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2018 DIGILAW 1513 (HP)

State of H. P. v. Iqbal Singh

2018-08-14

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT : Dharam Chand Chaudhary, J. In this appeal, judgment dated 10th May, 2012 passed by learned Single Judge in CWP No. 598 of 2010-A is under challenge. The appellant-State is aggrieved by the direction of learned Single Judge to absorb the respondent-petitioner as Superintendent (Grade-II) from 20.4.2007, the day when Chander Dhar Guleri Degree College, Haripur (Guler), District Kangra was taken over. Also that, services he rendered in the erstwhile degree College be counted for the purpose of seniority, further promotion and grant of pensionary benefits etc. 2. It is seen that learned Single Judge while allowing the writ petition has placed reliance on the judgment of this Court in Surjit Singh Spehia vs. State of H.P. & anr., CWP(T) No. 2168 of 2008, Ved Parkash vs. State of H.P. & ors., CWP(T) No. 469 of 2008 and Rajni Sharma vs. State of H.P. & anr, CWP(T) No. 5200 of 2008. The instructions, today placed on record by learned Advocate General reveal that in Ved Prakash’s case supra, Letters Patent Appeal was preferred by the appellant-State which is pending disposal in this Court. As regards Surjit Singh Spehia’s case, his services were taken over as Superintendent (Grade-II) from the date of taking over the College i.e. 15.8.1984 and not from 18.3.1973 i.e. from his initial appointment in privately aided College. It is significant to note that the services of Sephia were taken over as Superintendent (Grade-II) well before the guidelines dated 25.8.1994 came into being. On the other hand, services of the petitioner in this case have been taken over from the date when he initially was appointed in Chander Dhar Guleri Degree College, Haripur (Guler), District Kangra. As regards Rajni Sharma’s case, it has been pointed out that the same pertains to regularization of adhoc/tenure services of government sector employees which has nothing to do with the cases of aided sector ministerial staff. The same as such, is also not applicable in this case. 3. The challenge to the impugned judgment is also on the grounds inter alia that the writ petitioner was appointed on 14.7.1994 as Clerk by the Management of the College and thereafter promoted as Superintendent (Grade-II) on completion of 3 years and 9 month’s service i.e. on 1.4.1997. The same as such, is also not applicable in this case. 3. The challenge to the impugned judgment is also on the grounds inter alia that the writ petitioner was appointed on 14.7.1994 as Clerk by the Management of the College and thereafter promoted as Superintendent (Grade-II) on completion of 3 years and 9 month’s service i.e. on 1.4.1997. As per the R & P Rules, there is no provision of promotion from the post of Clerk to Superintendent (Grade-II) and rather a Clerk firstly is to be placed in the cadre of Sr. Clerk and in that of Jr. Assistant on completion of 5 years regular service as Sr. Clerk and Sr. Assistant on completion of 10 years service as Jr. Assistant in the cadre. A Sr. Assistant on completion of 6 years service becomes entitled to promotion as Superintendent (Grade-II), that too subject to availability of posts under the grant-in-aid Rules. The management had no power to promote an incumbent from Clerk to Superintendent (Grade-II). Therefore, any wrong action of management cannot bind the State to legalize the wrong committed by it. The guidelines dated 25.8.1994 have also been pressed into service to substantiate its case. 4. We have heard Sh. Ashok Sharma, Advocate General assisted by S/Sh. Narender Guleria, Vikas Rathore, Addl. Advocate Generals and Sh. Kunal Thakur, Dy. Advocate General for the State and also Sh. D.K. Khanna, Advocate learned counsel for the respondent-writ petitioner. 5. The controversy in the present appeal lies in a narrow compass as the short question which needs adjudication is as to whether learned Single Judge has rightly applied the ratio of the judgments rendered in Surjit Singh Spehia vs. State of H.P. & anr., in case Ved Parkash vs. State of H.P. & ors., and in that of Rajni Sharma vs. State of H.P. & anr, and legally held the writ petitioner entitled to his absorption as Superintendent (Grade-II) from 20.4.2007, the day when Chander Dhar Guleri Degree College, Haripur (Guler), District Kangra was taken over. The answer to this poser, in all fairness, and in the ends of justice would be in negative for the reason that Chander Dhar Guleri Degree College, Haripur (Guler), District Kangra was taken over by the appellant-State vide Notification No. EDN-A-Ka(1)-18/2007 dated 20.4.2007. The answer to this poser, in all fairness, and in the ends of justice would be in negative for the reason that Chander Dhar Guleri Degree College, Haripur (Guler), District Kangra was taken over by the appellant-State vide Notification No. EDN-A-Ka(1)-18/2007 dated 20.4.2007. By that time, the appellant-State had framed the guidelines dated 25.8.1994 and made applicable the same in the matters pertaining to taking over the services of staff working in privately managed educational institutions. The conditions No. 7 & 9 thereof read as follows : “(9) All the members (including principal) of the staff will treated as fresh entrant and they will be placed at the bottom of the seniority list, maintained in respect of Government employees in their respective cadre from the date of taking over, provided, in the case of Ministerial staff. (i) A person with 25 years experience may be absorbed Superintendent Grade-II; (ii) A person with 17 years of service as clerk may be absorbed as Senior Assistant. (iii) A person with 10 years experience as clerk may be absorbed as junior assistant. (iv) and having 5 years experience may be absorbed as senior clerk and less than 5 years, as clerk.” 6. It is seen that on taking over the services of the staff at the time of taking over the educational institution, he/she has to be placed down below in the seniority and as regards ministerial staff, their services have to be placed in the cadre on fulfillment of the requisite terms and conditions i.e. a Superintendent (Grade-II) with 25 years experience can be absorbed as such, with 17 years of service a Sr. Assistant, with 10 years experience a Sr. Clerk as Jr. Assistant and a Clerk with 5 years experience as Sr. Clerk. 7. In the case in hand, the petitioner, admittedly, was appointed as Clerk by the management of Chander Dhar Guleri Degree College, Haripur (Guler), District Kangra on 14.7.1994. He was appointed straightway as Superintendent (Grade-II) on 1.4.1997 on rendering 3 years and 9 months service. The management could have not promoted him as Superintendent (Grade-II) in a manner not permissible under the Rules. Otherwise also, in terms of the guidelines dated 25.8.1994, noticed supra, only an incumbent with 25 years experience in a privately managed educational institution can be absorbed as Superintendent (Grade-II). The management could have not promoted him as Superintendent (Grade-II) in a manner not permissible under the Rules. Otherwise also, in terms of the guidelines dated 25.8.1994, noticed supra, only an incumbent with 25 years experience in a privately managed educational institution can be absorbed as Superintendent (Grade-II). The services of the petitioner, therefore, were not liable to be taken over as Superintendent (Grade-II) because his case is not covered under the guidelines. He, as such, has rightly been absorbed as Jr. Assistant because on the day of taking over the College, he had rendered almost 13 years of service in the College. He, however, should have been absorbed as Jr. Assistant on regular basis and not on contract basis because the post of Jr. Assistant though is in Clerical cadre, however, filled in by way of placement of an eligible clerk. It is the initial appointment in a cadre in Government departments which under the Rules has to be made on contract basis and not against the post to be filled in by way of promotion/placement. Therefore, the petitioner having rendered 13 years of services on the day when the College was taken over, his services should have been taken over as Jr. Assistant on regular basis. Nothing to the contrary has been brought to our notice during the course of arguments in this regard. 8. As regards the case of Surjit Singh Spehia, the same is not applicable in the given facts and circumstances of this case being distinguishable on facts as noticed supra. Otherwise also, the judgment in his case had attained finality being not assailed further by way of filing appeal etc. The judgment in Ved Prakash’s case relied upon by learned Single Judge has not yet attained the finality and is rather under challenge in Letters Patent Appeal before this Court. We have also noticed the judgment of this Court in Rajni Sharma’s case, which also is distinguishable on facts. 9. In view of the discussion hereinabove, the judgment passed by learned Single Judge, as such, is not legally sustainable and the same is accordingly quashed and set aside. The appellant-State, however, is directed to treat the writ petitioner having been absorbed as Jr. Assistant on regular basis w.e.f. the date of taking over the privately managed Chander Dhar Guleri Degree College, Haripur (Guler), District Kangra i.e. on 20.4.2007. The appellant-State, however, is directed to treat the writ petitioner having been absorbed as Jr. Assistant on regular basis w.e.f. the date of taking over the privately managed Chander Dhar Guleri Degree College, Haripur (Guler), District Kangra i.e. on 20.4.2007. He is also held entitled to all consequential benefits. The due and admissible arrears be released in favour of the writ petitioner within a period of two months from today. The appeal is accordingly allowed and stands disposed of, so also the pending applications, if any.