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Himachal Pradesh High Court · body

2009 DIGILAW 587 (HP)

DINESH KUMAR SOOD v. STATE OF H. P.

2009-06-19

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, Judge:-The petitioner was promoted to the post of Investigator on 12.12.1974 in the pay scale of Rs.200-500. He was subsequently promoted to the post of Statistical Assistant in the pay scale of Rs.200-500 on 26.6.1976. The post of Statistical Assistant was re-designated as Technical Assistant in the pay scale of Rs.300-600 on 26.6.1976. The final seniority list as on 1st September, 1988 in respect of non-gazetted employees of the Economics and Statistical Department was circulated vide office memorandum dated 22nd November, 1988. The petitioner was assigned Sr. No.15 in the seniority list of Technical Assistants. One Shri K.S. Spehia and Shri R.K. Chhabra were assigned Sr. Nos. 17 and 18 respectively. He was promoted to the post of District Statistical Officer on 27.12.1989 vide Annexure A-3. He was reverted to the post of Statistical Assistant on 15th July, 1992. The respondent-department thereafter issued final seniority list of Technical Assistants and Statistical Assistants as on 1st September, 1981 on 19.8.1992. The name of the petitioner was shown in the seniority list of Statistical Assistants in the pay scale of Rs.200-500. He was assigned Sr. No.5. Shri K.S. Spehia and R.K. Chhabra were assigned Sr. Nos.7 and 12 respectively. 2. Mr. Dilip Sharma has strenuously argued that the petitioner has not been heard before the issuance of impugned Annexure A-4, dated 15th July, 1992. He then argued that the case of the petitioner was to be decided by respondents No.1 and 2 as per the ratio of the judgment delivered by the learned Tribunal in O.A. No.1810 of 1992 decided on 30.4.1997, preferred by one Shri R.K. Chhabra. Mr. Dilip Sharma has also assailed the seniority list dated 19.8.1992. 3. Mr. R.K. Sharma, learned Senior Additional Advocate General and Ms. Ranjana Parmar have vehemently argued that the petitioner has been reverted on the basis of judgment of the learned Tribunal rendered in T.A. No.295 of 1986 decided on 30.4.1991. They also argued that the petitioner has been assigned correct seniority in the cadre of Statistical Assistants, circulated on 19th August, 1992. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The post of Statistical Assistant was re-designated as Technical Assistant on 9th May, 1980. He was assigned seniority at Sr. No.5 in the final seniority list of Technical Assistants, circulated on 22.11.1988. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The post of Statistical Assistant was re-designated as Technical Assistant on 9th May, 1980. He was assigned seniority at Sr. No.5 in the final seniority list of Technical Assistants, circulated on 22.11.1988. He has been promoted as District Statistical Officer on 27th December, 1989 purely on ad hoc basis. 6. It is apparent from the pleadings that one Shri K.C. Nag and Others had filed CWP No.71 of 1979 in this Court. The same was transferred to the learned Tribunal and assigned T.A. No.295/1986. It was decided on 30th April, 1991. The petitioner had not given the details of this decision rendered by the learned Tribunal on 30th April, 1991. He should have disclosed the details of decision dated 30th April, 1991 rendered by the learned Tribunal in T.A. No.295 of 1986. 7. The petitioner has been reverted on 15th July, 1992. Mr. Dilip Sharma has strenuously argued that Shri R.K. Chhabra who was ranking junior to him in the seniority list circulated on 22.11.1988 and impugned seniority list dated 19.8.1992 and who was also promoted as District Statistical Officer, was not reverted. In other words, his submission is that his client was required to be treated at par with Mr. R.K. Chhabra. It is settled law by now that the persons who are promoted on ad hoc basis have no right to be heard before their reversion. The plea in the present case is that the persons junior to the petitioner have been allowed to discharge the duties of higher post of District Statistical Officers, but the petitioner stood reverted on 15.7.1992, which violates Articles 14 and 16 of the Constitution of India. 8. Mr. Dilip Sharma has also brought to the notice of the Court the judgment rendered by the learned Tribunal in O.A. No.1810 of 1992, decided on 30th April, 1997. A bare perusal of the judgment reveals that Shri R.K. Chhabra who was also re-designated as Technical Assistant and promoted on ad hoc basis as District Statistical Officer had assailed the final seniority list issued on 19th August, 1992. His case was that he could not be reverted to the post of Statistical Officer since he was re-designated as Technical Assistant in the year 1979 in the pay scale of Rs.300-600. His case was that he could not be reverted to the post of Statistical Officer since he was re-designated as Technical Assistant in the year 1979 in the pay scale of Rs.300-600. The impugned seniority list in O.A. No.1810 of 1992 was annexed as Annexure A-21. The learned Tribunal decided the original application bearing No.1810 of 1992 on 30.4.1997. The learned Tribunal up-held the seniority list Annexure A-21, dated 19th August, 1992. However, the learned Tribunal simultaneously directed the respondents to hold necessary review D.P.Cs. and issue revised orders of promotion of the officers to the posts of Technical Assistant/District Statistical Officer/Deputy Director etc. with effect from the date each one of them became eligible in accordance with the rules. The operative portion of the judgment reads thus (paras 12 and 13):- “In the ultimate analysis we hold the seniority list as on September 1, 1981 circulated vide orders dated August 19, 1992 Annexure-A/21 as legal and valid. However, we simultaneously direct the respondents to hold the necessary review D.P.Cs and issue revised orders of promotion of the officers who become entitled to the post of Technical Assistant/District Statistical Officer/Deputy Director etc., with effect from the date each one of them becomes eligible in accordance with the rules. The review D.P.Cs be held within four months of the date of this order. We further direct that in the meantime the applicant should not be reverted till his reversion is necessitated by the promotion of somebody else as on today. We further direct that if as a consequence of review D.P.C., the applicant is promoted as District Statistical Officer with effect from any date before the date of this order, he need not be actually demoted except on a notional basis, if he was not promoted as District Statistical Officer. In view of the facts that the applicant who has been promoted to different posts many years ago is reverted with retrospective effect on notional basis, recovering the excess payment made to him will cause hardship to him. Also the fact remains that the promotion/redesignation ordered in case of the applicant till today was not as a result of any fraud that he may have committed or his fault we direct the respondents that no recovery of past benefits given to him should be made.” 9. Also the fact remains that the promotion/redesignation ordered in case of the applicant till today was not as a result of any fraud that he may have committed or his fault we direct the respondents that no recovery of past benefits given to him should be made.” 9. The learned Tribunal as per judgment dated 30th April, 1997 has also restrained the respondents from effecting recoveries from the salaries of R.K. Chhabra and others. Shri R.K. Chhabra was admittedly shown junior to the petitioner in the seniority list of Technical Assistants, circulated on 22.11.1988. Even in the seniority list impugned before the learned Tribunal in O.A. No.1810 of 1992 Shri R.K. Chhabra was ranking junior to the petitioner. 10. Mr. Dilip Sharma has also apprised the Court that so far as R.K. Chhabra’s case is concerned, the learned Tribunal had granted the - 6 interim relief against reversion vide judgment rendered in O.A. No.1810 of 1992, dated 30.4.1997. However, the learned Tribunal had not granted the interim relief to the petitioner in the present case. The learned Tribunal was required to pass uniform orders in both the petitions preferred by R.K. Chhabra and the present petitioner. The Tribunal has committed illegality by not granting the petitioner same interim relief which had been granted to Shri R.K. Chhabra. The cases of the petitioner and Shri R.K. Chhabra were based on same facts. He was also re-designated as Technical Assistant and was promoted to the post of District Statistical Officer on ad hoc basis. The petitioner was also re-designated as Technical Assistant and was promoted on ad hoc basis to the post of District Statistical Officer. Mr. Dilip Sharma has also placed on record the copy of notification dated 16th April, 1998 whereby the petitioner has been promoted on regular basis to the post of District Statistical Officer with effect from 1.1.1996. This has been done on the basis of directions issued by the learned Tribunal in O.A. No.1810 of 1992 titled R.K. Chhabra versus State of Himachal Pradesh and Another. The fact of the matter is that the petitioner has been promoted with effect from 1.1.1996 vide notification dated 16th April, 1998, however, Shri R.K. Chhabra was not reverted after the judgment was rendered by the learned Tribunal in T.A. No.295 of 1986 from the post of District Statistical Officer. The fact of the matter is that the petitioner has been promoted with effect from 1.1.1996 vide notification dated 16th April, 1998, however, Shri R.K. Chhabra was not reverted after the judgment was rendered by the learned Tribunal in T.A. No.295 of 1986 from the post of District Statistical Officer. He had worked uninterruptedly on the said post up to the date of issuance of notification dated 16th April, 1998. The petitioner for all intents and purposes is required to be treated at par with Shri R.K. Chhabra, who admittedly was junior to the petitioner in the impugned seniority list and the earlier seniority list circulated on 22.11.1988. This anomalous situation has arisen only for the reason that the learned Tribunal had not granted the petitioner the interim relief and the same was granted in the case of Shri R.K. Chhabra. The Tribunal was required to pass uniform orders in both the petitions preferred by the petitioner and Mr. R.K. Chhabra. Article 14 of the Constitution of India also applies to procedural law. The present petition and O.A. No.1810 of 1992 were required to be clubbed together to avoid variance in the orders. 11. Accordingly, in view of the observations made hereinabove, the petition is allowed. The respondents are directed to treat the petitioner’s case at par with Shri R.K. Chhabra for all intents and purposes including promotion etc. and to grant him all the consequential benefits within a period of eight weeks from today. There shall, however, be no order as to costs.