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Himachal Pradesh High Court · body

2009 DIGILAW 707 (HP)

GURU LAL NEGI v. STATE OF H. P.

2009-08-11

SANJAY KAROL

body2009
JUDGMENT Sanjay Karol, J. (Oral):-Record perused. Heard learned counsel for the parties. 2. The petitioner has prayed for the following relief:- “(a) That the directions may be issued to the respondents to consider the applicant to the post of Under Secretary in the H.P. Secretariat against the reserved post meant for Scheduled Tribe candidates from the due date with all consequential benefits.” 3. For filling up the posts of Section Officers, Class-II, in the pay scale of Rs. 825 –1580 plus Rs. 100 Special per month, a Committee was constituted by the respondent/State. In all candidates for 33 vacant and anticipated vacancies were to be considered. The Departmental Promotion Committee met on 19.2.1986 and after taking into account the service record of all the eligible persons, recommended names of 35 officers for promotion to the said posts. The Committee found the integrity and the vigilance clearance certificate of all the candidates to be in order. The petitioner being a Scheduled Tribe candidate was placed at Sl. No. 29 of the selection list. Undisputedly first 28 candidates were appointed/ promoted as Sections Officers on regular basis. However with respect to the petitioner, order dated 4.9.1986 was issued appointing him as Section Officer against the leave/short term vacancy with immediate effect. Admittedly petitioner continued to function as such till 16.7.1990 when the Government issued an order appointing him on regular basis. 4. In terms of the Recruitment and Promotion Rules as applicable to post of Section Officer in the H.P. Secretariat, petitioner was to be on probation for a period of two years. Subject to fulfillment of certain conditions the said Rules stipulated a provision for further promotion during the period of probation itself. The relevant extract of the Rules is reproduced as under:- “Note No. 2 : Every member of the service shall pass a departmental examination as prescribed in the Departmental Examination Rules within the probation period or within two years from the notification of these rules whichever is later failing which he shall not be eligible for: 1) Cross the efficiency bar next due. 2) Confirmation in the service; and 3) Promotion to the next higher post. Provided that if a member becomes otherwise eligible for promotion, within the period mentioned above he shall be considered for promotion if otherwise found fit shall be promoted provisionally subject to his passing the Departmental examination. 2) Confirmation in the service; and 3) Promotion to the next higher post. Provided that if a member becomes otherwise eligible for promotion, within the period mentioned above he shall be considered for promotion if otherwise found fit shall be promoted provisionally subject to his passing the Departmental examination. He may be reverted if he fails to pass the same. Provided further that an officer who has qualified the Departmental examination in whole or in part prescribed under any other rules before the notification of these rules, shall not be required to qualify the whole or in the part of the examination as the case may be: Provided further that an officer for whom no departmental examination was prescribed prior to the notification of these rules and who has attained the age of 45 years on the 1st of March, 76 shall not be required to qualify the departmental examination prescribed under these rules.” (Emphasis supplied) As per the final seniority list of Section Officers circulated on 15.9.1993 petitioner was assigned seniority at Sr. No. 31 and his date of appointment was reflected as 4.9.1986 (temporary) and 16.7.1990 (regular). It is the petitioner’s grievance that even though he was fully eligible for promotion to the next higher post i.e. under Secretary non-HAS, Government of Himachal Pradesh he was not considered by the respondent-State at the time when the D.P.C. was held on 5.8.1992. The Himachal Pradesh Class-I (Under Secretaries–Non-HAS) Recruitment and Promotion (First Amendment) Rules, 1991 inter alia, specifically provide as under: “Col. 11Section Officers with atleast 5 years regular service or regular combined with ad-hoc service (rendered upto 13.3.1991), if any, in the grade (Permanent and Quasi Permanent Section Officers will be eligible for promotion).” 5. As on 5.8.1992 admittedly petitioner had not cleared the departmental examination as Gazetted Officer but however it is undisputed that the said departmental examination was subsequently cleared by him. It is also undisputed that petitioner was subsequently promoted as Under Secretary on 30.7.1994. 6. The respondents have opposed the petition on the ground that as on the date when the D.P.C. for promotion to the post of Under Secretaries was held on 24.3.1993 petitioner had not only not fulfilled the eligibility criteria of five years regular service but had also not cleared his departmental examination. 7. 6. The respondents have opposed the petition on the ground that as on the date when the D.P.C. for promotion to the post of Under Secretaries was held on 24.3.1993 petitioner had not only not fulfilled the eligibility criteria of five years regular service but had also not cleared his departmental examination. 7. It is not disputed at the Bar that the date on which the D.P.C. was held has been wrongly mentioned in the return and the actual date is 5.8.1992 itself. 8. The question which needs to be considered is as to whether the petitioner was entitled to have been considered for promotion as on 5.8.1992. 9. The Rules specifically provide for promotion even during the period of probation if otherwise he is eligible and clears his departmental examinations subsequently. Hence the objection taken by the State that the petitioner ought to have cleared his departmental examination as on the date of holding of the D.P.C. is contrary to the Rules and thus untenable in law. Petitioner being otherwise eligible could have been considered for higher promotion as far as Recruitment and Promotion Rules for the post of Section Officer is concerned. 10. Column 11 of the Recruitment and Promotion Rules of the Under Secretaries does not lay down any condition of educational qualification. The only requirement being that a Section Officer must have at least five years regular service or “regular combined with ad hoc service rendered upto 13.3.1991”. As such petitioner having been otherwise appointed through regular D.P.C. on 4.9.1986 even though against leave vacancy on temporary basis was fully eligible for being considered for promotion to the post of Under Secretary as prior to 13.3.1991 he had already completed five years of ad hoc service combined with his regular service. The period of his ad hoc service is prior to 13.3.1991. This interpretation given by the respondents themselves is evident from the petitioner’s promotion in the year 1994. 11. The State of Himachal Pradesh has issued a Handbook on Personnel Matters which, insofar as the State is concerned has been regularly adopted and uniformally applied. The same are still in vogue. Chapter 16 para 35 of the said instruction provides for as under:-16.35 What is an adhoc appointment 12. The guarantee of equality before law enshrined in Article 14 of the Constitution of India embraces the entire realm of “State action” including giving of jobs. The same are still in vogue. Chapter 16 para 35 of the said instruction provides for as under:-16.35 What is an adhoc appointment 12. The guarantee of equality before law enshrined in Article 14 of the Constitution of India embraces the entire realm of “State action” including giving of jobs. Further, Article 16 of the Constitution of India provides for equality of opportunity for all citizens in matters relating to employment to any office under the State. To ensure compliance of these provisions of the Constitution as also the provisions of Article 320 of the Constitution, Recruitment and Promotion Rules of all posts are required to be framed under Proviso to Article 309 of the Constitution of India. Further all appointments are required to be made strictly according to the provisions of the recruitment and Promotion Rules and by following the prescribed procedure. Any appointment which is made without following the provisions of the Recruitment and Promotion Rules or the prescribed procedure is to be termed as “adhoc appointment”. 13. Petitioner is much better placed. His appointment is actually in compliance of all rules. Hence service rendered by the petitioner even as against leave vacancy/short term vacancy is to be considered as ad hoc service and combined with regular service. It is not the case of the State that there was any break in the petitioner’s service pursuant to his appointment on 4.9.1986. He continued without even a single day’s break. It has not been explained as to why the petitioner was appointed against leave vacancy/short term vacancy when in fact there were 33 vacancies either available or anticipated as on 19.2.1986 when the D.P.C. was convened for filling up the posts of Section Officers. 14. The Apex Court in Delhi Water Supply and Sewage Disposal Committee and others versus R. K. Kashyap and others, 1989 Supp (1) SCC 194 while dealing with the cases of Executive Engineers appointed with the Delhi Water Supply and Sewage Disposal Undertaking where inter se seniority between the regularly appointed persons and persons who were appointed on officiating basis has held as under: “The principle of counting service in favour of one should not, however, be violative of equality of opportunity enshrined in articles 14 and 16. The length of service in ad hoc appointment or stopgap arrangement made in the exigencies of service without considering the claims of all the eligible and suitable persons in the cadre ought not be reckoned for the purpose of determining the seniority in the promotional cadre. To give the benefit of such service to a favoured few would be contrary to the equality of opportunity enshrined in Articles 14 and 16. But if the claims of all eligible candidates were considered at the time of ad hoc appointments and such appointments continued uninterruptedly till the regularisation of services by the Departmental Promotion Committee or the Public Service Commission there is no reason to exclude such service for determining the seniority. Of course, if any statutory rule or executive order provides to the contrary, the rule or order will have supremacy. In the absence of any rule or order the length of service should be the basis to determine the seniority.” 15. Thus for the aforesaid reasons stand taken by the respondent-State that the petitioner was not eligible to have been considered for the post of Under Secretary is untenable in law and contrary to their own rules and guidelines. The present petition which is confined to prayer (a) needs to be allowed. Respondents are directed to consider the case of the petitioner for promotion to the post of Under Secretary as on 5.8.1992. The same shall be done in accordance with law. In the event of the respondent-State finding the petitioner eligible and passing an order of promotion, all consequential benefits shall follow. Needful be done within a period of eight weeks from the date of receipt of the certified copy. 16. For the aforesaid reasons the petition is allowed. CMP(T) No. 361/2008 and CMP(T) No.362/2008 Not pressed. Disposed of as such.