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Himachal Pradesh High Court · body

2000 DIGILAW 36 (HP)

RAM PARKASH v. STATE OF H. P.

2000-03-01

A.L.VAIDYA, V.K.BHATNAGAR

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JUDGMENT Mr. V. K. Bhatnagar Member (Admn.). 1. This is an application filed against the orders dated June 2, 1990 (Annexure-A/14) passed by the Deputy Commissioner cum Collector District Shimla who is respondent No. 2 in this application, reviewing the proceedings of the Departmental Promotion Committee held on April 26, 1986 (wrongly written in application as April 26, 1990). It has been alleged that in review Departmental Promotion Committee the ratio of 2:1 for promotion as Kanungo candidates for matriculate and middle pass patwaries has not been maintained as prescribed in the Himachal Pradesh Kanungos Service Rules, 1951 which are placed as Annexure-A to the application. The relevant portion of these rules i.e. Rule 12.3 reads as under: "Patwaries to be eligible for acceptance should have passed Matriculation or its equivalent of a recognised university or Board of Education. However, Patwaries who are Middle pass, will also be accepted as Kanungo candidates and ratio for acceptance of the former and the latter will be 2:1." Further it is also provided that to qualify for acceptance, a Patwari shall have three years permanent field service as such, including officiating service. 2. The main point involved in the present application is that while the applicants were selected as Kanungo candidates in the Departmental Promotion Committee held on April 26, 1986 being matriculate in the ratio of 2:1, their names were dropped in the review Departmental Promotion committee held on March 9, 1990 because as stated by respondent No. 2, no matriculate Patwari having less than three years permanent field service were considered in this review Departmental Promotion Committee. The result was that the applicants were out and in their places middle pass Patwaries were selected. 3. It has been contended by the applicants that condition of three years A permanent field service is not being followed in many other Districts and in support they have placed on record Annexures-A/15, A/16 and A/17 which are final seniority lists of Patwaries of Settlement Department Kangra, Shimla Division and Kinnaur Districts (Annexure-A/15) and Mandi and Kinnaur Districts respectively. The respondent No. 2 has not categorically denied this statement but has simply mentioned that the procedure followed by the Settlement Officer, Deputy Commissioners Mandi and Kinnaur does not lay down any law. The respondent No. 2 has not categorically denied this statement but has simply mentioned that the procedure followed by the Settlement Officer, Deputy Commissioners Mandi and Kinnaur does not lay down any law. Thus it is evident that while the rules contained in Annexure- A/1 are applicable to the entire State, their implementation is being done in different manner by the different districts. 4. The learned counsel for the applicants has referred to the law laid down by the Apex Court in S.B. Patwardhan and Another versus State of Maharashtra and Others (1977) 3 SCC 399, Baleshwar Dass and Others versus State of U.P. and Others (1980) 4 SCC 226, State of U.P. and another versus Dr.M.J. Siddiqui and others 1980 (1) SLR 868 and O.P. Singla and Another Versus Union of India and Others (1984) 4 SCC 450 regarding substantive service as against the officiating service. It is very clear from these rulings that a person can hold a post, permanent or temporary, in a substantive capacity only if his appointment to that post is not fortuitous or adhoc. In the present case after completion of their training applicants were appointed as Patwaries many years back. In fact applicant No.1 was appointed on October 1, 1978 and the applicant No.7 on February 10, 1983. Thus all the applicants had rendered more than three years service on April 26, 1986 when the first Departmental Promotion Committee had been held as required under the Rules, though in temporary capacity. As per above interpretation their appointment was of substantive nature. 5. In view of the foregoing reasons the application is allowed and Annexure-A/14 is quashed. The respondents are directed to hold review Departmental Promotion Committee in the prescribed ratio of 2:1 with all consequential benefits. The parties are left to bear their own costs.