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Himachal Pradesh High Court · body

2009 DIGILAW 412 (HP)

RAM LOK SHARMA v. THE STATE OF H. P.

2009-05-05

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, Judge- Brief facts necessary for adjudication of this petition are that the petitioner was appointed as Mathematics Master in the pay scale of Rs. 110-250 on 15.9.1965. He was selected by the Subordinate Selection Board, Punjab. The services of the petitioner were allocated to the Union Territory of Himachal Pradesh with effect from 1.11.1966. The seniority of the Mathematics Master was maintained as T.G.Ts. (Trained Graduate Teachers). The seniority list of the Trained Graduate Teachers inherited from the State of Punjab was drawn vide Annexure A-2. He was assigned serial number 428. He was confirmed on 26.10.1979. The provisional seniority list of Trained Graduate Teachers was circulated on 30.11.1977. Final integrated seniority list was circulated on 23.2.1979. He was assigned serial number 1772. It appears from the records that another seniority list was circulated in the year 1982. He was assigned serial number 3650. The Director of Education circulated tentative seniority list of Trained Graduate Teachers as on 1.11.1966 vide office memorandum dated 27.2.1991. The petitioner was assigned serial number 1814. His record was summoned for promotion vide communication dated 11.6.1991. However, he was superseded and the persons junior to him were promoted as Headmasters vide communication dated 10.11.1992 and 11.11.1992. The respondents have issued another seniority list on 29.10.1993 whereby the petitioner’s name has been shown at serial number 1814 and 3650 respectively. 2. Mr. Bhuvnesh Sharma, Advocate has strenuously argued that the petitioner was allocated from the State of Punjab where he was working as Mathematics Master in the pay scale of Rs. 110250. He was assigned seniority at serial number 428. He then contended that he was assigned correct seniority vide memorandum dated 23.2.1979 after taking into consideration initial date of appointment in the State of Punjab. He further contended that the respondents-State in violation of Section 82 (6) of the Punjab Reorganization Act, 1966 have altered the seniority of the petitioner to his detriment by reckoning his seniority from the date of passing B.Ed. Examination instead of counting it from initial date of appointment i.e. 13.11.1965. He finally contended that the petitioner was required to be considered for promotion on the basis of seniority list published on 23.2.1979 whereby the petitioner was allocated serial number 1772. He lastly contended that promotions have been effected illegally vide letters dated 10.11.1992 and 11.11.1992 (Annexures A-9 and A-10) on the basis of re-drawn seniority. 3. He finally contended that the petitioner was required to be considered for promotion on the basis of seniority list published on 23.2.1979 whereby the petitioner was allocated serial number 1772. He lastly contended that promotions have been effected illegally vide letters dated 10.11.1992 and 11.11.1992 (Annexures A-9 and A-10) on the basis of re-drawn seniority. 3. I have heard the parties and gone through the record carefully. 4. It is not disputed that the petitioner was allocated from the State of Punjab. His initial date of appointment is 15.9.1965. He was assigned serial number 428 as per Annexure A-2, i.e. inter se seniority list of Trained Graduate Teachers, both male and female inherited from Punjab (State Cadre) in the pay scale of Rs. 110-250. The conditions of service of the petitioner were required to be protected as per Section 82 (2) of the Punjab Reorganization Act, 1966. He was appointed in the pay scale of Rs. 110-250. In the State of Punjab, the Mathematics Teachers were at par with Trained Graduate Teachers and their seniority was maintained as such. The respondent-State on the basis of deemed date of appointment of the petitioner i.e. 13.11.1965 has assigned serial number 1772 in the seniority list dated 23.2.1979. This seniority list was of Trained Graduate Teachers (Men & Women Teachers) in the scale of Rs. 110-250. He was confirmed with effect from 26.10.1979. The petitioner was granted proficiency step up on 28.7.1990. In the tentative seniority list drawn on 27.2.1991, the petitioner had been assigned serial number 1814 and his deemed date of appointment is 13.11.1965. In communication dated 11.6.1991, the petitioner’s seniority has been reflected with deemed date of appointment as 13.11.1965. However, in between on the basis of final seniority list circulated on 28.7.1982, the petitioner has been assigned serial number 3650 though his deemed date of appointment is 13.11.1965 but this seniority has been assigned to him on the basis of his qualifying B.Ed. Examination on 4.8.1970. Interestingly, the petitioner’s name figures at serial number 1814 and 3650 of the same seniority list of Trained Graduate Teachers circulated on 29.10.1993. At serial number 1814, the deemed date of appointment of the petitioner is 15.12.1965 and at serial number 3650 the deemed date of appointment is 4.8.1970. 5. The learned Senior Additional Advocate General could not explain how the petitioner has been assigned two numbers in the same seniority list. At serial number 1814, the deemed date of appointment of the petitioner is 15.12.1965 and at serial number 3650 the deemed date of appointment is 4.8.1970. 5. The learned Senior Additional Advocate General could not explain how the petitioner has been assigned two numbers in the same seniority list. Since the petitioner had been allocated from the State of Punjab, his seniority was to be protected vis-à-vis the employees of the State of Himachal Pradesh. In fact, this seniority list was protected as per Annexures A-2 and A-3. His deemed date of appointment has been shown as 13.11.1965. However, the same position stood altered in the seniority list Annexure R-1 circulated on 28.7.1982 where for the first time, the deemed date of appointment of the petitioner has been shown as 4.8.1970. The respondent-State had neither pleaded nor placed on record how the seniority of the petitioner and similarly situate persons allocated from the State of Punjab was reckoned. In case of persons who have been allocated from the State of Punjab to the State of Himachal Pradesh, integrated seniority list was to be prepared. In fact, it was prepared as per Annexure A-2 in the pay scale of Rs. 110-250. He was assigned serial number 428. This position was re-iterated in the final seniority list published on 23.2.1979. The explanation given by the State for altering the seniority of the petitioner is that it was to be counted from the passing of B.Ed. Examination. The State had not produced any rule or instructions to substantiate the basis of imposing this condition for the purpose of determining the final seniority list. In the absence of statutory rules, it is settled law that the seniority is to be reckoned from the date of initial appointment and the entire length of service is to be counted for the purpose of seniority. Action of the respondent-State of assigning seniority at serial number 3650 as per Annexure R-1 and at serial number 3650 on 29.10.1993 is hit by Section 82 (2) of the Punjab Reorganization Act, 1966. 6. The respondents have also not taken into consideration the procedure to be followed on integration of services as a result of re-organization of Punjab contained in paragraph 13.5.7 of the Hand Book on Personnel Matters, Volume-I (Second Edition). Similarly, the State has not taken into consideration “KLM” formula while determining the seniority of the petitioner. 7. 6. The respondents have also not taken into consideration the procedure to be followed on integration of services as a result of re-organization of Punjab contained in paragraph 13.5.7 of the Hand Book on Personnel Matters, Volume-I (Second Edition). Similarly, the State has not taken into consideration “KLM” formula while determining the seniority of the petitioner. 7. The respondents have not denied that the petitioner’s seniority in the State of Punjab was drawn at par with Trained Graduate Teachers. He was in the same pay scale which was being paid to the Trained Graduate Teachers in Punjab and in the State of Himachal Pradesh i.e. Rs. 110-250. The petitioner has been rightly assigned the seniority vide Annexures A-2, A-3, A-6 and A-11 at serial number 1814. The petitioner’s seniority has been wrongly assigned at serial number 3650 vide Annexure R-1 and A-11 dated 29.10.1993. The seniority of the petitioner was to be assigned by taking his deemed date of appointment as 13.11.1965 and not 4.8.1970 as has been shown against serial number 3650 in Annexure A-11 dated 29.10.1993. The passing of B.Ed. examination was not the condition precedent for the purpose of drawing seniority. The effect of altering the seniority position of the petitioner was because of the persons junior to him had been promoted to the post of Headmasters. His record was also called for, as noticed above, by the District Education Officer on the basis of correct position of seniority. He was not considered for promotion since his seniority was down graded. He had a right to be considered for promotion after counting his seniority from the date of his deemed date of appointment i.e. 13.11.1965. 8. Accordingly, the writ petition is allowed. Annexures R-1 and A-11 to the extent whereby the petitioner’s seniority in the list has been reflected at serial number 3650 are quashed and set aside. It is declared that the petitioner has been rightly assigned serial number 1814 in Annexure A-11 dated 29.10.1993. The respondents are directed to consider the case of the petitioner for promotion on the basis of seniority assigned to him, vide Annexures A-2, A-3, A-6 and A-11 at serial number 1814 from the date his juniors were promoted. He shall be held entitled to all the consequential benefits. No costs.