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2017 DIGILAW 593 (HP)

Lekh Ram v. State Of Himachal Pradesh

2017-05-25

PREM KUMAR, V.K.SHARMA

body2017
JUDGMENT V.K. Sharma, Chairman. (Oral)—Heard. The original application has been filed on the following substantive prayers vide para 8 (i) to (iv):- 8 (i) "That the impugned seniority list dated 15.3.2016, Annexure A-11, whereby private respondents have been assigned seniority above the applicants, may be quashed and set aside; (ii) That the respondent department may be directed to re-draw the seniority list of Inspector Gr-I in the respondent department, by counting the entire service rendered by applicants on contract basis in the cadre of Inspector Gr-I from the date of their initial appointment followed by their regularization, with all consequential benefits. (iii) That if during the pendency of OA, any of the private respondents is promoted to the post of Food Supplies Officer, in that event the promotion of such of the private respondents may also be set aside and the respondent department may be directed to consider the applicants for promotion to the post of Food Supplies Officer from the date of promotion of their junior(s), with all consequential benefits, including arrears of salary and interest at market rate on delayed payments; (iv) That respondent department may be directed to count the entire service rendered by applicants on contract basis, from the date of their initial appointment followed by their regularization, for the purpose of increments and all other service benefits, from the date of their regularization, with all consequential benefits." 2. Background facts may be noticed first. The applicants were initially appointed as Inspector Grade-I in the Food, Civil Supplies and Consumer Affairs Department on contract in September, 2008/May, 2010/November, 2010, in terms of ''Himachal Pradesh Food, Civil supplies and Consumer Affairs Department, Inspector Grade-1, Class-III (Non-Gazetted), Recruitment and Promotion Rules, 2007'' (R&P Rules. 2007), issued vide notification dated 21st May, 2007, Annexure A-9, through the Himachal Pradesh Subordinate Services Selection Board (in short ''HPSSSB) (now Himachal Pradesh Staff Selection Commission). 3. On completion of five years'' contractual service rendered by the applicants, they have been regularized in June, 2015/May, 2016 in accordance with the policies for ''Regularization of contract appointees in the Government Departments-Instructions thereof dated 7th May, 2015, Annexure R-3/H and 22nd April, 2016, Annexure R-3/1. 4. Respondents No.3 to 23 had initially joined the employment of the Food, Civil Supplies and Consumer Affairs Department (in short ''the Department'') as Clerks. 4. Respondents No.3 to 23 had initially joined the employment of the Food, Civil Supplies and Consumer Affairs Department (in short ''the Department'') as Clerks. Subsequently, they were promoted as Food Inspector Grade-I against 25% quota meant for their category provided under the ''Himachal Pradesh Food, Civil Supplies and Consumer Affairs Department, Inspector Grade-I, Class-III, (Non-Gazetted) Recruitment and Promotion (first Amendment) Rules, 2010 (R&P Amendment Rules, 2010), Annexure R-3/B, between 2011 to 2015. 5. The dispute between the applicants (direct recruits on contract, subsequently regularized) (in short ''direct recruits'') and private respondents No. 3 to 23 (promotees) is with regard to seniority for promotion to the post of Food and Civil Supplies Officer. As per final seniority list of Inspectors Grade-I as on 31.12.2015, issued vide memo, dated 15.03.20 16, Annexure A-11, the promotees are shown to be senior to the direct recruits as at that time the latter (direct recruits except applicant No.1, who had already been reguiarized and placed at Sr. No. 21 of the seniority list), were still on contract and had not been reguiarized as yet. 6. The applicants are basing their claim for seniority over private respondents No. 3 to 23 on the ground that their initial appointment was in accordance with rules followed by regularization. Thus, they are entitled for counting of the service rendered by them on contract towards seniority over and above private respondents No.3 to 23. In this regard,''they are seeking support from the judgment dated 14.9.2010 in CWP(T) No. 6785/2008, Narender Singh Naik v. State of Himahal Pradesh and others , as upheld in LPA No. 271 of 2011, State of Himachal Pradesh and others v. Narender Singh Naik, decided on 9.4.2013 (copies filed, which are taken on record), texts whereof are as under:- "CWP(T) No. 678 5/2008 Petitioner was appointed as Junior Engineer vide order dated 3.1.1995 on contract basis by following due selection process. He has been regularized as per submission of Mrs. Ranjana Parmar in the year 2008. 2. Mrs. Ranjana Parmar submits that the respondents are not counting the period the petitioner has worked on contract basis with effect from 1995 till the date of his regularization. 3. He has been regularized as per submission of Mrs. Ranjana Parmar in the year 2008. 2. Mrs. Ranjana Parmar submits that the respondents are not counting the period the petitioner has worked on contract basis with effect from 1995 till the date of his regularization. 3. The issue raised in this petition is no more res integra in view of the law laid down by their Lordships of the Hon''ble Supreme Court in Direct Recruit Class II engineering Officers'' Association v. State of Maharashtra and others, (1990) 2 SCC 715 . 4. Accordingly, the petition is allowed. Respondents are directed to consider the case of the petitioner for counting the period he has worked on contract basis with effect from 1995 till regularization with all the consequential benefits in view of the principles laid down in the judgment cited herein above. Needful be done within a period of ten weeks after the receipt of certified copy of this judgment by the petitioner. No costs." "LPA No. 271 of 2011 "This appeal of the State challenges the judgment of the Hon''ble Single Judge allowing the Original Application filed by the respondent/petitioner numbered as CWP(T) No. 6785 of 2008. 2. The Hon''ble Single Judge records the fact that the petitioner/respondent was appointed as Junior Engineer vide order dated 3.1.1995 (Annexure A-3) with the application on contract basis after following due/regular selection procedure. The petition was disposed of on the ratio of the judgment of Supreme Court in Direct Recruit Class II Engineering Officers'' Association v. State of Maharashtra and others (1990) 2 SCC 715 . 3. The State challenges the judgment on a number of grounds inter alia that he was appointed only for a period of one year in view of Annexure A-2 and that the applicant had entered into a written agreement to the effect that he will work upto one year and thereafter the said agreement shall be treated as cancelled. It is also urged before us that the post to which the petitioner was appointed on contract basis is to be filled 50% through Public Service Commission and 50% on batch-wise according to the Recruitment and Promotion Rules. It is also urged before us that the post to which the petitioner was appointed on contract basis is to be filled 50% through Public Service Commission and 50% on batch-wise according to the Recruitment and Promotion Rules. We are unable to accept these contentions, on the first, we note that the petitioner having been appointed on contract basis after following due process of selection it is not open to the State to urge that his regularisation is not in accordance with law. On the point urged that the post is to be filled up through Public Service Commission and batch-wise ratio effected supra, this submission is based on the Recruitment and Promotion Rules, 2007 and not on the basis of the Rules applicable to the petitioner/respondent, who was appointed in accordance with 1979 Rules. The Rules of 2007 cannot be held to be retrospective. In these circumstances, we do not find any merit in the appeal which is accordingly dismissed, so also the pending application." 7. The above judgments in CWP(T) No.6785/2008 and LPA No. 271 of 2011 are in turn based on the law laid down by the Hon''ble Supreme Court in Direct Recruit Class II Engineering Officers'' Association v. State of Maharashtra and others, (1990) 2 SCC 715 . 8. The Judgment dated 9.4.2013 in LPA No. 271 of 2011 referred to herein above was followed in CWP No. 497 of 2013-J, Shri Chhavinder Kumar Shandil v. State of H.P. and others, decided on May 14, 2013 (copy filed, which is taken on record), and ultimately upheld by the Hon''ble Supreme Court vide order dated 26/04/2017 in Petition(s) for Special Leave to Appeal (C) No(s). 34038/2012, Sunder Singh v. State of H.P. and ors. and the connected matters, (copy filed, which is taken on record), in the following terms:- "In SLP(C) No.7064/2014 and SLP(C) No.7063/2014 Heard learned counsel for the parties. We do not find any ground to interfere with the impugned order. However, we find that the interveners have a grievance that they were not heard and their seniority is affected by the impugned order. If it is so, it will be open to them to move the High Court and the High Court may consider the matter on merits in accordance with law. The special leave petition is disposed of. The application for intervention also stand disposed of. If it is so, it will be open to them to move the High Court and the High Court may consider the matter on merits in accordance with law. The special leave petition is disposed of. The application for intervention also stand disposed of. Pending applications, if any, are also stand disposed of." 9. Per contra, private respondents No. 3 to 23 contend that they were promoted and appointed as Inspector Grade-I on regular basis prior to regularization of the applicants. It being so, they have been rightly assigned seniority over and above the direct recruits, whose regularization as per policies dated 7th May, 2015, Annexure R-3/H, and 22nd April. 2016, Annexure R-3/1, was "with prospective effect i.e. from the date of issue of regularization orders". In support of their contentions, they have relied upon the following case law: Shitla Prasad Shukla v. State of U.P. and others, 1986 Supp SCC 185. , M.P. Palanisamy and others v. A. Krishnan and others and the connected appeal, (2009) 6 SCC 428 . T. Thangavelu and others v. Union of India and others, (2009) 16 SCC 302 . Amarjeet Singh and others v. Devi Ratan and others, 2010 (1) SCC 417 . State of Uttarakhand and Anr. v. Archanan Shukla and Ors., 2011 (15) (Addl.) SCR 615. P. Sudhakar Rao and others v. U. Govinda Rao and others, (2013) 8 SCC 693 . Sh. Dharam Pal Saroch and others v. State of Himachal Pradesh and others, Latest HLJ 2012 (HP) 1075. 10. The stand on behalf of respondents No.1 and 2-State is also in line with that of the promotees. 11. On scanning the case law relied upon on behalf of the parties, we are more than convinced that the judgment in Narender Singh Naik. supra, as upheld by the Hon''ble Apex Court vide order dated 26/04/20 17 in Petition(s) for Special Leave to Appeal (C) No(s). 34038/2012, Sunder Singh v. State of HP and ors and the connected matters, is quite akin to the facts of the present case. In Narender Singh Naik, supra, contractually appointed Junior Engineers, subsequently regularized, have been held to be senior to the subsequently appointed direct recruits on regular basis. 12. 34038/2012, Sunder Singh v. State of HP and ors and the connected matters, is quite akin to the facts of the present case. In Narender Singh Naik, supra, contractually appointed Junior Engineers, subsequently regularized, have been held to be senior to the subsequently appointed direct recruits on regular basis. 12. The precedents cited on behalf of private respondents No.3 to 23 are clearly distinguishable on facts inasmuch as in none of those cases, the point in issue was with regard to appointment on contract through a regular process in accordance with Recruitment and Promotion Rules holding the field. Above all, when the applicants were appointed as Inspector Grade-I on contract during September, 2008/May, 2010/November, 2010 in accordance with R&P Rules, 2007 by following the proper selection process through HPSSB, private respondents No.3 to 23, who were still in the cadre of clerks, were not even borne on the cadre of Inspector Grade-I. At the time of appointment of some of the applicants during September, 2008/May, 2010, private respondents No.3 to 23 were not even in the feeder cadre, in which they were included only under R&P Amendment Rules, 2010, issued vide notification dated 15th June, 2010, Annexure R-3/B. 13. Furthermore, it is nobody''s case that there is any difference between the duties being performed by Inspectors Grade-I appointed on contract and regularly appointed Inspectors Grade-I. 14. An objection has been raised on behalf of respondents No.3 to 23 that neither regularization policy(s) nor previous seniority lists issued vide memos, dated 11.4.2014, Annexure R-3/E, and 31.8.2015, Annexure R- 3/G, have been challenged by the applicants. In this regard, suffice it to say that the applicants are basing their claim for seniority from the date of initial appointment followed by regularization. It being so, perhaps it was not incumbent upon them to have challenged the regularization policy(s). As regards the seniority lists of 2011 and 2014, the same could not have been challenged by the applicants as at that time they were still on contract. 15. As far as final seniority list of Inspectors Grade-I, issued vide memo, dated 15.3.2016, Annexure A-11, is concerned, which though has been challenged by the applicants, yet the fact remains that it depicts the position as on 31.12.2015, when the applicants, except applicant No.1, were still on contract and were not regularized as yet. 15. As far as final seniority list of Inspectors Grade-I, issued vide memo, dated 15.3.2016, Annexure A-11, is concerned, which though has been challenged by the applicants, yet the fact remains that it depicts the position as on 31.12.2015, when the applicants, except applicant No.1, were still on contract and were not regularized as yet. However, the fact remains that in all the seniority lists of 2011, 2014 and 2016, the applicants who were on contract, have been shown as such below private respondents No. 3 to 23 perhaps due to the reason that both the categories belong to the same cadre, albeit the fact that their initial appointment was on contract or regular basis. 16. In the result, the original application succeeds and is accordingly allowed with a direction to respondents No.1 and 2-State/competent authority(s) to consider the respective cases of the applicants for grant of seniority as Inspector Grade-I over and above private respondents No.3 to 23 in the light of the law laid down by the Hon''ble High Court in CWP(T) No.6785/2008, Narender Singh Naik v. State of Himahal Pradesh and others , and LPA No.271 of 2011, State of Himachal Pradesh and others v. Narender Singh Naik , followed in CWP No. 497 of 2013-J, Shri Chhavinder Kumar Shandil v. State of H.P. and others , and upheld by the Hon''ble Supreme Court in Petition(s) for Special Leave to Appeal (C) No(s). 34038/2012, Sunder Singh v. State of H.P. and ors . and the connected matters, supra, and count their entire service, initially on contract and subsequently on regularization, towards seniority along with consequential benefits, such as further promotion to the post of Food and Supplies Officer etc., within three months from the date of production of certified copy(s) of this order by the applicants before the said authority(s). 17. The original application as also pending miscellaneous application(s), if any, stand disposed of in the above terms.