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Himachal Pradesh High Court · body

2005 DIGILAW 5 (HP)

STATE OF H. P. v. BAR CHAND

2005-01-05

A.K.GOEL, M.R.VERMA

body2005
JUDGMENT M.R. Verma, J.—Aggrieved by the order dated December 28, 2001 passed by the H.P. Administrative Tribunal directing the petitioners to promote respondents 1 to 7, Bhagwan Chand Kashyap deceased now represented by respondents No. 8 to 11 and Prakash Chand now represented by respondents No. 12 to 16 (hereafter referred to as the claimants) as Senior Clerks from the date they completed 7 years and 5 months of service during the period November 1, 1996 to November 30, 1971 and further promote them to the post of Assistants with effect from July 4, 1973 within three months of the order the petitioners have preferred the present petition praying that the said order may be quashed and set aside. 2. The facts relevant for the purpose of disposal of the present petition are that consequent upon the re-organization of composite State of Punjab on 1st November, 1966 the clerks inherited by the State of Himachal Pradesh having eight years service as on 31.10.1966 were equated with Senior Clerks in Himachal Pradesh Secretariat. In order to extend similar benefits to similarly situate employees of H.P. Secretariat 69 posts of Clerks were created and equal number of Clerks having eight years or seven years and 5 months service as on 1.11.1966 were promoted as Senior Clerks with effect from November 1,1966. A few other Clerks in the H.P. Secretariat who had completed eight years or seven years and five months service between November 1, 1966 and November 30, 1971 submitted representation and claimed promotion as Senior Clerks on the analogy of their seniors on the completion of eight years or seven years and five months service as Junior Clerks in the H.P. Secretariat. Their representation was accepted by the State Government and the benefits as per their representation were allowed. The Government also promoted eight clerks as Senior Assistants from back date during the period February 24, 1973 to June 4, 1973 vide order dated July 30, 1984. Three Clerks were allocated on re-organization of composite State of Punjab on November 1, 1966 to the Office of petitioner No. 2. The Government also promoted eight clerks as Senior Assistants from back date during the period February 24, 1973 to June 4, 1973 vide order dated July 30, 1984. Three Clerks were allocated on re-organization of composite State of Punjab on November 1, 1966 to the Office of petitioner No. 2. On the recommendation of the Punjab Reorganization Committee, the Clerks allotted to Himachal Pradesh having eight years service were to be equated with Senior Clerks of Himachal Pradesh, therefore, Clerks having more than eight years of service on November 1, 1966 allocated from Punjab were equated as Senior Clerks with effect from February 3, 1961 and April 24, 1964 by petitioner No. 2 vide order dated May 1, 1970. Since the cadre of Senior Clerk did not exist in the composite State of Punjab and it existed in the State of Himachal Pradesh, therefore, Government devised a formula to equate the Clerks with eight or seven years and five months service coming from Punjab with Senior Clerks in the Secretariat as per letter dated September 20,1971. On November 1,1966 there was no Clerk with eight years service in the office of petitioner No. 2. However, since the Government had given the benefit to those Clerks in the H.P. Secretariat who had completed eight years and seven years and five months service between November 1, 1966 and November 30, 1971, therefore, the claimants also fell in the category of those Clerks who were given the benefits during the aforesaid period. The claimants claiming that they were similarly situate as their counterparts in Himachal Pradesh Government Secretariat represented for extending them the similar benefits as extended to their counterparts in the Secretariat. However, their representation was rejected vide order dated March 7, 1991. Aggrieved by the rejection of their representation, the claimants preferred O.A. No. 511 of 1991 before the H.P. Administrative Tribunal. 3. The petitioners filed reply to the O.A. wherein as in this petition the facts regarding allocation of the Clerks from the composite State of Punjab, equation of those having eight or more years of service as on October 31, 1966 with Senior Clerks on recommendations of the Punjab Re-Organization Advisory Committee by the State Government of Himachal Pradesh are not disputed. It was further averred that decision of the Government of India led to claim from the Clerks of the H.P. Unit seeking similar treatment and, therefore, Government made recommendation to the Government of India to treat all Clerks with eight or more years of service as Senior Clerks irrespective of the fact whether they belong to the composite State of Punjab or State of Himachal Pradesh. The Government of India rejected the recommendation. Nevertheless, the petitioner No. 1 decided to grant equal treatment to all its employees and as a consequence posts of Senior Clerks were created to accommodate the Clerks allotted from Punjab and those already serving in the H.P. Secretariat for eight or more years. In the year 1974, the Government of India accepted representation from incoming Clerks who had less than eight years service on October 30, 1966 but were ranked senior in their own unit list, to the Junior most, equated as Senior Clerks with effect from November 1, 1966. This gave rise to claim by several Clerks in the H.P. Secretariat having equal or more service. Keeping in view the principle of same treatment such Clerks were also promoted as Senior Clerks with effect from November 1, 1966. It has been denied that the claimants were similarly situated as those who were given the aforesaid benefits because the Himachal Pradesh Secretariat staff is governed by separate Recruitment and Promotion Rules and Himachal Pradesh Police Ministerial Staff is governed by different Re ruitment and Promotion Rules and the claimants thus did not fall "in the circumstances" in which the Secretariat clerks were placed. 4. After hearing the rival contentions of the parties, the Tribunal held that the parity has been sought on the ground of benefit having been given to the Clerks who have been allotted from the composite State of Punjab to the State of Himachal Pradesh as a result of re-organization and both the categories i.e. the claimants and those who have been given the benefits are working under the Government of Himachal Pradesh and the benefits have not been given under the Recruitment & Promotion Rules but as a consequence of re-organization, therefore, the claimants deserved the same treatment in the matter of extending the benefits as their counterparts in the H.P Secretariat and accordingly passed the impugned orders. 5. 5. We have heard the learned Advocate General for the petitioners and the learned Counsel for the respondents and have also perused the relevant records. 6. It is true that Article 14 of the Constitution of India prohibits class legislation but not the reasonable classification. Therefore, if care is taken to reasonably classify persons and persons belonging to a well defined class are equally treated, the charge of discrimination or denial of equal treatment will be unsustainable. However, to pass the test of permissible classification, the classification must be based on intelligible differentia which distinguishes the classified group of the persons from those left out of such group and that differentia must have a rational relation to the object sought to be achieved. The classification though may be founded on different basis but there must be nexus between the basis of classification and the object thereby intended to be achieved. A classification based on microscopic differences is bad in law and to overdo classification is to undo equality and thus violative of Article 14. 7. Insofar as the claim of the claimants for equation in the matter of designating them as Senior Clerks with consequential benefits in the manner as was done in the case of the Clerks working in the H.R Secretariat is concerned, the only contention in opposition is that the Clerks in the Police Department and those on the establishment of the H.P. Secretariat are governed by separate set of Recruitment and Promotion Rules, therefore, are to be governed by rules as applicable to each of them. 8. In the facts and circumstances of the case in hand, the contention is apparently fallacious and not sustainable. The Recruitment and Promotion Rules, if any, have not been cited nor copies thereof have been placed on record. Assuming there are/were such Rules, the act of designating the Clerks in the H.P Secretariat as Senior Clerks with consequential benefits was admittedly not under such Rules but because of the situation created by allotment of a few Clerk from Composite State of Punjab to the State of Himachal Pradesh as a consequence of re-organization of the State. Assuming there are/were such Rules, the act of designating the Clerks in the H.P Secretariat as Senior Clerks with consequential benefits was admittedly not under such Rules but because of the situation created by allotment of a few Clerk from Composite State of Punjab to the State of Himachal Pradesh as a consequence of re-organization of the State. It was claim of petitioner No. 1 itself before the Tribunal as also in this petition vide Para-5 that despite rejection of the proposal of petitioner No. 1 to the Government of India to treat all Clerks having eight or more years of service as Senior Clerks irrespective of the distinction whether they were allotted from Composite State of Punjab on re-organization or were employees of the State of Himachal Pradesh, the petitioner No. 1 decided to grant equal treatment to its employees and gave retrospective promotions to the Clerks having requisite length of service. If so, apparently there was no valid and lawful reason nor has been shown to deny similar benefits to the respondents. Since the action taken by petitioner No. 1 was not on consideration of merits or suitability but with a view to treat its employees equally, therefore, such benefit could not be denied to the claimants. Thus, we do not find any reason to interfere with the directions given by the Tribunal qua granting the benefits as Senior Clerks to the respondents from the dates they completed the requisite length of service as Clerks. 9. The directions of the Tribunal to promote the claimants as Assistants from the specified dates, however, cannot be sustained. It appears that the claimants claimed promotion as Assistants B-Grade as a consequence of the revision of pay scales. It is not their case that they have absolute right for promotion from stage to stage under such revision. Therefore, such promotions were to be made/given as per provisions/conditions attached to the revised pay scale and only those who were eligible to such promotions as per the provisions/conditions could have been considered and if found suitable then could only be promoted as Assistants B-Grade. Therefore, respondents had only a right of consideration for such promotions. 10. In Government of Andhra Pradesh and others v. A.P. Jaiswal and others (AIR 2001 SC 499), the Honble Supreme Court while dealing with a similar question as in hand, held as under:- "26. Therefore, respondents had only a right of consideration for such promotions. 10. In Government of Andhra Pradesh and others v. A.P. Jaiswal and others (AIR 2001 SC 499), the Honble Supreme Court while dealing with a similar question as in hand, held as under:- "26. Assuming for arguments sake that the tribunal in the impugned judgment was justified in holding that the respondents were entitled to seniority over their Andhra counterparts even then it could not have straightway directed their promotion and granted them all consequential monetary benefits that too with interest. This Court has held in a number of cases that the Courts cannot issue a mandamus to promote. In the case of State of Mysore v. P.N. Nanjwidiah, (1969) 3 SCC 633 this Court held as follows : "As to the issuance of mandamus by the High Court, the High Court ought not to issue writs directing the State Government to promote the aggrieved officers with retrospective effect. The correct procedure for the High Court was to issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to his seniority and fitness the 1st respondent should have been promoted on the relevant date and so what consequential benefits should be allowed to him/ This decision has been consistently followed by this Court in a catena of other cases. We are sorry to note that the tribunal did not apply these principles in the instant case. Therefore, we are of the opinion that the tribunal by the impugned order grossly erred in directing the promotions of the respondents as also the payment of consequential monetary benefits." 11. In view of the above settled position in law, the petitioners could be directed only to consider the cases of the claimants for promotions as Assistants B-Grade from such date(s) they were found eligible for such consideration and directions to promote them from the specific date with retrospective effect could not have been issued. 12. In view of the above, the order of Tribunal directing the petitioners to promote the claimants as Assistants with effect from 4.7.1973 is unsustainable and is modified and instead the petitioners are directed to consider the cases of the claimants for promotion as Assistants B-Grade from the date(s) they were eligible for such consideration in accordance with the relevant Rules and law. And if found suitable, then take necessary follow up action. 13. As a result, this petition is partly allowed to the extent indicated hereinabove and is disposed of in terms of the above orders. Petition partly allowed.