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2019 DIGILAW 787 (HP)

Santosh Kumari v. State of Himachal Pradesh

2019-06-27

ANOOP CHITKARA, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. Aggrieved by the order passed by the learned Single Judge on 13.10.2011 whereby the writ petition filed by writ petitioner/respondent No.3 herein came to be allowed, the appellant has filed the instant appeal. 2. Facts lie in a narrow compass. 3. The parties shall be referred to as the writ petitioner and appellant. 4. The writ petitioner was initially appointed on regular basis as Junior Scale Stenographer on 06.05.1988 with the Directorate of HIPA, whereas, appellant was appointed as Junior Scale Stenographer in H.P. Subordinate Services Selection Board, Hamirpur. The services of both of them were placed on deputation with the Himachal Pradesh Subordinate Services Selection Board (for short 'the Board’) on different dates. The appellant joined the Board on 09.12.1998, whereas, writ petitioner joined on 12.03.1999. Eventually, both of them were absorbed by the Board on 01.05.2001. 5. However, the appellant was assigned seniority over and above the writ petitioner, constraining him to file the Original Application before the learned Tribunal which on closure of the Tribunal was transferred to this Court and registered as CWP (T) No. 12497 of 2008. Admittedly, the seniority so assigned to the appellant was solely on the basis of O.M. No.20020/7/80-Estt. (D), dated May 29, 1986, wherein it was provided that in case a person, who is initially taken on deputation and absorbed later, his seniority in the grade in which he is absorbed would normally be counted from the date of absorption. 6. The aforesaid instructions came up for consideration before the Hon’ble Supreme Court in Sub-Inspector Roop Lal and another versus Lt. Governor through Chief Secretary, Delhi and others, (2000) 1 SCC 644 wherein it was held that the words “whichever is later” occurring in the Office Memorandum dated May 29, 1986, were violative of Articles 14 and 16 of the Constitution of India and hence these words are quashed from the memorandum. It was by virtue of implication of the aforesaid judgment that the official respondents themselves substituted the term “whichever is later” by the term “whichever is earlier” by issuing Office Memorandum dated 27.03.2001 which now 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. It was by virtue of implication of the aforesaid judgment that the official respondents themselves substituted the term “whichever is later” by the term “whichever is earlier” by issuing Office Memorandum dated 27.03.2001 which now 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 judgement dated December 14, 1999 in the case of Shri S.I. Roop Lal & others vs. Lt. Governor through Chief Secretary, Delhi, JT 1999 (9) SC 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. 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.” 7. This position has not even been disputed by learned counsel for the appellant and the only contention put-forth is that since the writ petitioner was not eligible for being appointed in accordance with the rules, therefore, once his appointment itself was illegal, then his services could not have been placed on deputation and under no circumstance could he be assigned seniority over and above the appellant, rather his appointment itself was liable to be set aside. 8. However, we find from the records that this is not even the pleaded case of the appellant and when put to notice, the learned counsel for the appellant, would invite our attention to the supplementary affidavit filed by her before this Court on 08.10.2010 in which she has tried to rake up this issue. But then, it would be noticed that the supplementary affidavit has been filed without leave of the Court and obviously, therefore, the writ petitioner had no opportunity of meeting the points so disclosed in the said supplementary affidavit and grave prejudice would be caused to him in case we grant leave at this stage. 9. It is more than settled that the lis of the instant kind has to be decided on the basis of the pleadings i.e. petition, reply and rejoinder if filed after permission from the Court and by way of supplementary pleadings that may have been introduced by way of affidavit, supplementary affidavit and counter-affidavit etc., provided again the same have been filed with the express leave and permission of the Court or else all such affidavits have to be excluded from consideration at the time of hearing of the petition. 10. 10. If at all the appellant wanted to alter her defence, then the only course open to her was to have either sought permission to amend the reply and could not have been permitted to surreptitiously introduce an entirely different case by way of supplementary affidavit that too to file without obtaining leave of the Court or at best the remedy was to have filed a separate petition assailing therein the appointment of the writ petitioner. 11. In view of the aforesaid discussion and for the reasons stated above, we find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. All pending applications also stand disposed of.