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2004 DIGILAW 252 (HP)

BALDEO SHARMA v. STATE OF H. P.

2004-10-01

BAKHSHISH KAUR, D.S.AMIST

body2004
JUDGMENT Ms. Bakhshish Kaur, Chairman.—The applicants are aggrieved by the impugned action of the respondents whereby they have not been given the similar benefit as has been given to other junior persons on the basis of judgment delivered in O.A. No. 225/93. Therefore, they have filed this Original Application seeking the following reliefs:— "(a) Quash the impugned action of the respondent department whereby they are not giving the similar benefits to the present applicants as being given to the applicants in OA Nos. 225/93 and 1098/ 93, their such action being arbitrary, mala fide and illegal; (b) Direct the respondents to grant the similar benefits to the present applicants as is being given to the applicants in O.A. Nos. 225/ 93 and 1098/93 with all the consequential benefits; (c) Direct the respondents to produce all the relevant documents for perusal by this Honble Tribunal alongwith their reply; (d) Allow the cost of this OA; and (e) Pass such other order or directions as deemed fit and proper in favour of the applicant.” 2. The stand taken up by the respondents is that a meeting of Departmental Promotion Committee (in short D.P.C.) held on October 17, 1987 had considered the names of certain Kanungos. The names of S/ Sh. Lalit Kumar, Shiv Singh Nakta and Budhi Singh were also considered. 3. It was found difficult to consider the names of eligible Kanungos for promotion to the post of Naib-Tehsildar as there were number of Kanungos who had put in only about one and half year of service but were senior as per the seniority list. After great discussion, it was felt that it would not be in the public interest to keep such a large number of posts of Naib-Tehsildar unfilled for an indefinite period. Therefore, Committee had decided to consider the case of each Kanungo individually and promotion orders were issued vide order dated October 27,1987 (Annexure R-l) which were challenged by S/Sh. Lalit Kumar and Shiv Singh Nakta in O.A. No. 225/ 93 and O.A. 1098/93. These were allowed vide order Annexures R-2 and R-3 and the aforesaid promotion orders were quashed and set aside. Lalit Kumar and Shiv Singh Nakta in O.A. No. 225/ 93 and O.A. 1098/93. These were allowed vide order Annexures R-2 and R-3 and the aforesaid promotion orders were quashed and set aside. It is further alleged that in view of certain guidelines received from the Government, names of the applicants were not considered by the D.P.C. Again, Review D.P.C. met on March 7,2003 in order to implement the order passed by the Tribunal but it had not considered the names of the present applicants. It is admitted that the matter was taken up with the Government to give similar benefit to the applicants on their representations in pursuance of the order passed by the Tribunal on September 16, 2002. Since, no impugned order has been challenged, therefore, the Original Application is premature and deserves to be dismissed. 4. We have heard Sh. P.P Chauhan, learned Counsel for the applicant and Mrs. Abhilasha Kumari, learned Additional Advocate General for respondents No. 1 and 2 and Sh. Tarlok Chauhan, learned Counsel for respondents No. 3 and 4. 5. We need not to go into the nitty-grity of the case. Admitted fact is that O.A. No. 225/93 and O.A. No. 1098/93 filed by S/Sh. Lalit Kumar and Shiv Singh Nakta, the then Kanungos were allowed by the Tribunal. The relevant para of the judgment (Annexure R-2) passed in O.A. No. 225/93 reads as under :— "I have considered the arguments and the pleadings and I find that initially order dated 27.10.1987 (Annexure A-l) was only an ad-hoc arrangement as it clearly mentions that the promotions made were purely on temporary basis and the candidates would be reverted when qualified candidates will be available. But since no Departmental Promotion Committee meeting was held for 7 long years, the juniors continued on the promoted posts and the applicant though senior, was deprived of this promotion. It is obvious that Recruitment and Promotion Rules have not been followed and when both applicant and the private respondents were not eligible none should have been promoted or if it was necessary to make some temporary arrangement, this arrangement should have been for a short period. By virtue of their promotion vide Annexure A-l, the private respondents have enjoyed the benefits of higher posts and the applicant though senior, has been deprived of the benefits. In these circumstances this original application has to be allowed. By virtue of their promotion vide Annexure A-l, the private respondents have enjoyed the benefits of higher posts and the applicant though senior, has been deprived of the benefits. In these circumstances this original application has to be allowed. As a result of above discussion, Annexure A-2 is quashed and set aside and the respondents are directed to promote applicant from the same date namely 27.9.1987 when juniors to the applicant were promoted as per Annexure A-l with all consequential benefits. This order be implemented within a period of three months from today. However, the parties are left to bear their own costs." 6. The Original Application No. 1098/93 filed by Sh. Shiv Singh Nakta was decided on the basis of the decision rendered in O.A. No. 225/93 as under:— "In view of this Annexure A-2 is quashed and set-aside and the respondents are directed to promote applicant from the same date namely 27.9.1987 when juniors to the applicant were promoted as per Annexure A-l. This order be implemented within a period of three months from today. However, the parties are left to bear their own costs. A copy of judgment passed in O.A. 225/93 on 16.9.2002 be placed with this file." 7. The applicants here in are similarly situated persons and they cannot be denied the right of promotion. Moreover vide letter dated February 4, 2003 (Annexure R-4) Financial Commissioner (Revenue) had sought clarification whether or not representationist and other Kanungos senior to the applicants are required to be considered alongwith the applicants while holding D.P.C. meeting as these the then Kanungos were also not recommended for promotion by the D.P.C. in its meeting held on October 17, 1987. In this letter, Commissioner (Revenue), Himachal Pradesh has made an elaborate reference to the order passed by the Tribunal in the aforesaid O.As. No. 225/93 and O.A. 1098/93. Reference is also made to the present applicants S/Sh. Baldev Sharma, Kundan Singh and Budhi Singh Kanwar. For facility of reference, the relevant portion of the letter is re- produced as under:— "In this connection it is stated that matter was placed before the DPC meeting on 1st February, 2003 to implement the order of Honble H.P. Tribunal dated January 2, 2003 in Original Applications No. 225/93 and 1098/93 titled Shri Lalit Kumar and Shiv Singh Nagta, Naib Tehsildars v. State of H.P., S/Sh. Kundan Singh Lalta, Baldev Sharma and Budhi Singh, Naib Tehsildars, who are senior to applicants S/Sh. Lalit Kumar and Shiv Singh Nagta, had not filed Original Applications in the Honble Tribunal against the Order of Financial Commissioner (Revenue) Annexure A-2. They have however made separate representation dated the 27th December, 2002 (copy enclosed) stating therein that they may also be considered for promotion to the post of Naib Tehsildar w.e.f. 27.10.1987 since they are senior to the applicants and it is well settled law if order under challenge is quashed and set aside, fresh order will be passed in accordance with the Law. It has further been stated by them that of course they were not applicant before the Administrative Tribunal but logically, their case being similar they are entitled to get the same benefit as the petitioner claimed and were directed by the Honble Tribunal to give. In support of their claim they have cited the authority of Honble Supreme Court of India, AIR 1984 (p. 1499 to 1503) Civil Appeal No. 3183-3184 of 1983 dated 22.3.1983 titled as Sengara Singh and others v. State of Punjab and others (copy enclosed) whereas only the petitioners are required to be considered in accordance with your letter referred to above. In view of the above, it is stated that before the D.RC. meeting is convened, necessary guideline/clarification may please be given whether or not representationists and other Kanungos senior to the applicants are required to be considered alongwith the applicants while holding the D.RC. meeting as these the then Kanungos were also not recommended for promotion by the D.RC. in its meeting held on 17.10.1987." 8. The case of the applicants is not distinguishable from the case of S/Sh. Lalit Kumar and Shiv Singh Nagta. They are entitled to the same benefit and cannot be discriminated simply on the ground that they had not filed the application at the time when Sh. Lalit Kumar and others had filed. For the aforesaid reasons, the respondents are directed to reconsider the case of the applicants for promotion on the lines and direction given in O.A. No. 225/93 and O.A No. 1098/93. Action be taken within a period of four months from the date of the receipt of the copy of order. No order as to costs. O.A. allowed.