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Himachal Pradesh High Court · body

2015 DIGILAW 1641 (HP)

Shridhar Sharma v. Mukesh Thakur

2015-11-05

MANSOOR AHMAD MIR, SURESHWAR THAKUR

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JUDGMENT Sureshwar Thakur 1. Respondent No.1 herein had instituted before this Court Civil Writ Petition No.9603 of 2013 for affording in his favour the hereinafter extracted reliefs:- (i) That the respondent No.2 may be directed to consider the petitioner for promotion to the post of Senior Assistant from a date prior to the date of appointment of respondent No.3 as Senior Assistant on secondment basis in the office of respondent No.2 i.e. 19.6.2012 with all consequential benefits. (ii) That if it is found necessary to quash the appointment on secondment basis of respondents No.3 and 4 or anyone of them vide Annexures P-5 and P-11 or any other appointment on secondment basis made during the pendency of writ petition, in that event such appointment(s) may also be quashed and set aside. 2. The learned Single Judge of this court while considering the factual matrix of the case at hand entwined with the case law apposite to it, had wrested the controversy in favour of respondent No.1 herein. The appellant herein arrayed as respondent No.3 in the writ petition, being aggrieved by the judgment of the learned Single Judge has instituted the instant appeal before this Court assailing the findings recorded therein in favour of respondent No.1 herein. Respondent No.1 herein was appointed by direct recruitment as Constable in the Himachal Pradesh Police Department in the year 1988. He joined on 2.8.1994 as Gunman on secondment basis in the erstwhile H.P.State Administrative Tribunal (for short the Tribunal) and was eventually absorbed therein as a Clerk on 11.12.2001. On the disbanding of the Tribunal petitioner was on 9.7.2008 put in the surplus pool of the H.P. Government, yet he remained posted as Clerk on the establishment of the Tribunal upto May, 2009. Subsequently, the petitioner on 1.6.2009 joined the office of the Lokayukta, Himachal Pradesh, (for short the Lokayukta) and his case for permanent absorption was sent to the Government vide order of 16.8.2010. Thepetitioner stood permanently absorbed w.e.f. 1.6.2009 in the Lokayukta. The office of Lokayukta on 7.3.2011 notified Recruitment and Promotion Rules for the post of Senior Assistant Class-III (non-gazetted). Subsequently, the petitioner on 1.6.2009 joined the office of the Lokayukta, Himachal Pradesh, (for short the Lokayukta) and his case for permanent absorption was sent to the Government vide order of 16.8.2010. Thepetitioner stood permanently absorbed w.e.f. 1.6.2009 in the Lokayukta. The office of Lokayukta on 7.3.2011 notified Recruitment and Promotion Rules for the post of Senior Assistant Class-III (non-gazetted). The Rules aforesaid envisaged that the post of Senior Assistant was to be filled 100% by promotion failing which on secondment basis, besides there was a contemplation therein of promotion being made amongst the common clerical cadre of Clerk/Junior Assistant possessed of 10 years regular service or regular combined with continuous ad hoc service rendered in the grade, failing which on secondment basis from the incumbents in the said post working in identical pay scale in other Government departments. 3. Respondent No.1 herein espoused his having satiated the germane enshrined criteria envisaging completion of 10 years regular service or regular combined with continuous adhoc service rendered, if any in the grade/feeder category, inasmuch his having since his absorption as a Clerk in the Tribunal on 11.12.2001 upto the stage when vacancies in the promotional cadre occurred hence stripping the concert of the respondents to oust his claim for promotion to the post of Senior Assistant Class-III of its vigour. The relevant portion of Rule 11 of the Recruitment and Promotion Rules (hereinafter referred to as the ‘Rules’) for the post of Senior Assistant (Class-III) in the Lokayukta stands extracted hereinafter:- 11. In case of recruitment by promotion deputation transfer grade from which promotion/ deputation/ transfer is to be made. (1) By promotion from amongst the common, clerical cadre of Clerk/Junior Assistant, with 10 years regular service or regular combined with continuous ad hoc service rendered, if any in the grade failing which on secondment basis from the incumbents of this post working in identical pay scale from the other Government departments. 4. Apart therefrom, the contesting respondents had endeavored to oust the claim of respondent No.1 herein for his being considered for promotion to the post of Senior Assistant from his post of clerkarising from acceptance by him of the conditions precedent enshrined in the letter of 13.12.2011 emanating from the contesting respondent No.1 and addressed to respondent No.2, whereupon his services as a Clerk in the Lokayukta stood permanently absorbed. The conditions stands extracted hereinafter:- 1. The conditions stands extracted hereinafter:- 1. The absorption shall be strictly in the own pay scale of Clerk and Asstt. Registrar (HPAT). In the case of any official if working in the higher pay scale of cadre of Clerks/Asstt. Registrar in the parent department at the time of absorption, only the basis payoff such employees shall be protected. 2. For the present, this absorption will be on temporary basis and they shall be on probation for the period of 2 (two) years. 3. The official being absorbed shall be placed at the bottom in their respective grade/cadre and seniority shall be determined on the basis of their joining in the department on secondment basis. 4. The absorption shall also be subject to satisfactory verification of character antecedents, if the same is not done earlier. With condition No.3 enshrined therein which stood accepted by respondent No.1 herein and with its constituting a condition precedent for his being permanently absorbed in the Lokayukta, bespeaking the factum of his being placed at the bottom in the respective grade/cadre and his seniority liable to be determined on the basis of his joining in the department on secondment basis estopped besides imposed a legal fetter upon him to, on the anvil of the Rule 11 of the “Rules” claim any right for his being considered for promotion from his post of clerk to the post of Senior Assistant (Class-III) in the Lokayukta. In other words, it was contested by the contesting respondents to the writ petition that his seniority for his being considered for promotion to the post of Senior Assistant (Class-III) in the office of the Lokayukta from the post of clerk, is reckonable from the date of his joining in the office of the Lokayukta on 1.6.2009. In other words, it was contested by the contesting respondents to the writ petition that his seniority for his being considered for promotion to the post of Senior Assistant (Class-III) in the office of the Lokayukta from the post of clerk, is reckonable from the date of his joining in the office of the Lokayukta on 1.6.2009. The learned Single Judge of this Court, while culling out the ratio of the decision rendered by this Court in CWP No.8449 of 2010, titled Andeep Rana and others vs. State of H.P. Subordinate Services Selection Board, which bestowed a right in respondent No.1 therein to receive the benefit of his past service for the purpose of seniority and which decision of the learned Single Judge of this Court stood affirmed by the Division Bench of this Court in Letters Patent Appeal No.34 of 2012, held that when respondent No.1 herein satiated the eligibility criteria embedded in Rule 11 of the “Rules”, emerging from the factum of his having since 11.12.2001 whereupon he stood absorbed as a Clerk in the Tribunal, till the stage of occurrence of vacancies in the promotional cadre rendered the enjoined period of qualifying service hence constituted his having in consonance therewith rendered the enjoined period of qualifying service in the feeder category for such fastening a right in him to stake a claim for his name being considered for promotion to the promotional cadre besides rendered the invocation of the conditions existing in the letter of respondent No.2 herein addressed to respondent No.3 herein, on acceptance whereof by respondent No.1 herein, his services in the Lokayukta stood permanently absorbed as a Clerk for defacilitating respondent No.1 herein to claim the right aforesaid, to be afflicted with legal emasculation. Even otherwise immense strength to the factum of acceptance of the hereinabove conditions by respondent No.1 herein whereupon his services in the Lokayukta stood permanently absorbed under communication of 13.12.2011 addressed by respondent No.2 herein to respondent No.3 herein acquiring no legal leverage besides devoid of legal force, to oust the claim of respondent No.1 herein to be considered forpromotion to the post of Senior Assistant from his hitherto post of clerk in the Lokayukta nor estopping him to claim the aforesaid right stands garnered by the factum of respondent No.1 herein having as aforestated satiated the eligibility criteria for vesting him a right of his name being considered for promotion to the post of Senior Assistant from post of Clerk, upsurging from the fact of his, in tandem with Rule 11, relevant portion whereof stands extracted hereinabove having completed 10 years of regular service reckonable from 11.12.2001 whereto he stood permanently absorbed as a Clerk uptil the stage when a vacancy/vacancies in the promotional cadre of Senior Assistant occurred. In sequel his having hence satiated the germane eligibility criteria constituted in the Rules overcomes besides overwhelms the legal impact if any of the conditions precedent imposed upon him under a letter of 13.12.2011, addressed by respondent No.2 to respondent No.3, on acceptance whereof by him his services in the Lokayukta stood permanently absorbed nor also any acceptance by him of the aforesaid conditions can give any room to them to have any play nor can they hence acquire any operational force so as to oust the command of the relevant criteria constituted in Rule 11 of the “Rules”, especially when the relevant criteria contemplated therein, of respondent No.1 being enjoined to render 10 years of continuous/regular service as a Clerk reckonable from 11.12.2001 stands achieved by him. In giving precedence to the acceptance by respondent No.1 herein of the conditions precedent cast in the letter of 13.12.2011 whereupon his services were permanently absorbed would relegate into the limbo of oblivion the sway or the operational command of the Rules, which relegation has to be obviated, as then it would beget infraction of the “Rules” as also would erode the vested right of respondent No.1 herein anchored thereupon for his being considered for promotion to the post of Senior Assistant from cadre of clerk, moreso when he has satiated the eligibility criteria contemplated therein. Furthermore, with the Hon’ble Apex Court in a verdict nomenclatured as Union of India and others vs. Deo Narain and others, reported in (2008) 10 Supreme Court Cases 84, the relevant portion of which stands extracted hereinafter “32……………… The only thing which this Court said and with respect, rightly is that such an employee who had already worked in a particular cadre and gained experience, will not lose past service and experience for the purpose of considering eligibility when his case comes up for consideration for further promotion.” investing a right in an employee who has already worked in a particular cadre and gained experience to not lose past service and experience for the purpose of considering eligibility when his case comes up for consideration for further promotion renders the espousal by the petitioner of his alone, to the ouster of the claim of respondent No.1, having a vested right for his being considered for promotion to the post of Senior Assistant from the post of Clerk held by him, to not attain a sacrosanct legal pedestal, when for reasons aforesaid the right of respondent No.1 herein to claim his name being considered for promotion to the post of Senior Assistant from the post of clerk stands satiated within the purview of the rules whose operational force cannot be either sabotaged or throttled. 5. Dehors the above even the factum of respondent No.1 herein having accomplished the mandate of the relevant underlined portion of the proviso of Rule 11 of the “Rules”, which stands extracted hereinafter: “Provided that in all cases, where a junior person becomes eligible for consideration by virtue of his total length of service (including the service rendered on ad hoc basis follo wed by regular service/appointment) in the feeder post in view of the provisions referred to above, all person senior to him in the respective category/post/cadre shall be deemed to be eligible for consideration and placed above the junior person in the field of consideration. Provided that all incumbents to be considered for promotion shall possess the minimum qualifying service of at least three years or that prescribed in the Recruitment and Promotion Rules for the post whichever is less”. Provided that all incumbents to be considered for promotion shall possess the minimum qualifying service of at least three years or that prescribed in the Recruitment and Promotion Rules for the post whichever is less”. gives him an added impetus to stake a claim for his name being considered for promotion to the post of Senior Assistant from the post of Clerk especially when hence his claim for his name being considered for promotion in the promotional cadre of Senior Assistant also does fall within the amplitude of the proviso. Even though the learned counsel for the appellant herein has contended that the application of the ratio of the judgement rendered in CWP No. 8449 of 2010 titled Andeep Rana and others vs. State of H.P. Subordinate Services Selection Board, by the learned Single Judge of this Court to the factual matrix of the instant case was inapposite given the purported distinctivity in the factual scenario in the judgment relied upon vis-à-vis the factual matrix of the case in hand, inasmuch as with respondent No.1 herein having accepted the conditions precedent manifested by respondent No.2 in its letter of 13.12.2011 addressed by it to respondent No.3, whereupon it hence permitted the latter to permanently absorb the services of respondent No.1 herein as a Clerk in the Lokayukta and whose acceptance hence estopped respondent No.1 herein to claim promotion under the Rules besides rendered the judgement by the learned Single Judge of this Court in CWP No. 8449 of 2010 and affirmed by the Division Bench of this Court in LPA No. 34 of 2012, to be inapplicable. He contends that the verdict of the learned Single Judge acquires no binding force. He contends that the verdict of the learned Single Judge acquires no binding force. However, the said argument is rudderless and stands effaced by the afore-referred discussion underlining the fact that any acceptance by respondent No.1 herein of the conditions precedent spelt out in the letter addressed by respondent No.2 herein to respondent No.3 herein whereupon his services stood permanently absorbed as a clerk, would not either estop him or forestall him to on its anvil stake a claim for his being considered for promotion to the promotional cadre of Senior Assistant especially when the right aforesaid stands ensued in his favour arising from his in tandem with the rules satiated the germane eligibility criteria encompassed therein, whose operational force or diktat cannot be subjected to any decapitation while applying to them the principle of estoppel arising from the factum of respondent No.1 herein having accepted the conditions precedent constituted in the letter of 13.12.2011 addressed by respondent No.2 to respondent No.3 whereupon services of respondent No.1 herein as a Clerk stood permanently absorbed in the office of the Lokayukta. 6. The view taken by the learned Single Judge is both a fair and just view anvilled upon an incisive and discerning consideration of the factual matrix in conjunction with the Rules and case law, which stands applied correctly to the factual matrix of the case. 7. Pre-eminently with the appellant herein having not contested the civil writ petition by filing a reply to it, rather estops the appellant herein to assail the decision of the learned Single Judge of this Court by instituting an appeal therefrom before this Court. 8. In view of the above discussions, thepresent appeal fails and the same is dismissed accordingly.