Research › Search › Judgment

Himachal Pradesh High Court · body

2020 DIGILAW 750 (HP)

Ram Chand v. Himachal Pradesh University

2020-10-16

CHANDER BHUSAN BAROWALIA, SURESHWAR THAKUR

body2020
JUDGMENT Sureshwar Thakur, J. - The petitioners were initially appointed, as clerks, on, a contractual basis. Their recruitment and appointment as clerks, on, a contractual basis, was, in pursuance to advertisement(s) hence respectively published, on 12.8.2010, and, on 27.1.2011. The writ petitioners joined as clerks, under, the respondent-University, upon, their induction(s) thereinto, from, amongst, a, 90% quota reserved, for, direct recruitment, in stream whereof, hence the petitioners evidently fall. The apposite regularization(s), of, the petitioners also occurred subsequently. However, the petitioners become aggrieved from, the, publishing, of, a tentative seniority list, hence, borne in Annexure P-11, wherein, the petitioners stand placed below, the, appointees occurring at Sr No. 37 to 64, all wherewhom, belong to the category, or vis-a-vis, the stream of promotees, qua whom a 10% quota, for promotion is reserved, under, the apposite R&P Rule No.6, relevant portion of the rule whereof, stands extracted hereinafter. "6. (a) (iii) The posts of Clerks shall be filled up as under:- (a) 90% by direct recruitment. (b) 10% by promotion from amongst the Category 'D' employees." 2. The writ petitioners challenged, the afore incorrect assigning of seniority to them, and, to the afore appointees, rather, on, anvil of a manifest breach, of, the afore quota norms hence visibly happening. 3. In the reply, meted to the writ petition, the respondent-University, raised a contention therein, vis-a-vis, the occurrence, of, the afore appointees, above the writ petitioners hence in the seniority list, rather bearing consonance with the time(s), of, their regularization(s), as clerks, in, a substantive capacity, under, the respondent concerned, (i) thereupon, the afore respondent contend, that since the afore, has been made in consonance, with the relevant rules, besides, is in tandem with terms and conditions, of the apposite policy, (ii) and also with the happenings, of, regularization(s) in service, of the petitioners, in a substantive capacity, when becomes anchored, on, a tenable policy, rather remains unchallenged, vis-a-vis, its vires (iii) thereupon, the timings of the occurrence, of, regularization(s) in service of the petitioners, from, their hitherto initial induction(s) thereinto, on, a contractual basis, becoming the apposite norm(s), for, fixing the inter-se seniority, of, the petitioners, and, of the afore appointees. 4. The afore contention in the reply, as, meted to the petition, by the respondent-University remains unchallenged, by the writ petitioners. 4. The afore contention in the reply, as, meted to the petition, by the respondent-University remains unchallenged, by the writ petitioners. Moreover, also the afore factum remains, unchallenged, by the petitioners, vis-a-vis, the induction(s) or promotion(s), of, the appointees concerned occurring, hence, in a substantive capacity, as, clerks in the apposite feeder category, rather at a time much, earlier than the regularization(s), of, the petitioners, from, their hitherto contractual capacity. Consequently, for only want, of, efficacious challenge(s) becoming cast thereon, the prior induction(s) in service, of the appointees concerned, vis-a-vis, the petitioners, under the respondent-University, does since then, equip them to claim seniority above the writ petitioners, who rather became thereafter regularized, and, therethrough only thereat donned the apposite substantive post(s), under, the respondentUniversity. 5. Further more, an endevour is also made by the learned counsel for the petitioners, to, challenge the induction(s) of the appointees concerned, as clerks, under the respondent-University, from the feeder class or category, of, class D employees, and, he makes challenges thereons, on the ground that, despite, a 10% quota becoming fixed for them, yet, the afore fixed per centum of quota, qua the appointees concerned, rather untenably becoming repeatedly breached, (i) whereupon, the induction(s), of, the appointees concerned, as, clerks, hence, against any substantive post(s) being unmerit-worthy, hence also for, theirs becoming assigned seniority, over, the writ petitioners. 6. However the afore made contention, by the learned counsel, for the petitioners become blunted, from, the factum of clause 7, occurring after clause 6 of the R&P Rules, and, clause whereof stands extracted hereinafter, and, rather both empowering the vice chancellor, to dehors any of the preceding therewith, prescription(s) becoming borne, (i) hence, to make adhoc appointment(s) against, any of, the posts, under these rules, for a period not exceeding one year, and, further, with a proviso that, thereafter, the afore empowerment, vis-a-vis, the employees, being extendable yet with the concurrence, of, the Executive Council of Himachal Pradesh "Notwithstanding anything contained in these Rules the Vice-Chancellor will have the authority to make an adhoc appointment against any of the posts covered by these Rules for a period not exceeding one year, provided that the period will be extendable by one year with the concurrence of the Executive Council." 7. Since the afore notwithstanding clause or a clause operating hence as a proviso, vis-a-vis, the preceding therewith echoings, has been evidently demonstrated, through, a sworn affidavit, to become validly exercised, (i) thereupon, since the afore proviso also empowers the vice chancellor, to, for another year, hence with concurrence of the executive council, rather enhance or curtail the afore per centum of quota, fixed for the promotees, as become drawn from amongst category, of, class D employees, for, theirs being inducted as clerks. Consequently, with the vires, of, the afore notwithstanding clause remaining unchallenged, nor its exercise being proven to be exercised, with malafides nor when the making of the apposite relaxation remains un-advocated to be invalidly made. Consequently, the prescribed quota, if any, meant for the petitioners, and, not for the appointees concerned, if becomes breached, yet breach whereof, cannot be construed to be outside the realm, of, the non obstante clause hence occurring in the clause 6, of, the apposite rules. 8. In view of the above, there is no merit in the petition, and, the same is accordingly dismissed. All pending applications stand disposed of accordingly.