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Himachal Pradesh High Court · body

2014 DIGILAW 815 (HP)

DHARAM DUTT v. H. P. S. E. B. LTD.

2014-06-30

PIAR SINGH RANA

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JUDGMENT : PIAR SINGH RANA, J. 1. Order: Present writ petition filed under Article 226 of the Constitution of the India by the petitioners. Brief facts of the writ petition as pleaded are that petitioners were appointed as Peons with the respondent Board in the year 1985. It is pleaded that respondent Board offered the post of Clerks/Meter Readers on ad-hoc basis in the pay scale of Rs. 950-1800 from the date of joining as per the appointment order and further pleaded that respondent Board had regularized the services of ad-hoc Assistant Store Keepers w.e.f. 28th December 1990. It is also pleaded that Store Keepers were subsequently allowed the benefit of ad-hoc service w.e.f. 1st December 1989. It is pleaded that on 22nd December 1994 the respondent Board has granted the senior scale of Rs. 1200-2100 and 1500-2640 to the various clerks/Meter Readers on the basis of seniority. It is pleaded that on 4th August 1995 the respondent Board regularized the services of petitioners as Clerks in the pay scale of Rs. 950-1800/-. It is further pleaded that petitioners requested the respondent Board for the regularization of their services w.e.f. 14th August, 1990 but the respondent Board has not taken any action and representation was submitted. It is also pleaded that thereafter the petitioners approached the H.P. State Administrative Tribunal for redressal of their grievances in the year 1996 and on abolition of the Tribunal petition stood transferred to this Hon'ble High Court and was registered as CWP (T) No. 2982/2008. It is pleaded that Hon'ble High Court vide its order dated 22nd March, 2010 had directed the respondent Board to consider the case of the petitioner within four weeks. It is also pleaded that vide order dated 20th May, 2010 the respondent Board rejected the representation of the petitioners and thereafter the petitioners filed the present writ petition. 2. Per contra, reply filed on behalf of the respondents pleading therein that the petitioners were initially appointed as Peon (Class-IV Non-Technical) and joined as such in the year 1985. Due to ban imposed by the State of H.P. on the direct recruitment there was acute shortage of Clerks in the HPSEB Ltd. It is pleaded that respondent Board during July 1990 decided to make ad-hoc appointments from amongst the eligible Class-IV (Non-Technical) personnel as Clerks/Meter Readers who fulfilled the requisite eligibility criteria of two years service and educational qualification. Due to ban imposed by the State of H.P. on the direct recruitment there was acute shortage of Clerks in the HPSEB Ltd. It is pleaded that respondent Board during July 1990 decided to make ad-hoc appointments from amongst the eligible Class-IV (Non-Technical) personnel as Clerks/Meter Readers who fulfilled the requisite eligibility criteria of two years service and educational qualification. It is pleaded that the said appointment was in excess of quota provided in the R & P Regulations to be absorbed in future against the direct recruitment. It is also pleaded that HPSEB Board had filled up 143 numbers of posts from amongst the Class-IV (Non-Technical) staff in excess of quota provided in the R & P Regulations purely as a stop gap arrangement in view of exigencies of service. Petitioner also filed rejoinder and reiterated their pleadings pleaded in main writ petition. 3. Submission of learned Advocate appearing on behalf of the petitioners that petitioners were promoted from peon to Clerks on ad-hoc basis w.e.f. 14th August, 1990 and they were regularized on the post of clerks on 4th August, 1995 and their ad-hoc service w.e.f. 14th August, 1990 till 3rd August, 1995 have not been counted for seniority purpose contrary to law is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that petitioners were promoted on ad-hoc basis on 14th August 1990 as Clerks/Meter Readers only as a stop gap arrangement and as per the exigency of service in view of the ban upon the direct recruitment for the posts of Clerks. It is well settled law that appointment for a particular cadre is by way of two modes. First mode is of promotion and second mode is of direct recruitment. It is well settled law that quota of promotion for particular cadre is fixed by way of promotion and by way of direct entry as per the Recruitment and Promotion Rules. It is also proved on record that promotion quota of Class-IV (Non-Technical) staff was 15% as per the Recruitment and Promotion Rules w.e.f. 14th August 1990 to 4th August 1995. Details are given below:- It is proved on record that there were 883 posts of Clerks/Meter Readers in electricity department and quota of Class IV (Non Technical) staff was 15% against 883 posts. Details are given below:- It is proved on record that there were 883 posts of Clerks/Meter Readers in electricity department and quota of Class IV (Non Technical) staff was 15% against 883 posts. It is also proved on record that upto 14th August, 1990 143 persons were appointed as Clerks on ad-hoc basis and these appointments were in excess of quota which was contrary to the Recruitment and Promotion Rules. It is well settled law that ad-hoc appointee can be regularized strictly as per the Recruitment and Promotion Rules only and it is also well settled law that ad-hoc appointee cannot be regularized contrary to Recruitment and Promotion Rules. It is well settled law that if the initial appointment on ad-hoc basis in particular cadre is against the second vacancy of promotion then question of regularizing upon non-existence of direct entry post would not arise. It is well settled law that ad-hoc appointment is temporary appointment pending regular appointment as per the Recruitment and Promotion Rules. It is well settled law that employee appointed as stop gap arrangement cannot claim regularization upon the substantive post from the date of appointment on ad-hoc basis when appointment on ad-hoc basis is exceeding quota and is contrary to the Recruitment and Promotion Rules. It is also well settled law that promotee cannot claim the seniority upon the quota fixed for direct entry recruitment as per the Recruitment and Promotion Rules in stop gap arrangement on ad-hoc basis. In present case the appointments of petitioners were excess to their quota upon the post of Clerks/Meter Readers and it is held that seniority cannot be given to the petitioners qua quota which was available for direct entry candidates. It is well settled law that seniority can be claimed upon ad-hoc basis only when promotion is given to an employee within quota of their respective cadre. In present case, it is proved on record that promotion was given to the petitioners in excess to their quota fixed for promotion employee. Hence it is held that no benefit of ad-hoc service can be given to the petitioners qua quota fixed for direct entry recruitment or quota fixed for other categories as per the Recruitment and Promotion Rules. (See:- Haribans Misra and Others Vs. Railway Board and Others, (1989) 1 SCALE 42 , See:- Santosh Kumar Singh Vs. Hence it is held that no benefit of ad-hoc service can be given to the petitioners qua quota fixed for direct entry recruitment or quota fixed for other categories as per the Recruitment and Promotion Rules. (See:- Haribans Misra and Others Vs. Railway Board and Others, (1989) 1 SCALE 42 , See:- Santosh Kumar Singh Vs. State of U.P. and Others, (1996) 1 AD 519 See:- Subedar Singh and Others Vs. Distt. Judge Mirzapur and Another, (2001) 1 SCC 37 See:- J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc., See:- (1995) Supp. 3 SCC 669 titled State of U.P. vs. Mohd. Waqar Hussain See:- (1988) 3 SLR 746 titled Venugopal (Dr.) vs. State of Kerala See:- Ramesh K. Sharma and Another Vs. Rajasthan Civil Services and Others, (2000) 7 SCALE 584 See:- Central Welfare Board and Others Vs. Anjali Bepari (Ms) and Others, (1996) 10 SCC 133 Dr Kashinath Nagayya Ibatte Vs. State of Maharashtra and Others, (1995) 3 SCC 363 Supp See:- State of Haryana and others Vs. Piara Singh and others etc. etc., (1992) 5 JT 179 See:- J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc., See:- Ashwani Kumar and Others Vs. State of Bihar and Others, (1997) 1 JT 243 See:- Dr. Mrs. Sumati P. Shere Vs. Union of India (UOI) and Others, (1989) 3 SCC 311 See:- Union of India (UOI) and Others Vs. Dr Devendra Vir Sahi, (1995) 2 SCALE 739 See:- State of Haryana and others Vs. Mahabir Prasad Sharma and others, AIR 1994 SC 1804 See:- Kiran Gupta and Others Vs. State of U.P. and Others Etc., (2000) 6 SCALE 552 . See:- 1999 SCC (L and S) 941 titled M.C. Misra vs. Union of India See:- Dr. Surinder Singh Jamwal and another Vs. State of Jammu and Kashmir and others, See:- Rattan Lal and Others Vs. State of Haryana and Others, AIR 1987 SC 478 See:- 1996 II AD 238 (SC) See:- Ramchander and Others Vs. Additional District Magistrate and Others, AIR 1999 SC 1543 See:- Dr Kashinath Nagayya Ibatte Vs. State of Maharashtra and Others, See:- (1995) Supp. 2 SCC 759 titled Raj Rajiv vs. Haryana State of Social Welfare Advisory Board See:- (1988) 57 FLR 617 titled R. Venugopal (Dr.) Vs. State of Kerala See:- Keshav Narayan Gupta and Others Vs. Additional District Magistrate and Others, AIR 1999 SC 1543 See:- Dr Kashinath Nagayya Ibatte Vs. State of Maharashtra and Others, See:- (1995) Supp. 2 SCC 759 titled Raj Rajiv vs. Haryana State of Social Welfare Advisory Board See:- (1988) 57 FLR 617 titled R. Venugopal (Dr.) Vs. State of Kerala See:- Keshav Narayan Gupta and Others Vs. Jila Parishad, Shivpuri (MP) and Another, (1998) 9 SCC 78 See:- B.D. Jadhavar Vs. K.D. Bhagwan and Others, (1995) 9 JT 610 : (1995) 5 SCALE 494 See:- Director, Institute of Management Development, U.P. Vs. Smt. Pushpa Srivastava, AIR 1992 SC 2070 See:- Y.H. Pawar Vs. State of Karnataka and another, AIR 1996 SC 3194 See:- Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others, (1991) 1 SCC 28 See:- A.K. Sarma and Another Vs. Union of India Another, AIR 1999 SC 897 See:- State of U.P. and others Vs. Dr. R.K. Tondon and others, etc., (1996) 10 SCC 247 See:- Mukesh Bhai Chhotabhai Patel Vs. Joint Agriculture and Marketing Advisor, Govt. of India and Others, AIR 1995 SC 413 See Dr. Kishore Vs. State of Maharashtra and Others, (1997) 3 SCC 209 See:- 1996 VIII AD 680 (SC) See:- State of U.P. and Another Vs. Brij Nath Misra, AIR 1997 SC 2393 See:- (1988) Supp. SCC 428 See:- (1995) Supp. 4 SCC 49 titled State of Orissa vs. Dipitimala Patra (2001) 9 SCC 244 titled Kerala Financial Corporation vs. O.K. Muraleedharan State of W.B. and Others Vs. Aghore Nath Dey and Others, (1993) 3 SCC 371 Rudra Kumar Sain and Others Vs. Union of India and Others, (2000) 8 SCC 25 P. Ravindran and Others Vs. Union Territory of Pondicherry and Others, (1997) 1 SCC 350 See:- State of U.P. and Others Vs. Kamla Devi (Smt) and Another, (1996) 4 SCC 548 See:- J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc., AIR 1994 SC 1808 See:- Dr. Surinder Singh Jamwal and another Vs. State of Jammu and Kashmir and others, AIR 1996 SC 2775 See:- E. Ramakrishnan and Others Vs. State of Kerala and Others, (1996) 10 SCC 565 and See:- State of U.P. and Others Vs. Gayatri Devi Pandey (Smt), (1996) 6 SCC 111 ). 4. etc., AIR 1994 SC 1808 See:- Dr. Surinder Singh Jamwal and another Vs. State of Jammu and Kashmir and others, AIR 1996 SC 2775 See:- E. Ramakrishnan and Others Vs. State of Kerala and Others, (1996) 10 SCC 565 and See:- State of U.P. and Others Vs. Gayatri Devi Pandey (Smt), (1996) 6 SCC 111 ). 4. Another submission of learned Advocate appearing on behalf of the petitioners that in view of the decision in CWP No. 3546 of 2010 titled Dharub Pal and others vs. HPSEB and others along with connected matters the petitioners are legally entitled for relief as sought is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused the order passed by Hon'ble Single Bench of Hon'ble High Court of H.P. in CWP No. 3546 of 2010 along with other connected matters. The Hon'ble Single Bench of Hon'ble High Court in CWP No. 3546 of 2010 did not hold that if promotion was given to an employee in excess to the quota against direct entry post even then promotional employee would be entitled for seniority from the date of ad-hoc appointment contrary to Recruitment and Promotion Rules. Even the Hon'ble Division Bench of Hon'ble High Court in LPA No. 163 of 2010 titled Rajesh Kumar Dharmani vs. Ramesh Chandera decided on 27th May, 2011 held that benefit of seniority of service from ad-hoc appointment cannot be given to a promotional employee if the initial appointment of promotional employee was contrary to Recruitment and Promotion Rules and if ad-hoc service of promotional employee was not regularized from the initial ad-hoc appointment. It is well settled law that when there is conflict between the Rulings of Division Bench and Single Bench then Ruling of Division Bench always prevails. In present case it is proved on record that promotions of petitioners were in excess of quota fixed for promotional employee and was contrary to the Recruitment and Promotion Rules. 5. Another submission of learned Advocate appearing on behalf of the petitioners that seniority list prepared by Himachal Pradesh State Electricity Board be set aside and Electricity Board be directed to prepare fresh seniority list is also rejected being devoid of any force for the reasons hereinafter mentioned. Petitioners did not implead all persons who will be affected by re-prepare of seniority list by the H.P. State Electricity Board. Petitioners did not implead all persons who will be affected by re-prepare of seniority list by the H.P. State Electricity Board. It is well settled law that no person should be condemned unheard on the concept of audi-alterm-partem. Court is of the opinion that without hearing the affected employees it is not expedient in the interest of justice to direct the Himachal Pradesh State Electricity Board to prepare fresh seniority list. 6. Submission of learned Advocate appearing on behalf of the petitioners that in view of the office memorandum No. HPSEB(Sectt.)/R&E/106-2/2001-78092-292 dated 4.10.2001 the ad-hoc service of petitioners be counted towards seniority purpose is also rejected being devoid of any force for the reasons hereinafter mentioned. In present case petitioners have claimed the seniority for a period from 14th August, 1990 to 3rd August, 1995. The memorandum was issued on 4th October, 2001. It is held that memorandum is prospective in nature and not retrospective in nature. Hence benefit of memorandum dated 4th October, 2001 cannot be granted to the petitioners in present case for the period 14th August, 1990 to 3rd August, 1995. 7. Another submission of learned Advocate appearing on behalf of the petitioners that respondents did not comply the direction of Hon'ble High Court issued in CWP No. 2982 of 2008 is also rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused the order dated 22nd March, 2010 passed in CWP No. 2982 of 2008 by Hon'ble High Court. The Hon'ble High Court in CWP No. 2982 of 2008 directed the respondents to consider the case of petitioners and decide the representation made by the petitioner after taking into consideration the instructions dated 29th June, 1992. Court has perused the order passed by learned Secretary, HPSEB Shimla-4 in compliance to the directions issued by Hon'ble High Court in CWP No. 2982 of 2008. Learned Secretary has specifically mentioned that petitioners were called upon to produce the instructions dated 29th June 2002 but they did not produce the same. Learned Secretary HPSEB Shimla-4 has further held that departmental officials were also directed to produce the instructions dated 29th June, 2002 but the departmental officials have stated that no instructions are in existence in their record. Even the petitioners did not place on record the instructions dated 29th June, 2002 in present writ petition. Learned Secretary HPSEB Shimla-4 has further held that departmental officials were also directed to produce the instructions dated 29th June, 2002 but the departmental officials have stated that no instructions are in existence in their record. Even the petitioners did not place on record the instructions dated 29th June, 2002 in present writ petition. It is well settled law that one who seeks equity must do equity. In present case no reason has been assigned by the petitioners as to why they did not place on record copy of instructions dated 29th June, 2002 before learned Secretary, HPSEB Shimla-4 when he demanded the same from the petitioners. It is well settled law that no party can be allowed to take the benefit of his own wrong in judicial proceedings. 8. Another submission of learned Advocate appearing on behalf of the petitioners that as per Article 14 of the Constitution of India the petitioners are legally entitled for all monetary benefits at par with regular employees w.e.f. 14th August, 1990 to 3rd August, 1995 is accepted for the reasons hereinafter mentioned. It is proved on record that petitioners have worked as Clerks/Meter Readers w.e.f. 14th August, 1990 to 3rd August, 1995. Court is of the opinion that petitioners are legally entitled for all monetary benefits of Clerks/Meter Readers w.e.f. 14th August, 1990 to 3rd August, 1995 on the concept of equal pay for equal work available to the employees of regular cadre. It is held that petitioners will be entitled to all monetary benefits for the period from 14 August, 1990 to 3rd August, 1995 at par with regular employees after adjusting the monetary benefit already granted to the petitioners by HPSEB. Writ petition stands disposed of. All pending miscellaneous application(s), if any, also stands disposed of.