Himachal Pradesh High Court
Sudhir Kumar S/O Late Sh vs State Of H.P. And Connected Matters. As ... on 3 June, 2022
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 3rd DAY OF JUNE, 2022
.
BEFORE
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
CIVIL WRIT PETITION No. 3356 OF 2021 & CIVIL WRIT
PETITION (ORIGINAL APPLICATION) No. 224 of 2019
Between:
CWP No. 3356 of 2021:
1. SUDHIR KUMAR S/O LATE SH.
GIAN CHAND GUPTA, PRESENTLY
WORKING AS EXECUTIVE
ENGINEER, B & R DIVISION NO.
1, HPPWD SHIMLA, R/O H. NO. A
133, SECTOR3, PHASE2, NEW
SHIMLA, SHIMLA 171 009.
2. VIRENDRA SINGH GULERIA,
S/O LATE SH. AMAR SINGH
GULERIA, PRESENLY WORKING
AS EXECUTIVE ENGINEER,
HPPWD DIVISION BHORANJ, R/O
VILLAGE SANYARDI, P.O. TALYAR
TEHSIL SADAR, DISTRICT MANDI
- 175 001.
3. VIRENDRA DHIMAN, S/O LATE
SH. YOGINDER DHIMAN
EXECUTIVE ENGINEER NH
DIVISION JOGINDER NAGAR,
DISTRICT MANDI, H.P.
4. RAUJIF SHEIKH, S/O SH. A. R.
SHEIKH, PRESENTLY WORKING
AS EXECUTIVE ENGINEER, LEAD
AGENCY/ROAD SAFETY CELL,
DIRECTORATE OF TRANSPORT,
SHIMLA 4, R/O HOUSE NO. 11,
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CHHOTTA SHIMLA, H.P.
5. RAJESHWAR SINGH JASWAL,
.
S/O LATE SH. B.S JASWAL,
PRESENTLY WORKING AS
EXECUTIVE ENGINEER, O/O
ENGINEERINCHIEF, HPPWD,
NIRMAN BHAWAN, SHIMLA, H.P.
6. MAST RAM RANA, S/O LATE
SH. GAIN CHAND, PRESENTLY,
WORKING AS EXECUTIVE
ENGINEER, 5TH CIRCLE,
HPPWED, PALAMPUR, DISTRICT
KANGRA, VILLAGE SAI, P.O.
NIHARI, TEHSIL
r RAKKAR,
DISTRICT KANGRA, H.P.
......PETITIONERS
(BY MR. DILIP SHARMA AND MR.
SHRAWAN DOGRA, SENIOR
ADVOCATES, WITH MR. BHARAT
THAKUR, MR. TEJASVI DOGRA
AND MR. DEEPAK SHARMA,
ADVOCATES.)
AND
1. STATE OF H.P. THROUGH
SECRETARY (PUBLIC WORKS)
TO THE GOVERNMENT OF H.P.
SHIMLA - 2.
2. SH. AJAY SHARMA S/O SH.
OM RAJ SHARMA, VPO
HARIPUR, TEHSIL DEHRA,
DISTRICT KANGRA, (H.P.),
PRESENTLY WORKING AS
EXECUTIVE ENGINEER,
HPPWED DIVISION, NALAGARH,
DISTRICT SOLAN, H.P.
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......RESPONDENTS
(R 1 BY MR. ASHOK SHARMA,
.
ADVOCATE GENERAL, WITH
MR. SHIV PAL MANHANS,
ADDITIONAL ADVOCATE
GENERAL, MR. BHUPINDER
THAKUR AND MR. YUDHVIR
SINGH THAKUR, ADVOCATES.)
(R 2 MR. RAJIV JIWAN, SENIOR
ADVOCATE, WITH MR. P.D.
NANDA AND MR. HITENDER
VERMA, ADVOCATES.)
CWPOA No. 224 of 2019:
1. KULBIR SINGH THAKUR S/O
ONKAR THAKUR R/O CHARAN
NIWAS PANTHAGHAT, SHIMLA9
2. BHAGMAL THAKUR S/O SH.
AMAR SINGH R/O VILLAGE
LAHASNI, P.O. SANDHOL, TEHSIL
SARKAGHAT DISTRICT MANDI.
3. UMESH SHARMA S/ SH.
SUBHASH CHAND, R/O VILLAGE
ARNIALA, P.O. KOTLA KALAN,
TEHSIL AND DISTRICT UNA.
4. ARVIND KUMAR SHARMA S/O
SH. SHANKAR DASS, R/O
VILLAGE GEHLI PANJAIL, P.O.
MOHAR SINGH, TEHSIL
GHUMARWIN DISTRICT
BILASPUR.
5. ATUL JYOTI S/O SH. J.R.
GAZTA, R/O GAZTA BUILDIG
LOWER KHALINI SHIMLA.
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......PETITIONERS
(BY MR. SAURABH AHLUWALIA,
.
ADVOCATE.)
AND
1. STATE OF HIMACHAL
PRADESH THROUGH
SECRETARY PUBLIC WORKS
DEPARTMENT TO THE
GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA.
2. KULDEEP CHAND SHARMA,
A.E. (ASSISTANT ENGINEER),
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
3. P.K. KHANNA, A.E. PUBLIC
WORKS DEPARTMENT,
HIMACHAL PRADESH.
4. S.S. KUTLERIA, A.E. PUBLIC
WORKS DEPARTMENT,
HIMACHAL PRADESH.
5. VIPON KUMAR, A.E. PUBLIC
WORKS DEPARTMENT,
HIMACHAL PRADESH.
6. MAHESH SINGLA, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
7. ANIL KUMAR, A.E. PUBLIC
WORKS DEPARTMENT,
HIMACHAL PRADESH.
8. APARNA ROHILA, A.E.
PUBLIC WORKS DEPARTMENT,
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HIMACHAL PRADESH.
9. RAGHU NATH VERMA, A.E.
.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
10. HIMANSH BISHT, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
11. K.L. KAPOOR, A.E. PUBLIC
WORKS DEPARTMENT,
HIMACHAL PRADESH.
12. VINAY KUMAR, A.E. PUBLIC
WORKS
DEPARTMENT,
HIMACHAL PRADESH.
13. SANJAY GUPTA, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
14. NARESH KUMAR GUPTA,
A.E. PUBLIC WORKS
DEPARTMENT, HIMACHAL
PRADESH.
15. SUNIL KAPOOR, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
16. KAMLESH NEGI, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
17. HARDEV SINGH, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
18. DEVINDER SINGH THAKUR,
A.E. PUBLIC WORKS
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DEPARTMENT, HIMACHAL
PRADESH.
.
19. NARESH KUMAR, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
20. ASHWANI KUMAR GUPTA,
A.E. PUBLIC WORKS
DEPARTMENT, HIMACHAL
PRADESH.
21. RAM KUMAR SRIDHAR, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
22. TRILOK CHAND, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
23. SURINDER KUMAR
SHARMA, A.E. PUBLIC WORKS
DEPARTMENT, HIMACHAL
PRADESH.
24. GUMAN SINGH, A.E. PUBLIC
WORKS DEPARTMENT,
HIMACHAL PRADESH.
25. BHAG SINGH THAKUR, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
26. BISHAMBER DAS, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
27. BHUSHAN SINGH RANA,
A.E. PUBLIC WORKS
DEPARTMENT, HIMACHAL
PRADESH.
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28. GHANSHYAM RAMAN, A.E.
PUBLIC WORKS DEPARTMENT,
.
HIMACHAL PRADESH.
29. RAJINDER SINGH, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
30. PREM CHAND, A.E. PUBLIC
WORKS DEPARTMENT,
HIMACHAL PRADESH.
31. BISHWA NATH, A.E. PUBLIC
WORKS DEPARTMENT,
HIMACHAL PRADESH.
32. RATTAN CHAND VERMA,
A.E. PUBLIC WORKS
DEPARTMENT, HIMACHAL
PRADESH.
33. KRISHAN KUMAR
KAUSHAL, A.E. PUBLIC WORKS
DEPARTMENT, HIMACHAL
PRADESH.
34. PARDEEP KUMAR SHARMA,
A.E. PUBLIC WORKS
DEPARTMENT, HIMACHAL
PRADESH.
35. GURCHARAN SINGH RANA,
A.E. PUBLIC WORKS
DEPARTMENT, HIMACHAL
PRADESH.
36. HARI KRISHAN GUPTA, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
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37. RAUJIF SHEIKH, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
.
38. NETER MANI, A.E. PUBLIC
WORKS DEPARTMENT,
HIMACHAL PRADESH.
39. RAJESHWAR SINGH, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
40. ARUN KUMAR, A.E. PUBLIC
WORKS DEPARTMENT,
HIMACHAL PRADESH.
41. BHUPESH CHAND SHARMA,
A.E. PUBLIC WORKS
DEPARTMENT, HIMACHAL
PRADESH.
42. ATAM SINGH THAKUR, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
43. DEVINDER KUMAR
AGGARWAL, A.E. PUBLIC
WORKS DEPARTMENT,
HIMACHAL PRADESH.
44. PRAKASH CHAND, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
45. BHUPINDER SINGH, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
46. RAJESH KUMAR, A.E.
PUBLIC WORKS DEPARTMENT,
HIMACHAL PRADESH.
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47. MAST RAM RANA, A.E.
PUBLIC WORKS DEPARTMENT,
.
HIMACHAL PRADESH.
(R 1 BY MR. ASHOK SHARMA,
ADVOCATE GENERAL, WITH MR.
SHIV PAL MANHANS,
ADDITIONAL ADVOCATE
GENERAL, MR. BHUPINDER
THAKUR AND MR. YUDHVIR
SINGH THAKUR, ADVOCATES.
R 5, 6, 8, 10, 21 and 39 BY MR.
VINOD GUPTA, ADVOCATE
RESPONDENTS NO. 2 TO 4, 7, 9,
11, 12, 14 TO 20, 22, 24 TO 38,
40 TO 47 EX PARTE.)
RESERVED ON 27.04.2022
......RESPONDENTS
1
WHETHER APPROVED FOR REPORTING? Yes.
This petition coming on for orders this day, the Court passed the following:
ORDER
Every employee has a legitimate aspiration to reach higher echelons in his service career and some times for employer, integration of employees from different channels become cumbersome task, which quite often inoculate some employees with the feeling of disparity and apathy towards them by their employer.
The instant petitions are offshoots of such a feeling and raise a perennial dispute qua seniority amongst the direct recruits and the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 03/06/2022 20:07:55 :::CIS 10promotees.
2. Since both these petitions have common roots, which .
gave birth to the seniority dispute inter se the direct recruits and promotees, they are taken up together for adjudication and disposal.
Facts of CWP No. 3356 of 2021:
3(a). Initially, the petitioners were appointed as Junior Engineers (JEs) and they maintained the instant petition. As per the petitioners, in 1996 08 (eight) and in 2006 15 (fifteen) vacancies of Assistant Engineers (AEs), which were available against the direct recruitment quota, were utilized for promoting graduate/AMIE JEs, in relaxation of R & P Rules. The petitioners cited certain judicial verdicts and also a common verdict delivered by a Division Bench of this Hon'ble High Court, rendered in CWP No. 1358 of 2008, titled S.S. Kutlehria vs. State of H.P. and connected matters. As per the petitioners, the appeal filed against the Kutlehria's case is still pending adjudication before the Hon'ble Supreme Court and stay qua implementation of the said judgment has not been granted. On the identical grounds a decision has been passed in CWPT No. 2605 of 2008, titled Ashok Kumar Sharma & others vs. State of H.P. and others, whereby the petition was allowed. Shri Ashok Sharma, in August, 2010, filed COPC No. 214 of 2010, wherein respondent No. 1 stated that since judgment in Kutlehria's case is on identical issue, thus steps are being taken to implement those judgments.::: Downloaded on - 03/06/2022 20:07:55 :::CIS 11
3(b). In order to implement the aforesaid judgments, on 08.09.2010, the respondentdepartment sent a memorandum to .
HPPSC (Himachal Pradesh Public Service Commission) for reviewing the minutes of the DPCs, which were held between 30.03.1996 to 28.03.2008. In the memorandum 23 posts, available for direct recruitment (1996 = 08 and 2006 = 15), which were earlier filled up by promotion of graduate and AMIE JEs, in relaxation of Rules, were also included. In sequel, the respondentdepartment, on the recommendations of Review DPC, issued two separate notifications dated 10.11.2010. In the meetings of review DPC held in HPPSC on 28th and 29th September, 2010, vacancies between the period 1995 to 2008, i.e., aforesaid 23 vacancies were excluded, solely in view of Government of India Instructions dated 26.03.1980 and the Review DPC could not increase the vacancies already intimated to the original DPCs. Later on, it was unearthed from a supplementary affidavit filed by respondent No.1 in a contempt petition that HPPSC did not agree to include the aforesaid 23 posts in the Review DPC. In the contempt petition, HPPSC was not made party, however, HPPSC showed its readiness to hold review DPC, as per the vacancies to be intimated by the State, so the contempt petition was disposed of by this Hon'ble High Court on 03.03.2011. Resultantly, the Review DPC convened thereafter made recommendations for the aforesaid 23 posts and in aftermath petitioners and others were promoted and ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 12 placed in the tentative seniority list, which was issued on 01.03.2014 qua the period 01.01.1995 to 31.12.2012.
.
3(c). As per the petitioners, vide letter dated 01.03.2016, final seniority list of AEs was circulated, wherein the petitioners and respondent No. 2 figure as under:
Sr. No. Name Sr. No/Date of
promotion/appointment
as AE
1. Raujif Sheikh (petitioner No. 4) 406/31.12.1997
2. Rajeshwar Singh Jaswal (petitioner No. 5) 408/31.12.1997
3. Virendra Dhiman (petitioner No. 3) 420/31.12.1998
4. Mast Ram Rana (petitioner No. 6) 427/31.12.1999
5. Sudhir Kumar (petitioner No. 1) 433/31.12.1999
6. Virendra Singh Guleria (petitioner No. 2) 438/31.12.1999
7. Ajay Sharma (respondent No. 2) 454/08/03.2000
Later on, vide memo dated 28.04.2021, partial modification was proposed in the final seniority list, so objections were invited. As the aforesaid memo referred order dated 10.07.2019, passed in OA No. 2803 of 2019 and order dated 09.04.2021, passed on a representation of respondent No. 2, owing to directions issued in OA No. 2803 of 2019, the petitioners collected the relevant documents and sought time to file representation(s) against the aforesaid proposed revised seniority list. It is further averred that the information collected by the petitioners revealed that respondent No. 2 filed OA before the erstwhile HP Administrative Tribunal seeking a ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 13 direction for deciding his representation dated 22.04.2019, which was filed against the seniority list. Upon the direction of the .
erstwhile HP Administrative Tribunal, representation of respondent No. 2 was rejected, vide order dated 07.08.2020, however, respondent No. 2 filed application, dated 15.01.2021, to respondent No. 1, seeking review of order dated 07.08.2020. Respondent No. 1 allowed the representation of respondent No. 2, vide order dated 09.04.2021. As per the petitioners, revised seniority list, dated 28.04.2021, is only circulated to implement order dated 09.04.2021 and petitioners have not been given effective opportunity to represent against the same. So, the petitioners again represented against the said revised seniority list, however, as the proposed revised seniority list was in sequel to implement order dated 09.04.2021, the instant petition was filed, on the following grounds, by the petitioners:
"(I) That OA No. 2803 of 2019, respondent No. 2 made a prayer to direct the respondent department to decide his representation dated 22.04.2019 stated to be pending against final seniority list circulated on 01.03.2016. It is submitted that his original application was not maintainable since he was virtually challenging final seniority list circulated on 01.03.2016, hence his original application was barred by limitation and not maintainable. Vide order dated 10.07.2019, OA No. 2803 of 2019 was disposed of by the learned Tribunal with a direction to decide his representation. Under the garb of deciding the representation pursuant to order dated 10.07.2019, the respondent No. 1 could not have reopened the final seniority list dated 01.03.2016.
As such the impugned order dated 09.04.2021, Annexure P16 is liable to be quashed and set aside on this short ground.
(II) That the respondent No. 2 did not implead any of the ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 14 persons likely to be affected by the decision of his case as party respondents. In this view of the matter, the order dated 09.04.2021, Annexure P16, whereby his representation has been allowed to the .
detriment of petitioners and others affected parties, is violative of principles of natural justice as the said order has been passed behind their back without affording them any opportunity of being heard.
(III) That pursuant to order passed in OA No. 2803 of 2019, respondent No. 2 was granted personal hearing on 21.09.2019 and after hearing him, his representation was rejected vide order dated 07.08.2020, Annexure P15. Once orders were passed pursuant to such direction of learned Tribunal, respondent No. 2 became functus officio and had no authority to rehear the matter under the garb of review petition filed by respondent No. 2. It is settled legal position that review does not lie in the absence of any provision in law providing for such review. As such after rejecting the representation vide order dated 07.08.2020, the order dated 09.04.2021, Annexure P16 passed by respondent No. 1 is without jurisdiction, hence liable to be quashed and set aside.
(IV) That in order dated 09.04.2021, Annexure P16, respondent No. 1 has stated that while issuing order dated 07.08.2020, certain facts referred to in the order were not brought to his notice. However, this finding in the impugned order is contrary to the office records put up for his consideration as per office noting, Annexure P14, wherein all the facts had been brought to the notice of respondent No. 1.
Hence, under the garb of "review" respondent No. 1 has virtually decided the representation afresh as if he was sitting in appeal over his earlier order dated 07.08.2020, Annexure P15. Therefore, the impugned order dated 09.04.2021, Annexure P16 is liable to be quashed and set aside on this ground also.
(V) That a perusal of final seniority list dated 01.03.2016, Annexure P9, would show that the petitioners had been assigned positions in the seniority list as per the year in which they have been promoted on the recommendations of review DPC. However, in the proposed revised seniority list dated 28.04.2021, Annexure P10, the petitioner No. 4 has been assigned position in the year 1999 even though his date of promotion is 31.12.1997. Similarly, petitioners No. 1 to 3, 5 and 6 have been assigned positions in the year 2000 below the respondent No. 2 and /or other direct recruits of the year 2000, ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 15 despite the fact that their dates of promotions remain the same i.e., 31.12.1997, 31.12.1998 and 31.12.1999. The position emerging from a comparison of final seniority list dated 01.03.2016, .
Annexure P9 and proposed revised seniority list dated 28.04.2021, Annexure P10 is given herein below in a tabulated form for ready reference of this Hon'ble Court: Sr. Name Date of Position in Position in No. promotion/appoint Final proposed ment Seniority List Seniority List (P-9) (P-10)/Year assigned 1. Raujif Sheikh 31.12.1997 406 426/1999 (Petitioner No. 4) 2. Rajeshwar Singh 31.12.1997 408 438/2000 Jaswal (Petitioner No. 5) 3. Virendra Dhiman 31.12.1998 420 470/2000 (Petitioner No. 3) 4. Mast Ram Rana 31.12.1999 427 473/2000 (Petitioner No. 6) 5. Sudhir Kumar 31.12.1999 433 475/2000 (Petitioner No. 1) 6. Virendra Singh 31.12.1999 438 476/2000 Guleria (Petitioner No. 2) 7. Ajay Sharma 08.03.2000 454 440/2000 (Respondent No. 2) It is submitted that the seniority is consequence of promotion granted to the petitioners on the recommendations of review DPC. Therefore, the absence of any challenge to the promotion of petitioners made on the recommendations of Review DPC, their seniority could not have been pushed down on the ground of alleged excess promotions. This position is clear from the judgment of Hon'ble Supreme Court rendered in Civil Appeal No. 6064 of 2010 titled as Arun Kumar and others vs. HPSEB and others (Annexure P18), wherein the challenge of the direct recruits to the seniority granted to the promotees as a result of their promotions against direct recruitment quota was held not tenable and the writ petitions of direct recruits were dismissed by ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 16 allowing the appeal. As such, the impugned proposed revised seniority list dated 28.04.2021, Annexure P10 is liable to be quashed and set aside.
.
(VI) That though the proposed revised seniority list has yet not been finalised, but since the decision has already been taken in favour of respondent No. 2 vide order dated 09.04.2021, Annexure P16, the impugned seniority is only consequential action to implement the said order. Hence the order Annexure P16 and any other subsequent order is liable to be quashed and set aside with all consequential benefits."
3(d). In the above backdrop, the petitioners, by way of filing the instant petition, sought the following substantive reliefs:
(I) That the impugned order dated 09.04.2021, Annexure P16, may kindly be quashed and set aside.
(II) That the proposed revised seniority list dated 28.04.2021, Annexure P10, which has been issued to implement order dated 09.04.2021, Annexure P 16, may also be quashed and set aside.
(III) That if during the pendency of this writ petition, the proposed revised seniority list is finalized to the detriment of petitioners and respondent No. 2 or any Engineer including respondent No. 2 junior to the petitioners is granted any further promotion on the basis of revised final seniority list, in that event such final seniority list and promotion(s) may also be quashed and set aside and respondent department may be directed to consider the petitioner(s) for such promotion from due date, with all consequential benefits."
That though the proposed revised seniority list has yet not been finalised, but since the decision has already been taken in favour of respondent No. 2 vide order dated 09.04.2021, Annexure P16, the impugned seniority is only consequential action to implement the said order. Hence the order Annexure P16 and any other subsequent order is liable to be quashed and set aside with all consequential benefits."
4. Respondents, by way of filing separate replies, contested ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 17 the petition. Respondent No. 1/State raised preliminary objections of maintainability of the petition, petition is premature and the .
petitions have intentionally and knowingly withheld true and correct facts. On merits, the respondent No. 1/State averred that the the vacancy position has been clearly mentioned in the impugned order dated 09.04.2021, so after due deliberations proposed placement in the seniority list/office memorandum dated 28.04.2021 has been chalked out. It is further averred that the judgment passed in S.S. Kutlehria is under challenge before Hon'ble the Supreme Court and it has not yet attained finality. As per respondent No. 1, the judgment passed in Kutlehria's case is qua inter se dispute between diploma holder Junior Engineer and degree holder Junior Engineer and the said judgment does not deal with determination of seniority of directly recruited degree holder Assistant Engineers and Assistant Engineers promoted from the category of Junior Engineers and seniority amongst these categories is to be determined as per rota quota rules prescribed in the R&P Rules. It is further averred that the judgment passed in Ashok Kumar's case is based on a judgment passed in Arun Kumar's case and facts of that case were different, consequently R & P Rules were framed by the H.P. State Electricity Board and specific decision was taken by the Board. The judgment rendered in Ashok Kumar's case was complied with in haste and administrative decision was already taken on 15.10.2014 after ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 18 analyzing the records and legal position. It is submitted that petitioners have been assigned seniority above other officers owing to .
erroneous implementation of rota quota rule by giving them retrospective promotion. As per final seniority list, dated 04.11.2008, as on 31.05.2006, name of respondent No. 2, Shri Ajay Sharma, was at Sr. No. 132, and the names of petitioners 1, 2 and 4 to 6 were at Sr. No. 158, 160,131, 136 and 155, respectively, and respondent N. 3 was not even borne in the cadre of AEs. As per respondent No. 1/State, impugned order has been passed to rectify the error already committed, that too after affording an opportunity to interested officials to make representations/objections, so the petitioners cannot take advantage of S.S. Kutlehria's case. Short time was granted for compliance, so seniority was finalized in haste and at that time the factual position, which is brought out in the impugned order, was not taken note of, so the same was implemented hastily.
5. Respondent No. 1/State in its reply further averred that the petitioner took undue advantage by filing contempt petitions and by filing the instant petition, as the petitioners intend to pressurize the authorities. In fact, the seniority list, Annexure P9, was prepared as a result of order passed in contempt petition, i.e. Ashok Kumar's case. As per respondent No. 1/State, the impugned order only gave effect to administrative decision already taken by the ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 19 department on 15.10.2014 and the petitioner did not find any defect in the said decision, till the objections submitted were decided. Even .
the respondents invited objections qua the seniority list, which was issued in sequel to a decision on the representation of the application in OA No 2803 of 2019 and said objections are yet to be considered, so the seniority will be determined only after considering the objections of the petitioners and other officials. In all respondent No. 1/State contends that due process was followed and the final seniority will only be determined after considering the objections, so submitted by the petitioners and ample opportunity of being heard has been provided to the petitioners. Respondent No. 1/State denied that proposed revised seniority list is only a consequential step to implement order dated 09.04.2021. As per respondent No. 1, apprehension of the petitioners is ill founded, as objections have already been invited from the petitioners and others and seniority list would be finalized only after considering the objections. In fact, the petitioners filed the instant petition in haste without waiting for the decision of respondent/State upon the final seniority list. It is further averred that order dated 09.04.2021 was intended to give effect to administrative decision, which was already taken by the department in 2014 and the same could not be ignored, but the petitioners have intentionally withheld this fact, just to get undue relief. The petitioners are trying to get advantage of order passed in ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 20 contempt proceedings and compliance of Hon'ble Court's directions.
As per respondent No. 1, the petitioners got undue benefit from the .
respondents by misleading the authorities and the Hon'ble Court and the judgment of Arun Kumar's case is not at all relevant for the instant case. Ultimately, respondent No. 1 prayed for dismissal of the instant petition.
6. Private respondent, Shri Ajay Sharma, instituted a separate reply, wherein he contended that the instant petition is premature, as seniority is yet to be determined and finalized after considering the objections, which have already been filed by the petitioners/stakeholders. It is further contended that the impugned order is passed in sequel to order dated 10.07.2019, passed by the erstwhile Administrative Tribunal. The respondent/State highlighted the vacancy position in its order dated 09.04.2021, Annexure P16, whereupon placement was made in the seniority list, vide O.M. dated 28.04.2021, Annexure P10, which is not in dispute. The judgment of Hon'ble High Court rendered in S.S. Kutlehria's case is pending adjudication in Hon'ble Supreme Court, however, in that judgment there was dispute inter se diplomaholder Jes and degreeholder JEs, so the above judgment is not applicable to the facts of the instant case. Respondent No. 2 further contended that seniority is to be determined as per inbuilt rotaquota rule, prescribed in the Recruitment & Promotion Rules, so the judgment of Kutlehria is not ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 21 at all relevant to the instant case. The judgment rendered in Ashok Kumar was covered by the judgment of Arun Kumar and the said .
judgment was for the lapse committed by the officials of the government and no corrective steps were taken, so benefit was given in contempt proceedings. As per respondent No. 2, some of the petitioners worked under him as JEs, when he was AE and they even could not succeed in direct recruitment alongwith the replying respondent in the subsequent years. The petitioners have been promoted, as deviation from rotaquota has been made and they have been promoted as Aes from back date, even prior to the appointment of replying respondent, who was senior to them. It is further averred that as per the final seniority list of AEs, as on 31.05.2016, circulated vide letter dated 04.11.2008, name of replying respondent was at Sr. No. 132 and petitioners No. 1, 2 and 4 to 6, were at 158, 160, 131, 136 and 155, respectively, and respondent No. 3 was not born in the cadre of Assistant Engineers. It is averred that as seniority list was already finalized in sequel to Ashok Kumar's case, however, as a result of representations of the stakeholders, the administrative authority took a decision on 15.10.2014 to determine seniority in accordance with guiding principles and law, which decision is not yet implemented, so respondent No. 1/State has rightly passed a reasoned order (Annexure P16) inviting objections from the parties concerned, through O.M. dated 28.04.2021, ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 22 Annexure P10, prior to final seniority list. The petitioners filed objections and final seniority list is to be yet to determined after .
deciding all the objections. The decision on the representation of the petitioners has been taken considering all the factors and a revised seniority list has been circulated following due and proper procedure of law, so no prejudice is caused to the petitioners. As per the replying respondent, the petitioners cannot challenge the wisdom of the competent authority, as it is the competent authority, who is custodian of records and even if some mistake has occurred, the competent authority can rectify it. Lastly, the replying respondent contends that the instant petition is premature and thus not tenable and the same deserves dismissal be may be dismissed.
Facts of CWPOA No. 224 of 2019:
7. The petitioners were directly recruited as Assistant Engineers on 08.03.2000, through H.P. Public Service Commission and total 19 AEs were recruited. Prior to the selection of the petitioner direct recruitment of AEs was made in the year 1996. The service of both the petitioners and the private respondents is governed by 'Himachal Pradesh Public Works Department Assistant Engineer (Civil) (ClassI Gazetted) Recruitment and Promotion Rules, 1995'. Subsequent to the recruitment/selection of the petitioners a provision seniority list of AEs(Civil) (Degree Holders) was circulated on 07.08.2006, showing the position existing on 31.05.2006. As per ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 23 this list, the names of the petitioners are being reflected at serial No. 139, 143, 144, 149 and 163 and names of private respondents No. 2 .
to 35, except respondents No. 27 and 28, are shown at serial No. 83, 103 to 133 and names of private respondents No. 36 to 47 are shown at serial No. 135, 137, 140, 142, 145, 147, 150, 152, 155, 157, 160 and 162 of provisional seniority list. Feeling disgruntled to the provisional seniority list, the petitioners submitted representations and alleged that total 30 promotees (some of the respondents) have been placed above the direct recruits of 2000 batch, i.e., petitioners and such placement exceeds their quota, violating the R&P Rules of 1995. As per the petitioners, the above placement is in violation of O.M. No. 22011/7/86Estt.(D), dated 03.07.1986. Relevant excerpts of the above O.M. are extracted hereunder:
"with a view to curbing any tendency of underreporting/suppressing the vacancies to be notified to the concerned authorities for direct recruitment, it is clarified that promotees will be treated regular only to the extent to which direct recruitment vacancies are reported to the recruitment authorities on the basis of quotas prescribed in the relevant Recruitment Rules. Excess promotees, if any, exceeding the share falling to the promotion quota based on the corresponding figure, notified for direct recruitment would be treated only as adhoc promotees".
Precisely, the petitioners' contention is that respondents No. 2 to 35, except respondents No. 27 and 28, whose names did not appear in P ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 24 2 (seniority list), at serial No. 103 to 133 may be considered on adhoc, as direct recruitment was not restored during the years 1997 .
to 1999 and it was only in 2000, 19 AEs, including the petitioners, were directly recruited. As per the petitioners, only 12 promotees (Graduate Engineers) vizzaviz direct recruits of 2000 batch, could be adjusted and their inter se seniority, as per the prescribed rota quota and R&P Rules and the remaining promotees cannot be shown senior to the petitioners. It is contended that respondents No. 3647, who have been shown in the provisional seniority list at serial No. 135, 137, 140, 142, 145, 147, 150, 155, 157, 160 and 162, cannot be assigned seniority at these numbers, as their seniority has to be depressed on the corrections made in the seniority of respondents No 2 to 35. As per the petitioners only 12 promotees, out of respondents No. 2 to 35, can be adjusted, vizaviz 2000 batch of direct recruits, as prescribed under the R&P Rules and instructions. Thus, the remaining respondents cannot be shown senior to the petitioners. As per the petitioners, showing respondents No. 2 to 35 senior to the petitioners and subsequently adjusting respondents No. 36 to 47 alongwith the petitioners is contrary to R&P Rules and applicable instructions. The petitioners preferred representation(s) against the provisional seniority list, but no decision was taken thereon by the official respondents. Ultimately, vide Annexure P4, dated 04.11.2008, final seniority list of Assistant Engineers was circulated, ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 25 which is replica of the provisional seniority list. In the final seniority list respondents No. 2 to 35 figure at serial No. 96 to 127 and .
respondents No. 36 to 37 figure at serial No. 129, 131, 134, 136,139, 141, 144, 146, 149, 151, 153 and 155. The petitioners, who figure at serial No. 133, 137, 138, 143 and 156 in the final seniority list, have been shown juniors to respondents No. 2 to 35, whereas respondents No. 36 to 47 were illegally adjusted vizaviz the batch of the petitioners. Being disgruntled, the petitioners maintained the instant petition on the following grounds:
"(I) That as per applicable 1995 Recruitment and Promotion Rules, post of Assistant Engineers can be filled in directly and also by way of promotion in the ratio of 30% to 70% as per prescribed rota and quota in terms of Rule 10. The selection by way of direct recruitment to the post of Assistant Engineer is made by the Himachal Pradesh Public Service Commission. The promotion to the post of Assistant Engineer is made by the Departmental Promotion Committee. The 70% quota meant for promotion, as per Rule 11 is to be filled up as under: "*Junior engineer Civil having 7 years service regular or regular continuous with adhoc (rendered upto 31.3.1991) service in the grade and unqualified junior engineers (Civil) with at least 15 years service regular or adhoc (rendered upto 31.3.1991) rendered in the grade.
.......45% **Junior Engineer (Civil) who acquire AMIE or its equivalent during service as Junior Engineer (Civil) having 3 years regular or regular combined with continuous adhoc (rendered upto 31.3.91) service in the grade.
.......10% ***Junior Engineer (Civil) who possess degree in Civil Engineering or its equivalent at the time of appointment having 3 years regular or regular combined with continuous adhoc (rendered upto 31.3.91) service in the grade.
::: Downloaded on - 03/06/2022 20:07:55 :::CIS 26......10% ****Draughtsman (who are eligible) ......5% .
It may not be out of place to mention here that quota of Direct Recruitment fixed at 50% on 20.6.1973 was reduced to 40% w.e.f. 18.9.1978 and further reduced to 30% w.e.f. 19.4.1995.
(ii) That roster of filling up the posts of Assistant Engineers by way of direct recruitment and promotion as laid down in Rule 11 is:
Point Direct J.E. Diploma J.E. who acquire JE Draughtsman No. of holders who do AMIE or its possessing Post. not possess equivalent degree at the AMIE degree degree during time of or its service. appointment equivalent.
1. r Diploma 31.12.1997 406 426/1999
2. Diploma
3. Direct
4. AMIE
5. Diploma
6. Direct
7. Degree
8. Diploma
9. Direct
10. Draughtsman
11. Diploma
12. Diploma
13. Direct
14. AMIE
15. Diploma
16. Direct
17. Degree
18. Diploma
19. Direct
20. Diploma Total=20 6 9 2 2 1 The posts of Assistant Engineers are to be filled up as per the above 20pint roster prescribed under the ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 27 1995 R&P Rules.
(iii) That total number of posts of Assistant Engineer as per Rule 1 of R&P Rules 1995 is 296. The .
recruitment and promotion rules enjoin upon the department to fill up 296 posts of Assistant Engineers as per the roster points. For this purpose, respondents are to maintain a roster register of 296 posts. The roster points of 296 posts are to be allotted to 5 categories of posts i.e. 1 direct and 4 feeder promotional categories, as per Recruitment and Promotion Rules. The roster slots are to be filled up from the category for which the slot is earmarked.
(iv) That implication of the R&P Rules is that there is to be a separate register of seniority of each feeder category. The direct candidates selected through Public Service Commission and those from the feeder categories on regular promotion through DPC are to be placed against the slots meant for each category as laid down in Rule 11. Those promoted in excess of their quota are to remain adhoc. They shall not be members of service of Assistant Engineers. These adhoc appointees cannot be assigned seniority as Assistant Engineers. The register of regularly appointed/promoted Assistant Engineer is required to be maintained. The particulars as to the category to which the officer belongs to and the slot of the category occupied by him, is required to be shown in the register of Assistant Engineers appointed.
(v) That upto 1985, the interse seniority between Directs and Feeder Promotional Categories was as per the slot meant and occupied by them. The prerequisite was that those appointed as Assistant Engineer should be placed against the slot earmarked for that category. The officers occupying the earlier slots were shown senior to those occupying later slot. To illustrate the point:
Post Category Date of recruitment/
promotional
1st Point J.E. (A) 18.10.1977
2nd Point Direct (B) 15.10.1976
3rd Point J.E. (C) 18.10.1977
'B' a direct Assistant Engineer appointed on 15.10.1976 shall be assigned seniority below a junior engineer promoted to the post on 18.10.1977. As per the instructions prevailing till 1985, as officer could be assigned seniority from the date prior to the date of his appointment. The seniority, thus, was assigned on the basis of slot occupied and not from the date of appointment. The inappropriateness of ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 28 the instructions whereby an officer could be assigned seniority even before he ws born in the cadre was highlighted by the Courts. Resultantly the instructions pertaining to seniority were changed.
.
The salient features w.e.f. July, 1986 governing seniority are:
* No officer could be assigned seniority prior to his date of appointment.
* Slots as per rota and quota are to be filled from feeder categories.
* The promotions are to be prospective.
* The appointment to the cadre posts could not be in excess of quota, vizaviz the posts notified for direct recruitment.
Those appointment in excess of the quota were not to be considered as regular appointees. They were to be adhoc officers. They were not members of service, do not belong to cadre of Assistant Engineers and hence cannot be assigned seniority.
Some of relevant instructions w.r.t. maintenance of seniority of Assistant Engineers are collectively enclosed herewith as Annexure P5.
(vi) That the impugned seniority list is of Directly Recruited as Assistant Engineers and those A.E. promoted from Junior Engineers who had the degree at the time of their appointment, or those J.E. who acquired AMIE or equivalent degree after their appointment. The seniority list is incomplete. The seniority list of Assistant Engineers is to reflect all those appointed i.e., (I) Directly and (ii) all those promoted from all four feeder categories on regular basis. Further those promoted in excess of the quota are not to be included in the seniority list. In addition, in terms of the applicable instructions, the promotees will be treated regular only to the extent to which direct recruitment vacancies are reported to the recruitment authorities on the basis of quotas prescribed in the relevant Recruitment Rules.
Excess promotees, if any, exceeding the share falling to the promotion quota based on the corresponding figure, notified for direct recruitment would be treated only as adhoc promotees.
(vi) That during 1997, 1998 and 1999, no direct recruitment took place. It was only in the year 2000, 19 Assistant Engineers were recruited directly, Last direct recruitee was appointed in 1996 at serial number 93 of the impugned seniority list. Between ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 29 1996 to 1999, a total number of 34 officers from feeder categories were promoted from serial number 94 to 127 of the impugned seniority list. These officers are impleaded herein as respondents No. 2 to .
35.
(b) that in terms of R&P Rules and relevant instructions holding the field, respondents No. 2 to 35 figuring at serial number 94 to 127 of the seniority list, could not be assigned seniority over and above the petitioners. In fact their names cannot figure in the seniority list of regularly appointed Assistant Engineers. Serial number 94 to 127 are to be considered as adhoc appointments. They cannot be considered as members of service.
(c) That in terms of the applicable Rules and Instructions, promotees and direct recruits in the same year should be fixed in the seniority, as per the roster. Direct recruitment was denied and not resorted to during the year 1997 to 1999, which defy the principle of equal representation of direct recruits. It is also against th spirit of government memorandums referred to in para supra. 43 officers i.e., respondents No. 2 to 35 promoted between 1997 to 1999, have been placed in the impugned seniority list at serial numbers from 94 to 127 above the direct recruitees of 2000 batch i.e. the petitioners, in excess of respondents' quota violating the R and P Rules and the relevant instructions issued by respondent No. 1.
(d) That respondents No. 36 to 47 have been illegally adjusted in the impugned seniority list alongwith the petitioners i.e., batch of directly recruited Assistant Engineers. Respondents No. 36 to 47 have been shown to have been promoted as Assistant Engineers and given the slots as per rota and quota in contravention to relevant instructions and applicable R&P Rules. It is submitted that out of these 12 slots presently shown in Annexure P4 to have been occupied by respondents No. 36 to 47, actually 12 persons out of respondents No. 2 to 35 can only be occupied. Remaining respondents cannot be shown in the seniority list of regularly appointed/promoted Assistant Engineer. Respondents are not senior to the petitioners.
(viii) That present system of the respondents in not making direct recruitments for consecutive 34 years and then placing them below the promotees of those years (during which no direct appointments took place) directly affects the future prospect of direct recruits. Direct recruitment should be made every ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 30 year for fixing seniority between direct recruits and promotees year wise. During 19971999, 34 posts of Assistant Engineers have been filled up all by way of promotions. Direct Recruitment has not even been .
resorted to, whereas out of these 34, at least 20 posts should have been filled up by way of direct recruitment in terms of their quota under the Rules. The quota meant for promotees against these 34 posts is only 12. It is only against these 12 slots, that 12 promotees out of the respondents in terms of their interse seniority, can be adjusted and shown in the seniority list, against the slots meant for them in terms of roster points visavis direct recruits. The seniority list is only of graduate/AMIE direct and promotee Assistant Engineers.
(ix) That instead, respondents have given placements to the private respondents No. 2 to 35 in the seniority list over and above the petitioners in contravention to the Rules and Instructions and to further increase the agony of the petitioners, applied the roster points from serial number 128 to 157 inducting more promotees in the form of respondents No. 36 to 47. This is not permissible under law. It is submitted that only 12 of the respondents can only be adjusted visavis direct recruit batch of 2000 in terms of roster points in terms of their interse seniority.
Remaining promotees cannot be reflected in the seniority list and least of all, above the petitioners. They are adhoc appointees.
(x) That rule 2 of the Recruitment and Promotion Rules 1995 has repealed the Recruitment and Promotion Rules of 1973 amended from time to time. The savings clause of Rule 2 lays down that notwithstanding such repeal, any appointment made or anything done or any action taken under the rules so repealed shall be deemed to have been validly made, done or taken under the Recruitment and Promotion Rules of 1995.
(xi) That action of the respondents in preparing wrong seniority list, contrary to the Recruitment and Promotion Rules and contrary to the Government Instructions is unconstitutional and illegal. Respondents No. 2 to 47 cannot be reflected senior to the petitioners."
8. In the above backdrop, the petitioners, by way of filing the instant petition, sought the following substantive reliefs:
::: Downloaded on - 03/06/2022 20:07:55 :::CIS 31(I) Issuing a writ of certiorari or any other appropriate writ for quashing the impugned Final Seniority List of Assistant Engineers (Civil) (Degree Holders) dated 4.11.2008 Annexure P4 having been issued in .
violation of applicable recruitment and promotion rules and instructions.
(ii) Issuing a writ of certiorari or any other appropriate writ for quashing the seniority of private respondents No. 2 to 48 in the impugned seniority list dated 4.11.2008 Annexure P4 as they being adhoc appointees and they being not members of service cannot be reflected in the seniority list of regular Assistant Engineers at least not above the petitioners in any case.
(iii) Issuing a writ of mandamus or any other writ for directing the respondents to redraw the seniority list of all the Assistant Engineers in terms of submission made in the writ petition, in terms of recruitment and promotion Rules 1995 and government memorandum dated 3.7.1986, by showing the petitioners above the respondents No. 2 to 48."
9. Respondent No. 1/State, by way of filing reply to the petition, contested the same. State took preliminary objections of maintainability of the petition, cause of action etc. It is averred that there was ban imposed by the State Finance Department on direct recruitment(s) on 4th January, 1989, on the post of AE(Civil), so the direct recruitment to the post of AEs(Civil) could not be made upto 1994. As many posts of AEs were lying vacant, so 19 posts were filled on the recommendation of the Himachal Pradesh Public Service Commission, on direct recruitment basis, on 18.10.1996, by due relaxation of ban on direct recruitment(s). As per respondent No. 1 R&P Rules of AEs(Civil) were notified on 19.09.1995 and vacancies were filled in the ratio of 30:70 by way of direct recruitment and by ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 32 promotion, respectively. From 1997 to 2000 total 150 vacancies of AEs(Civil) became available due to death/retirement/promotion and .
to fill these posts 20 point rotation roster was applied, which is as under:
Sr. No. Year Total By promotion Direct recruitment 1. 1997 50 35 15 2. 1998 30 21 09 3. 1999 30 21 09 4. 2000 40 29 11 Time and again matter qua filling up posts of AEs(Civil), by direct recruitment, was taken up with the Finance Department, and ultimately on 10.12.1998, permission to fill up 20 vacancies, by direct recruitment, against 32 posts of direct recruitment, was granted in relaxation of ban, so a requisition was sent to HPPSC on
10.12.1998 and on 01.02.2000, on the recommendation of the Commission 20 AEs(Civil), including the petitioners, were appointed.
In all, due to nonconcurrence of the Finance Department posts of AEs(Civil) could not be filled up in between 1997 to 1999. Likewise, there was ban on promotions as well, so promotional posts could not be kept vacant due to the nonavailability of direct recruits and also in the public interest. Therefore, on the recommendations of H.P. Public Service Commission, all the respondents were promoted as AEs(Civil) w.e.f. 1997 to 2000 from the feeder categories of Graduate ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 33 JEs(before joining service) and JEs(Graduate during service) against 10% quota meant for each category, so, as per respondent No. 1, the .
averment of the petitioners that private respondents have been promoted in excess of their quota and be placed below the petitioners is not only baseless, but wrong. Respondent No.1/State highlighted Instructions contained in HandBook on Personnel Matter, VolI (2 nd Edition), Chapter 13(6)(b), which is applicable w.e.f. 7.10.1986 to draw seniority between promotees and direct recruits, in case where either promotees or direct recruits are not appointed to the extent of their quota, which, for the sake of ready reference, is extracted hereunder:
"While the principle a(a) above was working satisfactory in cases where direct recruitment and promotion kept pace with each other and recruitment could also be made to the full extent of the quotas as prescribed, in case where there was delay in direct recruitment or promotion, or where enough number of direct recruits or promotees did not become available, the practice followed was that the slots meant for direct recruits or promotees, which could not be filled up, where left vacant, and when direct recruitment or promotees became available through later examinations or selections such persons occupied the vacant slots thereby became senior to persons who were already working in the grade on regular basis. In some cases, where there was short fall in direct recruitment in two or more consecutive years, this resulted in direct recruits of later years taking seniority over some of the promotees with fairly long years of regular service already to their credit. This matter had also come up for consideration in various Court cases before the High Courts and the Supreme Court and in several cases, the relevant judgment had brought out the in appropriateness of direct recruits of later years becoming senior to promotees when the latter had put in many more years of regular ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 34 service.
This matter was considered by the
Government for quite some time and it was
.
decided that in future, while the principle of rotation of quotas will still be followed for determining the interseseniority of direct recruits and promotees, the practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unintended seniority over promotees who are already in position, would be dispenses with. Thus, if adequate number of direct recruits do not become available in any particular years, rotation of quotas for purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees. In other words, to the extent, direct recruits are not available, the promotees will be bunched together at the bottom of the seniority list, below the last r position upto which it is possible to determine seniority, on the basis of rotation of quotas with reference to the actual number of direct recruits who become available. The unfilled direct recruitment quota vacancies would, however, be carried forward and added to the corresponding direct recruitment vacancies of the next year for taking action for direct recruitment for the total number according to the usual practices. Thereafter, in that year, while seniority will be determined between direct recruits and promotees to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for that year, the additional direct recruits selected against the carried forward vacancies of the previous year would be placed enbloc below the last promotee (or direct recruits as the case may be) in the seniority list based on the rotation of vacancies for that year. The same principle holds good in determining seniority in the event of carry forward, if any, of direct recruitment or promotion quota vacancies (as the case may be) in the subsequent year."
10. As per respondent No. 1/State, final seniority list of AEs(Civil) (Degree Holders) was prepared on 04.11.2008, on the basis of the above instructions and general principles. In between ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 35 21.08.1996 to 28.05.1999 respondents No. 2 to 35 were promoted, on regular basis, as per rotation of vacancies, which were meant for .
Graduate JEs (Graduate since joining and after joining) and as per the R&P Rules, so respondents No. 2 to 35 were rightly placed above the petitioners, who are appointees of 2000. During the year 2000, the respondents No. 36 to 47 were promoted from amongst the Graduate JEs (since joining and after joining), as per their quota provided in the Rules and were assigned seniority alongwith the direct recruits of 2000, i.e., petitioners, as per rotation of vacancies of 2000. Thus, as per respondent No. 1/State all the petitioners have been appointed as AEs(Civil) on 08.03.2000 and seniority has been assigned to them during the year 2000 is as per rotation of quota of vacancies of the year 2000, so no cause of action accrued in favour of the petitioners. The petition sans merits, deserves dismissal and may be dismissed.
11. I have heard the learned Senior Counsel/Counsel for the parties and gone through the entire records carefully. This Court has also punctiliously examined the judgments, as cited by the learned Senior Counsel/Counsel for the respective parties.
12. Mr. Sharawan Dogra and Mr. Dilip Sharma, learned Senior Counsel for the petitioners in CWP No. 3356 of 2021 have argued that revised seniority list dated 28.04.2021, is in aftermath to impugned Annexure P16, which needs to the quashed and set aside.
::: Downloaded on - 03/06/2022 20:07:55 :::CIS 36It has been argued that during the pendency of the extant writ petition, revised seniority list was finalized and respondent No. 2, .
who was junior to the petitioners, was promoted. Respondent No. 2 made a representation, dated 22.04.2019, against final seniority list, which was circulated on 01.03.2016, thus his claim is time barred, hence not maintainable. Upon the direction of the learned erstwhile Tribunal to decide the representation preferred by respondent No. 2, the matter was reopened after considerable delay and ultimately impugned Annexure P16 was passed, which needs to quashed and set aside. It is further averred that respondent No. 2 did not implead any person, who is likely to be affected, so the impugned Annexure P16 is bad in the eyes of law. The competent authority, pursuant to order passed in OA No. 2803 of 2019, granted personal hearing to respondent No. 2 on 21.09.2019 and his representation was rejected.
However, review was preferred without there being any specific provision to file review, which was allowed, thus impugned Annexure P16 is bad in the eyes of law, as under the garb of deciding review, respondent No. 1/State decided the representation of the petitioner afresh. It is argued that seniority is a consequence of promotion granted to the petitioners, so in absence of challenge to their promotions, seniority cannot be reshuffled and the petitioners cannot be pushed down in the seniority. Annexure P16 is bad in the eyes of law and is not within the confines of law, so the same deserves to be ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 37 quashed and set aside by allowing the instant writ petition. The learned Senior Counsel have placed reliance on certain judicial .
pronouncements also.
13. Conversely, Mr. Ashok Sharma, learned Advocate General, appearing on behalf of respondent No. 1/State has argued that the petition is not maintainable, as the petition nowhere shows that how the fundamental right(s) of the petitioners have been infringed, what of say of fundamental right(s), the petition fail to disclose what legal right(s) of the petitioners has been infringed. He has further argued that the petitioners' approaching this Court is a step taken in haste, as only provisional seniority list was issued and objections were invited thereto from all concerned. In fact, the petitioners filed their objections to the provisional seniority list and the same are under consideration, so the extant petition is premature. He has argued that upon the direction of the learned erstwhile Tribunal, in OA No. 2803 of 2019, the representation of respondent No. 2 was decided and ultimately Annexure P16 was issued, which is well within the law and falls in the administrative business of respondent No. 1/State. Respondent No. 1/State is competent to take administrative decision, review or rectify any mistake in its administrative decision(s), so the action of respondent No. 1/State is not against the law and in fact it is a pure administrative action, which is not open to judicial scrutiny. He has ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 38 further argued that final seniority list is yet to be issued and the same would be issued after considering all the aspects of the matter .
and considering all the objections from all concerned, so by filing the instant petition, the petitioners are only creating roadblocks in the administrative exercise of respondent No. 1/State. Lastly, he has prayed that instant petition sans merits and may be dismissed.
14. Mr. Rajiv Jiwan, learned Senior Counsel for respondent No. 2, has argued that the promotion of the petitioners is without prior permission of the competent authority, thus the same is not as per the rules. He has argued that in the year 2016, respondent No. 2 came to know about incorrect seniority list, when it was circulated.
As per the learned counsel for respondent No. 2, petitioners are shown over and above respondent No.2 after changing date of birth, so respondent No. 2 represented. He has argued that the seniority list is not yet finalized and the same would be finalized only after all the representations will be decided, objections are addressed and considering all the facets of the matter. He has argued that in Ashok Kumar's case, in contempt petition, Hon'ble High Court has ordered to fill up the posts in question., so the promotion was made conditional and subject to the reversion. In Ashok Kumar's case the Hon'ble Court did not lay down any ratio and it was simply covered by Arun Kumar's case and ultimately the the said judgment was set aside in LPA. He has further argued that respondent No. 2 ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 39 maintained the instant petition, as he appeared in the examination of Assistant Engineer in 2006 and was selected. Lastly, he has .
submitted that the instant petition is premature and filed in haste, as seniority list is yet to be finalized, after considering all the objections of the all concerned and examining all the relevant points, so the petition is without merits and may be dismissed.
15. In CWPOA No. 224 of 2019 Mr. Saurabh Ahluwalia, Advocate, has argued that on 08.03.2000 the petitioner were directly recruited as AEs and on 07.08.2006 a provisional seniority list of AEs (Civil) was circulated, which depicted the position as on 31.05.2006. Feeling disgruntled, the petitioner preferred representations. He has further argued that despite the representations of the petitioners, no decision was conveyed to them and on 04.11.2008 final seniority list was circulated, which was the replica of provisional seniority listed issued on 07.08.2006. He has argued that a separate register of seniority of each category is to be maintained. As per the learned counsel for the petitioners, the seniority list is incomplete, as the respondents No. 2 to 35, who figure at serial number 94 to 127 of the seniority list, have been assigned wrong seniority over and above the petitioners. He has argued that as per the R&P Rules seniority of direct recruits and promotees must be fixed as per the roster. Adjustment of respondents No. 36 to 47 in the seniority list is illegal. He has ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 40 argued that respondentDepartment is wrongly placing the direct recruits under the promotees of the same year, which affects the .
future prospects of direct recruits. It has been argued that impugned final seniority list of AEs(Civil) (Degree Holders) dated 04.11.2008, Annexure P4, having been issued in violation of R&P Rules, may be quashed and set aside. He has argued that a respondentDepartment may be directed to redraw the seniority list of all AEs, strictly as per the R&P Rules, 1995, and government memorandum dated 03.07.1986. He has prayed that in the above backdrop the instant petition may be allowed. Conversely, Mr. Ashok Sharma, learned Advocate General, has argued that due to ban imposed by the State Finance Department, direct recruitment to the post of AE could not be made upto 1994 and thereafter upon the concurrence of the State Finance Department 19 posts of AEs (Civil) were filled on direct recruitment basis on 18.10.1996. He has further argued that thereafter time and again permission make direct recruitment was sought and finally on 10.12.1998 permission to fill up 20 vacancies of AEs (Civil) through direct recruitment was granted by the State Finance Department. So, ultimately on 01.02.2000, 20 posts of AEs (Civil) was filled up, including the petitioners. He has further argued that due to the ban in between 1997 to 1999 and due to nonconcurrence of Finance Department posts of AEs could not be filled up, however, in public interest and ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 41 considering the fact that the posts could not be kept vacant, due to nonavailability of direct recruits, all the private respondents were .
promoted on year wise basis w.e.f. 1997 to 1999 from the category of Graduate JEs (before joining service) and JEs (Graduate during service) against 10% quota meant for each category. So, the argument that the private respondents have exceeded their quota and placed above the petitioners is wrong. He has further argued that as all the petitioners were appointed as AEs (Civil) on 08.03.2000, therefore, seniority assigned to them in 2000, is as per the rotation of quota of vacancies of 2000 and the same is correct.
He has further argued that no cause of action accrued in favour of the petitioners to file and maintain the instant writ and the same being devoid of merits be dismissed.
16. Private respondents, except respondents No. 5, 6, 8, 10, 21 and 39, during the pendency of the instant petition, were proceeded against ex parte. Mr. Vinod Gupta, Advocate, appears on behalf of above mentioned respondents and while arguing the matter Mr. Gupta has argued what Shri Ashok Sharma, learned Advocate General, has argued, so to avoid repetition, arguments of Mr. Gupta are not discussed.
17. Indisputably, the R&P Rules in vogue provide two modes of appointment/selection to the post of AEs, viz., direct recruitment and promotion from amongst the eligible JEs, in the ratio of 30% to ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 42 70%, as per prescribed rota and quota in terms of Rule 10. The selection/direct recruitment to the post of AE is made by the .
Himachal Pradesh Public Service Commission and promotion to the post of AEs, from the eligible JEs, is to be made by the Departmental Promotion Committee. The R&P Rules further provide that quota of 70% meant for promotion is as per Rule 11 and promotional posts are to be filled up in a particular manner, which, at the cost of repetition is extracted hereunder:
"*Junior engineer Civil having 7 years service regular or regular continuous with adhoc (rendered upto 31.3.1991) service in the grade and unqualified junior engineers (Civil) with at least 15 years service regular or adhoc (rendered upto 31.3.1991) rendered in the grade.
.......45% **Junior Engineer (Civil) who acquire AMIE or its equivalent during service as Junior Engineer (Civil) having 3 years regular or regular combined with continuous adhoc (rendered upto 31.3.91) service in the grade.
.......10% ***Junior Engineer (Civil) who possess degree in Civil Engineering or its equivalent at the time of appointment having 3 years regular or regular combined with continuous adhoc (rendered upto 31.3.91) service in the grade.
......10% ****Draughtsman (who are eligible) ......5% Thus, it is clear that the promotional quota of 70% is subdivided amongst different JEs and Draughtsman, depending upon their ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 43 qualification(s) and length of service. Though the dispute is only between direct recruits and promotees, so this Court need not to dive .
into subdivision of quota amongst the promotees.
18. It is also not in dispute that for a considerable period the government imposed ban on direct recruitments, resultantly, direct recruitment to the post of AEs remained halted. Likewise, for some period there was ban on promotions as well. So, both direct recruitment and promotion to the post of AEs were stopped at different times and on different dates, however, in relaxation of ban, some posts were filled through direct recruitment and some through promotions. Therefore, in one of the petitions herein, the petitioners' allegations is that private respondents have been promoted in excess of their quota.
19. At the very outset, it would be apt to notice that the Hon'ble Supreme Court in Shailendra Dania and others vs. S.P. Dubey and others, (2007) 5 SCC 535, has dealt with the same and similar issue and carved out a Rule, which provides "two categories from which promotions can be made i.e. Graduate Junior Engineers as well as Diploma Holder Junior Engineers who have obtained the degree of graduation i.e., AMIE during service. The Rule provide an equal experience of 3 years in both cases. The service rendered by the Diploma Holder Engineers after having passed both parts of ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 44 AMIE can be taken into consideration for reckoning 3 years experience. So, to this extent, this Court, relying upon the judgment .
(supra), is of the view that Junior Engineers, who have acquired Degree in Engineering, during their stint in service, have to attain the requisite experience post acquisition of that Degree or higher qualification, in order to be eligible for further promotion, if so required.
20. As per the petitioners (in CWP No. 3356 of 2021), in aftermath to the decision in S.S. Kutlehria and others vs. State of H.P. and others, CWP No. 1358 of 2008, the respondent Department, on 08.09.2010 sent a memorandum to Himachal Pradesh Public Service Commission (HPPSC) for reviewing minutes of DPCs held in between 30.03.1996 to 28.03.2008. Relevant excerpts of the judgment (supra) are extracted hereunder:
"Coming to the merits of the case, we find that the Rule in this case is akin to the Rules in Shalendra Dania's case. The Rules provide two categories from which promotions can be made i.e. Graduate Junior Engineers as well as Diploma Holder Junior Engineers who have obtained the degree of graduation i.e. AMIE during service. The Rules provide an equal experience of 3 years in both cases. This case is therefore squarely covered by the judgment of the Apex Curt in Shalendra Dania's case and only the service rendered by the Diploma Holder Engineers after having passed both parties of AMIE can be taken into consideration for reckoning 3 years experience."::: Downloaded on - 03/06/2022 20:07:55 :::CIS 45
In sequel to the judgment (supra) the respondentDepartment and .
HPPSC ascertained and worked on vacancy position etc. and ultimately in a contempt petition HPPSC was made partyrespondent and on 03.03.2011 the said contempt petition was disposed of.
Consequently, Review DPC was convened and recommendation for 23 posts was made, thus petitioners (in CWP No. 3356 of 2021) were promoted as AEs and placed in the tentative seniority list, dated 01.03.2014, for the period 01.01.1995 to 31.12.2012. Thereafter, on 01.03.2016, final seniority list of AEs was circulated, however, on 28.04.2021, partial modification was proposed in the said seniority list, so objections were invited. The petitioners' (in CWP No. 3356 of 2021) representation(s) was/were rejected and representation of respondent No. 2 was allowed. Later on, a revised seniority list was circulated on 28.04.2021 and objections were invited. Revised seniority list was circulated in sequel to Office Order dated 09.04.2021 (Annexure P16), impugned Annexure herein. Thus, it is clear that the entire controversy hinges upon Officer Order dated 09.04.2021, Annexure P16. In order to delve into the controversy, it would be profitable to first understand Annexure P16. Annexure P 16 is extracted in extenso hereunder for the sake of ready reference:
"Office Order Whereas Sh. Ajay Kumar Sharma, presently posted as Executive Engineer HPPWD Div. Nalagarh has filed the application for review of office order dated 07.08.2020 ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 46 vide which the representation dated 24.04.2019 of Sh. Ajay Kumar Sharma and five others was disposed off. The said order dated 07.08.2020 was passed consequent upon directions passed by the Hon'ble HP State .
Administrative Tribunal In OA No. 2803/2019 dated 10.07.2019 in which directions were issued to the undersigned to decide the representation of above said persons. Accordingly, the representation of all the Executive Engineer(s) who were party to the above said Original Application was examined along with complete record of the matter regarding seniority of the Assistant Engineer(s) this office vide order dated 07.08.2020 decided the representation in compliance to the orders as passed by the HP State Administrative Tribunal.
Now the above said officer has filed application for review of the order dated 07.08.2020 on the ground that while passing order, the plea as taken by them in the representation as well as in the Original Application filed before the HP State Administrative Tribunal has not been considered properly. It has been submitted that administrative decision was taken by my predecessor on 15.10.2014 consequent upon the representation made by the aggrieved officials. In order to settle dispute w.r.t. the seniority and to comply with the directions of the Hon'ble Court as passed in COPC No. 214/2010 titled as Ashok Kumar Sharma vs. State of HP. It was decided as under: "1. The eight promotion be adjusted not against Direct Recruit quota, but their own eligible quotas, i.e., graduate J.E. quota and AMIE quota.
2. If such quotas are exceeded, same can be treated as an relaxation of additional posts availed by concerned category (i.e. posts over and above those existing in respective cadre).
3. Therefore, we need not evaluate the IPH model.
4. The surplus posts created in cadre, based on one time relaxation, should be correspondingly reduced in subsequent years, upto the point that such surplus is brought to zero."
The contention of the officer is that though administrative decision has been taken by my predecessor, but the same has not been given effect while finalizing the seniority of Assistant Engineer on 01.03.2016. It is submitted by the officer that while finalizing the seniority of the officers, the administrative decision as taken ought to have been given effect in the seniority list. The officer has further contended that the seniority has not been prepared in accordance with rules, regulations and instructions as well as settled position of law. The applicant further contends that he along with other direct recruit graduate Engineers are suffering as a result of anomaly created in the seniority list.
The issue as raised by the applicant pertains to interse seniority between the direct recruits and promotees Assistant Engineer(s). The contention of the applicant in the original applicant and representation was that the ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 47 graduate/AMIE Assistant Engineer(s) have been promoted in excess of their quotas contrary to R&P Rules and they have been given the seniority against the posts meant for direct recruits. This way the persons who were junior to .
them have been placed above them and seniority has not been properly assigned to the graduate direct recruits.
The 'Govt. of Himachal Pradesh instructions', have been relied upon in support of their contentions. The officer has further brought to the notice of the undersigned that in the year 1996, there were 8 no. vacant posts of graduate/AMIE Assistant Engineer against which 14 persons were promoted. Further in the year 1997, there were only 10 posts of graduate AMIE Assistant Engineer and against these 10 posts, 18 persons were promoted. It is contention of the applicant that the promotions have been made in excess of the quota provided to the graduate AMIE Assistant Engineer in R&P Rules and they have been assigned the seniority against the posts meant for direct recruits without following the rule of rotation of quota. As a result of this action, the seniority position of the direct recruits has been adversely effected. The reliance is also placed on Govt. of India instructions and the handbook of Personal Matters Vol.I Chapter13 Annexure13.5. The perusal of aforesaid instruction clearly states that if adequate number of direct recruits do not become available in any particular year, rotation of quota for the purpose of determining the seniority would take place only to the extent of available direct recruits and promotees. In other words to the extent direct recruits are not available, the promotees will be bunched together a the bottom of seniority list below the last position upto which it is possible to determine the seniority on the basis of rotation of quotas with reference to actual number of direct recruits who become eligible. The unfilled direct recruitment quota vacancies would however be carried forward and added to the corresponding direct recruitment vacancies of the next year. The illustration has been provided as to how the seniority is t be determined. Further, Para5 of the aforesaid instruction states that with a view to curving any tendency of under reporting suppressing the vacancies to be notified to the concerned authorities for direct recruitment, it is clarified that promotees will be treated as regular only to the extent to which direct recruitment vacancies are reported to the recruiting authorities on the basis of quotas prescribed in the relevant recruitment rules. Excess promotees, if any, exceeding the share falling to the promotion quota based on the corresponding figure notified for direct recruitment would be treated only as adhoc promotees. The aforesaid position of the instructions as contained in handbook of Personal Matters clearly states that in case the direct recruit against the notified vacancies in a particular year are not available and any vacancies remain unfulfilled, in that event rotation of vacancies is to be done up to the level to which the direct recruits are available and thereafter against the vacant posts, the promotees are to be bunched together at the bottom of seniority list subject to the quota allotted to category. Here it has to be understood that the promotees to be bunched at the bottom can only be bunched to the extent to which the posts are available in the respective quotas of the promotees. The bunching can only be limited to the available posts in the respective category quota and the bunching cannot exceed the number of posts provided to the category quota. The contention of the official is that the promotees Junior Engineer/graduate AMIE have been ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 48 promoted in excess of their quota and contrary to the instructions, notifications and rules of the Government. Further, the predecessor of this office has already taken an administrative decision that the 8 promotion done in .
1996 be not adjusted against direct recruit quota but their own eligible quota that is graduate Junior Engineer quota and AMIE quota. It was further decided that if such quota are exceeded, same can be treated as an relaxation of the additional posts availed by the concerned category i.e. the posts over and above those existing in the respective cadre.
The surplus posts created in the cadre based on one time relaxation should be correspondingly reduced in subsequent years up to the point that such surplus is brought to zero. Thus the decision was very clear that the excess Assistant Engineer of the category of graduate AMIE were not to be promoted against the direct recruit quota, but they were to be adjusted against future vacancies falling in the respective category of AMIE graduate and this adjustment was to be continued till the surplus number is brought to zero. The perusal of record however, shows that neither this administrative order was given effect in the final seniority list issued circulated on 01.03.2016 nor the instructions of the Government as contained in handbook of Personal Matters as well as the notification issued by the Govt. of India and adopted by the State of HP were followed while circulated the seniority. The official has also brought to the notice, the seniority position which has been assigned to various graduate AMIE right from 1996 to 2016. On these contentions, the officials have requested to review of the order dated 07.08.2020.
I have examined the entire record, the instruction of the Govt., the relevant position of the law brought to my notice by applicants as well as the administrative decision taken by my predecessor. One thing is very clear on perusal of the record. The seniority as determined and circulated vide order 01.03.2016 is not in accordance with the R&P Rules, instruction of the Govt. as well as the administrative decision taken by my predecessor. While issuing the order dated 7.8.2020, the aforesaid facts were not brought to my notice. On perusal of the entire record, I find that in the Final Seniority of the year 2016, 14 Nos. GJE/AMIE have been assigned seniority in 1996 as against their respective quota of 8 thereby making them excess by 6 Nos. in that year. They were assigned seniority at Sr. No. 313, 316, 322, 325, 332, 335, 342, 344, 347, 349, 352, 354, 357,
358. Now they need to be assigned seniority within their respective quota of 8 Nos. at Sr. Nos. 313, 316, 322, 325, 332, 335, 342, 344.
Further, 18 Nos. GJE/AMIE have been assigned seniority in 1997 as against their respective quota of 10, thereby making them excess by 8 Nos. in that year. They were assigned seniority at Sr. No. 362, 364, 369, 371, 373, 377, 382, 384, 388, 390, 395,397, 401, 403, 405, 406, 407,
408. The 10 Nos. of GJE/AMIE need to be assigned seniority within their respective quota of 10 Nos. at Sr. No. 356, 358, 363, 365, 369, 371, 376, 378, 382, 384 wherein 6 Nos. excess GJE/AMIE of the year 1997 are to be adjusted within Sr. No. 376 and 384.
::: Downloaded on - 03/06/2022 20:07:55 :::CIS 49Further, in the said seniority list 6 Nos. GJE/AMIE have been assigned seniority in 1998 as against their respective quota of 6 posts. They were assigned seniority at Sr. No. 375, 377, 382, 384, 388, 390. Now these 6 Nos. of .
GJE/AMIE needs to be assigned Seniority within their respective quota of 6 Nos. at Sr. No. 399, 401, 404, 405, 406, 407 wherein 6 Nos. excess of the year 1997 are to be adjusted.
Apart from this, 6 Nos. GJE/AMIE have been assigned seniority in 1999 as against their respective quota of 6. They were assigned seniority at Sr. No. 395, 397, 401, 403, 405, 406. Now these 6 Nos. of GJE/AMIE are to be assigned seniority within their respective quota of 6 Nos. at Sr. No. 411, 413, 417, 424, 426 wherein 6 Nos. excess of the year 1997 are to be adjusted.
Remaining excess GJE/AMIE of the year 1997 to 1999 needs to be assigned seniority in the year 2000 by rotation of the quotas among the available direct recruits of the year 2000 and 8 Nos. GJE/AMIE quota. These 8 Nos. GJE/AMIE needs to be assigned seniority at Sr. No. 435, 438, 444, 447, 456, 461, 470, 471 and all the excess GJE/AMIE of the year 1999 and 2000 can be bunched together in the bottom of the year 2000 from Sr. No. 472 to
483. Thus I am satisfied that the aforesaid corrections need to be carried out in the seniority list dated 1.3.2016 in respect of officers mentioned in serial No. 312 to 483 and the seniority list of Assistant Engineer(s) as circulated vide order dated 01.03.2016 is required to be revised in accordance with the rules, instructions and orders stated above. The application for review deserves to be allowed in the aforesaid terms. Therefore the review application is partly allowed and the order dated 7.8.2020 is reviewed to the extent that the seniority is to be revised as per the administrative decision dated 15.10.2014 in the above said manner and instructions. Let the revised seniority list be prepared and circulated in accordance with rules."
Annexure P16, dated 09.04.202, makes it clear that seniority list circulated, vide order dated 01.03.2016, was not in accordance with R&P Rules, instructions of the Govt. and the administrative decision, so revised seniority list of AEs was ordered to be issued and circulated, as per the administrative decision dated 15.10.2014.
21. Now, it would be apt to examine the administrative decision dated 15.10.2014, as Annexure P16 is basically offshoot of the same decision. Administrative decision dated 15.10.2014, for the sake of ready reference is extracted hereunder:
::: Downloaded on - 03/06/2022 20:07:55 :::CIS 50Subject: OA No.2803/2019Ajay Sharma V/S State of HP ... ... ... ... ... ... ...
.
Pages1 to 41:Vide this letter, the Dy. AG, erstwhile HPAT has sent the copy of order dated 10.7.19 passed in OA No.2803 of 2019Ajay Sharma V/S State of HP alongiwth copy of OA for information and necessary action. The operative part of the order passed on 10.7.2019, is as under:
PARA4:The applicant has already made representation for redressal of his grievance, dated
22.4.2019, AnnexureA1. However, the same has not been decided till date.
PARA5:Consequently, the present application is disposed of with a direction to 1 st Respondent through the Additional Chief Secretary (PW) to the Govt. of HP to take a final decision on the basis of representation, after affording an opportunity of being heard to the applicant by 10th August, 2019.
The detailed representation of the applicant may kindly be perused at pages14 to 21/corrs.. However, in brief, it is submitted that in representation, Sh.Ajay Sharma has stated that he has been appointed as AE (Civil) in HPPWD during the year 2000 on direct recruitment basis. During the year 1996, 08 Junior Engineers were promoted to the post of Assistant Engineers on 21.8.1996 against direct recruitment posts as a measure personal to the incumbents. As per the final seniority list circulated on 1.3.2016, all the 08 AES, who were promoted against direct recruitment posts on 21.8.1996, stand promoted to the post of Assistant Engineer on regular basis well before 1996. However, while convening DPC during May, 2013, the department has again converted these 08 posts of direct recruitment of the year 1996 as promotional posts and promoted another slot of 8 GJE/AMIE against these posts. This promotion is in excess to the promotion quota in the R&P Rules. Although, the Hon'ble High Court in its order dated 3.3.11 in COPC No.214/2010Ashok Kumar Sharma V/S Sh.P.C.Kapoor had directed the respondent to fill up these 08 posts which were lying vacant in the year 1996 and 15 posts in the year 2006, strictly as per R&P Rules prevalent at that time [Page15 point No.
(v)], but the department has filled up these posts by promotion whereas the same were meant for direct recruitment. The DoP has also denied for filling up these posts by promotion [page16 point No.(iv)]. The matter was also brought to the notice of the then Chief Secretary [Page16, point No.(vii)] who have ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 51 observed that again seeking relaxation, the provisions of the R&P Rules is again perpetuating mistakes as committed in the past (1996 & 2006) and will again face litigation. The proposal does not appear to be .
legally correct. Sh.Ajay Sharma, has further submitted that the IPH department has administratively decided that 11 posts of the share of direct recruitment given to Graduate/AMIE JEs in the review DPC held on 29.6.11 may not be taken into account now as the relaxation which was given earlier in the year 1996, was only for one time and that too by name. The persons to whom relaxation was given, have already been placed prior to the year 1996. Hence, these 11 posts were not included in the review DPC meeting held on 20.5.2014. The representationist has further submitted that Hon'ble High Court in its judgment dated 29.6.2016 in LPA No.430 of 2012HP State Electricity Board Vs Yashwant Singh [page18 & 19 point No.(ix) and (x)], has given decision in favour of direct recruits. In the end, Sh.Ajay Sharma has submitted that 08 promotions made in excess to the statutory quota for promotes in the year 1996, are not to be given benefit of seniority as it will certainly mar his service career, hamper future promotional avenues.
In this behalf, it is submitted that earlier after receipt of judgment dated 8.1.2010 in CWP No.1358/2008 in case of S.S.Kutlehria V/S State of HP, a memorandum was sent to the HPPSC on file No.PBW (A)B(6)5/2009L on 8.9.2010 to review the minutes of the DPCs which were held between the period 30.3.96 to 28.3.08. In the said memorandum, 23 direct recruitment posts (year 199608 & 200615), which were earlier filled up by promotion from. Graduate & AMIE JES, were also included. The meeting of the review DPC was held in HP PSC on 28th & 29th September, 2010 against the vacancies between the period 1995 to 2008 but the review DPC did not take into account these 23 (08 posts of 1996 and 15 posts of 2006) posts on the grounds that the Govt. of India, Ministry of Home Affairs, DoP Memo No.22011/3/80Estt (D) dated 26.3.1980, do not allow the review DPC to increase the vacancies already intimated to the original DPCS. (page450file No.PBW(A)B(6)5/2009L). But, Sh.Ashok Kumar Sharma, who was the petitioner in CWP(T) No.2605/2008, had filed COPC No.214 of 2010 and had raised the issue to fill up these 23 direct recruitment posts by way of promotion as have been done during the year 1996 and 2006. The reply to the COPC was filed on 3rd January, 2011 vide pages450 to 455 on file No.PBWAE(1)103/2001. In para4 of the preliminary submission of reply to COPC, it was ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 52 categorically submitted that this issue does not carry in the main petition of the petitioner and the subject matter exclusively different. These posts were neither included in the cadre of Graduate/AMIE AE nor .
placed at the cadre strength of this category in the year 1996 and 2006 respectively. These posts were filled up as personal measure just to accommodate the senior most incumbents of above categories as one time itself. The COPC No.214/2010 was decided by Ld. Single Judge of Hon'ble High Court on 3.3.2011 and operative part of the judgment is as under:
"State Govt, is directed to supply all the documents to the HPPSC within a period of one week the posts of Assistant Engineer. It is made clear that respondent No.2 shall hold Departmental Promotion Committee for filling up 08 vacancies which were lying vacant in the year 1996 and 15 posts in year 2006, strictly as per the R&P Rules prevalent that time time. Respondent No.2 immediately after the receipt of papers from the State shall complete process within a period of two weeks and thereafter, shall make recommendations to the State Govt.. The State Govt. shall issue necessary promotion orders within a period of one week after the receipt of recommendations by HPPSC."
After receipt of judgment dated 3.3.2011 in COPC No.214/2010, the matter was taken up with the DoP whether the order passed in COPC No.214/2010 is to be implemented or required to be assailed further. However, as per N31 (page32), the DoP had advised to take up the matter with Law Department as the 23 posts of AES, which the Hon'ble High Court in COPC No.214/2010, has directed to fill up these posts as per R&P Rules, were earlier filled in as a personal measure. Further, as per N33 (page33), a proposal/memorandum to fill up 45 posts of AE meant for direct recruitment (23 posts earlier filled up by promotion during 1996 & 2006 & 22 posts to save the AEs from reversion due to review DPC in Kutlehria case) was submitted for approval of Hon'ble CM to place the matter before CMM. But the then Chief Secretary, HP vide N34 (page33), had rejected the proposal. But here it is submitted that while submitting the proposal to place the matter before CMM, the matter was already taken up with the HPPSC to review the minutes of the DPC held on 28.9.10, 29.9.10 & 3.11.10 the Hon'ble High Court in COPC No.214 of 2010 has only given 01 week time to take up matter with the HPPSC. Hence, as per direction passed by Hon'ble High Court the 23 posts (1996=08 posts and 2006=15 posts) were also included in the memorandum to be filled up by ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 53 promotion from amongst the Graduate and AMIE JEs as have been done in the past according to the percentage prescribed in the R&P Rules.
.
Besides, it is also submitted that the representationist viz Shri Ajay Sharma, is a direct recruitee AE of the year 2000. The recruitees of the year 2000 viz S/Sh Atul Jyoti, Umesh Sharma, Jeet Singh, Bhagmal Thakur and Kulbir Thakur, who are the batch mate of Sh.Ajay Sharma, had also made similar representations that 08 posts of direct recruits given to promotee during 1996 was personal measure. Since, all the 08 persons already stand promoted prior to the year 1996, therefore, these posts may not be allocated further to promotees. The said representation was dealt on file No.PBWAB(11) 1/2014 and following decision was taken by the then Principal Secretary (PW):
The 8 promotions who were given one time relaxation (by name) be done as per R&P Rules prevalent at that time.
Even the HP High Court in COPC No.214/2010, titled as Ashok Kumar Sharma & Others Vs HP has reiterated that promotion be done only as per R&P Rules.
Therefore, following be adopted:
1) The eight promotions be adjusted not against direct recruit quota, but their own eligible quotas AMIE quota i.e. Graduate JE quota and AMIE quota.
2) If such quotas are exceeded, same be treated as a relaxation of additional posts availed by concerned category (i.e. posts over and above those existing in respective cadre).
3) Therefore, we need not emulate the IPH model.
4) The surplus posts created in cadre, based on one time relaxation, should be correspondingly reduced in subsequent years, upto the point that such surplus is brought to zero.
5) Only by above formula, the Direct recruit appointees will not be able to lay claim of seniority, which in any case is to be regulated by existing DoPT instruction.
... ... ... ... ... ... ...
...
From the above, it is evident that the 08 posts of the direct recruit of the year 1996 has been filled in by promotion keeping in view of judgment passed by Hon'ble High Court in COPC No. 214 of 2010 as well as administrative decision taken by the AD. The ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 54 seniority to the officers who have been promoted against the direct recruitment posts of the year has been assigned seniority as per instruction contained in Hand Book on Personnel Matter, VolI. Hence, the .
representation made by Sh. Ajay Sharma, that the 08 posts of direct recruits of the year 1996, may not be given to the promotees is not tenable.
In view of above, before the representation of Sh.Ajay Sharma, is finally decided, Principal Secretary (PW) is requested kindly to indicate suitable date and time to grant personal hearing to Sh. Ajay Sharma, EE please.
Thereafter, on 07.08.2020, the then Principal Secretary (PW) to the r to Govt. of H.P. passed the following order:
Whereas, Sh.Ajay Sharma, Executive Engineer (Civil), HPPWD had filed OA No.2803/2019 in the erstwhile HP Administrative Tribunal at Shimla on the grounds that the department is not following the rotaquota rule. The department has been issuing seniority list in the cadre of Assistant Engineer from time to time which has not gained finality and is still in the process of changing following the prescribed procedure. The applicant has further submitted that he has preferred a representation dated 22.4.2019 to the respondent for determining the seniority as per rules and regulation as well as settled law and the respondent has not taken any decision on the representation. In the end, the applicant has prayed that the respondent may be directed to decide the pending representation in a time bound manner as per provision of law.
Whereas, OA No.2803/2019 was listed before the Hon'ble High Court on 10.7.2019 and the same was disposed of with a direction to 1st Respondent through Additional Chief Secretary (PW) to the Govt. of HP to take a final decision on the basis of representation, after affording an opportunity of being heard to the applicant by 10th August, 2019.
In representation dated 22.4.2019, Sh.Ajay Sharma has stated that he has been appointed as AE (Civil) in HPPWD during the year 2000 on direct recruitment basis. On 21.8.1996, 08 Junior Engineers were promoted to the post of Assistant Engineers against direct recruitment posts as a measure personal to the incumbents. As per the final seniority list circulated on 1.3.2016, all the 08 Assistant Engineers, who were promoted against direct recruitment posts on 21.8.1996, stand promoted to the post of Assistant ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 55 Engineer on regular basis well before 1996. However, while convening DPC during May, 2013, the department has again converted these 08 posts of direct recruitment of the year 1996 as promotional .
posts and promoted another slot of 8 GJE/AMIE against these posts. This promotion is in excess to the promotion quota in the R&P Rules. Although, the Hon'ble High Court in its order dated 3.3.11 in COPC No.214/2010Ashok Kumar Sharma V/S Sh.P.C.Kapoor had directed the respondent to fill up these 08 posts which were lying vacant in the year 1996 and 15 posts in the year 2006, strictly as per R&P Rules prevalent at that time, but the department has filled up these posts by promotion whereas the same were meant for direct recruitment. The Department of Personnel has also denied for filling up these posts by promotion. The matter was also brought to the notice of the then Chief Secretary who have observed that again seeking relaxation, the provisions of the R&P Rules is again perpetuating mistakes as committed in the past and will again face litigation. The proposal does not appear to be legally correct. Sh.Ajay Sharma, has further submitted that the IPH department has administratively decided that 11 posts of the share of direct recruitment given to Graduate/AMIE JEs in the review DPC held on 29.6.11 may not be taken into account now as the relaxation which was given earlier in the year 1996, was only for one time and that too by name. The persons to whom relaxation was given, has already been placed prior to the year 1996. Hence, the I&PH department did not include these 11 posts in the review DPC meeting held on 20.5.2014. The representationist has further submitted that Hon'ble High Court in its judgment dated 29.6.2016 in LPA No.430 of 2012HP State Electricity Board Vs Yashwant Singh, has given decision in favour of direct recruits. In the end, Sh.Ajay Sharma has submitted that 08 promotions made in excess to the statutory quota for promotes in the year 1996, are not to be given benefit of seniority as it will certainly mar his service career, hamper future promotional avenues.
Whereas, as per direction passed by erstwhile HP Administrative Tribunal in OA No.2803/2019 on 10.7.2019, personal hearing was given to the applicant on 21.9.2019 at 3.30 PM. During the course of hearing, the applicant has made similar submission as has been made in his earlier representation dated 20.4.2019 and requested that 08 posts of direct recruitment filled during the year 1996 by promotion from amongst the Graduate/AMIES Junior Engineers, may not be given to these categories, as these posts were earlier filled up as a personal measure.
::: Downloaded on - 03/06/2022 20:07:55 :::CIS 56The undersigned has gone through the record of the case as well as submissions made during the course of hearing. From the perusal of record, it reveals that .
DPC could not be held in the unified cadre of HPPWD and IPH w.e.f. 7.5.1974 to 27.4.1994 due to various court cases as well as, other reasons and all the promotions from Junior Engineers to Assistant Engineers were made on adhoc basis during said period. In order to regularize the services of officers who were promoted as Assistant Engineers on adhoc basis between the period 7.5.74 to 27.4.94, a regular DPC was held in HP PSC during August, 1994 to 30 December, 1994 and as per recommendations of DPC, regularization order of all the officers were issued on 16.3.1995. However, 08 Junior Engineers (Gradaute/AMIE) who were promoted as Assistant Engineers on adhoc basis prior to 27.4.1994, could not find place in the recommended list. Since, these officers were working on adhoc basis as Assistant Engineers since long time, therefore, in consultation with the HP, Public Service Commission and approval of Competent Authorities, services of 08 Graduate/AMIE adhoc Assistant Engineers were regularized on 21.8.1996 against the direct recruitment posts. It has further been found that after receipt of judgment dated 8.1.2010 in CWP No.1358/2008 in case of S.S.Kutlehria V/S State of HP, a memorandum was sent to the HPPSC on file No.PBW(A)B(6)5/2009L on 8.9.2010 to review the minutes of the DPCs which were held between the period 30.3.96 to 28.3.08. In the said memorandum, 23 direct recruitment posts (year 199608 & 2006
15), which were earlier filled up by promotion from Graduate & AMIE JES, were also included. The meeting of the review DPC was held in HP PSC on 28th & 29th September, 2010 against the vacancies between the period 1995 to 2008 but the review DPC did not take into account these 23 (08 posts of 1996 and 15 posts of 2006) posts on the grounds that the Govt. of India, Ministry of Home Affairs, DoP Memo No.22011/3/80Estt (D) dated 26.3.1980, do not allow the review DPC to increase the vacancies already intimated to the original DPCs. But, Sh.Ashok Kumar Sharma, who was the petitioner in CWP(T) No.2605/2008, had filed COPC No.214 of 2010 and had raised the issue to fill up these 23 direct recruitment posts by way of promotion as have been done during the year 1996 and 2006. The reply to the COPC was filed on 3rd January, 2011 and in para4 of the preliminary submissions of reply to COPC, it was categorically submitted that this issuedoes not carry in the main petition of the petitioner and the subject matter is exclusively different. These posts were ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 57 neither included in the cadre of Graduate/AMIE AE nor placed at the cadre strength of this category in the year 1996 and 2006 respectively. These posts were filled up as a personal measure just to accommodate .
the senior most incumbents of above categories as a one time itself. The COPC No.214/2010 was decided by Ld. Single Judge of Hon'ble High Court on 3.3.2011 and operative part of the judgment is as under:
"State Govt. is directed to supply all the documents to the HP,PSC within a period of one week the posts of Assistant Engineer. It is made clear that respondent No.2 shall hold Departmental Promotion Committee for filling up 08 vacancies which were lying vacant in the year 1996 and 15 posts in the year 2006, strictly as per the R&P Rules prevalent at that time. Respondent No.2 immediately after the receipt of papers from the State shall complete process within a period of two weeks and thereafter, shall make recommendations to the State Govt.. The State Govt. shall issue necessary promotion orders within a period of one week after the receipt of recommendations by HP PSC.
After receipt of judgment dated 3.3.2011 in COPC No.214/2010, the matter was taken up with the DoP whether the order passed in COPC No.214/2010 is to implemented or required to be assailed further. However, the Department of Personnel had advised to take up the matter with Law Department as to whether the order of Hon'ble High Court can be assailed since 23 posts of AEs have been filled up by name as a measure personal to the incumbents in relaxation of provision of R&P Rules. Further, a proposal/memorandum to fill up 45 posts of AE meant for direct recruitment (23 posts earlier filled up by promotion during 1996 & 2006 & 22 posts to save the AEs from reversion due to review DPC in Kutlehria case), was submitted for approval of Competent Authorities, but the proposal was rejected by the then Worthy Chief Secretary, HP and observed that "department by again seeking to relax the provisions of the R&P Rules is again perpetrating mistake as committed in the past (1996 & 2006) and will again face litigation. The proposal does not appear to be legally correct. The record also shows that while submitting the proposal to place the matter before CMM, the matter was already taken up with the HPPSC to review the minutes of the DPC held on 28.9.10, 29.9.10 & 3.11.10 as the Hon'ble High Court in COPC No.214 of 2010 has only given 01 week time to take up the matter with the HPPSC. Hence, as per direction passed by Hon'ble High Court, the 23 posts ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 58 (199608 posts and 200615 posts) were also included in the memorandum to be filled up by promotion from amongst the Graduate and AMIE Junior Engineers as have been done in the past according to the .
percentage prescribed in the R&P Rules. Besides, it has also been revealed that similar representation was received from similar situated Executive Engineers who are the batch mate of the applicant, wherein they have also made submissions not to fill up 08 posts of the year 1996 meant for direct recruits, by promotion as these posts were earlier filled up as a personal measure. After considering the representation, an administrative decision was taken that keeping in view of order in COPC No.214 of 2010 titled as Ashok Kumar Sharma V/S State of HP, 08 promotion be adjusted not against direct recruitment quota but their own quotas i.e. Graduate quota and AMIE quota and surplus posts created in cadre based on one time relaxation, should be corresponding reduced in subsequent year upto the point that such surplus is brought to zero. It has further been administrative decided not to emulate the IPH Model.
And Whereas, from the above facts, the undersigned has come to the conclusion, that the 08 posts of direct recruitment of the year 1996 has been filled up by promotion from amongst the Graduate and AMIE Junior Engineers as per percentage prescribed in R&P Rules for the post of Assistant Engineers in the review DPC held in HP,PSC during May, 2013 in order to Honor the Hon'ble High Court order dated 3.3.2011 in COPC No.214 of 2010 titled as Ashok Kumar Sharma V/S State of HP & Others. The HP Public Works Department and IPH are separate department and the decision taken by IPH Department cannot be emulated in the HPPWD. Moreover, as per review DPC held in HPPWD during May, 2013, a final seniority list of Assistant Engineer (Civil) has already been circulated on 1.3.16 and placed before the Hon'ble High Court on 2.3.16 which has attained finality. Hence, the representation of the applicant, that the number of promotes i.e Graduate Junior Engineers who have been promoted as Assistant Engineer w.e.f. the year 1996 to 2000 in excess of their respective year wise quota as per the R&P Rules, shall be brought down to the actual vacancies falling to their share and necessary correction may be made in the final seniority list of Assistant Engineer (Civil) circulated on 1.3.2016 by issuing corrigendum, is not tenable.
Now, therefore, in the light of above discussion, there is no merit in the representation dated 29.4.19 of Sh.Ajay Sharma, Executive Engineer (Civil), HPPWD and is hereby rejected."
::: Downloaded on - 03/06/2022 20:07:55 :::CIS 59Subsequently, Shri Ajay Sharma, the then Executive Engineer, made .
a representation to the respondentDepartment with a prayer that order dated 07.08.2020 may kindly be reviewed and all the 12 excess Graduate/AMIE AEs who have been promoted and given seniority in excess of their respective quota from year 1996 to 2000 shall be assigned seniority in the year of their actual vacancies and requisite corrigendum to the Final seniority list dated 01.03.2016 may be issued in the interest of justice and fair play. The representation of Shri Ajay Sharma was considered by the respondentDepartment and order dated 09.04.2021, Annexure P16 (impugned order herein), was passed.
22. Now, after marking the contours of the dispute completely, as involved in the instant lis, examining the records and also the law on the subject, this Court needs to dive into one moot legal question, which emerge, viz., whether the Government is empowered to review its own decision or rectify the mistake, which has occurred and later on discovered, and whether for exercising such power the Government must have some separate and distinctive statutory authority bestowed on it? Of course, there are some branches of the above moot questions as well and this Court will come to those branches in later part of the judgment.
23. If the decision, which was earlier taken by the ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 60 Government, is purely administrative in nature and later on the Government deemed it fit to review the same or rectify some mistake, .
which has occurred, and in reviewing or rectifying the mistake the Government adhered to all the principles of natural justice, then the said review or rectification is not tainted, in any manner whatsoever, and thus the review or rectification not open to judicial scrutiny.
Moreover, it is within the domain of the Government to frame a policy, alter it, review it and rectify, in fact the Government is free to do such an exercise with some exceptions, viz., the Government must follow all statutory requirements and the principles of natural justice. This Court can only examine the decision of the Government, if there is breach of mandatory statutory provisions and if principles of natural justice are flouted. The Government's power to review its own decision cannot be snatched, as in administrative machinery such a power is indispensable. Moreover, illegal and wrongful acts are bound to happen in administrative setup and Government's power to review or rectify the same is an invaluable in house mechanism to address such issues, thus it is not only a protective layer to the employees and employers, but it sievesout the disputes worthy of judicial consideration. Further the Government needs no separate and distinctive power to exercise such a power of review or rectification of its own decisions, as such a power does not stream from some statute and it is by virtue of necessary implication ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 61 only. The view of this Court is further fortified by the following judicial pronouncements:
.
(1) R.R. Verma and others vs. Union of India and others, (1980) 3 Supreme Court cases 402; & (2) Vinod Kumar vs. State of Haryana and others, (2013) 16 Supreme Court Cases 29.
24. The Hon'ble Supreme Court in R.R. Verma and others vs. Union of India and others, (1980) 3 Supreme Court cases 402, observed that any government must be free to alter its policy or its decision in administrative matters. Relevant para of the judgment (supra) is extracted hereunder:
"5. The last point raised by Shri Garg was that the Central Government had no power t review its earlier orders as the rules do not vest the government with any such power. Shri Garg relief on certain decisions of this Court in support of his submission : Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji; D.N. Roy v. State of Bihar and State of Assam v. J.N. Roy Biswas. All the cases cited by Shri Garg are cases where the government was exercising quasijudicial power vested in them, by statute. We do not think that the principle that the power to review must be conferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature. To extend the principle to pure administrative decisions would indeed lead to untoward and startling results. Surely, any government must be free to alter its policy or its decision in administrative matters. If they are to carry on their daily administration they cannot be hidebound by the rules and restrictions of judicial procedure though of course they are bound to obey all statutory requirements and also observe the principles of natural justice where rights of parties may be affected. Here again, we emphasise that if administrative decisions are reviewed, the decisions taken after review are subject to judicial review on all grounds on which administrative decision may be questioned in a court. We see n force in this ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 62 submission of the learned counsel. The appeal is, therefore, dismissed."
25. In another case Vinod Kumar vs. State of Haryana .
and others, (2013) 16 Supreme Court Cases 293, the Hon'ble Supreme Court has held that wrong and illegal acts committed by administrative authorities can be undone by themselves by reviewing such order if found ultra vires and on the same grounds which are available to Courts exercising power of judicial review, after following principles of natural justice.
r Relevant excerpts of the judgment (supra) are reproduced hereunder:
"26. Thus, if wrong and illegal acts, applying the aforesaid parameters of judicial review can be set aside by the courts, obviously the same mischief can be undone by the administrative authorities themselves by reviewing such an order if found to be ultra vires. Of course, it is to be done after following the principles of natural justice. This is precisely the position in the instant case and we are of the considered opinion that it was open to the respondents to take corrective measures by annulling the palpably illegal order of the earlier DGP, Haryana."
26. After highlighting the law governing the field, now, this Court has to examine only two facets of the case, though these facets are only offshoot of the above framed moot question, "whether the Government is empowered to review its own decision or rectify the mistake, which has occurred and later on discovered, and whether for exercising such powers the Government must have some separate and distinctive statutory authority bestowed on it", which are: (a) whether ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 63 the Government in reviewing its own decision or rectifying its own mistake, which purportedly occurred, adhered to statutory provisions .
and (b) whether in reviewing its own decision or rectifying its own mistake, the Government flouted the principles of natural justice?
27. One limb of the above set of questions has already been answered, however, at the expense of repetition, this Court makes it clear that power of the Government to review or rectify its own decision, be it a policy, its alteration, its substitution, its annulment, review or rectification of some administrative decision etc. does not flow from any particular statute and such a power is the result of necessary implication only. Such a power is an important inhouse mechanism to address administrative issues and it provides a protective layer both to the employer and also to the employees, as such a power is additional pedestal whereat administrative shortcomings and loopholes are addressed, reviewed and rectified, at an administrative level, thus, in fact, this power of the Government acts as a dam, which protects the Courts from the deluge of administrative litigation. Another limb of the question is that whether before and while reviewing the decision principles of natural justice have been flouted or not? The record nowhere demonstrates that at any point of time principles of natural justice have been flouted or given gobye. In fact, in the instant case, at every stage, principles of natural justice have been respected. Even the ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 64 petitioners have not pleaded anywhere that the principles of natural justice have been given gobye, so this limb of question does not .
warrant any further discussion, analysis or examination.
28. After holding that the Government has every power to review or rectify its administrative decision, this Court deems it fit to examine other aspects of the instant petitions. However, before analysing other ancilliary aspects of the matter, it would be apt to first deal with some of the judgments as cited by the learned Senior Counsel/Counsel for the respective parties.
29. Mr. Rajiv Jiwan, learned Senior Counsel, while arguing the matter, has placed reliance on a judgment of the Hon'ble Supreme Court in Union of India and others vs. M.K. Sarkar, (2010) 2 Supreme Court Cases 59, wherein the Hon'ble Supreme Court observed that the Court/Tribunal should put an end to the matter qua "dead" or "stale" issue or dispute. Relevant excerpts of the judgment, for the sake of ready reference are extracted hereunder:
"16. A court or tribunal, before directing "consideration" of a claim or representation should examine whether the claim or representation is with reference to a "live" issue or whether it is with reference to a "dead" or "stale" issue. If it is with reference to a "dead"
or "stale" issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If the Court or tribunal deciding to direct "consideration" without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 65 laches. Even if the Court does not expressly say so, that would be legal position and effect."
The view taken by the Hon'ble Supreme Court in the judgment .
(supra) is fully applicable to the instant case, as direction to an authority to consider stale or dead claim is like flogging a dead horse.
30. Mr. Jiwan has also relied on a decision of Hon'ble Supreme Court rendered in A.P. SRTC and others vs. G. Srinivas Reddy and others, (2006) 3 Supreme Court Cases 674, wherein the Hon'ble Supreme Court observed that there is difference between direction to "consider" simpliciter and direction to "consider in light of findings or observations of the court". Apt para of the judgment (supra) for the sake of ready reference is extracted hereunder:
"19. There are also several instances where unscrupulous petitioners with the connivance of "pliable" authorities have misused the direction "to consider" issued by court. We may illustrate by an example. A claim, which is stale, time barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to "consider" and dispose of the representation. When the Court disposes of the petition with a direction to "consider", the authority grants the relief, taking shelter under the order of the Court directing him to "consider" the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order "to consider" as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to "consider", may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of the court's direction to "consider" the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it.::: Downloaded on - 03/06/2022 20:07:55 :::CIS 66
Representations of dailywagers seeking regularization/absorption into regular service is a species of cases, where there has been a large scale misuse of the orders "to consider"."
.
Again the judgment (supra) is also applicable to the facts of the instant case, as there is marked distinction between direction to "consider" simpliciter and direction to "consider in light of findings or observations of the court". In the first case the authority considering the matter has to apply its independent mind, whereas in the second
31. Now adverting case the authority has to apply its mind keeping in view the decision of the Court.
to the instant petitions, avowedly, initially, the post of AEs were to be filledin by way of direct recruitment from the degree holder Engineers. The posts were lying vacant prior to the year 2000 and there was no direct recruitment, so the respondentDepartment promoted the JEs, as AEs and they were placed on the posts, which were to be filledin by direct recruitment.
In CWPOA No. 224 of 2019 (Kulbir Singh & others vs. State of H.P. & others) the dispute inter se the JEs is with those JEs who were graduate or AMIE, who are to be given seniority from the date they attained the AMIE degree or they are to be equated with the JEs without AMIE on the promotion posts, but in CWP No. 3356 of 2021 (Sudhir Kumar & others vs. State of H.P. and others) the dispute is whether the promotee AEs can occupy the posts, which were to be filled in by the direct recruitment from the persons who were degree ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 67 holders. The respondentDepartment, at that time, took permission from the Minister incharge to fillin the posts after making .
promotions, as posts were lying vacant, but whether that permission is legally tenable or not depends upon the fact that whether the Minister incharge can grant the permission or the matter was required to be sent to the Cabinet for approval? At this stage, this Court is not concerned with this aspect of the matter. At the most at this stage the issue, which is to be determined, is whether the AEs, who were promoted, can be placed senior to those AEs, who were to be appointed by direct recruitment, but could not be appointed because of nonholding of interviews/selection process for the direct recruitment and the posts, they were about to occupy, were occupied by the promotees and whether in these circumstances the promotees will remain senior to the direct recruits and the direct recruits will become junior to those, who occupied the posts of direct recruits, after promotion against the posts of direct recruits?
32. Record reveals that the matter qua the seniority of the direct recruits and promotees was pending consideration with the respondentDepartment, however, no decision was being taken in this respect for the reasons best known to the Department. Then the respondentDepartment took a prima facie decision to keep the promotees in the seniority list, as per their date of promotion. The dispute arose when direct recruitment was made and the direct ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 68 recruits filed an Original Application before the learned Administrative Tribunal and the learned Tribunal sent the matter to .
the respondentDepartment and directed that the original application be treated as representation. Then the government reviewed its earlier decision and assigned seniority to the direct recruits to the point where they would have gone against the vacant posts.
33. Now, the question arises whether the decision taken by the respondentDepartment can be said to be arbitrary or without considering the law on the subject correctly? As far as rules and regulations are concerned, it is clear that the posts meant for a particular category were/are required to be filledin from that category only, otherwise the vacancies were to be carried forward.
Since the respondentDepartment has taken a decision to allow the seniority to the direct recruits from the date their posts were lying vacant, this cannot be said to be arbitrary, as this decision of the government cannot be said to be wrong in any manner and against the service jurisprudence, in fact the same is as per the R&P Rules.
The only fact which remains is that this decision was taken after a long time, so the persons who were promoted in the interregnum will loose the benefit of their regular working on the higher posts for the simple reason that there was no post and when there was permission from the Minister incharge to fillin the posts reserved for direct recruits, by way of promotion, to this extent this Court finds that the ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 69 interests of justice would only be met in case the promotees are given the monetary benefit(s) of their seniority from the date of their .
appointment/promotion as AEs, however, as far as further promotion(s) is/are concerned, the respondentDepartment is directed to redraw the seniority list after giving seniority to the direct recruits from the date the posts for direct recruits were lying vacant and they make a final seniority list.
34. Under these circumstances, the CWP No. 3356 of 2021 is disposed directing the respondentsDepartment to treat the petitioners as AEs from the date they were appointed on the post of AE on adhoc basis with all monetary benefits, but as far as the further promotion is concerned, the respondentDepartment will re draw the seniority list on the basis of the latest decision taken by the government, whereby direct recruits were placed in the seniority list on the basis of the date of the post of direct recruits lying vacant and redraw the seniority list within a period of two months. Thereafter, make further promotion on the basis of the seniority list, so drawn.
35. As far as the case of Kulbir Singh (CWPOA No. 224 of 2019) is concerned, the petitioner is required to be considered against the post(s) reserved for the Graduate Engineers from the date he acquired AMIE and he be placed in the seniority list above those who have not acquired AMIE while finalizing the seniority list of the promotee AEs for further promotions. Meaning thereby that he will ::: Downloaded on - 03/06/2022 20:07:55 :::CIS 70 figure above the JEs promoted as AEs on adhoc basis on the date he completed AMIE.
.
36. In view of the foregoing discussion, both the petitions are disposed of.
( Chander Bhusan Barowalia )
Judge
3rd June, 2022
(virender)
r to
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