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Himachal Pradesh High Court · body

2014 DIGILAW 627 (HP)

Gita Ram Thakur v. State of H. P.

2014-05-23

SANJAY KAROL

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Judgment : Sanjay Karol, Judge The issue, which arises for consideration in the present petition, is as to whether decision of the Government, as conveyed vide communication dated 5.4.2012 (Annexure P-9), addressed to respondent No.2 (HIMUDA), hereinafter referred to as the Organization, making the decision rendered by this Court in CWP No.1358 of 2008, titled as S.S. Kutleharia & others v. State of H.P. & others, applicable to the Officers (Engineers) employed with the Organization, is just and proper. 2. Facts are not much in dispute. Chart depicting the date on which the petitioner and private respondents No.3 & 4 joined the Organization; were promoted to the post of Assistant Engineers and acquired the higher qualification of AMIE, is as under : Name Date of appointment as Junior Engineer. Date of acquiring higher qualification of AMIE Date of appointment as Assistant Engineer. Petitioner-Gita Ram Thakur 17.12.1982 10.10.1993 19.6.1997 Shri Ramesh Chand Bhatia-private respondent No.3 12.7.1984 19.9.1988 23.7.2003 Shri Ajay Kumar Sharma 28.1.1989 2.8.1993 18.6.2007 3. In the Seniority Lists, for the post of Assistant Engineer, circulated by the Organization on 22.1.2010 (as it stood on 30.11.2009) (Annexure P-3) and 21.4.2011 (as it stood on 1.4.2011) (Annexure P-4), undisputedly petitioner is placed senior to private respondents. 4. Based on communication (Annexure P-9), issued pursuant to judgment rendered by this Court in S.S. Kutleharia (supra), the Organization has re-worked the seniority list, whereby present petitioner is placed junior to the private respondents. Noticeably this communication is not under challenge. 5. At this juncture, it be observed that both the petitioner and private respondents were promoted to the post of Assistant Engineer, in terms of Rule 9(iii) of the Recruitment and Promotion Rules applicable for the post of Assistant Engineer (Civil) in the HP Housing Board (now HIMUDA), which reads as under: “Method of recruitment i) By direct whether direct recruitment Recruitment……..40% or by promotion or by deputation/transfer and ii) By promotion ……60% percentage of the vacancies to be filled various methods. Promotion : i) From amongst Junior Engineers (Civil) having seven years regular or ad-hoc service or both as such and unqualified Junior Engineers with at least 15 years regular or adhoc service or both as such ……….45% ii) Draftsman cadre, who have passed at least Matriculation or its equivalent examination and possess a two years diploma in Draftsman Course from a recognized institution having 10 years regular or adhoc service or both as such ……….5% iii) From amongst the graduate Junior Engineers having 3 years regular or adhoc service or both as Junior Engineers and those Junior Engineers who have passed Section A&B of AMIE with five years regular or adhoc service or both as Junior Engineers ……………10%.” (Emphasis supplied) 6. It cannot be disputed that petitioner acquired essential qualification (AMIE) on 10.10.1993, whereas Shri Ramesh Chand Bhatia (private respondent No.3) and Shri Ajay Kumar Sharma (private respondent No.4) acquired it on 19.9.1988 and 2.8.1993, respectively. 7. Now significantly, the Rule in question is para materia with the Rule which came up for consideration before this Court in S.S. Kutleharia (supra). Though it pertains to a different Department, but nonetheless legal position would remain the same, regardless of the Department or Organization in question. Significantly, in the said decision, while interpreting identical Rule, Court directed the respondent to re-work the Seniority List afresh. 8. Now the State has only applied the ratio of law laid down by this Court. 9. Provisions of Statute are ambiguously clear. 10% quota is to be filled up from amongst Graduate Junior Engineers having three years regular or adhoc service and those Junior Engineers who have passed Sections A&B of AMIE, with five years regular or adhoc service or both as Junior Engineers. 10. Petitioner’s submission that this Court in LPA No.45 of 2009, titled as Anokhi Ram Verma v. Arun Kumar & others and other connected matters did not follow the ratio laid down in S.S. Kutleharia (supra)and as such same ought and should not have been applied in the present case, in my considered view, is misconceived and untenable in law. In the said decision, Court was dealing with Rules, which were not similar, identical or para materia with the Rules in question. The said decision is based on the given facts. 11. In the said decision, Court was dealing with Rules, which were not similar, identical or para materia with the Rules in question. The said decision is based on the given facts. 11. Submission that judgment in S.S. Kutleharia (supra) is confined to the parties before the Court and as such cannot be applied to the given facts only merits rejection. The Court has interpreted the relevant Rule, which ratio stands applied by the State to the respondent-Organization. 12. Submission that action of respondent-State in not uniformly applying the decision in S.S. Kutleharia (supra), but confining it to the present case, the action being discriminatory and arbitrary, only merits rejection. Grievance, if any, can be vented by the employees of such other Organizations and not the petitioner herein. 13. Ms Jyotsna Rewal Dua, learned counsel for the petitioner, has referred to various decisions of the apex Court to contend that the Judgment in S.S. Kutleharia (supra), can be applied only prospectively. I am afraid, this submission merits rejection. The law with regard to prospective overruling is evidently clear and squarely inapplicable in the given facts. 14. Also, in the absence of any challenge to Annexure P-9, I am not persuaded to agree with the submission of learned counsel, that the judgment in S.S. Kutleharia (supra) needs to be applied prospectively to the respondent-Organization. 15. In Shailendra Dania and others v. S.P. Dubey and others, (2007) 5 SCC 535 , the apex Court held that requisite period of service on the post has to be reckoned from the date of acquiring the requisite educational qualification, which view stood reiterated in N. Suresh Nathan & others v. Union of India & others; (2010) 5 SCC 692 ; State of Uttar Pradesh & another v. Santosh Kumar Mishra & another, (2010) 9 SCC 52 ; and Challa Jaya Bhaskar & others v. Thungathurthi Surender & others, (2010) 13 SCC 348 . 16. Significantly, respondent-State has specifically issued communication dated 5.4.2012 (Annexure P-9), which is binding on the respondent-Organization. Also, on this count, petition only merits dismissal. 17. Hence, for all the aforesaid reasons, present petition, devoid of merit, is dismissed. Petition stands disposed of, so also pending application(s), if any.