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2019 DIGILAW 1772 (HP)

Kultar Chand Sharma v. State Of Hp

2019-11-22

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. - Aggrieved by the order passed by the learned writ court whereby the writ petition filed by the respondent No.3 herein came to be allowed, the appellant (respondent No.5 before the writ court) has filed the instant appeal. 2. Facts lie in a narrow encompass. 3. The parties shall be referred to as the writ petitioner and the writ respondents. 4. The writ petitioner challenged the office order dated 19.5.2005, whereby respondent No.2 issued a revised final seniority list of Senior Assistants wherein he was placed lower than the writ respondents No.3, 4 and 5. 5. All the private parties to the lis were initially appointed in the Department of Rural Development. The writ petitioner was appointed on 2.3.1987 as a Clerk and thereafter promoted as Senior Assistant on 10.4.1997 and was placed on deputation as Senior Assistant with respondent No.2 Board on 15.6.1999. He continued to officiate as such till he was absorbed with writ respondent No.2 on 1.5.2001. 6. As regards the private respondents No.3, 4 and 5 they were promoted in the parent Department as Senior Assistants much later to the writ petitioner on 28.6.1997, 30.4.1997 and 21.2.1999 respectively. As observed above, it is not in dispute that even their services were also placed on deputation with respondent No.2. The writ petitioner as also the writ respondents were absorbed on 1.5.2001. 7. On 11.2.2002 respondent No.2 issued a tentative seniority list which was prepared by counting the length of service in the grade which also included the service rendered in the parent department. Consequently, the writ petitioner was placed higher than the writ respondents in the said tentative seniority list. 8. However, in the mid way the respondent No.2 Board adopted a different procedure and issued a revised tentative seniority list in terms of order dated 7.2.2005 wherein the writ petitioner was shown junior to the private respondents. 9. Assailing the seniority list the writ petitioner approached this Court by way of writ petition which came to be allowed. 10. 8. However, in the mid way the respondent No.2 Board adopted a different procedure and issued a revised tentative seniority list in terms of order dated 7.2.2005 wherein the writ petitioner was shown junior to the private respondents. 9. Assailing the seniority list the writ petitioner approached this Court by way of writ petition which came to be allowed. 10. Only the writ respondent No.3 has filed the instant appeal on the ground that at the time when the services of the writ petitioner had been taken on deputation, the services of private respondents were also taken on deputation and regular selection had been conducted by the respondent No.2 and in support of such contention strong reliance is placed on the meeting of the HP Subordinate Services Selection Board held on 19.5.1999 (Annexure R-5) 11. To say the least, the reliance placed on the meeting held on 19.5.1999 to claim seniority is absolutely fallacious as the Selection Board had nowhere conducted ''selection'' in accordance with the Rules and thus, the same would not clothe such proceedings to be termed as a ''selection''. 12. That apart, rule of service jurisprudence is that if a government servant holding a particular post is transferred to same post in the same cadre, the transfer will not wipe out his length of service in the post from which he has been transferred and the period of his service in the post before this transfer has to be taken into consideration in computing the seniority in the transferred post. 13. Equally settled is the proposition that there is not much difference between deputation and transfer. When the deputationist is permanently absorbed in the transferred department, he is under the rule of transfer, in other words deputation may be regarded as a transfer from one government department to the another. 14. It will be against all the rules of Service Jurisprudence, if a government servant holding a particular post is transferred to the same or an equivalent post in another government department,the period of the service in the post before his transfer is not taken into consideration in computing his seniority in the transferred post. 15. As observed above, the transfer cannot wipe out his length of service in the post from which he has been transferred. 15. As observed above, the transfer cannot wipe out his length of service in the post from which he has been transferred. Therefore, it is reasonable to accept that a deputationist when his service is sought to be absorbed in the transferred department would certainly have accepted that the seniority in the parent department would be counted, meaning thereby, the post held in the parent and the post held in the transferred department are analogous one is entitled to count, for the purpose of seniority for the service rendered by him on regular basis in the parent department. 16. In fact, in A.K. Bhataganar Vs. Union of India and Ors, JT (1990) 4 SC ,the Hon''ble Supreme Court has held that in the absence of a provision, ordinarily the length of service is taken into account in determining seniority. 17. In addition to what has been observed above, it will be noticed that official respondents No.1 and 2 have themselves issued office Memorandum dated 27.3.2001 which reads as under: "Subject: Seniority of persons absorbed after being on deputation. The undersigned is directed to say that according to our O.M. No.20020/7/80-Estt.(D), dated May 29, 1986(copy enclosed) in the case of a person who is initially taken on deputation and absorbed later (i.e. where the relevant recruitment rules provide for "transfer on deputation/transfer") his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has, however, been holding already(on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from the date he has been holding the post on deputation, OR the date from which he has been appointed on a regular basis to same or equivalent grade in his parent department, whichever is later" 2. The Supreme Court has in its judgment dated December 14, 1999 in the case of Shri S.I. Roop Lal and others vs. Lt. Governor through Chief Secretary, Delhi, (1999) 9 JT 597 has held that the words "whichever is later" occurring in the Office Memorandum dated May 29, 1986 and mentioned above are violative of Articles 14 and 16 of the Constitution and, hence, those words have been quashed, from that Memorandum. Governor through Chief Secretary, Delhi, (1999) 9 JT 597 has held that the words "whichever is later" occurring in the Office Memorandum dated May 29, 1986 and mentioned above are violative of Articles 14 and 16 of the Constitution and, hence, those words have been quashed, from that Memorandum. The implications of the above ruling of the Supreme Court have been examined and it has been decided to substituted the term "whichever is later" occurring in the Office Memorandum dated May 29, 1986 by the term "whichever is earlier". 3. It is also clarified that for the purpose of determining the equivalent grade in the parent department mentioned in the Office Memorandum dated May 29, 1986, the criteria contained in this Department Office Memorandum No.14017/27/75- Estt(D)(pt) dated March 7, 1984 (copy enclosed), which lays down the criteria for determining analogous posts, may be followed. 4. These instructions shall take effect from December 14, 1999 which is the date of the judgment of Supreme Court referred to above. 5. In so far as personnel serving in Indian Audit and Accounts Departments are concerned, these instructions are issued in consultation with the Comptroller and Auditor General of India. However, these orders (in keeping with paragraph 4 of the Office Memorandum dated May 29, 1986 as referred to above ) will not be applicable to transfers within the Indian Audit and Accounts Department which are governed by orders issued by the C&AG from time to time. 6. The above instructions may be brought to the notice of all concerned for information, guidance and necessary action." 18. Learned writ court has rightly relied upon the aforesaid Memorandum as also the judgment of the Hon''ble Supreme Court in Roop Lal and another Versus Lt. Governor through Chief Secretary, Delhi and others, (2000) 1 SCC 644 case ''supra''. 19. To conclude that the Memorandum itself provides that seniority has to be determined from the date on which one is appointed on regular basis in the equivalent grade in his parent department and since the seniority list Annexure A-6 has been issued by ignoring the service rendered by the petitioner with parent department, therefore, the same is liable to be set aside. 20. 20. It is really surprising to note as to why the writ respondent/appellant has filed the appeal when the legal position is settled, rather we are of the considered view that the instant petition is nothing but an abuse of process of Court. 21. Accordingly, the present appeal is dismissed with costs of Rs. 30,000/- to be paid to respondent No.3 within six weeks. Pending application(s), if any, also stands dismissed.