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2011 DIGILAW 171 (HP)

Rajani Devi v. State of Himachal Pradesh

2011-01-05

DEEPAK GUPTA

body2011
JUDGMENT Deepak Gupta, J. 1. These two petitions are being disposed of by a common judgment since common questions of fact and law are involved in these cases. 2. Brief facts necessary for decision of the present writ petitions are that the petitioners and some other persons were appointed as Clerks in the Himachal Pradesh Secretariat on secondment basis. They were all working in different department or Government undertakings. In fact some of the petitioners were working as Constables in the Police Department. 3. On 8th May, 2006, a communication was addressed to the various Heads of Departments and Undertakings that some posts of clerks in the H.P. Secretariat were to be filled up on secondment basis initially, for a period of one year, from amongst clerks with at least two years service in the parent Department/Board/Corporation. It was also directed that the names of those clerks who are desirous of being appointed in the Secretariat and are proficient in Hindi/English typewriting and have knowledge of word processing on computers may be sent by the Department to the Secretariat. It was specifically mentioned that no direct applications would be entertained and it was also ordered that the resultant vacancies in the Departments would not be filled in. 4.There is some dispute with regard to the fact as to whether the petitioners who applied for appointment as clerks pursuant to such advertisement or whether some of them had in fact been instrumental in getting this entire process started but in view of the decision which I propose to take it is not necessary to go into these disputed questions of fact. Though the appointment of the petitioners was initially made only for a period of one year, it appears that after such appointment was made a process started to have these persons permanently absorbed in the Secretariat in relaxation of the R&P Rules. It is also apparent from the record that initially the H.P. Public Service Commission had some reservations with regard to this method of appointment but finally the Public Service Commission also gave its consent and the Cabinet approved the memorandum placed before it for permanently absorbing the petitioners in the Secretariat. It is also apparent from the record that initially the H.P. Public Service Commission had some reservations with regard to this method of appointment but finally the Public Service Commission also gave its consent and the Cabinet approved the memorandum placed before it for permanently absorbing the petitioners in the Secretariat. As a result of the Cabinet decision, the petitioners were permanently absorbed in the Secretariat on 21st July, 2007, though there was a condition that the absorption would be on temporary basis and the petitioners initially would be on probation for a period of two years. 5. Thereafter, elections to the State Legislative Assembly were held and there was a change in the Government. After the Government changed it was found that the petitioners had been wrongly absorbed in the Secretariat and therefore they were ordered to be repatriated to their parent Departments vide order dated 26th February, 2008. These orders were challenged by the petitioners by filing two separate sets of O.As before the erstwhile H.P. State Administrative Tribunal which rejected the same. Thereafter, the petitioners approached this Court by filing CWP Nos.667/2008 and 734 of 2008. Various contentions were raised before this Court. It was contended that petitioners having been permanent absorbed could not be repatriated; it was further contended that the petitioners were appointed after relaxing the Rules and such Rules were relaxed in consultation with the H.P. Public Service Commission; that approval of the Departments of Finance and Personnel was taken before absorption of the petitioners; that the impugned order had been passed in violation of the principles of natural justice; it was also contended that a conscious decision taken by t he State Government could not be changed or reviewed by a subsequent Government without any cogent or convincing reasons. 6. The State opposed the said writ petitions and the main plea raised was that the initial recruitment of the petitioners on secondment basis was contrary to the R&P Rules. It was also submitted that the previous Government had taken a policy decision which could be changed by the subsequent Government and it was contended that the petitioners had no lien on any post in the Himachal Pradesh Secretariat. 7. These petitions were disposed of by a very detailed judgment passed by a Division Bench of this Court on 22.12.2008. It was also submitted that the previous Government had taken a policy decision which could be changed by the subsequent Government and it was contended that the petitioners had no lien on any post in the Himachal Pradesh Secretariat. 7. These petitions were disposed of by a very detailed judgment passed by a Division Bench of this Court on 22.12.2008. This Court while disposing of the aforesaid writ petitions made the following observations: “22.What emerges from the discussion made hereinabove on the basis of the record is that the petitioners after their suitability was adjudged by the screening committee were appointed on secondment basis in the Himachal Pradesh Secretariat. The proposal was mooted at the highest level. The pros and cons of the proposal were gone into by the department. The department was aware that before the petitioners are absorbed, it has to seek the permission of the Finance Department and Department of Personnel in consultation with the Himachal Pradesh Public Service Commission. The mode of recruitment as per the rules is 90% by way of direct recruitment and 10% by way of promotion failing which by direct recruitment. The proposal to fill up the posts was made on the basis of shortage of staff in the Himachal Pradesh Secretariat. The petitioners were nowhere instrumental in getting the letter dated 8th May, 2006 issued to all the Heads of Departments/Boards/Corporations and Universities. A conscious decision had been taken by the Department to fill in the posts on secondment basis only from those candidates, who were proficient in Hindi/English typewriting with knowledge of word processing of computer. The department had conducted the typing and computer test to assess the suitability of the petitioners. The Finance Department has given the concurrence and the Himachal Pradesh Public Service Commission after seeking certain clarifications had accorded the sanction to permit the department to fill in the posts by way of absorption. The entire matter was placed before the Council of Ministers by way of memorandum. The Council of Ministers had concurred with the proposal which led to absorption of the petitioner on 21st July, 2007. 23. Now, we have to consider whether the petitioners could be repatriated without following the principles of natural justice or not? The entire matter was placed before the Council of Ministers by way of memorandum. The Council of Ministers had concurred with the proposal which led to absorption of the petitioner on 21st July, 2007. 23. Now, we have to consider whether the petitioners could be repatriated without following the principles of natural justice or not? It is clearly stipulated in subclause (b) of clause 2 of the appointment letter that in case the petitioners’ conduct was not found satisfactory during their probation period, they were liable to be repatriated to their parent departments. The State has failed to produce any record casting aspersion on the work and conduct of the petitioners. In other words, the work and conduct of the petitioners was found satisfactory. In normal circumstances they were to be confirmed after observing their work and conduct for two years. We are of the considered opinion that the petitioners were required to be heard before they were repatriated on 26.2.2008. The order of repatriation has visited the petitioners with civil consequences. It is settled law that no order should be passed, which has civil consequences without complying with the principles of natural justice.” 8. Thereafter, the Court referred to various judgments and gave the following findings in para 26: “26. The petitioners after their secondment have been absorbed. It was only after their absorption that they have been put on probation. If they were on secondment there was no question of their being appointed on probation period as mentioned in their appointment letters. Once they have been absorbed in the Himachal Pradesh Secretariat, their roots with the parents departments were severed. In other words, the master servant relationship in the lending department had come to an end…..” 9. In para 27 the Court held as follows: “27……The Himachal Pradesh Public Service Commission is a constitutional authority and it is presumed that it has applied its mind before according sanction for filling up the posts by way of absorption. The Finance Department as well as Department of Personnel has also given the approval, as noticed above. The requisite codal formalities for absorption of the petitioners were gone into before the decision was taken to absorb them.” 10. The Court summarized its findings in para 37 in the following terms: ”37.The reasons can be gathered from the record and other attending circumstances. The requisite codal formalities for absorption of the petitioners were gone into before the decision was taken to absorb them.” 10. The Court summarized its findings in para 37 in the following terms: ”37.The reasons can be gathered from the record and other attending circumstances. The decision for filling up the posts by way of secondment was that there was dearth of staff in the Himachal Pradesh Secretariat. The process was initiated and it culminated in filling up the posts on secondment basis and thereafter the petitioners were absorbed after completing all the codal formalities.” 11. The Court thereafter in para 50 went on to hold as follows: “50. We are of the considered opinion that the executive decision termed as policy decision by the learned Advocate General is contrary to the provisions of Article 14 of the Constitution of India. The petitioners had a right to continue once they have been absorbed and could not be arbitrarily repatriated. The barest minimum which was expected from the State in the present case was that at least a reasonable opportunity should have been afforded to the petitioners to place their case before it, more particularly, when nothing adverse has been shown to be existing against the petitioners qua their work and conduct while discharging their duties of Clerks after their absorption.” 12. Thereafter, the Court disposed of the writ petition vide its directions contained in para 53 which read as follows: “53. Consequently, in view of the observations made hereinabove, the writ petitions are disposed of with the following directions: i) The order of the learned Tribunal dated 25.4.2008 and order dated 26.2.2008 are quashed and set aside. ii) The respondents are directed to re-consider the case of the petitioners in view of the aforesaid reasoning within a period of eight weeks from today. The respondents shall pass a speaking order while taking a fresh decision in accordance with law. iii) The State Government is permitted to fill up the posts of clerks and it can also make appointments, however, these appointments shall be subject to the final outcome of the decision taken by the State Government.” 13. After the decision of the earlier writ petitions, the State issued show cause notices to the petitioners and one of the main grounds raised again was that the petitioners had been appointed in total violation of the Rules. After the decision of the earlier writ petitions, the State issued show cause notices to the petitioners and one of the main grounds raised again was that the petitioners had been appointed in total violation of the Rules. It was also alleged that the irregularities had been noted in the selection process and thus the selection process itself was vitiated since it suffered from many irregularities and infirmities. The last point was that the services of clerks the Department but had been initiated at the instance of Smt.Pushpa Devi, petitioner No.6 who was a lady Constable posted at the residence of the then Chief Minister. According to the State, the entire process emanated from here were taken on secondment basis only for a period of one year during which period their suitability was to be assessed and therefore their absorption before even this one year had elapsed, showed that there was some extraneous reasons for permanently absorbing the petitioners. 14. After considering the replies to the show-cause notices the State vide its order dated 18.7.2009 again repatriated the petitioners to their original Departments and as on date all the petitioners, except Smt.Rajni Devi, petitioner in CWP No.238 of 2009, are working in their original Departments whereas Smt.Rajni Devi is still working in the H.P. Secretariat. These orders have been challenged by the petitioners in this Court. 15. This petition has been opposed by the State on various grounds. According to the State this Court in its earlier judgment dated 22.12.2008 had given liberty to the State Government to reconsider the matter and take a fresh decision. According to the State various irregularities were found in the appointment of the petitioners. These may be enumerated as follows: i) that the process of taking over the services of the petitioners on secondment basis had not been initiated by ii) It is alleged that the petitioner No.6 and one other petitioner who were working as Constables had never worked in the clerical cadre and were not even eligible for appointment in the Secretariat. iii) That the record now attached with the reply reveals that it was the then Chief Minister who pursued the matter and ensured that a decision in this regard was taken to fill in the posts of clerks by secondment. iii) That the record now attached with the reply reveals that it was the then Chief Minister who pursued the matter and ensured that a decision in this regard was taken to fill in the posts of clerks by secondment. iv) It is urged that though initially the Finance Department as well as the H.P. Public Service Commission had expressed reservations regarding this mode of appointment, suddenly within a period of one or two days all these Departments fell into line and relaxation of the Rules was approved in a hot haste manner which showed that there was some extraneous pressure. v) It is next contended that the letter which was issued to the Departments/Boards only indicated that the names of those candidates be sent who are desirous of serving in the Secretariat on secondment basis for a period of one year initially. In this letter it was also stated that typing and computer test should be conducted. It is contended that if it had been held out that such persons may be regularized/permanently absorbed in the Secretariat many more applications would have been received. vi) According to the respondents-State though initially the date of screening test was fixed on 18th and 19th September, 2006, the same was actually conducted only on 21st and 22nd September, 2006 and there is nothing on record to suggest how the candidates were communicated the changed schedule of interview. This also casts a doubt on the fairness of the selection process. vii) The respondents State has also produced entire record of selection and challenged the entire selection process itself on the ground that the marks given to various candidates clearly show bias and total non-application of mind. No criteria is laid down for allotting the marks under different heads and further more people with much higher qualifications have been given extremely low marks and persons who were only matriculates were given much higher marks. According to the State the entire process smacks of nepotism and favouritism. viii) It was also contended that there was not enough time to judge the suitability of the candidates and the decision to permanently absorb them in the Secretariat is totally illegal. According to the State the entire process smacks of nepotism and favouritism. viii) It was also contended that there was not enough time to judge the suitability of the candidates and the decision to permanently absorb them in the Secretariat is totally illegal. ix) It was also contended that there is material on record to show that a NGO leader whose wife was one of the selected candidates had interfered in the matter and was instrumental in getting the petitioners permanently absorbed in the Secretariat. 16. I have heard S/Sh.Shrawan Dogra and Bipin Negi, learned counsel for the petitioners and Sh.Satya Pal Jain, learned Senior Advocate appearing on behalf of the State. 17. Various contentions have been raised before me. According to Sh.Dogra the impugned orders are not reasoned orders and the State has passed these orders with a pre-determined mind and in a mechanical manner. The orders are based on new facts which were not disclosed in the earlier petitions and it is contended that the State cannot be permitted to change the entire case and now take up new pleas which were not raised in the earlier petition. Sh.Dogra has also contended that in fact the Division Bench in the earlier judgment has given clear-cut findings which were never challenged by the State and in these proceedings the State cannot challenge the same. 18. On the other hand, Sh.Satya Pal Jain, has urged that true facts were not brought to the notice of the Division Bench which decided the matter earlier and that once the matter was remanded to the State Government, the State Government had a right to re-initiate the proceedings and to even issue a notice on fresh aspects of the matter. He also urged that various findings of the Division Bench are not based on record and a perusal of the record would show that these observations or findings are absolutely wrong. He has also submitted that no prejudice is going to be caused to the petitioners since they all continue to be in service and are serving in their parent Departments. It is also submitted that for the various reasons set-out above, the decision of the earlier State Government was totally illegal and must be reviewed. He submits that now the Rules of natural justice have been followed; there is no violation of the Fundamental Rights of the petitioners. It is also submitted that for the various reasons set-out above, the decision of the earlier State Government was totally illegal and must be reviewed. He submits that now the Rules of natural justice have been followed; there is no violation of the Fundamental Rights of the petitioners. He has raised certain interesting points to support his contention that the temporary appointment of the petitioners was changed to permanent absorption for totally extraneous reasons. It has also been contended by him that in view of the observations made by a Division Bench in para 53 of the judgment the Government was required to decide the matter afresh and according to him there were no fetters on the powers of the Government. He contends that once the matter was remanded the Government could reopen the entire matter, otherwise the Division Bench would itself have allowed the petitions. 19. Before dealing with the rival contentions of the parties and the merits of the case, at the outset I would like to State that in a case like the present one, this Court cannot sit in judgment over the orders already passed by a Division Bench of this Court. This judgment of the Division Bench dated 22.12.2008 has attained finality. A perusal of the judgment especially the portions quoted hereinabove clearly show that the Division Bench after considering the facts placed before it gave its findings. The Division Bench found that the petitioners had been appointed after fulfilling all codal formalities and after obtaining approval of the H.P. Public Service Commission for relaxation of the Rules. The Division Bench also found that the pay of the petitioners had been fixed after treating them as permanently absorbed. The Division Bench came to a finding that the suitability of the petitioners was adjudged by a Screening Committee and thereafter relaxation given. The Division Bench also held that the State had failed to produce any record to show that the work and conduct of the petitioners was unsatisfactory. The findings of the Division Bench in para 26 clearly indicate that the Division Bench came to the conclusion after that after the secondment of the petitioners they had been absorbed in the Secretariat and on such absorption their roots with the parent Department stood severed. These findings were not challenged by any party and have attained finality. 20. The findings of the Division Bench in para 26 clearly indicate that the Division Bench came to the conclusion after that after the secondment of the petitioners they had been absorbed in the Secretariat and on such absorption their roots with the parent Department stood severed. These findings were not challenged by any party and have attained finality. 20. It has been strongly urged by Sh.Satya Pal Jain that the Division Bench had not given any conclusive findings and he draw strength to support his argument from the words “observations” used in para 53 of the judgment. However, direction No.(ii), clearly shows that the respondents were directed to reconsider the case of the petitioners in view of the aforesaid reasoning. (emphasis supplied). This clearly indicates that the Court had directed the State to decide the matter in the light of what had been stated by the Court in the main judgment. It is a moot point whether after giving its complete findings in favour of the petitioners, the Division Bench should have remanded the case back to the State Government or not, but this Court cannot sit in appeal over such directions of the Division Bench. 21. It has been urged by Sh. Satya Pal Jain that certain material which is now on record clearly shows that the proposal to fill up the posts on secondment basis emanated from the actions of the petitioners and the then head of the political executive but this question should have been raised in the previous petitions itself. Similarly, the other questions raised as to the irregularities and illegalities of the selection process should have been raised and argued in the earlier petitions. In case they had been raised and not answered then the State should have either filed a Review Petition or an Appeal before the Apex Court but the State cannot expect that this Court, sitting singly, shall review or take a view which is contrary to the one taken by the Division Bench. Even if, I was to disagree with the observations of the Division Bench, judicial discipline demands that in subsequent proceedings I should refrain from doing so. Once a judgment has been delivered it can be challenged only in accordance with the procedure prescribed by law and such judgment cannot be set-aside or nullified in collateral proceedings. 22. Even if, I was to disagree with the observations of the Division Bench, judicial discipline demands that in subsequent proceedings I should refrain from doing so. Once a judgment has been delivered it can be challenged only in accordance with the procedure prescribed by law and such judgment cannot be set-aside or nullified in collateral proceedings. 22. In view of above factors, I feel that it is not necessary to go into the other points raised in the petitions. Since the Division Bench in its judgment dated 22.12.2008 had clearly come to the conclusion that the petitioners stood permanently absorbed in the Secretariat and their lien in their parent Departments had come to an end, they could not be repatriated and these findings are binding upon me. 23. In view of the aforesaid discussion, both the petitions are allowed and the impugned orders dated 18th July, 2009 repatriating the petitioners to their parent Departments are set-aside. While allowing the petitions, I am not oblivious to the fact that I have not answered certain important questions raised by the State, but I have purposely refrained from answering those questions in view of the constraints that judicial discipline places upon me. Therefore, while allowing the writ petitions, I further direct that this judgment shall become operative only w.e.f. 1st April, 2011 so that the State if it so desires can seek its remedy in an appropriate forum. As a result the petitioners shall continue to work at the place where they are working till 31st March, 2011. No costs.