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Himachal Pradesh High Court · body

2013 DIGILAW 362 (HP)

Dharam Paul Gupta v. State of H. P.

2013-04-29

KULDIP SINGH

body2013
JUDGMENT Kuldip Singh, J. 1. The petitioner has prayed mainly the following reliefs in the petition: (i) That the notification dated 27th April, 1994 (Annexure A-5) deserves to be quashed being arbitrary, illegal, unilateral and violative of Article 14 & 16 of the Constitution. (ii) The respondents be directed to consider the case of the applicant for the promotion to the post of Registrar which is going to be vacated in the Deptt. of Irrigation and Public Health Deptt. on 31.8.95 immediately as the applicant is to retire on 28th Feb., 1996 just after about 6 months. The pleaded case of the petitioner is that he was appointed Clerk and joined as such in the Public Works Department on 25.9.1956. The petitioner was promoted Steno-typist, Circle Stenographer, Junior Scale Stenographer, Head Clerk re-designated as Superintendent Grade-II, Legal Assistant and then Superintendent Grade-I in the scale of ` 2200-4000 Class-II Gazetted on 20.7.1991. The petitioner had worked as Head Clerk, re-designated as Superintendent Grade-II from 14.11.1969 to 13.1.1983. He was at serial No. 27 in the seniority list of Superintendent Grade-II. The seniority list of Superintendent Grade-I was not circulated after the promotion of the petitioner. 2. The Government on 22.9.1984 ordered the bifurcation of Public Works Department into two separate departments designated as Public Works Department and Irrigation and Public Health Department w.e.f. 1.10.1984. The officers/officials were directed to work on 'as is where is' principle in each wing of the combined department on their respective posts before finalization of the allocation as per the procedure approved. On 28.9.1984 another notification was issued constituting a screening committee to consider the options of the officers/officials of the combined departments and decide the allocation in the two departments. The Government vide another notification dated 28.9.1984 called the options from officers/officials borne on the strength of two departments as on 30.9.1984 by giving three months period for exercising option on prescribed proforma. 3. The process of calling the options had been extended from time to time and those were never materialized till 27.4.1994 on which date the bifurcation was ordered unilaterally on the principle of 'as is where is' basis It was made clear that Recruitment and Promotion Rules applicable in combined Public Works Department as on 1.10.1984 will be applicable to the employees of Irrigation and Public Health Department. The process of options had not been finalized as there was resentment in the cadre and various representations were made by the unions to the competent authority against calling of options. The notification dated 27.4.1994 is wrong, illegal, arbitrary and unconstitutional. The employees were not given opportunity of hearing before they were allocated in the two departments on 22.9.1984. The Government had taken the decision to finalize the allocation of staff through the medium of committee which was constituted for bifurcation of staff. The notification dated 27.4.1994 is in violation of Articles 14 and 16 of the Constitution. 4. In the combined seniority list of Superintendent Grade-IV, re-designated as Superintendent Grade-II as it stood on 31.1.1989, the petitioner has been shown at serial No. 38. All the Superintendents senior to the petitioner in the seniority list had either retired or left the department except Rajesh Kumar at serial No. 5, who stood promoted as Registrar and posted in the office of the Chief Engineer (N), Dharamshala. Amar Singh Sen at serial No. 29 posted in the office of the Superintending Engineer, 1st Circle, HPPWD, Mandi was not eligible for promotion to the post of Registrar for want of clearing the departmental examination meant for gazetted officers. T.R. Bhardwaj and Bharat Chand at serial Nos. 82 and 106 respectively had been working as Superintendent Grade-I, they were promoted to the post of Superintendent Grade-I against reserved categories. They were not to be considered for promotion to the post of Registrar having availed jumped up promotion on the lower posts and also obtained jump in the seniority list. 5. The petitioner had already passed the departmental examination meant for gazetted officers. As per notification dated 16/19.2.1976 and amendment issued on 20.11.1984 in the Recruitment and Promotion Rules of Registrar in PWD, the said post was required to be filled up from the post of Vigilance Officers with three years regular service or five years regular service as Superintendent Grade-I in the office of the Chief Engineers, failing which by promotion from amongst the Superintendents in the office of the Chief Engineers, PWD with five year regular or ad hoc service in the cadre/grade. There was provision for relaxation also. 6. It has been alleged that the post of Registrar was to be vacated in the office of Engineer-in-Chief, IPH Department after 31.8.1995 on account of retirement of R.D. Kaundal. There was provision for relaxation also. 6. It has been alleged that the post of Registrar was to be vacated in the office of Engineer-in-Chief, IPH Department after 31.8.1995 on account of retirement of R.D. Kaundal. One post of Vigilance Officer was going to be vacated on 31.8.1995 in the office of Engineer-in-Chief, IPH Department on the retirement of S.D. Bansal. 7. The petitioner was senior most eligible person for promotion to the post of Registrar but the Government intended to promote the junior persons to petitioner on the basis of notification issued on 27.4.1994 creating two departments IPH and PWD. This, if permitted, would cause injustice to the petitioner, who was senior in the joint seniority list. It has been stated that even after the notification dated 27.4.1994 whereby the employees have been allocated on the principle of 'as is where is', the officers/officials are being posted from one department to other department on promotion. 8. The respondents contested the petition by filing reply. The preliminary objections of maintainability, limitation, alternative remedy were taken. It has also been stated that in the seniority list of Superintendent Grade-II circulated on 31.8.1994, the petitioner has been shown at serial No. 27. In another seniority list of Superintendent Grade-II circulated on 17.8.1994 on the basis of bifurcation order dated 27.4.1994, the petitioner is not shown in the list of Superintendent Grade-II in IPH Department. Thus, the petitioner is not senior person in the seniority list of Superintendents Grade-II in the IPH Department. The petitioner has no right in the IPH Department. The petitioner has not exercised his option in pursuance of notification issued by the Government with regard to bifurcation of two departments. The Government has bifurcated the combined cadres of the department of Public Works and Irrigation & Public Health on the principle of 'as is where is' on the basis of notification dated 27.4.1994 which is legal, just and expedient in the public interest. 9. The petitioner filed rejoinder, he denied the case set up by the respondents and reiterated his own case as projected in the petition. It has been alleged that the claim of the petitioner to the post of Registrar in the Department of IPH is on the basis of combined seniority list of Superintendent Grade-II and not on the basis of two seniority lists of Superintendent Grade-II of IPH Department and PWD Department prepared after bifurcation. It has been alleged that the claim of the petitioner to the post of Registrar in the Department of IPH is on the basis of combined seniority list of Superintendent Grade-II and not on the basis of two seniority lists of Superintendent Grade-II of IPH Department and PWD Department prepared after bifurcation. The principle of 'as is where is' is arbitrary and contrary to the principle of natural justice'. 10. On 8.5.1996 the Tribunal directed the respondents to file short affidavit with respect to two notifications dated 9.8.1991 and 2.6.1994. The Special Secretary (PW) filed supplementary affidavit dated 4.7.1996 with reference to order dated 9.5.1996 (sic 8.5.1996). It has been stated that the bifurcation of PWD and IPH Department was ordered on 27.4.1994 when the staff was bifurcated into PWD and IPH Department on 'as is where is' basis. K.K. Mahajan, T.L. Sharma and K.C. Singha on the date of issuing of bifurcation order were posted against deputation posts and on repatriation they were posted against vacant posts in the PWD and IPH department. The Government has not violated the policy of bifurcation on the principle of 'as is where is' basis. 11. The Under Secretary (PWD) has filed an affidavit dated 28.7.2009 in pursuance of order dated 10.7.2009. In the affidavit, it has been stated that the petitioner upon the bifurcation of PWD and I&PH Department on the basis of 'as is where is' principle was allocated to Public Works Department. The notification with regard to bifurcation of Public Works Department and Irrigation & Public Health Department was issued on 27.4.1994. The petitioner in the category of Superintendent Grade-II was assigned seniority in the seniority list of Superintendent Grade-II issued by the Engineer-in-Chief, HPPWD on 31.8.1994. The petitioner was promoted as Superintendent Grade-I on 20.7.1991. On the date of bifurcation i.e. 27.4.1994, the petitioner was Superintendent Grade-I in Public Works Department and not in Irrigation & Public Health Department. In view of seniority of petitioner maintained in Public Works Department, the petitioner was promoted as Vigilance Officer in Public Works Department on 30.10.1995. He retired on 29.2.1996 as Vigilance Officer from Public Works Department. On the date of bifurcation i.e. 27.4.1994, the petitioner was Superintendent Grade-I in Public Works Department and not in Irrigation & Public Health Department. In view of seniority of petitioner maintained in Public Works Department, the petitioner was promoted as Vigilance Officer in Public Works Department on 30.10.1995. He retired on 29.2.1996 as Vigilance Officer from Public Works Department. The petitioner had no right and claim for promotion to the post of Registrar in the Irrigation & Public Health Department on the ground that in the seniority list circulated by Engineer-in-Chief, Irrigation & Public Health Department on 17.8.1994, the name of the petitioner did not figure in that list at the time when the DPC was convened in Irrigation & Public Health Department. The petitioner did not figure in the seniority list of feeder category. The Principal Secretary (I&PH) has informed vide letter dated 24.7.2009 that neither the petitioner nor any other person was considered till the operation of order dated 9.10.1995 of the Tribunal nor any person was promoted as Registrar in Irrigation & Public Health Department. 12. I have heard learned counsel for the parties. It is common case of the parties that the Government on 22.9.1984 ordered the bifurcation of Public Works Department into two departments namely Public Works Department and Irrigation & Public Health Department on 'as is where is' principle from 1.10.1984. After bifurcation of the two Departments, the officers/officials in the two Departments continued to have common cadres but the common cadres of the two Departments were also bifurcated on 27.4.1994. On the date of bifurcation on 27.4.1994 the petitioner was Superintendent Grade-I in Public Works Department. The petitioner has challenged the notification dated 27.4.1994 bifurcating the cadres of the two Departments. He has also sought a direction to consider his case for promotion to the post of Registrar in the Department of Irrigation & Public Health on the retirement of the then incumbent to the post of Registrar in Irrigation & Public Health Department on 31.8.1995. The petitioner has not prayed for quashing of creation of two Departments by the Government. 13. The grievance of the petitioner is that the Government at the time of bifurcation of the Public Works Department took decision to allocate the officers/officials in the two Departments after obtaining options of the employees, which were to be considered by the Screening Committee. The petitioner has not prayed for quashing of creation of two Departments by the Government. 13. The grievance of the petitioner is that the Government at the time of bifurcation of the Public Works Department took decision to allocate the officers/officials in the two Departments after obtaining options of the employees, which were to be considered by the Screening Committee. Some unions were against the allocation of employees on the principle of 'as is where is' basis. The bifurcation of the cadres remained pending nearly for a decade but all of a sudden, the Government allocated the officers/officials in two Departments on the principle of 'as is where is' basis on 27.4.1994. 14. It is not the case of the petitioner that he gave his option for allocation in the newly created Irrigation & Public Health Department, nor it is the case of the petitioner that the wing in which he was working in the Public Works Department immediately at the time of bifurcation later on became part of newly created Irrigation & Public Health Department. It can be safely inferred from the conduct of the petitioner for not giving any option for allocation to any Department that he never wanted his allocation to the newly created Irrigation & Public Health Department. On the contrary, it appears from the conduct of the petitioner that he wanted to move safely by sailing in two boats with an eye to lay claim in both departments at appropriate stage. The petitioner has not challenged the jurisdiction of the Government to bifurcate the department and allocate the staff in the two new departments, his grievance is to the procedure and methodology adopted by the Government for allocation of staff in two departments. 15. The plea of the petitioner that some unions had filed objections against the decision of the Government to allocate the staff in two departments on the principle of 'as is where is' basis is meaningless so far petitioner is concerned. The petitioner never objected the decision of the Government to allocate the staff in two departments. The petitioner after the filing of the petition was promoted as Vigilance Officer on 31.10.1995 in the Public Works Department on the basis of seniority in Public Works Department. The petitioner while verifying the rejoinder has described himself as Vigilance Officer in the office of Engineer-in-Chief, HPPWD, Shimla. The petitioner after the filing of the petition was promoted as Vigilance Officer on 31.10.1995 in the Public Works Department on the basis of seniority in Public Works Department. The petitioner while verifying the rejoinder has described himself as Vigilance Officer in the office of Engineer-in-Chief, HPPWD, Shimla. This indicates that petitioner accepted his allocation in Public Works Department. Once the petitioner accepted his allocation in Public Works Department, he has no right to claim over the post of Registrar in another separate department namely Irrigation and Public Department. Moreover, the petitioner has not impleaded any person from the Irrigation and Public Health Department likely to be affected in case of acceptance his claim over the post of Registrar in Irrigation and Public Health Department. The petition suffers from this defect. 16. The learned counsel for the petitioner has relied State of Kerala vs. M.K. Krishnan Nair and others (1978) 1 SCC 552 , Om Prakash Sharma and others vs. Union of India and others, AIR 1985 SC 1276 , Jagdish Parsad Sinha and others vs. Bhagwat Prasad and others (1989) 3 SCC 610 and Shankar Pandurang Jadhav and others vs. Vice-Admiral, Flag Officer, Commanding-In-Chief and others (1991) 2 SCC 209 . 17. In State of Kerala vs. M.K. Krishnan Nair and others, the respondent had challenged the scheme of bifurcation and the consequential rules as contained in the G.Os. of February 12, 1973 and September 18, 1973 as well as Civil and Criminal Judicial Service Rules as unconstitutional and violative of Articles 14 and 16. The Supreme Court by majority judgment held that prior to the introduction of the scheme of bifurcation as per orders dated 12.2.1973 and 18.9.1973, a complete integrated Judicial Service in the State of Kerala in the sense that all Magisterial posts of District Magistrates and Sub-Divisional Magistrates on criminal side got integrated with the posts of Sub-Judges and Munsiffs on the civil side, had not come into existence and, therefore, in the absence of such a complete integrated Judicial Service having come into existence, it was open to the State Government to bifurcate the service into two wings of Civil and Criminal in the manner done under orders dated 12.2.1973 and 18.9.1973 and to provide for a particular type of option specified therein and no violation of Articles 14 and 16 is involved. The majority judgment further held that assuming that a complete integrated Judicial Service had come into existence prior to the introduction of the scheme of bifurcation vide orders dated 12.2.1973 and 18.9.1973, in that case also, the complaint of hostile treatment is devoid of any substance and orders dated 12.2.1973 and 18.9.1973 do not violate either Article 14 or Article 16 of the Constitution. 18. In the case in hand, the Government proposed the bifurcation of joint cadres of officers/officials of two new departments on the principle of 'as is where is' basis. The options were called from the employees, the petitioner did not raise any objection to the proposal of the Government to bifurcate the joint cadres nor petitioner gave his option for allocation in any department out of the two departments, therefore, it cannot be said that insofar the petitioner is concerned, the Government has violated Articles 14, 16 of the Constitution by treating the petitioner as an employee of Public Works Department (new) after bifurcation of Public Works Department (old) into two departments, namely, Public Works Department (new) and Irrigation and Public Health Department. 19. In Om Prakash Sharma (supra), the contention raised was that where the staff employed in different units under the administrative control of one higher officer are borne on a common seniority list, when because of trifurcation reamalgamation all are brought back on the common seniority list, their position ante must be reflected in the seniority list. Original seniority must prevail. The Supreme Court held when amalgamation took place, respondents No. 3 to 6 therein could not score a march over erstwhile seniors on any valid principle of seniority. This would unquestionably be denial of equality under Article 16 of the Constitution. It may be that they might have enjoyed some accelerated promotion when workshop staff was amalgamated with the Bombay Office. But when they were repatriated and reamalgamated with original two offices and brought back on the common seniority list, they must find their original place qua the appellants. In such a situation status quo ante has to be restored. Obviously, respondents No. 3 to 6 will be below the appellants and any other view to the contrary would be violative of Article 16 as it would constitute denial of equality in the matter of promotion. In such a situation status quo ante has to be restored. Obviously, respondents No. 3 to 6 will be below the appellants and any other view to the contrary would be violative of Article 16 as it would constitute denial of equality in the matter of promotion. In the present case, the question of reamalgamation of the two departments is not in issue nor the reamalgamation of the cadres bifurcated on 27.4.1994 is involved. The petitioner has not questioned his retention in Public Works Department. He is claiming the post of Registrar in separate Irrigation and Public Health Department in which he did not serve after 27.4.1994. 20. In Jagdish Parsad Sinha and others (supra), the Government took the stand that demand to bifurcate was taken up in the legislature and in terms of the decision taken by the Implementation Committee of the Bihar Legislative Council, the new scheme to bifurcate came to be done. The Supreme Court has held that the counsel for the State was not able to dislodge the conclusion that bifurcation was the outcome of an attempt to provide quick promotional avenues to those who were lower down in the joint cadre and would not have come within the range of consideration for promotional benefits but by bifurcation became entitled to such benefits. The petitioner herein, has not challenged the bifurcation of cadre on 27.4.1994 on the ground that bifurcation has been done by the Government to open the avenues for promotion to the juniors. Assuming that there was latent motive to give benefit of promotion to juniors by bifurcating the cadre on 27.4.1994. In that event, nobody stopped the petitioner to opt for such department which was more beneficial to him for promotion. 21. In Shankar Pandurang Jadhav and others (supra), the Supreme Court held that those who joined the Time Keeping Department after the Presidential Order became effective, either by a direct posting in that department as LDC or on transfer to that department, have no right to continue in that department merely because their transfer would entail economic loss since they are governed by the merger scheme which had become operative before their entry in that department. They were borne on the common cadre and were never members of the earlier Time Keeper's cadre. They were borne on the common cadre and were never members of the earlier Time Keeper's cadre. But the case of those Time Keepers, who were serving as such in the Time Keeping Department, must be viewed differently. They belonged to a separate cadre of Time Keepers on the date of the issuance of the Presidential Order. Their terms and conditions of service could not be altered, varied or modified to their detriment without giving them an opportunity to exercise their option. If their transfer outside the Time Keeping Department becomes possible by the merger of their cadre with the clerical cadre but the same entails civil consequences in the form of loss of overtime wages and bonus, justice demands that they must be given an option to choose which course is beneficial to them and if they decide or opt in favour of the status quo they must be allowed to continue as Time Keepers and not be transferred outside that department without their consent, because to do so would render the scheme vulnerable unless the department agrees to make good the economic loss suffered on transfer. 22. In the present case, it is the case of the petitioner that the Government gave the option to the employees before bifurcation of the cadres. The allegation of the petitioner is that options given were not considered and there were objections against the proposal of the Government by the unions. The Government is to run the departments, it may not be possible to accept the option of each and every employee. In case option was given by some employees, the decision was to be taken objectively in public interest for running the departments properly. Insofar the petitioner is concerned, this question does not arise. He never gave his option to serve any of the two departments after 27.4.1994. Therefore, no fault can be found when he was retained in Public Works Department after 27.4.1994. Thus seen from any angle, the petitioner has failed to make out a case that bifurcation of the cadre on the principle of 'as is where is' basis on 27.4.1994 is wrong, illegal, arbitrary and in violation of Articles 14 and 16 of the Constitution. The petition fails and is accordingly dismissed. Petition dismissed.