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Himachal Pradesh High Court · body

1980 DIGILAW 78 (HP)

DINA NATH PRADESI v. STATE

1980-10-01

H.S.THAKUR, V.D.MISRA

body1980
JUDGMENT H. S. Thakur, J.—This is a writ petition filed by the petitioner under Article 226 and 227 of the Constitution of India. It is not necessary to give the biographical details of the petitioner in government or other services, but it is sufficient to detail the facts as are relevant for the disposal of this writ petition. 2. The petitioner was absorbed as an employee of the Government of Himachal Pradesh, Himachal Pradesh Secretariat, as Assistant, with effect from 1-7-1963. At that time he was governed by the Himachal Pradesh Secretariat Class III Service (Recruitment and Promotion and Certain Conditions of Service) Rules, 1962. It is stated by the petitioner that on 13-2-1967 an office older came to be issued whereby as many as seven assistants were ordered to be promoted as Superintendents in Himachal Pradesh Government Secretariat. A copy of the said order is marked as Annexure ‘C’ Since this document is quite material for the decision of this writ petition, it is desirable to reproduce the same : "The Chief Secretary to the Government of Himachal Pradesh is pleased to order the following officiating promotions as Superintendents in the Himachal Pradesh Government Secretariat in the pay scale of Rs. 350-25-575 (promotees to start at Rs. 400 p. m.) and to post them in the branches noted against each, with immediate effect: 1. Shri M. L. Puri Development Branch vice Shri Bisheshar Nath. 2. Shri Jagat Singh Budget Branch (already offg. in the leave vacancy). 3. Shri A. R. Dewan Co-operation branch vice Shri Moti Ram. 4. Shri Anand Swarup AppointmenM vice Sh. S. M. Verma. 5. Shri D. N. Pardesi. Education Branch (Establishment Section II) vice Sh. K.S. Chauhan, 6. Shri Prabhu Prabhakar Veterinary II vice Shri S. L. Behl 7. Shri Het Ram Pal Appointment II in the leave vacancy of Sh. Ram Prakash Modgil." The name of the petitioner appears at Serial No. 5, in the above office order. This office order was, however, kept in abeyance by an order dated 17-2-1967, Annexure *D\ Thereafter an office order, dated 8th March, 1968 was passed promoting the petitioner and others as Superintendents on officiating basis, as a temporary arrangement. Subsequently, office order dated 28-3-1968 was also issued and the petitioner alongwith 14 others was promoted on officiating basis as Superintendent, in the Himachal Pradesh Secretariat. Subsequently, office order dated 28-3-1968 was also issued and the petitioner alongwith 14 others was promoted on officiating basis as Superintendent, in the Himachal Pradesh Secretariat. A copy of this office order, is Annexure ‘E’ It was clarified in the said office order, that these promotions would be purely on ad-hoc basis, and will not confer any rights for seniority, confirmation etc., on the promotees. A final seniority list of Assistants of the Himachal Pradesh Secretariat was also circulated under office memorandum dated 17-8-1970. In this final seniority list, the petitioner was placed at Serial No. 75. The said office memo., as also the final seniority list is marked Annexure F’ 3. The main contention of the petitioner is that he was regularly promoted as Superintendent by the office order (Annexure C) dated 13-2-1967. It is further contended by him that the order Annexure D keeping the said order in abeyance is a nullity and does not in any way affect his right as a regularly appointed Superintendent with effect from 13-2-1967. The petitioner on that basis asserts that he may be declared permanent Superintendent/Section Officer, with effect from 13-2-1969 (after completing probationary period of two years, or in the alternative with effect from 24-7-1969). 4. It may be pointed out that the Punjab Reorganisation Act, 1966 came into force and the interests of the allocated employees from the composite State of Punjab had to be safeguarded and kept in view, in terms of section 82 of the said Act, and their conditions of service, immediately before the appointed day, i.e., 1-11-1966, could not be varied to their disadvantage except with the previous approval of the Central Government. As such, it was desired by us that the State Government record in this behalf be also placed before us. We have perused the relevant record so produced. We find a copy of letter No. D. O. P. 3/1/67 dated 11-1-1967 from Shri V. P. Malhotra, Deputy Secretary to the Government of India, Ministry of Home Affairs to the address of the Chief Secretary to the Government of Himachal Pradesh on this record. It is proper to reproduce this letter for a ready reference :— "Subject: Creation of posts, conversion of posts into permanent, confirmation and promotions after recoganisation of Punjab. Please refer to your d. o., letter No. 17/6/66-Fin (R & E) dated the 19th December, 1966, addressed to Shri Pande. It is proper to reproduce this letter for a ready reference :— "Subject: Creation of posts, conversion of posts into permanent, confirmation and promotions after recoganisation of Punjab. Please refer to your d. o., letter No. 17/6/66-Fin (R & E) dated the 19th December, 1966, addressed to Shri Pande. 2. The ban imposed in our letter No. 17/25/66-SR, dated the 28th May, 1966 is not operative from November, 1966. However, while creating new posts or converting temporary posts into permanent or making confirmations or promotions on or after November 1, 1966, the Government should take into account the posts and staff transferred to Himachal Pradesh after recoganisation. Suitable instructions in this behalf may be circulated to all concerned.” 5. In this letter the Central Government has directed the Himachal Pradesh Government that while creating new posts or making confirmations or promotions on or after 1-11-1966, the Government should take into account the posts and staff transferred to Himachal Pradesh after the recoganisation. There is also another letter dated 15-2-1967 from the Joint Secretary to the Government of Himachal Pradesh to the address of all the Secretaries, Heads of Departments and Deputy Commissioners in Himachal Pradesh, on the Government file. Since this letter has also bearing on the merits of the case, it is also proper to reproduce the same ;— "Subject; Restriction on promotions to higher posts pending finalisation of integrated seniority lists. Memorandum : It has been brought to the notice of the Government that in some Departments, promotions to higher posts have been made from amongst the employees of pre-recoganisation Himachal Pradesh Administration over-looking the claims of the erstwhile employees of Punjab who have been allocated to Himachal Pradesh consequent upon the recoganisation. It has also come to the notice of the Government that in some cases, the employees who have been allocated to Himachal Pradesh from Punjab were quite senior as compared to the employees of pre-recoganisation Himachal Pradesh Administration who were promoted to the higher posts. It is obvious that any promotions to higher posts pending the finalisation of integrated seniority lists would be unfair to some one or the other. It is obvious that any promotions to higher posts pending the finalisation of integrated seniority lists would be unfair to some one or the other. Under the circumstances, it has been decided that no promotions shall be made in any office or Department pending the finalisation of integrated seniority list." The petitioner in his rejoinder to the return filed on behalf of respondent No. 1 has annexed a copy of the letter dated 14-2-1967 from Shri A. D. Pande, Joint Secretary, Government of India, Ministry of Home Affairs, which is marked as Annexure K\ This D. O. letter has been addressed to the Chief Secretary to the Government of Himachal Pradesh. It is not necessary to reproduce the entire letter, but it is sufficient to extract paragraph 4 of the said letter which reads as under :— "4. As you are aware Section 82 (4) of the Punjab Reorganisation Act places the responsibilities on the Central Government for ensuring fair and equitable treatment to all persons affected by the provisions of that Act. It is, therefore, necessary to ensure that pending finalisation of the seniority lists referred to above, no irrevocable changes are made in the present status of any Government servant affected by the Punjab Reorganisation Act. In concrete terms the implication of this would be that no confirmation should be made in any post which may be involved in the process of integration and the promotions and reversions which may have to be made to meet urgent administrative requirements should specifically be made subject to review in accordance with the position which may be accorded to the officers concerned in the final seniority lists." As such, it has to be seen as so what is the impact and value of the aforesaid communications of the Central Government on the present writ petition. 6. Before we proceed to consider the impact of the aforesaid communications on the writ petition, it is desirable to refer to the respective contentions of the parties and other facts relevant to this writ petition, 7. It is contended by Shri D. K. Khanna, the learned counsel for the petitioner, that the promotion order, Annexure C to the writ petition dated 13-2-1967, was challenged by C. W. P. Nos. It is contended by Shri D. K. Khanna, the learned counsel for the petitioner, that the promotion order, Annexure C to the writ petition dated 13-2-1967, was challenged by C. W. P. Nos. 59 and 76 of 1968 and the pro motions as Superintendent in the Secretariat made on the basis of this office order were quashed by the Himachal Bench, of Delhi High Court. The Union of India preferred appeals against the said orders of the High Court and the appeals were accepted and the orders of the High Court were set aside. It is relevant to point out that the decision of the Himachal Bench of Delhi High Court is reported in 1969 S. L. R. 278 and that of the Supreme Court in AIR 1978 SC 1132. On the basis of the judgment of the Supreme Court, the above order of promotion was held to be valid. The petitioner was also one of the promotees in the said order. It will be discussed at a later stage as to what is the effect of these judgments, on this writ petition. It may be pointed out that during the pendency of the writ petition, the respondents 2 and 3, who are the allocated employees from Punjab, filed an application No. 124) of 1978 on 10-8-1978. This application was disposed of by this Court by an order dated 23-11-1978 and these respondents were allowed to be arrayed as respondents on payment of costs. The said respondents have also refuted the claim of the petitioner in this writ petition. These respondents have produced a copy of the letter of Shri A. D. Pande, Joint Secretary, which is marked as Annexure PA. Besides the facts and contentions raised on behalf of respondent No. 1, these respondents have put forward other facts and have also raised additional contentions. The respondent No. 1 has contended that since the joint seniority list including the allocated employees from the composite State of Punjab in terms of the directive issued by the Government of India and with the prior approval of the Central Government had not been finalised till 13-2-1967, no regular appointments of the petitioner or others could be mane. The respondent No. 1 has contended that since the joint seniority list including the allocated employees from the composite State of Punjab in terms of the directive issued by the Government of India and with the prior approval of the Central Government had not been finalised till 13-2-1967, no regular appointments of the petitioner or others could be mane. It is further contended that the D P. C, which had recommended the names of the promotees as contained in the order dated 13-2-1967, had met earlier than 1-11-1966 and its recommendations having not come to be implemented prior to 1-11-1966, had lost its sanctity. It is also asserted that the order dated 1.-2-1967 being against the letter and spirit of the provisions of the Punjab Reorganisation Act, 1966, and the directions issued «n pursuance thereof by the Central Government, was held in abeyance immediately after its issue, on the representation of the affected employees allocated from the composite State of Punjab. As such, it is contended that the petitioner cannot claim any benefit of the office order dated 13-2-1967. As regards the contention of the petitioner that other employees were given the benefit of the promotion order dated 13-2-1967, it is stated that S/Shri Jagat Singh, M. L. Puri and A. R. Dewan who were also promoted along with the petitioner, were discharging only day to day duty of Superintendent in public interest, either in a leave arrangement or otherwise prior to the promotion order dated 13-2-1967. It is also contended that separate independent orders were passed in this behalf and the order dated 13-2-1967 was not made applicable to them. It is also stated in the reply that in terms of the order dated 28-3-1968, the petitioner was promoted with effect from 24-7-1967. Ultimately, it is contended that the regular promotions could only be made after the finalisation of the integrated seniority lists. 8. A perusal of Annexure C\ the office order dated 13-2-1967, shows that otherwise also the promotion of the petitioner along with others was made on officiating basis. Ultimately, it is contended that the regular promotions could only be made after the finalisation of the integrated seniority lists. 8. A perusal of Annexure C\ the office order dated 13-2-1967, shows that otherwise also the promotion of the petitioner along with others was made on officiating basis. The Supreme Court in its judgment in Union of India and another v. K. R. Tahiliani, [1LR 1980 HP 164], while discussing the status of an officiating employee, has observed as under :— "An officiating hand has no right to the post and is perhaps a fleeting bird who may have to go back to the substantive post from which he has been promoted on an officiating basis. What is more to the point, a person who has been appointed de nova may begin his service on an officiating basis or on a temporary basis and it is obvious that he has no right to the post and cannot be strictly said to be in that service or post as a member of that service. In short, an officiating Government servant does not really belong to Class I or Class II service until he acquires a right thereon. Even viewed closely and meticulously, the structure of the clause, namely, "if he is in Class I or Class II service or post", emphasises the nature of the service or post vis-a-vis the Government servant concerned. We need not go into the semantic shapes, lexical niceties or linguistic nuances but only go through the meaning and purpose of the provision. When a Government servant belonging to a Class I or Class [I service or post on a regular basis has to be retired compulsorily, Rule 56 (j) (i) comes to the rescue of the Government. But if he is only a temporary hand, he has no right to the post and can always be reverted to the post, if any, on which he has a lien. Similar is the position of an officiating hand. Thus, we have reached an inevitable conclusion that Rule 56 (j) (i) is meant to cover only those who are in a post on a regular basis, i. e., in a substantive capacity, and not on an officiating basis only." The petitioner, accordingly, cannot be said to have been regularly promoted to the post of Superintendent on the basis of the office order dated 13-2-1967. Even assuming that he was so promoted, the said office order was held in abeyance by the office order dated 17-2-1967. The question that arises for consideration is whether this abeyance order is proper or not. Keeping in view the directions issued by the Government of India, in the communications referred to above, the respondent No. 1 as justified, otherwise also in reviewing the promotion order dated 13-2-1967. Their Lordships of the Supreme Court in R. R. Verma and others v. The Union of India and others, [AIR 1980 SC 1461], while discussing the scope of review of an administrative order has observed as under ; "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 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 hide bound 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 emphasis that if administrative decisions are reviewed, the decisions taken after review are subject to judicial review on all grounds on which an administrative decision may be questioned in a Court." 9. It is contended by Shri D. K. Kanna, the learned counsel for the petitioner, that at the relevant time when the office order Annexure Cy was passed, the petitioner was governed by the Himachal Pradesh Secretariat Class III Service (Recruitment, Promotion and Certain Conditions of Service) Rules, 1962 in the matter of his promotion. He has referred to rule 9 of these rules. For a ready reference this rule may be reproduced which reads as under ;— "9. (i) Members of the service who are appointed against permanent vacancies shall, on appointment to any post in the service, remain on probation for a period of two years in the case of direct recruitment and on trial for a period of one year in the case of promotion. (i) Members of the service who are appointed against permanent vacancies shall, on appointment to any post in the service, remain on probation for a period of two years in the case of direct recruitment and on trial for a period of one year in the case of promotion. Explanation.—Approved officiating service shall be taken as a period spent on probation but no member who is officiating in any appointment shall on the completion of the probationary period prescribed, be confirmed until he is appointed against a permanent vacancy. (ii) If the work or conduct of any member during his period of probation is, in the opinion of the appointing authority, not satisfactory, the appointing authority, may dispense with his services or revert him to his former post if he has been appointed to that post otherwise than by direct recruitment. (iii) On the completion of the period of probation of any member, the appointing authority prescribed in Rule 4, may confirm such member in his appointment or if his work or conduct has, in the opinion of the appointing authority, not been satisfactory, may dispense with his service, or revert him to his former post, if he has been appointed otherwise than by direct appointment, or may extend the period of probation and thereafter pass such orders on the expiry of probation as it should have passed on the expiry of the first period of probation. Provided always that the total period of probation including extension, if any, shall not exceed three years." 10. Under rule 7(iv) of these rules, the posts of Superintendents are to be filled up by selection through the Departmental Promotion Committee out of the Assistants who have normally put in six years service as Assistants (officiating or confirmed). On the basis of these rules, it is contended by the petitioner that he had been regularly promoted as a Superintendent by the office order Annexure C’ and accordingly stood confirmed with effect from 13-2-1969. The alternative contention of the petitioner is that otherwise also according to the office record he was promoted as Superintendent with effect from 24-7-1967 and in any event stood confirmed with effect from 24-7-1969. The alternative contention of the petitioner is that otherwise also according to the office record he was promoted as Superintendent with effect from 24-7-1967 and in any event stood confirmed with effect from 24-7-1969. The learned counsel for the petitioner further contended that the promotions made on the basis of the order dated 13-2-1967 were challenged in the High Court of Delhi, Himachal Bench and the High Court quashed the said order. The Supreme Court on appeal, however, set aside the order of the Delhi High Court and held that the appointments were valid. As such, the contention is that that order has become final. This contention of the petitioner cannot be accepted. Assuming that the order is valid, the promotions were made on officiating basis. As discussed earlier above, an officiating promotion does not confer the right on the petitioner as claimed by him. At the same the, the said order was superseded by another order dated 8-3-1968 (Annexure RA to the reply filed by respondent No. 1). The said office order may be reproduced for a ready reference :— "The Chief Secretary to the Government of Himachal Pradesh is pleased to appellant the following officials of H. P. Secretariat to officiate as Superintendent in the Secretariat to work as Private Secretaries to the Deputy Ministers and from the date noted against each in the scale of Rs. 350-25-575 (Promotees to start as Rs. 400) purely on an ad-hoc basis. They will continue to hold the post so long as their services are required by the Deputy Ministers concerned. Name Deputy Minister with whom attached Date from which working Sh. K. C. Thakur, A.S.O., H. P. Secretariat Dy. Minister (Industries) 23rd August, 1967. Sh. Jagat Singh, Assistant, H. P, Secretariat Dy. Minister (Health) 7th August, 1967. Sh, D.N. Pardesi, Assistant H. P, Secretariat p Dy. Minister (P. W. D.) 24th July, 1967. " Again, the promotions made by virtue of this order were entirely on officiating basis and for a limited period. It was, however, on the basis of this office order that the date from which the petitioner was working was indicated as 24-7-1967. The petitioner has contended that this order was not communicated to him. " Again, the promotions made by virtue of this order were entirely on officiating basis and for a limited period. It was, however, on the basis of this office order that the date from which the petitioner was working was indicated as 24-7-1967. The petitioner has contended that this order was not communicated to him. An affidavit has been filed by Shri B. R. Lakhanpal, Under Secretary (S. A.) to the Government of Himachal Pradesh, to show that the order dated 8-3-1968 was communicated to all the officials concerned and it is evident from the endorsement made in the order itself. It is further stated in the affidavit that the entry to this effect has been made in the service book of the petitioner which is signed by him. There is no reason to disbelieve this affidavit. In paragraph 13 of the writ petition the petitioner has himself admitted that he started working as Superintendent/ Private Secretary to the Deputy Minister with effect from 24-7-1967, On the face of these facts we are of the view that after the office order dated 13-2-1967 was kept in abeyance by the office order dated 17-2-1967, the petitioner was promoted as Superintendent by the office order dated 8-3-1968 (Annexure RA to the reply). In view of these developments, the petitioner cannot base his claim for regular appointment on account of the office order Annexure C’ It may be noticed that even the promotions made by office orders dated 8-3-1968 and 28-3-1968 are on officiating or ad-hoc basis. The petitioner in the final seniority list, Annexure F’ is placed at Serial No. 75 as officiating Superintendent. Accordingly, the petitioner was not regularly promoted as Superintendent by the office order dated 13-2-1967. The 1962 rules referred to above were also later on amended. As contended in the reply filed on behalf of the respondent No. 1, the petitioner was governed by a separate set of rules notified vide notification No. 8-4/6 -SAD dated 3-2-1969 as amended from time to time. The final integrated seniority list was issued under the office memorandum Annexure F dated 17-8-1970. As such, the promotions to the post of Superintendent even by the office orders dated 8-3-1968 and 28-3-1968 were made on officiating and ad-hoc basis, presumably on the basis of the provisional integrated seniority list. The final integrated seniority list was issued under the office memorandum Annexure F dated 17-8-1970. As such, the promotions to the post of Superintendent even by the office orders dated 8-3-1968 and 28-3-1968 were made on officiating and ad-hoc basis, presumably on the basis of the provisional integrated seniority list. The view which we are taking is otherwise also based on the principle of natural justice. After the coming into force of the Punjab Reorganisation Act, the Central Government had to protect the interests of the allocated employees from the composite State of Punjab. As such, instructions were issued from time to time in this behalf. The Central Government had powers to issue such instructions in the exercise of powers under section 82 of the Punjab Reorganisation Act. Shri Chhabil Dass, the learned counsel for the private respondents, has annexed a copy of a letter dated 12-6-1967 from the Deputy Secretary to the Government of India, Ministry of Home Affairs (Annexure PB). It contains a decision of the Central Government in respect of promotions. It is convenient to reproduce this letter also for a ready reference ;— " Subject; Promotion in H. P. Secretariat after reorganisation. I am directed to refer to your letter No. S-297/66-SADI, dated May 10, 1967, and to say that so far as promotions made in the Himachal Pradesh Secretariat after reorganisation are concerned the step taken by the Government is not correct. It was made clear in this Ministrys D. O. letter No, 3/1/67-HMT, dated 11-1-1967 that while making promotions etc. after reorganisation, the claims of the staff transferred from Punjab have to be taken into account. This has not been done in the case of two promotions made in the Secretariat. The fact that these promotions were made according to the recommendations of the Departmental Promotion Committee is not material because these recommendations should be considered to have become ineffective from 1-11-1966. Necessary action may be taken immediately in respect of all promotions made in the various Departments after 30-10-1966.” In this letter it has been indicated that the necessary action may be taken immediately in respect of all promotions made in the various departments after 30-10-1966. Accordingly, the Government of Himachal Pradesh had to carry out the instructions issued by the Central Government. 11. Accordingly, the Government of Himachal Pradesh had to carry out the instructions issued by the Central Government. 11. For the foregoing reasons, the contention of the petitioner that he has been regularly appointed as Superintendent on the basis of Annexure C\ and that his seniority had to be reflected on that basis, cannot be accepted. The alternative claim of the petitioner that atleast he stood regularly promoted with effect from 24-7-1967 cannot also be accepted. The promotion of the petitioner was on officiating or ad-hoc basis, and the Central Government was fully competent to issue instructions to protect the rights of the allocated employees from the composite State of Punjab and those instructions had to be carried out by the Government of Himachal Pradesh. 12. As such, there is no merit in the writ petition and the same is dismissed. The parties are, however, left to bear their own costs. Petition dismissed.