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2011 DIGILAW 189 (HP)

Dhian Singh v. State of H. P.

2011-01-05

V.K.SHARMA

body2011
JUDGMENT V.K. Sharma, J. The petitioner is a Kanungo. He belongs to a District cadre. The next promotional post is that of Naib Tehsildar, which is a State cadre. 2. It is not disputed that the petitioner is at the verge of retirement. He is going to retire on attaining the age of superannuation on 31.01.2011. He is aggrieved by the impugned Office Order dated 19.01.2010, issued by respondent no. 2, whereby private respondents No. 3 to 5, inter alia amongst others, have been promoted as Naib Tehsildar on ad hoc basis for a period Whether reporters of Local Papers may be allowed to see the judgment? No. It is further stipulated that it shall not confer any right upon them to claim any regular appointment. According to the petitioner, he is senior to private respondents No. 3 to 5. Thus, he was entitled for ad hoc promotion as Naib Tehsildar in preference to private respondents No. 3 to 5. 3. Against the above backdrop, the petition has been filed on the following prayer: “That the respondent may very kindly be directed to take into consideration the date of passing AMIE/BE by the petitioners while serving as Junior Engineers for reckoning three years experience for the purpose of promotion to the post of Assistant Engineer as per the verdict given by the Hon'ble Apex Court in Shalendra Dania's case and followed in the judgment 8.1.2010 in CWP No. 1358/2008 and LPA No. 65/2008, with all consequential benefits.” 4. In reply, on behalf of respondents No. 1 and 2, the following stand has been taken vide paras 3 and 8 on merits: “3. The contents of this para are admitted being a matter of record. However, it is submitted that as already submitted in preliminary submissions that as per rule 12 Kanungo Service rules, 19561 (copy already annexed as P-4) and instructions issued vide letter dated 20.02.2006 from the Financial Commissioner-cum-secretary (Revenue) to the Government of Himachal Pradesh, a person is eligible for appointment when he completes both the conditions of passing of examination and completion of training period. The petitioner has completed Revenue Settlement Training on 24.10.1991 and obtained efficiency certificate from Director, Land Records on 20.12.1993 i.e. well after the respondents No. 3 to 5, who became eligible on 13.11.1990, 13.11.1990 and 18.01.1991 respectively, therefore, the petitioner was junior to respondents No. 3 to 5 and the respondents No. 3 to 5 were rightly promoted as Naib Tehsildar vide this office order No. Commr-MND-EA-II-4(48)/2007-317-50 dated 19.01.2010. 8. The contents of this para are denied. The Government of Himachal Pradesh, Department of Personnel (AP-III) vide its letter No. PER. (AP)-C-E(3)-1/2008-Part dated 05.04.2008 (copy annexed as R-6) had advised to make adhoc promotions purely as a stop-gap arrangement on the basis of seniority subject to rejection of unfit without following the procedure for regular promotion. Since, the respondents No. 3 to 5 were senior to petitioner as already submitted in preliminary submissions, therefore, they were rightly promoted as Naib Tehsildar on adhoc basis on the basis of seniority.” 5. Reply on behalf of private respondents No. 3 to 5 is akin to that of official respondents No. 1 and 2. 6. Rejoinder refuting the stand on behalf of respondents No. 1 and 2 has also been filed. 7. With regard to making of ad hoc promotions, the learned counsel for the petitioner has relied on the legal position enunciated by the Hon'ble Supreme Court in the Direct Recruit Class-II Engineering Officers' Association and others vs. State of Maharashtra and others, AIR 1990 Supreme Court1607, particularly para 44(A) of the judgment, which is as under: “(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.” 8. Reliance has also been placed on Dr. V.K. Bhargava vs. State of H.P. and others, ILR (Himachal Series) (1985), page 358. Para 45 of the judgment, being relevant, is extracted below: “45. Reliance has also been placed on Dr. V.K. Bhargava vs. State of H.P. and others, ILR (Himachal Series) (1985), page 358. Para 45 of the judgment, being relevant, is extracted below: “45. It would also be convenient at this stage to dispose of the contention advanced by the learned Advocate-General on behalf of the first respondent that the policy decision regarding ad hoc promotions, Annexures-A and B to the supplementary affidavit filed on behalf of the said respondent, does not govern ad-hoc appointments to posts which are decided to be filled in regularly on the basis of direct recruitment. We cannot help observing that the argument is wholly incomprehensible. The circulars do not in terms provide for their inapplicability to such situation. The true scope and effect of those circulars has already been examined in the earlier part of this judgment. As there observed, it is manifestly clear that the circular Annexure-A embodies a policy decision in relation to all ad-hoc appointments, irrespective of the underlying considerations or duration of such appointments and that, accordingly, all such appointments must be made on the basis of seniority subject to two exceptions, unfitness and the pendency of vigilance case. The circular, Annexure-B, modifies the previous circular by engrafting a further condition which is applicable only in two cases, namely, when under the relevant recruitment rules, promotion is to be made from more than one feeder category on the basis of specific percentages prescribed for persons holding different qualifications. In such cases, while making ad-hoc appointments, the relevant provisions of the recruitment rules must also be kept in mind in addition to requirements laid down in Annexure-A. In our opinion, therefore, the submission merits rejection.” 9. Whereas according to the petitioner, his seniority is to be reckoned on the basis of communication dated 3rd November, 1993, Annexure P-3, addressed by the Financial Commissioner-cum-Secretary (Revenue) to the Government of Himachal Pradesh to the Director, Land Records, Himachal Pradesh, whereby a direction was issued to issue efficiency certificate in favour of the petitioner forthwith and to reckon his seniority as Kanungo in District Hamirpur w.e.f. 07.01.1988. To the contrary, it is contended on behalf of the respondents that since efficiency certificate Annexure P-1, was issued in favour of the petitioner only on 20.12.1993, he was junior to private respondents No. 3 to 5, who were issued such certificates much prior to him in 1990 and 1991. Insofar as the controversy with regard to issuance of efficiency certificate is concerned, suffice it to say that on a bare perusal of certificate, Annexure P-1, it is manifestly clear that the petitioner had passed the requisite Kanungo examination making him eligible for issuance of efficiency certificate during the year 1980 as such examination was held on 29th and 30th April, 1980, albeit the fact that certificate Annexure P-1 was issued long time thereafter only on 20.12.1993. With regard to the seniority of the petitioner there is no doubt that it would be reckoned from 07.01.1988 as such seniority was assigned to him by the Financial Commissioner-cum-Secretary (Revenue) vide communication, Annexure P-3, by accepting his appeal in this regard to which no challenge is shown to have been laid. 10. In view of the above, when the comparative table with regard to inter se seniority of the petitioner and private respondents no. 3 to 5 and respective dates of their obtaining efficiency certificates from Director Land Records is considered, it is apparent that the petitioner who has been assigned seniority w.e.f. 07.01.1988, is senior to private respondents No. 3 to 5, whose dates of seniority are 18.06.1988, 27.01.1989 and 27.04.1988, respectively. Similarly, since the petitioner is proved to have qualified the Kanungo examination held on 29th and 30th April, 1980, though certificate, Annexure P-1, to this effect was issued in his favour only on 20.12.1993 and that too pursuant to the direction issued by the Financial Commissioner-cum-Secretary (Revenue) vide communication dated 3rd November, 1993, Annexure P-3, on this score as well he has a preferential right for promotion, as compared to the private respondents No. 3 to 5, who obtained such certificate only on 13.11.1990, 13.11.1990 and 18.01.1991, respectively. 11. Even in terms of Rule 12 of the Rules, known as the Himachal Pradesh Kanungo Service Rules, 1951 (in short 'the Rules'), which is extracted below, the substantive appointment of the petitioner as Kanungo as per Annexure P-3 would be 07.01.1988: Seniority of member of the service. 12. 11. Even in terms of Rule 12 of the Rules, known as the Himachal Pradesh Kanungo Service Rules, 1951 (in short 'the Rules'), which is extracted below, the substantive appointment of the petitioner as Kanungo as per Annexure P-3 would be 07.01.1988: Seniority of member of the service. 12. The seniority of the members of the service shall be determined by the date of their substantive appointment provided that if two or more members are appointed substantively on the same date their seniority shall be determined according to the orders in which their names are entered by the director of Land Records in the list of Kanungos candidate maintained in his office. 12. Even otherwise, the impugned promotions have been made on ad hoc basis. In such promotions normally the rule of seniority is to prevail unless the incumbent is otherwise ineligible to be promoted either on account of adverse service record or any other ineligibility. 13. In view of the above, the petition is allowed with a direction to respondent No. 2 to consider the case of the petitioner for promotion as Naib Tehsildar on ad hoc basis over and above private respondents No. 3 to 5 in accordance with law and justice within a fortnight from the date of production of copy of this judgment by the petitioner, as he is going to retire from government service on attaining the age of superannuation on and w.e.f. 31.01.2011. 14. The petition stands disposed of, so also pending CMP(s), if any.