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Himachal Pradesh High Court · body

2016 DIGILAW 1772 (HP)

Monika v. State of H. P.

2016-08-24

MANSOOR AHMAD MIR, SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. Both the above captioned appeals are being taken up together for disposal with the consent of parties, since, by both the appeals, judgment dated 25.04.2016 passed by the learned Single Judge of this Court in CWP No.206 of 2014 has been assailed, (for short ‘impugned judgment’). 2. Briefly stated facts, as emerged from record, necessary for adjudication of the case are that the present appellants (hereinafter referred to as `respondents No.3 and 4’) being aggrieved by the impugned judgment, whereby learned Single Judge, while allowing the writ petition preferred on behalf of respondent-petitioner (hereinafter referred to as the `petitioner’) quashed the promotion of writ respondents No.3 and 4 as Clerks with the direction to writ respondent No.2 to consider the petitioner as well as respondents No.3 and 4 alongwith other applicants afresh in the light of observations made in the judgment within a period of two months. 3. In nutshell, petitioner, by way of filing CWP No.206 of 2014, invoked extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India and prayed for following reliefs:- “(i) That impugned annexure P-3 may very kindly be quashed and set aside with the direction to the respondent to consider the petitioner for promotion to the post of Clerk. (ii) That records of the case may be summoned for the kind perusal of this Hon’ble Court.” 4. Perusal of averments contained in the writ petition suggests that the petitioner was appointed as a Peon in the Court of Civil Judge (Junior Division), Ghumarwin in the year 2004 and was further promoted to the post of Process Server on 26.6.2010. Actually he was promoted as Process Server on 26.6.2010. Writ respondent No.2, while filing reply, clarified that in promotion order there was a clerical mistake and infact petitioner was promoted as Process Server on 26.6.2010 instead of 26.6.2006 from the post of Peon which is a feeder cadre post. Pleadings on the record further reveal that respondent Nos.3 and 4 were directly appointed as Process Servers on 16.7.2005 and 21.12.2005 respectively. 5. Pleadings on the record further reveal that respondent Nos.3 and 4 were directly appointed as Process Servers on 16.7.2005 and 21.12.2005 respectively. 5. In the year 2013, learned District & Sessions Judge, Bilaspur (for short `D&SJ, Bilaspur’) vide Annexure P-1 invited applications through proper channel for two posts of Clerks to be filled in by selection/promotion from amongst the Class-IV officials working in Civil & Sessions Division, Bilaspur having minimum 3 years of service as on 1.6.2013 and having passed atleast 10+2 examination. 6. Perusal of Annexure P-1 suggests that the applications were to reach in the office of learned D&SJ, Bilaspur on or before 12th June, 2013 in the prescribed format. It was also contained in the advertisement notice that the applicant/candidate had to undergo the screening test. 7. Pursuant to aforesaid advertisement, petitioner as well as respondents No.3 and 4 applied for the aforesaid posts of Clerks and on the basis of their applications they were called for screening test by the office of learned D&SJ, Bilaspur. Thereafter, office of D&SJ vide office order dated 26.9.2013 issued transfer and postings of Class-III officials of Civil & Sessions Division, Bilaspur, wherein present appellants (respondents No.3 and 4) were also shown to be promoted as Clerks vide Sr.Nos.8 & 9 and posted as Civil Ahlmad in the office of Civil Judge (Sr. Division)-cum-CJM, Bilaspur and Criminal Ahlmad in the office of Civil Judge (Jr. Division)-cum-JMIC, Court No.II, Ghumarwin, respectively against vacant posts. 8. Petitioner, being aggrieved with the promotion of respondents No.3 and 4, preferred writ petition bearing CWP No.206 of 2014 before this Court praying therein the reliefs, as reproduced above. Petitioner claimed that respondents No.3 and 4 were promoted to the posts of Clerks, pursuant to advertisement Annexure P-1, who were otherwise junior to him and as such order dated 26.9.2013 (Annexure P-3) promoting them as a Clerks is not sustainable and same deserves to be quashed and set aside. He further submitted that he was senior to the aforesaid respondents No.3 and 4 since he had joined service as Peon in the Court of Civil Judge (Jr. Division)-cum-JMIC, Court No.2, Ghumarwin in the year 2004 and thereafter he was promoted as Process Server on 26.6.2010. He further submitted that he was senior to the aforesaid respondents No.3 and 4 since he had joined service as Peon in the Court of Civil Judge (Jr. Division)-cum-JMIC, Court No.2, Ghumarwin in the year 2004 and thereafter he was promoted as Process Server on 26.6.2010. Petitioner contended that he was to be considered senior to respondents No.3 and 4, as he was promoted to the post of Process Server on 26.6.2010 from the post of Peon which is feeder post for the purpose of promotion to the post of Process Server. Petitioner also averred that bare perusal of advertisement issued by the office of learned D&SJ, Bilaspur, clearly suggests that employees of Class-IV categories including Peons, Chowkidars and Process Servers, who form a common cadre, were eligible for applying to the post of Clerk and they were to be offered appointment on the basis of seniority. Petitioner further claimed that for the purpose of promotion to the post of Clerk, entire service in Class-IV cadre, whether as Peon or as Process Server, was to be taken into consideration by the competent authority, while deciding seniority under the Recruitment and Promotion Rules in vogue and as such writ respondent No.2 had fallen in grave error, while ignoring the service rendered by him against the post of Peon. However, record nowhere suggests that petitioner disputed the fact that writ respondents No.3 and 4 were directly appointed as Process Servers on 16.7.2005 and 21.12.2005 respectively. 9. Writ respondent No.2 i.e. contesting party filed a detailed reply and refuted the averments contained in the petition specifically stating therein that petitioner was promoted as Process Server on 26.6.2010 and not on 26.6.2006, as is depicted in promotion order in the pay band of Rs.4900-10680+1400 (Grade Pay) against 50% quota prescribed for the promotion to the post of Process Servers from amongst the Class-IV employees of the Court as per Rule 11 of the Himachal Pradesh Subordinate Courts’ Staff (Recruitment, Promotion and Conditions of Service), Rules, 1997 (for short ‘R&P Rules, 1997’). 10. Respondent No.2 further contended that on the promotion of the petitioner as Process Server, he was junior in this category because the seniority lists of the Process Servers and Peons were prepared separately by treating them separate Unit in the cadre. 10. Respondent No.2 further contended that on the promotion of the petitioner as Process Server, he was junior in this category because the seniority lists of the Process Servers and Peons were prepared separately by treating them separate Unit in the cadre. Respondent No.2 further submitted that for the promotion to the post of Clerk from amongst the Class-IV employees against 25% quota, the petitioner was not liable to be treated as senior most Class-IV official. Respondent No.2 also claimed that as per seniority list of Class-III and Class-IV officials of the Civil and Sessions Division prepared on 1.6.2013, the petitioner has been shown at Sr.No.79 in the seniority list and in the category of Process Server he is junior to 21 Process Servers including writ respondents No.3 and 4 as such he was rightly denied promotion to the post of Clerk. Respondent No.2 also averred that petitioner despite being fully aware of the seniority above, never laid any challenge to the seniority list, wherein he was admittedly placed junior to the aforesaid respondents. It is contended on behalf of the writ respondents that the petitioner was the junior most candidate in the category of Process Server, who appeared in the screening test held for the post of Clerk in terms of the advertisement issued in this regard. Respondent No.2 further averred that though the Peons, Chowkidars and Process Servers are all Class-IV categories but their identity and unit are separate, as per Rule 4 of the Himachal Pradesh Subordinate Courts’ Staff (Recruitment, Promotion and Conditions of Service) Rules, 2012 (for short `R&P Rules, 2012’), wherein word `Cadre’ has been defined by stating that “the total strength of posts sanctioned as a separate unit as shown in schedule-I attached to these Rules”. As per writ respondent No.2, bare perusal of Sr.Nos.29 to 36 of Schedule-I, which pertain to Class-IV category, clearly suggests that the categories of Peons and Process Servers form separate unit and have different grade pay and as such there is no force in the contention of the petitioner that he was to be treated senior while giving promotion to the post of Clerk from Class-IV category. Respondent No.2 has also stated that on promotion as Process Server from category of Peon, the nature of duties of Process Server altogether gets changed because the post of Process Server carries higher responsibilities than the post of Peon. Respondent No.2 has also stated that on promotion as Process Server from category of Peon, the nature of duties of Process Server altogether gets changed because the post of Process Server carries higher responsibilities than the post of Peon. Apart from above, grade pay of the post of Process Server is more than that of the post of Peon. 11. Respondent No.2 with a view to substantiate the aforesaid contention also cited example, wherein it has been stated that Process Server has an opportunity/eligibility to become a Bailiff in the hierarchy of Process Servers, whereas Peon is not eligible for promotion to the post of Bailiff. 12. Respondent No.2, with a prayer to reject the claim of the petitioner, submitted that the categories of Peons, Process Servers and Chowkidars do not form a common cadre as they are having separate unit and form separate identity and as such seniority of the petitioner could not be counted from the date of his first appointment because he had already been promoted as Process Server from the post of Peon against 50% quota reserved for the same. 13. Learned Single Judge, on the basis of aforesaid contentions and record made available to him by both the parties, came to the conclusion that authority concerned has fallen in error while ignoring the claim of the petitioner for promotion to the post of Clerk in terms of advertisement issued in this regard and has quashed the promotion of respondents No.3 and 4 as Clerks. 14. Relevant portions of Schedule-I and Schedule-II annexed with the R&P Rules, 2012 are reproduced here-in-below :- Schedule-I Sr. No. Name of Posts Classification Pay Scale Grade Pay No. of Posts 29. Process Server Class-IV Rs.4900-10680/- Rs.1400/- 378 30. Daftri Class-IV Rs.4900-10680/- Rs.1400/- 12 31. Orderly Class-IV Rs.4900-10680/- Rs.1300/- 90 32. Peons Class-IV Rs.4900-10680/- Rs.1300/- 116 33. Chowkidars Class-IV Rs.4900-10680/- Rs.1300/- 69 34. Chokidars-cum-Sweeper Class-IV Rs.4900-10680/- Rs.1300/- 6 35. Safai Karamchari Class-IV Rs.4900-10680/- Rs.1300/- 49 36. Malis Class-IV Rs.4900-10680/- Rs.1300/ 11 Schedule-II Sr. No. Name of Posts Class of the Post Scale of post (in Rs.) Qualification for the post/grade from which the promotion is to be made 8. Clerks (which expression shall include all the employees except Steno-Typist and Bailiffs. Class-III Non-Gazetted i. Rs.5910-20200 + grade pay Rs.1900 with initial start of Rs.7810/-. ii. Rs.10300-34800 + grade pay Rs.3200 w.e.f. 1.10.2012. No. Name of Posts Class of the Post Scale of post (in Rs.) Qualification for the post/grade from which the promotion is to be made 8. Clerks (which expression shall include all the employees except Steno-Typist and Bailiffs. Class-III Non-Gazetted i. Rs.5910-20200 + grade pay Rs.1900 with initial start of Rs.7810/-. ii. Rs.10300-34800 + grade pay Rs.3200 w.e.f. 1.10.2012. This pay band and Grade Pay will be given after two years of regular service. a. 75% of the posts in cadre by direct recruitment, on the basis of a competitive examination (as per Part-I Annexure A) from amongst candidates, who are graduate from a recognized University Candidate have to qualify a Typing Test in English on computer at the speed of 50 W.P.M. b. 25% of the available vacancies on the basis of Seniority-cum-Merit amongst the 10+2 Class-IV Court Officials on the basis of test as per Part-II of annexure-A and by considering ACRs of three years. The promotee candidates shall have to qualify Typing Test at the speed of 50 W.P.M. on computers with one year. ….” 12. Process Servers Class-IV Rs.4900-10680 + grade pay Rs.1400 (a) 50% by promotion through selection from amongst the Class-IV Court Officials serving in the Division, having minimum three years service and who have passed 10+2 examination, as such, on the basis of seniority subject to the rejection of unfit. (b) 50% by direct recruitment from the candidates, having passed 10+2 examination, as per Part-IV of Annexure-A. 14. Peon/Orderly/Chowkidar/Safai Karamchari Class-IV Rs.4900-10680 + Grade Pay Rs.1300 with initial start of Rs.6200 W.e.f. 1.10.2012 Grade Pay Rs.1650. This Grade Pay will be given after two years of regular service. By direct recruitment on the basis of vivavoce to be conducted by the concerned District and Sessions Judge. A candidate should have passed atleast matriculation examination.” 15. Careful perusal of the impugned judgment suggests that learned Single Judge, while quashing the promotions of respondents No.3 and 4, concluded that in view of R&P Rules, 2012, especially classification provided in Schedule-I and eligibility criteria for promotion as Clerk from amongst Class-IV officials provided at Sr.No.8 of Schedule-II of R&P Rules, 2012, petitioner was to be treated ahead of respondents No.3 and 4 in the seniority. It was further observed that maintaining of separate seniority list for Process Servers and Peons has no effect on the merits of the contention raised by the petitioner and an incumbent, irrespective of the fact whether he served as Peon or as Process Server or holding any other post in Class-IV cadre, his entire continuous service has to be taken into consideration for determining seniority as Class-IV official. 16. Mr. Ashwani Pathak, Senior Advocate, vehemently argued that the judgment passed by the learned Single Judge is not sustainable and same deserves to be quashed and set aside as the same is not based upon correct appreciation of the R&P Rules, 2012. Mr. Pathak also contended that learned Single Judge, while passing the impugned judgment, has fallen in grave error inasmuch as not interpreting the R&P Rules, 2012 correctly and has ignored the very vital factor with regard to maintaining of separate seniority list of the cadre of Process Servers and Peons. 17. During arguments, Mr. Pathak made this Court to go through the relevant relief clause of CWP No. 206 of 2014 to demonstrate that no prayer, whatsoever, was made on behalf of the petitioner with regard to seniority list admittedly issued by the competent authority showing petitioner at Sr.No.79, whereas in the category of Process Servers, petitioner has been shown junior to 21 Process Servers including respondents No.3 and 4. Mr.Pathak strenuously argued that seniority list was prepared by the Civil & Sessions Division, Bilaspur on 1.6.2013 showing petitioner junior to respondent No.3 but no challenge, whatsoever, was ever laid to the seniority list by the petitioner. As such at this stage, he cannot be allowed to state that he ought to be treated above respondents No.3 and 4 in the seniority list. 18. Mr. Pathak also made this Court to travel through the R&P Rules, 2012 annexed with the petition to substantiate his plea that writ petitioner could not have claimed promotion alone on the strength of length of service in Class-IV category because bare perusal of the advertisement suggests that the promotion to the post of Clerk was to be made on the basis of selection/promotion from amongst Class-IV Officials, working in the Civil & Sessions Division, Bilaspur, having minimum of three years service as on 1.6.2013. It is forcefully contended on behalf of respondents No.3 and 4 that the learned Single Judge has fallen in to grave error while ignoring the fact that respondents No.3 and 4 were appointed as Process Servers directly in the year 2005, whereas petitioner was promoted as Process Server on 26.10.2010 and as such he was rightly placed below respondents No.3 and 4 in the seniority list drawn on 1.6.2013 by the Civil & Sessions Division, Bilaspur. While concluding his arguments, Mr. Pathak also invited the attention of this Court to the Notification dated 12.3.2003, wherein word `Cadre’ has been defined, bare reading of which clearly suggests that though the post of Process Servers/Peons/Chowkidars/Safai Karamcharies/Malies have been prescribed as Class-IV, but the categories of Process Servers and Peons are having separate unit and different grade pay and as such it cannot be prayed that the seniority is to be reckoned on the basis of initial appointment as a Peon. 19. Mrs. Archana Dutt, learned counsel for the writ petitioner, vehemently contended that there is no illegality and infirmity in the impugned judgment as the same is based upon correct appreciation of material placed on record and calls for no interference of this Court. It is contended on behalf of the petitioner that petitioner was senior to respondents No.3 and 4, since he was appointed as Peon in the year 2004, whereas the present appellants-respondents No.3 and 4 were appointed as Process Servers directly in the year 2005 and as such by no stretch of imagination they could be termed as senior to the petitioner. Subsequently the petitioner was promoted to the post of Process Server on 26.6.2010 from the post of Peon which was the feeder cadre for the purpose of promotion to the post of Process Server. She further contended that Process Servers, Peons and Chowkidars, who form a common cadre, were to be considered for promotion to the post of Clerk by taking into account the services rendered by them from their initial appointment and as such action of respondent No.2 in promoting respondents No.3 and 4 has been rightly quashed and set aside by the learned Single Judge. Mrs. Mrs. Dutt also contended that as per R&P Rules, for the post of Clerk, 75% posts were to be filled in by way of direct recruitment and 25% by way of promotion from amongst the 10+2 Class-IV Court officials on the basis of type test and since petitioner had qualified the type test and further being senior most person that too in the feeder category was required to be promoted to the post of Clerk and as such learned Single Judge has rightly quashed the impugned order whereby respondents No.3 and 4 were promoted to the post of Clerk. 20. We have heard learned counsel for the parties and have gone through the record of the case. 21. Close scrutiny of the pleadings available on record suggests that petitioner was appointed as Peon (Class- IV) in the year 2004 and was further promoted as Process Server in the pay band of Rs.4900-10680+1400 (Grade Pay) against 50% quota prescribed for promotion to the post of Process Servers from amongst the Class-IV employees in terms of Rule 11 of the R&P Rules, 1997. Similarly, it is undisputed that present appellants-respondents No.3 and 4 were appointed directly as Process Servers on 16.7.2005 and 21.12.2005 respectively, meaning thereby that the petitioner, who was promoted to the post of Process Server on 26.6.2010, was junior to the present appellants-respondents No.3 and 4 in the category of Process Servers. It is also undisputed before us that respondent No.2 issued seniority list of Class-III and Class-IV officials of Civil and Sessions Division, Bilaspur, prepared on 1.6.2013, wherein the petitioner had been shown at Sr.No.79 and in the category of Process Server he has been shown junior to 21 Process Servers including the present appellants-respondents No.3 and 4. 22. Before adverting to the impugned judgment, this Court is of the view that since petitioner never laid any challenge to the seniority list dated 1.6.2013, showing him at Sr.No.79 in the said seniority list and junior to the present appellants-respondents No.3 and 4, his plea with regard to his being senior to respondents No.3 and 4 cannot be accepted at all and deserves outright rejection. Otherwise also this Court sees no merit in the contention of the petitioner that since he was appointed as Peon (Class-IV) in 2004 and was promoted to the post of Process Server from the post of Peon, which was a feeder category for promotion to the post of Process Server, he was required to be treated as senior to respondents No.3 and 4, who were, admittedly, directly recruited against the post of Process Server in the year 2005. This Court is unable to accept the contention put forth on behalf of the petitioner that categories of Peons, Chowkidars and Process Servers, being Class-IV categories, form a common feeder cadre and their seniority was to be taken on the basis of their first appointment because bare perusal of Rule-4 of R&P Rules, 2012, wherein `Cadre’ has been defined by stating that “the total strength of posts sanctioned as a separate unit as shown in Schedule I attached to these rules”, suggests that separate cadre of all these Class-IV categories containing therein posts of Process Server, Daftri, Orderly, Peon, Chowkidar, Chowkidar-cum-Sweeper, Safai Karamchari and Mali, has been carved out. 23. It appears that learned Single Judge has failed to appreciate that though as per aforesaid R&P Rules, 2012 posts of Peons, Chowkidars and Process Servers have been shown as Class-IV categories, but further perusal of their pay band, grade pay and duties/responsibilities clearly suggests that their identity and unit are separate. It is apt to reproduce paragraph 16 of the impugned judgment hereunder:- “16. So far as the contention raised by the counsel for the respondent No.2 with regard to maintaining separate seniority list of Process Servers and Peons are concerned, it is evident from perusal of R&P Rules that the same is maintained for the reason that there are certain posts for which all Class-IV officials are not eligible to be considered and one of such example is the post of Bailiff mentioned at Sr.No.11 of Schedule-II for which recruitment by promotion on the basis of seniority from amongst only the Process Servers serving in the Division has been provided”. 24. Bare perusal of categories mentioned hereinabove in Schedule-I clearly suggests that they are having separate unit and different Grade Pay and as such nowhere it can be concluded that they form common cadre. 24. Bare perusal of categories mentioned hereinabove in Schedule-I clearly suggests that they are having separate unit and different Grade Pay and as such nowhere it can be concluded that they form common cadre. Otherwise also for the post of Bailiff, which is a Class-III post, only Process Servers, amongst the aforesaid Class-IV employees, are eligible to be promoted in terms of Schedule-II annexed with the R&P Rules, 2012, which fact clearly suggests that posts mentioned in Schedule-I nowhere forms the common cadre but they have been only declared to be Class-IV posts by way of Rules mentioned hereinabove. 25. Learned Single Judge, while extending relief to the petitioner, failed to take note of the specific reply in this regard filed by respondent No.2, wherein it was categorically stated that though Peons, Chokidars and Process Servers are Class-IV category but their identity and unit are separate. 26. The learned Single Judge took note of the specific reply filed by respondent No.2, wherein it was categorically mentioned that Peons, Chowkidars and Process Servers fall under Class-IV category but their identity and unit are separate and as such they could not be considered at par. The learned Single Judge has failed to take note of the fact that nature of duties of Process Server carries higher responsibilities than the post of Peon and as such it could not be concluded that posts of Peon and Process Server form a common cadre. 27. Apart from above, learned Single Judge failed to take note of the fact that petitioner was promoted to the post of Process Server from the post of Peon in terms of aforesaid Rules and as such has fallen in to an error while concluding that posts of Peons and Process Servers form a common cadre. 28. After perusing the R&P Rules, 2012, this Court is of the view that categories of Peons, Process Servers, and Chokidars do not form a common cadre as they are having separate unit and identity. Moreover, there is no Rule, which provides that seniority of the petitioner could be counted from the date of his initial appointment as Peon in the year 2004 against category of Process Server to which he was admittedly promoted in the year 2010 against 50% quota reserved for in service candidates. Moreover, there is no Rule, which provides that seniority of the petitioner could be counted from the date of his initial appointment as Peon in the year 2004 against category of Process Server to which he was admittedly promoted in the year 2010 against 50% quota reserved for in service candidates. Since petitioner had already got promotion as Process Server for the post of Peon, taking advantage of 50% quota reserved for the category of Peon and he being junior most in the category of Process Server could not claim promotion to the post of Clerk on the basis of his seniority, to be counted from the date of his first appointment as Peon. On the top of it, when the petitioner after his promotion to the post of Process Server joined the separate cadre of Process Servers, he cannot claim seniority over and above respondents No.3 and 4, who were admittedly, appointed directly against the post of Process Server much ahead of him. Learned Single Judge, while granting the relief to the petitioner, failed to appreciate that at the first instance, petitioner got promotion as Process Server from the post of Peon against 50% quota reserved for the category of Peons and is junior most in the category of Process Server, and in case the petitioner is promoted again to the post of Clerk by counting the seniority from the date of his initial appointment as Peon, he would avail the benefit of double promotion at once i.e. for promotion to the post of Process Server and also to the post of Clerk. 29. Learned Single Judge has also failed to appreciate that candidature of the petitioner as well as respondent Nos.3 and 4 was considered by Screening Committee on the basis of seniority-cum-merit, where length of service, if any, was not the sole criterion for promotion to the post of Clerk. 30. Having glance to the above discussion, impugned judgment is illegal, bad in law and merits to be set aside. Accordingly, the same is set aside and appeals are allowed. Writ petition is dismissed. 31. Interim direction, if any, is vacated. All miscellaneous applications are disposed of.