019 Reserved on: 5.10.2020 Decided on : 12.10.2020 .
CWPOA No. 39/2019 Satish Kumar and ors. .....Petitioners Versus State of H.P. and ors. .....Respondents CWPOA No. 41/2019 Chain Singh and ors. .....Petitioners Versus State of H.P. and ors. .....Respondents Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 No. For the Petitioner: Mr. Vishwa Bhushan, Advocate, for the petitioners in CWPOA Nos. 39 and 41/2019 For the Respondents: Mr. Ashok Sharma, A.G. with Mr. Vinod Thakur, Mr. Vikas Rathore, Mr. Shiv Pal Manhans, Addl. A.Gs., Mr. Bhupinder Thakur, Ms. Seema Sharma and Mr. Yudhvir Singh Thakur, Dy. A.Gs for the respondents State.
1Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 13/10/2020 20:18:22 :::HCHP 2Mr. A. K. Gupta, Advocate, for respondents No. 4 to 105 in CWPOA .
No. 39/2019 and for respondents No. 4 to 93 and 95 in CWPOA No. 41/2019.
(Through Video Conferencing) _____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge As too many cooks spoil the broth so also too many administrative authorities. How different administrative authorities create difficulty in working of the same department would be clear from the subsequent discussion.
2 Since common questions of law and facts arise for consideration in both these petitions, therefore, the same were taken up together and are being disposed of by common judgment.
3 To maintain clarity and for convenience sake, facts from CWPOA No. 39/19 are being extracted.
4 The respondentstate has framed Recruitment and Promotion Rules for the post of Patwari in the Settlement Department, named as The H.P. Revenue Department Settlement Wing Patwari Class III Non Gazetted) Recruitment and Promotion Rules 1992 (for short, the Rules).
5 The petitioners after having selected as Patwari candidates underwent Patwari training during the Sessions 1996 ::: Downloaded on - 13/10/2020 20:18:22 :::HCHP 3 97 and on completion of the training and after passing the Patwari .
examination, they were appointed as Casual Patwari vide order dated 21.10.2003, 3.3.2004 and 18.5.2004 respectively.
6 As per Rule 15 (A) (6) of the R & P Rules, after passing the Patwari Examination such candidates would be considered as qualified patwari candidates, whereas Rule 15 (B) provides that post of the Patwari.
r to the qualified patwari candidates shall be appointed against the 7 According to the petitioners, respondent No. 3, Settlement Officer, Dharamshala, was supposed to appoint the petitioners as regular Patwari with regular pay scale, but respondent No.3 vide aforesaid orders appointed the petitioners as Casual Patwaris in spite of the availability of posts and thereafter vide order dated 3.5.2005 regularized the services of the petitioners as Patwaris. The appointment of the private respondents were also made by respondent No.2 as casual Patwaris after the appointment of petitioners.
8 Respondent No. 3 vide letter dated 23.7.2010 issued final seniority of the Patwaris of Settlement Department, Kangra and Shimla Divisions being Cadre Controlling Authority of both of the divisions.
::: Downloaded on - 13/10/2020 20:18:22 :::HCHP 49 The petitioners as per this seniority list were shown .
senior to some of the private respondents, however maximum of the private respondents do not even figure in the seniority list as they had not been regularized by that time.
10 In the year 2011, some of the private respondents filed petition before this Court being CWP No. 5653/2011, titled as Hari Ram and ors. vs. State of H.P. and ors., wherein they sought equal treatment with persons/Patwaris regularized vide orders dated 7.4.2005 and 3.5.2005.
11 Notably, none of the petitioners were arrayed as party and the petition came to be allowed vide order dated18.10.2012, whereby direction was issued to the official respondents to place private respondents in the regular establishment of the Patwaris as was so done with respect to similarly situated persons in terms of office orders dated 7.4.2005 and 3.5.2005. It was thereafter directed that past service of the private respondents shall be considered only for the purposes of notional pay fixation and pension, if any.
12 It is here, where the problem seems to have been created. In compliance to the directions of this Court, as aforesaid, respondent No.2, the Settlement Officer, Shimla, by considering ::: Downloaded on - 13/10/2020 20:18:22 :::HCHP 5 himself to be the Cadre Controlling Authority vide order dated .
2.8.2013 regularized the appointment of the private respondents notionally. In the similar manner, respondent No.3, in compliance to the letter issued by respondent No.1 on 26.7.2013, issued order dated 14.8.2013 regularizing 91 Patwaris including the petitioners notionally on regular basis from 3.5.2005.
13 Now, the moot
question is whether
respondents, who admittedly were junior to the petitioners, could r the private have been shown to be senior to the petitioners solely on the basis of the judgment of this Court. The answer to the same is obviously is in negative.
14 It needs to be reiterated that the private respondents had approached this Court on the ground of parity and not on the basis that they were senior to the petitioners. It was for this precise reason that the petitioners were not even arrayed party in the said petition. In case the private respondents would have claimed seniority over and above the petitioners, then we have no reason to doubt that the same would have been dismissed solely on the ground of nonjoinder of necessary parties.
15 In addition to above, we may notice that even official respondents have half heartedly contested the petition and rightly ::: Downloaded on - 13/10/2020 20:18:22 :::HCHP 6 so as the sole ground taken by the official respondents showing .
the private respondents senior to the petitioners is the order issued by respondent No.2, Settlement Officer, Shimla, who is not even Cadre Controlling Officer of the parties as it is Settlement Officer, Dharamshala, i.e. respondent No.3, who is Cadre Controlling Authority. This candid admission on behalf of the of the reply, which read as under: r to official respondents can be found in paras 6 (xvi), (xxi) and (xxiii) "(xvi) that in reply to this para it is submitted that the respondents No. 4 to 106 were junior to all the applicants causal patwari and respondent No. 33,42,44 to 47,51,54 to 68 70,72 to 106 were appointed as causal patwari when all the applicants were regular. But when seniority list is recast on 11.01.2018, all the applicants were made junior seniority according to the decision passed in CWP No. 5653/2011 by the Hon'ble High Court dated 18.10.2012. (xxi) that in reply to this para it is submitted that Settlement Officer Dharamshala is the cadre controlling authority. It is pertinent to mention here that respondent No. 2 Settlement Officer Shimla nationally regularized respondent No. 4 to 92 vide order dated 01.4. 2005 and respondents No. 93,94 were notionally regularized vide order dated 01.01.2009 in Shimla Division at their own level vide office order dated 14.08.2013. (xxiii) that in reply to this para it is submitted that applicants were appointed as causal patwari vide order dated 21.10.2003, 03.02.2004 and 18.05.2004 respectively ::: Downloaded on - 13/10/2020 20:18:22 :::HCHP 7 in Kangra Division as their were not regular post of patwari in the division. It is further submitted that supernumerary .
post of patwari in Kangra division and Shimla division were created w.e.f.1.4.2005 and 3.5.2005. Keeping in view the creation of supernumerary post, the Settlement Officer Dharamshala supersess the previous office order 23.4.05, 19.05.06, 01.01.2008 and 25.07.2013 and notionally appointed as a patwari w.e.f. 03.05.2005 vide office order dated 14.08.2013. In the same manner the Settlement Officer Shimla supersess the previous office order 24.04.05, 19.05.06 and 09.10.2006 and notionally appointed as patwari w.e.f. 01.04.2005 vide office order dated 02.08.2013."
16 At this stage, we may also note that the private respondents have filed their reply in one of the petitions being CWPOA No. 39/2019, wherein also it has been specifically averred in para 2, which reads as under:
2. That the respondents are mainly banking upon the reply filed by the state but the reply filed by the state is not very clear, hence the need has arisen to file short reply to the CWPOA to clarify the stand of the respondents and for that, following submissions are made
(i) That as per the judgment of this Hon'ble Court in CWP No., the respondents' services were regularized w.e.f 01.04.2005 and that of the petitioners were regularized w.e.f 03.02.2005 and at that time no objection was raised by the concerned petitioners and now as per the rules framed by the department for allotting seniority, the seniority of the petitioners as well s that of the respondents ::: Downloaded on - 13/10/2020 20:18:22 :::HCHP 8 has been reckoned w.e.f the dates their services have been regularized and that the said exercise was completed in the .
year 2013 and later on in the year 2017, the tentative seniority list was circulated and the same has now culminated into final seniority list issued on 11.01.2018 and again said the final seniority list has been prepared on the date of appointment of the petitioners as well as Patwari and the said appointment on regular basis as Patwari and the said seniority list has been prepared in accordance with the rules prevailing in this behalf.
(ii) That at this stage, this Hon'ble Court cannot also change the date of appointment of the petitioners and that of the respondents because if the petitioners were aggrieved in any manner by the said action of the respondent State then the same was required to be challenged before this Hon'ble Court or before the competent court of law within a reasonable period and have accepted the date of appointment on regular basis w.e.f. 3.5.2005 now the petitioners do not have any cause of action and the petition filed by the petitioners is liable to be dismissed on this ground alone. Again said unit, the date of appointment was got corrected by the respondents they cannot challenge seniority drawn by the department finally on 11.01.2018 and there is no illegality in the said seniority list.
17 However, during the course of the arguments, Mr. A. K. Gupta, learned counsel for the private respondents, candidly conceded that the seniority lists are required to be redrawn as the same do not reflect true and correct position.
::: Downloaded on - 13/10/2020 20:18:22 :::HCHP 918 As observed above, entire mess seems to have been .
created because of there being two Settlement Officers, one at Shimla and one at Dharamshala. Even though, respondent No.3 is Cadre Controlling Authority, but then respondent No.2, who too is a Settlement Officer, instead of requesting respondent No.3 to issue necessary orders with regard to implementation of the judgment in the writ petition (supra), of his own, issued orders, thereby creating an opportunity for unwarranted and unavoidable litigation.
19 This we observe so because admittedly private respondents while filing CWP No. 5651/2011 had not claimed any relief against the petitioners and that is why they were not even arrayed party. Their plea therein was based simply on parity visa vis the petitioners and not based on discrimination visavis the petitioners. Therefore, under no circumstances could the private respondents be shown to be senior to the petitioners.
20 Having said so, we find merit in both these petitions and the same are accordingly allowed. Consequently, the letter dated 26.7.2013 (Annexure A/10), order dated 2.8.2013(Annexure A/11), order dated 14.8.2013 (Annexure A/12) and final seniority list of Patwaris (Annexure A/16) are quashed and set aside and the ::: Downloaded on - 13/10/2020 20:18:22 :::HCHP 10 official respondents are directed to redraw the final seniority list of .
Patwaris working in Kangra and Shimla Division as per the provisions of the Rules by placing the petitioners over and above the private respondents.
(Tarlok Singh Chauhan)
Judge
12.10.2020
(pankaj)
r to (Jyotsna Rewal Dua)
Judge
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