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Himachal Pradesh High Court · body

2012 DIGILAW 888 (HP)

Hari Chand v. H. P. University Summer Hill Shimla

2012-11-27

V.K.SHARMA

body2012
Judgment V.K. Sharma, J. Heard. 2. The dispute raised in this petition concerns the inter se seniority between the petitioner, Shri Hari Chand, and private respondent No. 4, Shri Umakant, as Junior Scale Stenographers to which post they were initially appointed on the establishment of the respondent-University and were later on granted promotions and were working as Personal Assistants (P.As) at the time of filing of the petition in the year 2004. 3. Some undisputed facts may be noticed first. On 09.07.1986 both, the petitioner as also private respondent No. 4 alongwith three other candidates, namely, S/Sh. Diwakar Dutt, Rajinder Kumar and Dinesh Sharma, were recruited as Junior Scale Stenographers, in order of merit as given below on the basis of shorthand and typewriting test and personal interview, purely on ad hoc basis for a period of one year from the date of joining, subject to the condition that in case they failed to qualify the shorthand and typewriting test at the requisite speed of 80 w.p.m and 40 w.p.m, respectively, within a period of one year in four chances, their services would be terminated after the expiry of the said period of one year without any notice: Sr. No. Name in order of merit. Quality points. 1. Shri Hari Chand 13.3. 2. Shri Diwakar Dutt 13.1 3. Shri Rajinder Kumar 12.2 4. Shri Umakant 11.7 5. Shri Dinesh Sharma 11.0 4. However, whereas the private respondent was able to qualify the shorthand and typewriting test with the requisite speed within the stipulated period of one year on 30.06.1987, the aforesaid S/Sh. Diwakar Dutt and Rajinder Kumar could qualify the test only beyond that period on 29.07.1987 and the petitioner still thereafter on 29.08.1987. However, all three of them were allowed to continue in service alongwith private respondent and were later on regularized, inter aliaanother, vide Office Order dated 21.11.1989 from the respective dates mentioned against each as below: Junior Scale Stenographers Sr. No. Name. Date of regularization 1. Shri Hari Chand 14.07.1987 2. Shri Diwakar Dutt 15.07.1987 3. Shri Rajinder Kumar 15.07.1987 4. Shri Umakant 02.08.1987 5. Shri Dinesh Sharma 18.07.1987 6. Shri Ranvir Singh Pal 06.07.1988 5. The above Office Order dated 21.11.1989 has been made available for perusal of the Court by the respondents at the time of disposal of the petition at the hearing stage. 6. Shri Diwakar Dutt 15.07.1987 3. Shri Rajinder Kumar 15.07.1987 4. Shri Umakant 02.08.1987 5. Shri Dinesh Sharma 18.07.1987 6. Shri Ranvir Singh Pal 06.07.1988 5. The above Office Order dated 21.11.1989 has been made available for perusal of the Court by the respondents at the time of disposal of the petition at the hearing stage. 6. Later on, the petitioner, the private respondent and the said S/Sh. Diwakar Dutt, Rajinder Kumar and Dinesh Sharma were confirmed as Junior Scale Stenographers w.e.f. 02.08.1988, vide copy of proceedings of the Recruitment and Promotion Committee (in short ‘R & PC’), dated 25.11.1992, Annexure P-9, after due consideration of the representation submitted by the private respondent that as he had qualified the shorthand and typewriting test within the specified period of one year, vis-à-vis the petitioner, who could qualify that test only after expiry of the said period of one year, he would rank senior to him. Consequently, final seniority list of Junior Scale Stenographers Grade-I and II as on 01.01.1994, Annexure R-5, was issued in which the petitioner figured at serial No. 2 and the said S/Sh. Diwakar Dutt and Rajinder Kumar at serial Nos. 3 and 4 and the private respondent at serial No. 5. 7. Thereafter, the private respondent filed CWP No. 122 of 1994, titled Shri Uma Kant Gairola vs. Himachal Pradesh University and others in this Court. Copy of the reply filed by the respondent-University in that petition is available on the records of this case as Annexure P-4 at pages 67 to 82 alongwith a fair copy thereof at pages 83 to 95. However, the same was dismissed, on the point of jurisdiction, vide order dated 22.09.1997, Annexure P-5, which is as under: “22.9.1997. Present: Mr. Rajeev Sharma for the petitioner. Mr. D.C. Jishtu for respondent No. 1. Mr. Rakesh Jaswal for respondents No. 2 to 4. This matter is governed by the provisions of the Administrative Tribunal Act, in view of the Full Bench Judgment of this Court in C.W.P. No. 170 of 1990, Dr. M.P. Dwivedi and others vs. Dr. Y.S. Parmar University & another, decided on 18.9.1997. Hence, this petition is dismissed with liberty to the petitioner(s) to approach the appropriate forum for relief. 2. If a question of limitation arises, the Tribunal can take note of the fact that these proceedings were pending in this Court, till this date. 3. M.P. Dwivedi and others vs. Dr. Y.S. Parmar University & another, decided on 18.9.1997. Hence, this petition is dismissed with liberty to the petitioner(s) to approach the appropriate forum for relief. 2. If a question of limitation arises, the Tribunal can take note of the fact that these proceedings were pending in this Court, till this date. 3. Interim order, if any, is vacated. Sd/- (M.Srinivasan) Chief Justice Sd/- (A.L.Vaidya) Judge” 8. Admittedly, the private respondent did not avail of the liberty reserved to him under the aforesaid order dated 22.09.1997 and instead pursued the matter with regard to grant of seniority over and above the petitioner with the concerned authorities of the respondent-University, namely, the Vice Chancellor and the Chancellor by reiterating his earlier representations dated 15.09.2001, 24.09.2001 and 09.10.2001, Annexure R-2, by moving a fresh representation dated 22.10.2001, Annexure R-1. 9. It shall be pertinent to observe at this stage that in the meantime both, the petitioner and the private respondent, have since been further promoted as Private Secretary and Senior Private Secretary, respectively. 10. As already noticed, the initial appointment of the petitioner and the private respondent as Junior Scale Stenographer was purely on ad hoc basis, apparently made under Rule 7 of the Himachal Pradesh University Ministerial and Administrative Service (Recruitment, Promotion and Certain Conditions of Service) Rules, 1973 (in short ‘R & P Rules’) issued vide Notification dated 6th February, 1973, a copy of which has been made available by the learned counsel for the respondent-University at the time of hearing, which is as follows: “7. Notwithstanding anything contained in these Rules the Vice-Chancellor will have the authority to make an adhoc appointment against any of the posts covered by these rules for a period not exceeding one year; provided that the period, will be extendable by one year with the concurrence of the Executive Council. 11. On a plain reading of Rule 7 of the R & P Rules, supra, it is manifest that the initial ad hoc appointment made for one year can be extended by another year with the concurrence of the Executive Council. 12. 11. On a plain reading of Rule 7 of the R & P Rules, supra, it is manifest that the initial ad hoc appointment made for one year can be extended by another year with the concurrence of the Executive Council. 12. It also stands noticed that as per appointment letter dated 9th July, 1986, Annexure R-4, the petitioner and the private respondent, whose appointment letter was also admittedly identical to that of the petitioner, were required to qualify the shorthand and typewriting test at the requisite speed within the period of one year from the date of joining by availing four chances during the said period, failing which their services were liable to be terminated. 13. It has also been noticed that whereas the private respondent qualified the shorthand and typewriting test within the stipulated period of one year, the petitioner could qualify the same only after expiry of the said period, on which basis the private respondent was claiming and has been granted seniority over and above the petitioner, vide copy of proceedings of R & PC dated 27.10.2002, Annexure P-11. 14. However, in terms of Sub-rule (x) of Rule 10 of the R & P Rules, which is reproduced below, a candidate not fulfilling the requisite speed in the shorthand and typewriting test could also be appointed as Junior Scale Stenographer, if no candidate with the minimum prescribed speed was available, subject to the condition that the appointee with lesser initial speed would not be confirmed unless he acquired within three years (emphasis supplied), after appointment, the minimum speed prescribed: “(x) Junior Stenographer: he has passed the Matriculation with second division or 10+2 examination of a recognised University/Board and possesses a speed of 30 words per minute of English Shorthand or 60 words per minute of Hindi Shorthand and a speed of 40 words per minute of English typewriting or 35 words per minute of Hindi typewriting. Provided that a candidate with less speed may be appointed, if no candidate with the minimum prescribed speed is available, subject to the condition that the appointee with lesser initial speed shall not be confirmed unless he acquires within three years, after appointment, the minimum speed prescribed.” Thus, in terms of Sub-rule (x) of Rule 10 read with Rule 7 of the R & P Rules, supra, the petitioner was able to qualify the requisite shorthand and typewriting test on 29.08.1987 within one year of the extended period of ad hoc appointment and three years from the date of appointment, that is, 09.07.1986. 15. Now arises the question as to whether the stipulation in the appointment latter dated 9th July, 1986, Annexure R-4, according to which the petitioner was required to qualify the typing test within one year from the date of joining, would prevail in the face of express provision in the R & P Rules in the form of Sub-rule (x) of Rule 10 of the R & P Rules, supra, under which the requisite shorthand and typewriting test is required to be qualified within three years. To my mind the answer to this query would be that in the face of express provision in the Rules, the same would have precedence over any stipulation in the appointment letter and more so when Rule 7 of the R & P Rules, supra, provides for extension of the initial period of ad hoc appointment by another year, during which the petitioner had qualified the shorthand and typewriting test at the requisite speed. 16. The learned counsel for the private respondent has placed reliance upon the law laid down by the Hon’ble Supreme Court in: 1. State of U.P. and another vs. Ram Krishna and another and the connected appeal, (1999) 7 Supreme Court Cases 350(para 15), 2. Nagpur Improvement Trust vs. Yadaorao Jagannath Kumbhare and others, (1999) 8 Supreme Court Cases 99(paras 8, 9 and 10), 3. Vidyavardhaka Sangha and another vs. Y.D. Deshpande and others, (2006) 12 Supreme Court Cases 482 (para 4), 4. State of Uttar Pradesh and another vs. Ram Adhar, (2008) 12 Supreme Court Cases 136(para 7) and 5. State of Haryana and others vs. Shakuntala Devi, (2008) 15 Supreme Court Cases 380(Head notes B, C, D and F). 17. Vidyavardhaka Sangha and another vs. Y.D. Deshpande and others, (2006) 12 Supreme Court Cases 482 (para 4), 4. State of Uttar Pradesh and another vs. Ram Adhar, (2008) 12 Supreme Court Cases 136(para 7) and 5. State of Haryana and others vs. Shakuntala Devi, (2008) 15 Supreme Court Cases 380(Head notes B, C, D and F). 17. However, facts of the cases relied upon are clearly distinguishable from the facts of the present case. In State of U.P. and another vs. Ram Krishan and another, supra, services of a trainee Tube Well Operator were dispensed with pursuant to misconduct on his part. The case of Nagpur Improvement Trust vs. Yadaorao Jagannath Kumbhare and others, supra, is based on non existence of recruitment and promotion rules, which is not the situation in the present case. Vidyavardhaka Sangha and another vs. Y.D. Deshpande and others, supra, relates to termination of services in terms of the appointment letter, without their being any reference to recruitment and promotion rules holding the field. Furthermore, the appointment was subject to approval by the Education Department, which was refused. State of Uttar Pradesh and another vs. Ram Adhar, supra, is also not applicable to the peculiar facts and circumstances of the present case as the initial ad hoc appointment of the petitioner herein was followed by regularization on qualifying the requisite shorthand and typewriting test in terms of Sub-rule (x) of Rule 10 read with Rule 7 of the R & P Rules, supra, and he was also regularized, confirmed and granted further promotions. The ratio of State of Haryana and others vs. Shakuntala Devi, supra, rather supports the case of the petitioner herein, as his initial ad hoc appointment was followed by regular appointment/confirmation in accordance with the R & P Rules. 18. Furthermore, the long standing settled seniority of the petitioner could not have been disturbed after long lapse of time, as in the present case, as has been held by the Hon’ble Supreme Court in S.B.Dogra vs. State of Himachal Pradesh and others, (1992) 4 Supreme Court Cases 455. 19. In the result, the petition succeeds and is accordingly allowed. 18. Furthermore, the long standing settled seniority of the petitioner could not have been disturbed after long lapse of time, as in the present case, as has been held by the Hon’ble Supreme Court in S.B.Dogra vs. State of Himachal Pradesh and others, (1992) 4 Supreme Court Cases 455. 19. In the result, the petition succeeds and is accordingly allowed. Consequently, the proceedings of the Recruitment and Promotion Committee (R & PC) dated 27.10.2002, vide Item No. 9, Annexure P-11, shall stand quashed and as a result, the petitioner shall rank senior to the private respondent as Junior Scale Stenographer and further promotional posts alongwith consequential benefits, if any. 20. The petition, as also pending application(s), if any, stand disposed of in the above terms.