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2021 DIGILAW 275 (HP)

Puran Chand v. State Of Himachal Pradesh & Ors.

2021-04-29

AJAY MOHAN GOEL

body2021
JUDGMENT Ajay Mohan Goel, J. - By way of this petition, the petitioner has, inter alia, prayed for the following reliefs: "(i) That this Hon'ble Court may kindly be pleased to quash the impugned seniority list Annexure P/4. (ii) That the respondents No. 1 and 2 may kindly be directed to re-cast the seniority list strictly in accordance with the instructions of the Government assigning appropriate place above the respondents No. 3 to 5 to the petitioner. (iii) That the respondents No. 1 & 2 may kindly be directed not to hold the meeting of Departmental Promotion Committee for the post of Food & Supplies Officers till the seniority list of the Inspectors Grade-I is re-cast as prayed for." 2. On 09.03.2021, this Court had passed the following order: "Heard. After hearing learned counsel for the petitioner, as this Court has observed that there is mis-joinder of causes, learned counsel for the petitioner submits that this petition be treated as a petition against respondents No. 1 to 4 and the petitioner may be permitted to withdraw this petition against respondent No. 5, with liberty to agitate the cause against respondent No. 5 afresh. The petition is permitted to be withdrawn qua respondent No. 5, with liberty as prayed for. Arguments heard. Judgment reserved. Mr. Bimal Gupta, learned Senior Counsel appearing for respondent No. 3 has also submitted that the petitioner otherwise also stands promoted to the post of District Controller, F, CS & CA vide Notification dated 03.06.2020. This fact is taken on record." In view of the said order, the present petition is being treated only against respondents No. 1 to 4. 3. Brief facts necessary for adjudication of the present petition are as under:- The case of the petitioner is that he was initially appointed as Inspector Grade-II on 26.08.1988 in the Food & Supplies Department. Respondents No. 3 and 4 were juniors to him in the Seniority List of Inspectors Grade-II, which was circulated vide letter dated 29.01.1996 (Annexure P/1). In the said Seniority List, the name of the petitioner was figuring at Sr. No. 67, whereas names of respondents No. 3 and 4 were reflected at Sr. Nos. 68 and 71, respectively. Said respondents belong to reserved category and were promoted to the posts of Inspector Grade-I on 26.06.1997 and 24.01.2007 by way of promotion against the posts reserved for their respective categories. No. 67, whereas names of respondents No. 3 and 4 were reflected at Sr. Nos. 68 and 71, respectively. Said respondents belong to reserved category and were promoted to the posts of Inspector Grade-I on 26.06.1997 and 24.01.2007 by way of promotion against the posts reserved for their respective categories. The petitioner in his own seniority was promoted to the post of Inspector Grade-I on 09.02.2007. Respondent-Department issued a Tentative Seniority List of Inspectors Grade-I, as it stood on 01.07.2007, vide letter dated 12.07.2007 (Annexure P/2). In this Seniority List, respondents No. 3 and 4, who otherwise were juniors to the petitioner in the feeder category of Inspector Grade-II, were reflected above him. The name of petitioner in the said Seniority List was reflected at Sr. No. 51, whereas, the names of respondents No. 3 and 4 were reflected at Sr. Nos. 42 and 49, respectively. 4. Feeling aggrieved, the petitioner filed a representation dated 07.08.2007 (Annexure P/3), yet Final Seniority List of Inspectors Grade-I was finalized by the Department without considering the representation of the petitioner. 5. The grievance of the petitioner is that as the private respondents were not promoted to the posts of Inspector Grade-I as per their own seniority in the feeder category of Inspector Grade-II, but were promoted as such by virtue of reservation, therefore, when the petitioner who otherwise was senior to them, was promoted to the post of Inspector Grade-I in his own seniority, he was entitled to be placed over and above the said private respondents in the Seniority List of Inspectors Grade-I and the act of the respondent-Department of not doing so, is bad in law. It is in these circumstances that the petition stood filed with the prayers already enumerated hereinabove. 6. The petition has been resisted by the Department, inter alia, on the ground that the private respondents were promoted against the posts of Inspector Grade-I on 26.06.1997 and 24.01.2007 against the roster point of reserved categories, whereas the petitioner was promoted to the said post on 09.02.2007, therefore, the private respondents were rightly placed above the petitioner in the Seniority List of Inspectors Grade-1 in terms of the relevant Recruitment and Promotion Rules as well as the Government instructions prevalent at that time. It is further the stand of the Department that the representation of the petitioner stood rejected, as is evident from the Final Seniority List, wherein, it is mentioned that the same was issued after consideration of representation received from Inspectors Grade-II, in terms of the relevant Government Instructions prevalent at that time. 7. The stand of the private respondents is also to the same effect. 8. By way of rejoinder which has been filed to the said replies, the petitioner contended that Instructions dated 07.09.2007 issued after 85th Constitutional Amendment by the Government of Himachal Pradesh, providing for accelerated seniority to the reserved category candidates were quashed by this Court, as is evident from judgment dated 18th September, 2009, passed by this Court in H.P. Samanaya Varg Karamchari Kalayan Mahasangh Vs. State of Himachal Pradesh and others,2009 3 Shim(LC) 473, as the same were not in conformity with the decision of the Hon'ble Supreme Court in M. Nagraj and others Vs. Union of India and others, 2006 8 SCC 212 . Special Leave to Appeal (Civil) No. 30143/2009 filed before the Hon'ble Supreme Court assailing the judgment of this Court was disposed of when the State Government itself filed an affidavit before the Hon'ble Supreme Court withdrawing its Instructions dated 07.09.2007. In this background, the petitioner has urged that the act of the respondents reflecting the private respondents over and above the petitioner in the Seniority List of Inspectors Grade-I is bad in law and is liable to be held as such. 9. During the pendency of this petition, the petitioner was promoted to the post of District Controller, Food, Civil Supplies & Consumer Affairs vide Notification dated 3rd June, 2020. 10. I have heard learned counsel for the parties and have also gone through the pleadings. 11. The law as it existed before the 85th Amendment to the Constitution of India came into force, was to the effect that promotions on the basis of reservation did not confer seniority upon the incumbent who was so promoted against the reserved post. The only exception, as carved out by the Hon'ble Supreme Court in Ajit Singh and others (II) Vs. The only exception, as carved out by the Hon'ble Supreme Court in Ajit Singh and others (II) Vs. State of Punjab and others, 1999 7 SCC 209 was that in case a person promoted against a post of reserved category was conferred another, say second promotion, whereas general category candidate though senior to him, was not yet offered even one promotion, then the general category candidate was not having any right to catch up with the reserved category candidate and claim seniority, otherwise the general category candidate was to re-gain his seniority over and above a junior employee of the feeder category, who was promoted earlier against the post belonging to reserved category. 12. By virtue of the 85th Amendment, Article 16(4) was introduced in the Constitution of India, which provided that nothing in Article 16 shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. 13. It is not in dispute that for implementation of the 85th Amendment, instructions were issued by the Department of Personnel (AP-III), Government of Himachal Pradesh on 07.09.2007 on the subject "Implementation of Constitution (85th Amendment) Act, 2001 and assignment of Seniority to SC/ST Government servants on promotion by virtue of rule of reservation/roster". It is also not in dispute that this Notification was challenged by the Himachal Pradesh Samanaya Varg Karamchari Kalyan Mahasangh before the erstwhile learned Himachal Pradesh Administrative Tribunal by way of OA No. 19/2008, which Original Application, after abolition of the Tribunal, was transferred to this Court and re-registered as CWP-T No. 2628 of 2008. Vide judgment dated 18.09.2009, this Court quashed the Instructions dated 07.09.2007. This was assailed by the Himachal Pradesh Scheduled Tribes Employees Federation & Another before the Hon'ble Supreme Court by way of SLP (Civil) No. 30143 of 2009. During the pendency of SLP, vide Notification dated 16.11.2009 (Annexure P/9), instructions dated 07.09.2007 were withdrawn by the Government of Himachal Pradesh. As a consequence thereof, the SLP was disposed of by the Hon'ble Supreme Court vide order dated 26.04.2010 (Annexure P/10) in the following terms: "The State of Himachal Pradesh has issued a Circular on 07.09.2007 as regards the promotion of Scs/Sts in the State service. As a consequence thereof, the SLP was disposed of by the Hon'ble Supreme Court vide order dated 26.04.2010 (Annexure P/10) in the following terms: "The State of Himachal Pradesh has issued a Circular on 07.09.2007 as regards the promotion of Scs/Sts in the State service. The said circular was challenged by the respondent No. 1 and the circular was quashed by the High Court by the impugned judgment. Learned counsel appearing for the State submits that the circular issued on 07.09.2007 has since been withdrawn as the State intends to collect more details with regard to representation of SCs/STs and to pass appropriate orders within reasonable time i.e. approximately withn three months after collecting necessary details and datas. The petitioner would at liberty to take appropriate steps, if any adverse order is passed. This Special Leave Petition and the Contempt Petition are thus disposed of finally." 14. In this background, the reflection of the private respondents over and above the petitioner in the Seniority List of Inspectors Grade-I by the respondents is not sustainable in law. It is not in dispute that the petitioner was senior to the private respondents in the feeder category of Inspectors Grade-II. It is also not in dispute that the private respondents were promoted to the posts of Inspector Grade-I before the petitioner on account of roster point available in the promotional category of their respective reserved categories. However, after the petitioner stood promoted to the post of Inspector Grade-I, he was entitled to re-gain his seniority over and above the private respondents in the Seniority List of Inspectors Grade-I, as per the "catch up principle". By not doing so and by reflecting the private respondents over and above the petitioner in the Seniority List of Inspectors Grade-I, the respondent-Department has, indeed, committed an illegality and to this extent, the impugned Seniority List is not sustainable in law. 15. Accordingly, Final Seniority List of Inspectors Grade-I (Annexure P/4), as it stood on 01.07.2007, in which the private respondents are reflected over and above the petitioner, is quashed to this limited extent, with a direction to the respondent-Department to reflect the petitioner over and above the private respondents in the Seniority List of Inspectors Grade-1. 15. Accordingly, Final Seniority List of Inspectors Grade-I (Annexure P/4), as it stood on 01.07.2007, in which the private respondents are reflected over and above the petitioner, is quashed to this limited extent, with a direction to the respondent-Department to reflect the petitioner over and above the private respondents in the Seniority List of Inspectors Grade-1. Though now the petitioner has been promoted to the post of District Controller, Food, Civil Supplies & Consumer Affairs vide Notification dated 3rd June, 2020 during the pendency of this petition, however, it is directed that as a consequence of the revision of the Seniority List of Inspectors Grade-1, in which the petitioner is to be reflected over and above the private respondents, in case he becomes entitled for promotion to the post of District Controller, Food, Civil Supplies & Consumer Affairs, as per the relevant Recruitment and Promotion Rules earlier than the date on which he was actually promoted to the said post, then the respondent-Department shall hold a review DPC and confer notional promotion to him, if otherwise eligible, without disturbing the incumbents, who might have been promoted earlier. In case the petitioner, indeed gets promotion to the post of District Controller, Food, Civil Supplies & Consumer Affairs from an earlier date, then the benefits accruable to him shall be deemed to be notional up to his promotion to the post of District Controller, Food, Civil Supplies & Consumer Affairs vide Notification dated 3rd June, 2020, whereafter, actual benefits, for all intents and purposes and with all consequentialities shall be conferred upon the petitioner. Petition stands disposed of in above terms, so also pending miscellaneous applications, if any.