Research › Search › Judgment

Himachal Pradesh High Court · body

2000 DIGILAW 31 (HP)

SHAKTI SINGH v. SLATE OF H. P.

2000-02-25

A.L.VAIDYA, V.K.BHATNAGAR

body2000
JUDGMENT Honble Mr. V.K. Bhatnagar Member (Adm.) 1. The applicant was working as a Workshop Superintendent in Automobile Engineering in the Deptt. of Technical Education and Industrial Training and was promoted against the post of Head of Department in the same trade on officiating basis vide orders dated December 9, 1983 contained in Annexure-A/2 against the post temporarily vacated by Shri S.C. Paul when his services were placed at the disposal of Himachal Road Transport Corporation. This order clearly mentioned that this promotion was purely temporary and would not confer any right whatsoever upon the applicant towards seniority or continuance as such. The services of Shri S.C. Paul had been placed at the disposal of Himachal Road Transport Corporation for a period of two years. The applicant joined the post of Head of Department on December 16, 1983. Shri S.C. Paul never returned to his parent Deptt. and continued with Himachal Road Transport Corporation and was ultimately absorbed there vide notification dated July 20, 1989 as shown in Annexure-A/8. The applicant continued to function as Head of Department against this post and in the meanwhile on the recommendations of Departmental Promotion Committee fresh notification was issued on May 9, 1988 ordering that the applicant shall stand promoted as Head of Department in Automobile Engineering from the date he took over the charge of the said post i.e. December 16, 1983 vide Annexure-A/ 9. This notification was issued in partial modification of notification dated December 9, 1983. The applicant was further promoted in the scale of Rs. 4125-125-5000-150-5600 (same as the grade of Principal Polytechnic) for a period of six months or till the post were filled on regular basis purely on adhoc basis vide notification dated May 26, 1992 contained in Annexure-A/12. However, respondent No. 1 issued another notification dated May 9, 1995 contained in Annexure-A/17 on the recommendations of review Departmental Promotion Committee and by this notification the notification dated December 9, 1983 was modified and notification dated May 9, 1988 superseded; the applicants promotion as Head of the Department of Automobile was made effective from May 9, 1988 i.e. the benefit given to the applicant by notification dated May 9, 1988 for working on the post of Head of Department Automobile Engineering w.e.f. December 16, 1983 had been withdrawn and substituted from May 9, 1988. It is against this notification dated May 9, 1995 Annexure -A/17 that the present application has been filed. The case of the applicant is that by change of date of his promotion from December 16, 1983 to May 9, 1988, he lost seniority on the post of Head of Department and as a result respondents 2 to 4 became senior to him or have been shown as senior to him and in consequence he has been shown as juniormost in further promotion made to the post of Principals Polytechnic on regular basis vide notification dated May 25, 1995 contained in Annexure-A/18. It has been prayed that the impugned notification contained in Annexure-A/17 may be quashed and set aside and the date of regular promotion of the applicant as Head of Department Auto be restored to December 16, 1983. It has also been prayed that Annexure-A/18 may be quashed and set aside qua the applicant and respondents 2 to 4 and respondent No. 1 may be directed to convene a review Departmental Promotion Committee for considering the claim of the applicant for promotion as Principal from due date in accordance with law with all consequential benefits. In sub para 22 of Para 6 of the application it has been mentioned that the impugned notification contained in Annexure-A/17 was issued without affording any opportunity of being heard to the applicant; this notification was issued after six years of his regular promotion and after more than three years of his confirmation as Head of the Department. That such a belated action on the part of respondent No. 1 is violative of the principles of natural justice as it unsettled the settled position. 2. Respondent No. 3 in his reply has resisted the claim of the applicant on various grounds and has mentioned that promotion of the applicant against temporary vacancy only as stop-gap arrangement could have not given him seniority over and above those who were promoted and appointed on regular basis. 2. Respondent No. 3 in his reply has resisted the claim of the applicant on various grounds and has mentioned that promotion of the applicant against temporary vacancy only as stop-gap arrangement could have not given him seniority over and above those who were promoted and appointed on regular basis. It has further been claimed that the applicant though discharging the duties of Head of the Department against the post temporarily vacated by Shri S.C. paul could not have been given regular promotion to the said post; such regular promotion was given to him only vide notification dated May 9, 1995 when the review Departmental Promotion Committee modified and superseded the earlier order of promotion granting promotion to the applicant as Head of the Department w.e.f. May 9, 1988. 3. Respondent No. 2 has also resisted the application almost on the same grounds. It has also been mentioned by him that promotion of respondent No. 2 as Head of the Department in Mechanical Engineering was on regular basis with immediate effect; as such the seniority of respondent No. 2 as Head of the Department was to reckon from the date of notification i.e. December 12, 1983 as shown in Annexure-A/3. 4. Respondent No. 4 has not filed any reply and has been proceeded against ex parte. 5. Respondent No. 1 in their reply have mentioned that on the basis of representation received from respondent No. 2 for reconsidering the date of regularisation of the applicant the entire matter of regularisation was got reviewed by the review Departmental Promotion Committee and on its recommendations, partial modification was notified vide notification dated May 9, 1995 attached with the application as Annexure-A/17 vide which notification contained Annexure-A/9 was superseded and regular promotion of the applicant as Head of the Department was ordered w.e.f. May 9, 1988 instead of from December 16, 1983 as (Annexure-A/9). As a result of this the position of seniority of the applicant, changed in accordance with notification dated may 9, 1995 contained in Annexure-A/ 17. 6. The learned counsel for the parties have been heard and pleadings have been gone into. 7. The immediate cause of action to the applicant has arisen on issue of notification dated May 9, 1995 and notification dated May 25, 1995. The applicant has been shown juniormost in the seniority list of principals on his promotion as contained in notification dated May 25, 1995. 7. The immediate cause of action to the applicant has arisen on issue of notification dated May 9, 1995 and notification dated May 25, 1995. The applicant has been shown juniormost in the seniority list of principals on his promotion as contained in notification dated May 25, 1995. The post of Principal Polytechnic is to be filled 100 percent by promotion as per Recruitment & Promotion Rules dated December 2, 1993 contained in Annexure-A/13 from amongst the Heads of Department and Deputy Director Technical Education, possessing five years regular services in their respective grades. For the purpose of promotion, a separate combined seniority list based on the length of service was to be prepared. The applicant has attached Annexure-A/11 showing the final seniority list of Heads of Department in Engineering (Class-I Gazetted) as on May 31, 1991 according to which the seniority of the applicant vis-avis respondent Nos. 2 and 4 has been shown as under: SI.No. Name of the Officer Date of Apptt. in the Grade. 4. S.S. Sen 16.12.1983 5. D.N.Lakhanpal 17.12.1983 6. R.D. Aggarwal 30.08.1985 Adhoc& 09.05.1988 regular. This list does not include the name of respondent No. 3 because he was holding the post of Deputy Director (Training & Placement) and was appointed Deputy Director (Training & Placement) and was appointed vide orders dated December 24, 1986. His appointment in the grade (equivalent to HOD) was w.e.f. February, 1987 (the date when he joined the post) as mentioned by respondent No. 1 in their reply. The above position would indicate that the applicant was seniormost in the cadre of Heads of Department or Deputy Director which are the feeder categories for the post of Principals Polytechnic till the date of promotion of applicant to the post of Head of Deptt. was changed by orders contained in Annexure-A/ 7. The respondents have not denied the allegations of the applicant in sub para 22 of para 6 that while changing the date of his promotion by issuing orders dated May 9, 1995 he was not given a hearing or an opportunity to explain his case. Rather it has been mentioned that the Government has every right to rectify the mistake committed inadvertently even at the belated stage in the interest of justice. 8. Rather it has been mentioned that the Government has every right to rectify the mistake committed inadvertently even at the belated stage in the interest of justice. 8. The learned counsel for the applicant has cited various judgments of the Honble Supreme Court and one judgment of Orissa High Court in support of his case. As regards hearing to the applicant, the case of lingaraj Tripathy versus State of Orissa and others 1984 (2) SLR 569 has been cited. In this case the High Court of Orissa placing reliance on the judgment of the Apex Court in case of State of Orissa versus Dr. (Miss) Binapani Dei (AIR 1967 SC 1269) held that "once the seniority is determined and it is sought by the authorities concerned to alter it, such authority has no jurisdiction to do so without affording the person who might be prejudicially affected by the proposed order, an adequate opportunity of being heard. This is the fundamental requirement of natural justice which cannot be waived under any circumstances." It is apparent that while issuing notification dated May 9, 1995 by which the date or promotion of the applicant was changed from December 9, 1983 to May 9, 1988, he was not given an opportunity to explain his case and, therefore, this notification which adversely affects the right of the applicant cannot be sustained in terms of the judgment referred to above. 9. In the case of Shri L. Chandrakishore Singh versus State of Manipur and others JT 1999 (7) SC 576 on the issue of seniority, although facts were slightly different yet the observations made by the Honble Apex Court are very much relevant to the present case. 9. In the case of Shri L. Chandrakishore Singh versus State of Manipur and others JT 1999 (7) SC 576 on the issue of seniority, although facts were slightly different yet the observations made by the Honble Apex Court are very much relevant to the present case. In this case the Honble Apex Court had, inter alia, held that "where the first appointment is made by not following the prescribed procedure and such appointee is approved later on, the approval would mean his confirmation by the authority (and) shall relate back to the date on which his appointment was made and the entire service will have to be computed on reckoning the seniority according to the length of continuous officiation." In the present case the applicant had been promoted on the recommendations of Departmental Promotion Committee on December 9, 1988 on officiating basis but this officiation continued till the applicant alongwith others was confirmed vide orders dated December 12, 1991 as Head of the Department and till he was promoted as Principal Polytechnic vide orders dated May 25, 1995. As held by the Honble Apex Court the seniority of the applicant has to relate back to the date on which his first appointment was made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. i.e. from December 16, 1983, the date of which the applicant had first joined as Head of Department and had continued to do so till his confirmation against the post of Head of Department. 10. In view of above discussions the application is allowed and orders contained in Annexure-A/17 and A/18 are quashed. The Respondent No. 1 is directed to restore the date of promotion of the applicant as Head of Deptt. to December 16, 1983 and to convene a review Departmental Promotion Committee for considering the claim of the applicant for promotion to the post of Principal Polytechnic from due date in accordance with law and to give all consequential benefits to the applicant. This action be completed within a period of three months from today. The parties are, however, left to bear their own costs.