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2006 DIGILAW 58 (HP)

MANOHAR LAL PARMAR v. STATE OF H. P.

2006-03-17

B.S.CHAUHAN, NARINDER SINGH THAKUR

body2006
JUDGEMENT Narinder Thakur, Vice Chairman.: The controversy in the present Original Application is that the applicant who joined as an Excise and Taxation Inspector on January 4, 1971 in the respondent department will retire as such on 31.3.20061 without getting even a singular promotion. The plain and simple reason for the same is that the respondent department has been mis-interpretating the rules to cover up its own shortcomings and negligence. 2. The facts genane for decision in the present Original Application are in narrow compass. Vide Annexure-A/2 the applicant got an appointment as Excise and Taxation Inspector on 29.12.1970. The clause (vi) of the said appointment letter contained a stipulation that the applicant will have to pass the departmental examination in respect of both the Excise and Taxation Inspector within two years of his joining the duty failing which his services are liable to be terminated. 3. The rule governing Recruitment and Promotion etc at that point of time are contained Annexure-A/1 which were framed on 6.5.1963. Rule 9(iii) contains a stipulation to the effect that 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 services, 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 the extended period of probation and as it could have passed on the expiry of the first period of promotion, tt further provides that total period of probation including extension, if any, shall not exceed three years. Rule 14 of the said rule relates to Departmental Exemption which reads that- "No person appointed to the service shall be retained therein, unless he has passed Departmental Examination with a period of 3 years, nor shall such person be appointed substantively to any post in the service provided that the Commissioner may for special reason to be recorded in writing relax these conditions." 4. Undoubtedly, the applicant has continued till date which gives rise to legitimate presumption that the competent authority has permitted him beyond the maximum period because of his good work and conduct Resultantly, as per the law settled in this regard by the Honble Apex Court reported in 1986 (2) SLR 651 titled as Om Parkash Maurya vs. U.P. Cooperative Sugar Factories Federation, the applicant stood confirmed for all intents and purposes on completion of maximum three years of service and in that event the provisions with regard to passing of Departmental Examination are rendered superfluous for obvious reasons that the respondent department had no rules of its own for conducting the Departmental Examination. The same principles with respect to deemed confirmation have been laid down in AIR 1968 SC 1210 title as State of Punjab vs. Dharam Singh. 5. The crux of this judgment is that the applicant who has completed the maximum probation period of three, years successfully on 4.1.1974 is entitled for deemed confirmation w. e. f. 4.1.1974. 6. The respondent department was also aware with this fact that since they have no such rules in place, the incumbents are facing problems. Being so conscious with the problem and its gravity, the then Excise and Taxation Commissioner floated a letter on 17.9.1973 where in he has specifically taken notice of this aspect in para 3 and has categorically stressed to frame rules for holding Departmental Examination. In the face of this situation, the rules came to be framed on 27.6.1978 (Annenxure-A/6) known as "Departmental Examination Rules of the Excise and Taxation Inspector in the Excise and Taxation Department Himachal Pradesh 1978". These rules came into effect Prospectively. In the meanwhile, the respondent department has also brought into force new set of R&P Rules known as "HP. Excise and Taxation Department (Inspectorate Staff Class-ill) Service Rules, 1976" vice notification dated 25.3.1976. These rules also came into force prospectively from the date of issuance of this notification. New R&P Rule 11 was incorporated which provided as under- "1. In the meanwhile, the respondent department has also brought into force new set of R&P Rules known as "HP. Excise and Taxation Department (Inspectorate Staff Class-ill) Service Rules, 1976" vice notification dated 25.3.1976. These rules also came into force prospectively from the date of issuance of this notification. New R&P Rule 11 was incorporated which provided as under- "1. (3) On the completion of the period of probation by a person and passing the prescribed examination, the appointment authority may- (a) If his work and conduct is found is satisfactory - (i) Confirm such person from the date of his appointment if appointed against a permanent vacancy; or (ii) Confirm such person from the date from which a permanent vacancy occurs; if appointed against a temporary vacancy; or (in) Declare that he has completed his probation satisfactorily if there is no permanent vacancy; or (b) if his work or conduct has not been, in its opinion, satisfactory and in the case of non-passing of prescribed departmental examination-(i) dispense with his services, if appointed by direct appointment or if appointed otherwise revert him to his former post, or deal with in such other manner as the terms and conditions of his previous appointment permit; or (ii) extend his period of probation and thereafter, pass such orders as it court have passed on the expiry of the first period of probation. This shall also apply mmans unmandis to the departmental examination. Provided that the total period of probation and the time allowed for passing the departmental examination, including extension, if any, shall not exceed for years." 7. No such provision relating to determination of seniority on the basis of passing or non-passing of Departmental Examination within the period of probation or thereafter was contained in the Rules of 1963. 8. This new Rules gave rise to various litigations, mainly, Mohan Lai vs. State of H.P. reported in 1977 (4) 416 and Ishwari Kumar vs. State of H.P. reported in 1994 Supp (2) SCC 217. Be it clarified herewith that respect to the Rules of 1963, the Hon’ble Apex Court in penultimate paragraph of the Mohan Lais case has observed that- "the Proforma respondents sought to contend that they are governed by the Rules operating in the year, 1963 and 1964 and that these Rules have no application to them. Be it clarified herewith that respect to the Rules of 1963, the Hon’ble Apex Court in penultimate paragraph of the Mohan Lais case has observed that- "the Proforma respondents sought to contend that they are governed by the Rules operating in the year, 1963 and 1964 and that these Rules have no application to them. We need not express any opinion on that We are informed that the matter is pending in the Tribunal. It would be for the Tribunal to consider their claims in accordance with law." 9. We have heard the learned counsel for the applicant and the learned Deputy Advocate General and have gone through their pleadings very carefully. The question for our determination is with respect to the Rule of 1963, which governed the applicant in the present Original Application. After careful examination of the pleadings, record as well as oral submissions made by the learned counsels representing their respective parties, we set to give our findings and decision as follows:- 10. The applicant while getting appointment in the respondent department was governed by the Rules 1963 (Annexure-H), which provided only, for dispensing with the services of an incumbent in case he fails to pass Departmental Examination within the maximum period of three years. Non-passing of the examination has no bearing on the seniority, as the rules do not provide so. However, what rules provide is for continuing after the period of three years if the work and conduct and work of an incumbent is found good. The factum that the applicant has been continued till date is enough to suggest that his work and conduct was good as such he as retained in service. In being so, his confirmation after the period of three years is a natural consequence coupled with the decision on the point by the Honble Apex Court. 11. The department was itself conscious of the fact that since the Departmental Examination Rules are not in place, the incumbents are facing the problems in passing the departmental examinations. In being so, his confirmation after the period of three years is a natural consequence coupled with the decision on the point by the Honble Apex Court. 11. The department was itself conscious of the fact that since the Departmental Examination Rules are not in place, the incumbents are facing the problems in passing the departmental examinations. The rules came to be framed in the year, 1978 with prospective effect In this regard it will also be fruitful to draw support from the decision of Honble Apex Court reported in 1989 Supp (I) SCC 393 titled as State of Maharshtra vs. Jagnnatth, wherein it has been held that: "If the Government has failed to held the Examination, then, the employee should not be made to suffer adversely for default of lapse on the part of Government." 12. It is well settled principle of interpretation of rules that what is not intended or provided for in a statute cannot be and should not be supplied by judicial interpretation and the Court should avoid creating a "casus Omiassus". Thus, since the rules 1963 does no where provide for determination of seniority on the basis of passing or non-passing of departmental examination within or beyond the period of probation, the same cannot be supplied by the department or by judicial decision. It is an application of the same principle that in matter which should have been, but has not been provided for in a statute cannot be supplied by Courts, as to do so will be legislation and not construction. As such, the respondent department by saying SO is trying to incorporate the provisions of Rules of 1976 in the Rules of 1963, i which is not legally permissible. 13. Notwithstanding, in this regard the respondent State vide its office memorandum contained in Annexure-A/2 and Annexure A-8 issued on 2.4.1990 and 1.11.1990 respective has categorically clarified that due to passing the Departmental Examination earlier or by passing it with delay or by not passing it, the seniority of employees Initially assigned should not be changed. It is further clarified in Rule 12 of the Rules of 1976 that persons appointed in a substantive/officiating capacity to a post prior to issue of these rules, shall retain the relative seniority already resigned to them under these rules applicable to their cases and shall en-block be senior to all others in that grade. 14. It is further clarified in Rule 12 of the Rules of 1976 that persons appointed in a substantive/officiating capacity to a post prior to issue of these rules, shall retain the relative seniority already resigned to them under these rules applicable to their cases and shall en-block be senior to all others in that grade. 14. It is admitted by the respondent State in para 5 of the reply that the present Original Applicant filed by the applicant is within limitation. The applicant has alleged that he joined service as ETI on 4.1.1971 as per Annexure-A/2 and despite completion of 34 years of service, the applicant has been stagnating on the same post without any promotional avenues which is illegal and unsustainable. The applicant had also passed the Departmental Examination in the year, 1992 (Annexure-A/9), yet the denial of promotional avenue is also illegal in the eyes of law. So far as latches and limitation is concerned it is a continued process. 15. It is also admitted position from the pleadings that there was no departmental examination rules of ETI prior to June, 1978. In view of this admission, once no departmental examination Rules were framed, nor any Departmental Examination was held/conducted within a period of three years from the date of appointment i.e. 4.1.1974, then, the applicant cannot be panelized by denying confirmation and seniority w. e. f. 4.1.1974. 16. The above contention is supported by the law reported in 1989 Supp (1) SCC 393, title as State of Maharashtra vs. Jaganath, referred to above. In this back ground, once the R&P Rules of 1963 (Annexure-A/1) were silent to about the manner of giving confirmation and determining seniority, in case of those employees, for whom no departmental examination, as required under the Rules of 1963 was conducted within three years of appointment then once the Oms issued on 2.4.1990 and 1.11.1990 vide Annexure-A/7 and A-8, which filled in the gaps, then, the confirmation and seniority of the applicant is to be determined by applying the provisions of Rule 9,12 and 14 of the 1963 Rules in accordance with the Oms dated 2.4.1990 and 1.11.1990 and thus, the applicant is entitled for deemed confirmation and seniority as ETI from 4.1.1974 for all intents and purpose. 17. 17. The contention of the respondents as pleaded in the reply is that the seniority of the applicant has been determined as per the law laid down by the Apex Court as well as the R&P Rules of 1976. 18. The above contention of the respondents in the reply is incorrect on facts as well as law. Once the applicant was appointed as ED on 4.1.1971 under the Rules of 1963, then, the R&P Rules of 1976 i.e. Annexure-A/5 cannot be applied to the applicant and when, there rules are prospective in nature. Once the Rules of 1976 were prospective and were to come into force at once, then, right of applicant to get deemed confirmation under 1963 Rules is maintainable and the 1976 Rules cannot be applied retrospectively as the law laid down by the Honble Apex Court in 1985 (Supp.) SCC 243 D.K. Mitra vs. Union of India. 19. An endeavour was made at the time of arguments to raise the point limitation. Interestingly, in reply to para 5 of the Original Application, which pertains to the declaration to the effect that the Original Application is within limitation, the respondents have admitted the same. So the point of limitation could not have been allowed to be raised orally and contrary to the stand taken in the reply. Nevertheless, the point of limitation with respect to seniority has been dealt with by the Honble Apex Court in Kuldip Chand vs. Union of India reported in AIR 1996 page 706 wherein the, Honble Apex Court has held that delay in filing case does not disentitle a person to claim seniority. Somewhat similar issue was involved in 11 Dinkar Anna Patil vs. State of Maharashtra reported in 1999 (1) SCC 354. Moreover, when there is infraction of instructions, the department cannot taken hyper-technical plea of limitation to whwart the legitimate claim of its employee. In Madras Port Trues vs. Hyumanshu Intentional reported in AIR 1979 SC 144 the Honble Apex Court has held that plea of limitation should not be ordinarily taken by the Government and Public Authorities. Similar views have been expressed by the Honble Apex Court in SR Bhanrale vs. UO11996 (4) SCT 573 and by the Honble Apex Court of Punjab in Jaswinder Kaur vs. State of Punjab reported in 1990(1) RSJ 367 (P&H) HC). In VS Srivastava Vs. Similar views have been expressed by the Honble Apex Court in SR Bhanrale vs. UO11996 (4) SCT 573 and by the Honble Apex Court of Punjab in Jaswinder Kaur vs. State of Punjab reported in 1990(1) RSJ 367 (P&H) HC). In VS Srivastava Vs. State of MP the Honble Apex Court in RM Ramual vs. State of H.P. reported in AIR 1989 SC 357 has observed as under: - "16. It has been already noticed hat both the provisional and he final seniority lists were prepared without complying with the directions of the Central Government, as contained in the letter of the joint Secretary to the Government of India, Ministry of Home Affairs, dated February 14.1967. There was no attempt to determine the equivalent posts, that is to say, no endeavour was made by the Government to equate one post with another for the purpose of integration and determination of relative seniority. Instead, the posts as they were, were placed in the seniority list The Government also did not follow the directions of the Central Government in determining the relative seniority. One of the factors that should have been taken into consideration for the purpose of determination of relative seniority, as mentioned in the said letter of the Joint Secretary, is length of continuous service whether temporary or permanent in the equivalent post, excluding period for which an appointment is held in a purely stopgap of fortuitous arrangement The appellant was, admittedly, promoted to the post of District Public Relations Officer in the pay scale of Rs.250-500 on May 18.1966. It is not the case of any part that the promotion of the appellant was by way of any stopgap or fortuitous arrangement. The final seniority list as on November 1,1966 was prepared on September 13,1971. On November, 1,1966, admittedly, the appellant was holding the ex cadre post of the District Public Relations Officer. According to the said directions of the Central Government, in preparing the relative seniority the position of the appellant as the District Public Relations Officer should have been taken into consideration. On November, 1,1966, admittedly, the appellant was holding the ex cadre post of the District Public Relations Officer. According to the said directions of the Central Government, in preparing the relative seniority the position of the appellant as the District Public Relations Officer should have been taken into consideration. The department utterly ignored the said direction of the Central Government and the appellants substantive rank as the Reception Officer as on November 1,1966 was erroneously taken into consideration for the purpose of preparing the inter se seniority, even though the appellant was on November 1,1996 not holding the substantive rank of Reception Officer, but the post of the District Publication Relations Officer in a temporary capacity one post with another for the purpose of integration. The final seniority list, as has been already observed, is an anomalous one and does not depict the relative seniority among officers after integration in accordance with directions of the Central Government 20. Mr. Shankar Ghosh, learned counsel appearing on behalf of the respondents No.4 and 5 (respondent No.5 has since died), submits that after the final seniority list was approved by the Central Government, it had become final and it cannot be challenged in 1982 after 11 years. Further, it is submitted by him that the final seniority list has never been challenged the same by filing a writ petition. It is true that the final seniority that list was sent to the Central Government and presumably it was approved, but because a seniority list has been approved by the Central Government it cannot be laid down as a rule of law that even though it has been illegally prepared to violation of the directions of the Central Government itself to the prejudice of the officer of officers concerned, it cannot be challenged. Normally, when a seniority list has been made final, it should not be allowed to be« challenged. But when a seniority list is prepared ignoring all just principles and also the rules framed or directions given by appropriate authority, seriously affecting any officer, it is always liable to be examined and set aside by the Court We are, therefore, unable to accept the contention of the learned counsel for the respondent! No 4 that the seniority list having been made final after the approval of the Central Government cannot be challenged by the appellant 21. No 4 that the seniority list having been made final after the approval of the Central Government cannot be challenged by the appellant 21. We have already expressed our views as to the nature of the seniority list and the manner in which it was prepared in violation of the directions of the Central Government The High Court has not considered the directions of the Central Government as contained in the said letter of the joint Secretary dated February 14.1967 and the utter violation of the same by the Department and/ or the State Government in preparing the final selection list as indicated above. The High Court as already stated, has dismissed the writ petition of the appellant principally on the ground that the seniority fist once finalized after integrating the person working in the Tourism Department and those coming from Punjab cannot be reopened to the disadvantage of the other persons without considering that the final seniority list was made without complying with the directions of the Central Government to the prejudice of the appellant In the circumstances, the judgment of the High Court cannot be sustained." 22. As such the point of limitation raised orally does not hold good in view of settled legal position and the same is accordingly rejected. 23 It is also admitted position from the pleadings that the appellant has been stagnating by the respondent department for about 3-4 years without any promotional avenue. The plea of the appellant deserves thoughtful consideration in view of the law laid down by the Honble Apex Court in 2002 (10) SCC 432 titled as U.T. Chandigarh vs. Avtar Singh and others whereby it has been held that "stagnation in service for unduly longer period without avenues of promotion held is not in the interest of administration." 24. The intentions of the respondents by making him to stagnate on the same post without providing him promotional avenues and moreover, when the applicant is at the verge of retirement the promotional evenues are ought to be provided not only in the interest of the employee up upgrading his status in terms of finances and reputation, but also such avenues amount to generate a hope to an employee to render fruitful inputs for the employer and providing the avenues is in the interest of Administration at large as also held by the Honble Apex Court also. 25. 25. Looking to the facts and circumstances of this case in entirety, we are of the considered view that ends of justice would be met by issuing directions to the respondent department to give confirmation to the applicant after completion of three years of service as Excise Inspector i.e. w. e. f. 4.1.1974 and then to consider his case for promotion as Excise and Taxation Officer w. e. f. the date from which his immediate juniors confirmed as Excise Inspector were promoted to the higher post of Excise and Taxation Officer nationally and also grant all the consequential benefits to the applicant by deeming him to have been confirmed on completion of three years of service and placing him in seniority position accordingly. As a result granting him all the consequential benefits, and it is hereby clarified that for this purpose the department shall create supernumerary posts, where required and grant all the consequential benefits to the applicant these directions shall be complied with within one month from this order. The present Original Application stands finally disposed of with no order as to costs.