Research › Search › Judgment

Himachal Pradesh High Court · body

2022 DIGILAW 868 (HP)

Puran Chand v. State of H. P.

2022-12-26

SATYEN VAIDYA

body2022
JUDGMENT : SATYEN VAIDYA, J. 1. By way of instant petition, the petitioner has prayed for following substantive reliefs: “(i) The seniority placement provided in the promotion order Annexure P/7 in respect of respondent No. 3 may kindly be quashed and set aside it being arbitrary, unconstitutional violative of article 14 and 16 of Constitution. (ii) That the seniority list Annexure P/8 may kindly be quashed and set aside qua respondent No. 3. (iii) That the respondent 1 and 2 may kindly be directed to recast the seniority list of inspectors placing the respondent No. 3 at appropriate place in the seniority list on the basis of her actual date of joining in the cadre of Inspector Grade-I. (iv) That the petitioner may kindly be allowed all the consequential benefits of so revised seniority including promotion (to the post of Food and Supplies Officer, District Controller Food, Civil Supplies and Consumer Affairs and then to Deputy Director, which post is vacant at present, with actual arrears if he is so entitled and eligible for promotion after revising the seniority list. (v) That the respondents No. 1 and 2 may kindly be directed not fill up present post of Deputy Director Food, Civil Supplies and Consumer Affairs till the final outcome of this petition.” 2. The case of petitioner in nutshell is that he along with respondent No. 3 were initially appointed as Sub-Inspectors in the department of Food, Civil Supplies and Consumer Affairs, Government of Himachal Pradesh, in the year 1988. The post of Sub Inspector was subsequently re-designated as Inspector Grade-II. Respondent No. 3 was rightly placed above the petitioner in the gradation list of Inspectors Grade-II. 3. The feeder category of Inspector Grade-II had two channels for promotion. One, to the post of Inspector Grade-I and another to the post of Head Analyst. 4. Respondent No. 3, on her turn opted to be promoted as Head Analyst. She was accordingly promoted as Head Analyst on 30.08.2006. Having served as Head Analyst for one year, respondent No. 3 vide her representation dated 06.09.2007, made a request to post her as Inspector Grade-I. Respondent accepted the request of respondent No. 3 and promoted her as Inspector Grade-I vide office order dated 09.04.2008. Respondent No. 3 was also ordered to be placed above the petitioner in the seniority list of Inspector Grade-I. Petitioner had been promoted as Inspector Grade-I on 09.02.2007. Respondent No. 3 was also ordered to be placed above the petitioner in the seniority list of Inspector Grade-I. Petitioner had been promoted as Inspector Grade-I on 09.02.2007. Vide impugned order dated 09.04.2008, Annexure P-7, the promotion of respondent No. 3 to the post of Inspector Grade-I was considered w.e.f. 10.01.2007 i.e. prior to the date of promotion of petitioner. 5. Petitioner filed CWP No. 8077 of 2011 before this Court, wherein he assailed the action of respondents in allowing the seniority to respondent No. 3 as also to other incumbents who had been promoted against the quota for reserved category. The said petition was transferred to the H.P. State Administrative Tribunal and was registered as T.A. No. 4147 of 2015. On abolition of the State Administrative Tribunal, the petition was again transferred to this Court and was registered as CWPOA No. 443 of 2019. Learned Single Judge of this Court in CWPOA No. 443 of 2019, on 09.03.2021 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, FCS&CA vide notification dated 03.06.2020. This fact is taken on record.” 6. The aforesaid order came to be passed in the background that the grievance of the petitioner against respondent No. 3 was on different grounds than the grievance raised by him against other respondents therein, who had been promoted against reserved quota. Thereafter, the petitioner has approached this Court by way of instant petition. 7. The resentment of the petitioner is that respondent No. 3 having once adopted the channel for promotion as Head Analyst, she could have only sought her reversion as Inspector Grade-II and on promotion to the post of Inspector Grade-I, the seniority could be assigned to her on the date of such promotion. 7. The resentment of the petitioner is that respondent No. 3 having once adopted the channel for promotion as Head Analyst, she could have only sought her reversion as Inspector Grade-II and on promotion to the post of Inspector Grade-I, the seniority could be assigned to her on the date of such promotion. As per petitioner, respondent No. 3 was ordered to be promoted as Inspector Grade-I on 0-9.04.2008, therefore, she could not have been assigned seniority position w.e.f. 10.01.2007 as she was not even born in the cadre of Inspector Grade-I prior to 09.04.2008. 8. On the other hand, official respondents have supported their action by filing reply. It has been submitted that the request made by respondent No. 3 on 06.09.2007 for reverting her as Sub Inspector (re-designated as Inspector Grade-II) and then to promote her Inspector Grade-I, was placed before DPC on 01.04.2008 and on recommendation of DPC, she was promoted as Inspector Grade-I w.e.f. 10.01.2007. Consequently, she was given placement in Seniority list of Inspector Grade-I in accordance with law. The clam of the petitioner has also been contested as being hit by delay and laches. 9. Respondent No. 3 filed her separate reply. It has been submitted that since the petitioner has laid no challenge to the promotion order of respondent No. 3, mere challenge to seniority position was not maintainable. The claim of petitioner has also been alleged to be barred on the principle of delay and laches. As per respondent No. 3, she was promoted as Head Analyst on probation for a period of two years and she had lien on her regular/substantive post of Inspector Grade-II. It has also been submitted that the name of petitioner has been correctly given place in final seniority list based on her promotion made effective retrospectively. Another objection raised on behalf of respondent No. 3 is that petitioner had not represented against the final seniority list dated 30.12.2009 within reasonable period of time. 10. By filing rejoinder, petitioner has controverted the stand taken by the respondents and has reiterated the averments made in the petition. Petitioner has also placed on record a correspondence dated 23.02.2010 exchanged between the District Controller, Food Civil Supplies and Consumer Affairs, Kullu and Director, Food Civil Supplies and Consumer Affairs, Himachal Pradesh, whereby the representation of petitioner against final seniority list of Inspectors was forwarded in original. 11. Petitioner has also placed on record a correspondence dated 23.02.2010 exchanged between the District Controller, Food Civil Supplies and Consumer Affairs, Kullu and Director, Food Civil Supplies and Consumer Affairs, Himachal Pradesh, whereby the representation of petitioner against final seniority list of Inspectors was forwarded in original. 11. I have heard learned counsel for the parties and have also gone through the entire record carefully. 12. There was no dispute inter-se petitioner and respondent No. 3 till both of them held posts of Inspectors Grade-II. Admittedly, two separate promotion channels were available to the incumbents from the cadre of Inspectors Grade-II. 13. Replies filed on behalf of respondents clearly reveal that after accepting the promotion to the post of Head Analyst, Respondent No. 3 had applied to be reverted to her substantive post. Respondent No. 3 in her reply has specifically stated that she was on probation of two years on the post of Head Analyst and as such she was holding a lien on her substantive post. On the strength of such assertion, she claimed reversion to her substantive post and thereafter promotion as Inspector Grade-I. However, there is nothing on record to show that respondent No. 3 was reverted to her substantive post of Inspector Grade-II. 14. As noticed above, respondent No. 3 appears to have been promoted as Inspector Grade-I vide impugned order dated 09.04.2008, Annexure P-7, without first reverting her to substantive post of Inspector Grade-II. In any case, the grievance of petitioner is not in respect of promotion of respondent No. 3 as Inspector Grade-I. His challenge is to the action of respondents which have affected his legally vested rights. He is aggrieved against placement of respondent No. 3 above him in the final seniority list of Inspector Grade-I, circulated on 30.12.2009 vide Annexure P-9. 15. Had respondent No. 3 been reverted in the first instance to her substantive post of Inspector Grade-II and thereafter promoted as Inspector Grade-I, she would not have been entitled to seniority from any other date than the date of promotion and in this view of the matter, even in absence of the reversion of respondent No. 3 to her substantive post the position will not be changed. Viewed from another angle, respondent No. 3 could not have been assigned seniority above the petitioner as petitioner was promoted prior to the date when the impugned order Annexure P-7 was issued. Viewed from another angle, respondent No. 3 could not have been assigned seniority above the petitioner as petitioner was promoted prior to the date when the impugned order Annexure P-7 was issued. The Respondent No. 3 had voluntarily opted for promotion to the post of Head Analyst and had thereby given up her claim to the post of Inspector Grade-I. Her subsequent change of mind could not have put the clock back and thus Respondent No. 3 would not be entitled to seniority on the post of Inspector Grade-I above the petitioner who was promoted as Inspector Grade-I much prior to Respondent No. 3. 16. The official respondents have also taken a stand that on receipt of representation dated 06.09.2007 from respondent No. 3, they had placed the matter before DPC and on the recommendation of the DPC, order dated 09.04.2008 was issued. In my considered view, by taking such a stand, the official respondents cannot legally justify their action. The employer is bound to accept the recommendation of the DPC only if such recommendation is in consonance with the law. 17. Obviously, the tentative seniority list of Inspector Grade-I, circulated on 12.07.2007 did not include the name of respondent No. 3. However, her name appeared abruptly in the final seniority list. There is no record to show that any objections were invited for including her name in the seniority list by showing her seniority w.e.f. 10.01.2007. The final seniority list was circulated on 30.12.2009 and immediately thereafter petitioner had raised objections against such seniority list as is evident from Annexure P-14. 18. Once respondent No. 3 had accepted the promotion to the post of Head Analyst that too at her own option, she could not be considered to be a member in the cadre of Inspector Grade-I till her promotion to the said post, which came into effect on 09.04.2008. It is a settled proposition that even in the cases of retrospective promotion where the incumbent has worked on ad hoc or temporary basis, seniority cannot be assigned retrospectively unless ad-hoc/temporary arrangements was also made by adoption of due procedure required for promotion in accordance with the relevant R&P Rules. 19. The respondents are justifying their action of granting seniority to respondent No. 3 w.e.f. 10.01.2007 on the basis of promotion granted to her from retrospective effect. Such stand of the respondents cannot be countenanced. 19. The respondents are justifying their action of granting seniority to respondent No. 3 w.e.f. 10.01.2007 on the basis of promotion granted to her from retrospective effect. Such stand of the respondents cannot be countenanced. It clearly amounts to taking away of legal vested right of petitioner at his back. The conduct of respondents in the facts of instant case was not fair and thus suffered from the vices of arbitrariness. 20. It is not the case of the respondents that the posts in the cadre of Head Analyst and in the cadre of Inspector Grade-I, were interchangeable. It is also not their case that common seniority list was being maintained for the post of Head Analyst and Inspector Grade-I. This clearly suggests that both were separate cadres. Even the copy of Recruitment and Promotion Rules placed on record suggests so. 21. Respondents have contended that petitioner had not challenged the promotion of the respondent No. 3 as Inspector Grade-I, therefore, he was not entitled to grant of prayers made by him. In my considered view the objection so raised deserved to be rejected for the reason that by way of prayer (I) in the petition, the petitioner has challenged Annexure P-7 to the extent it provided seniority placement in favour of respondent No. 3. For purpose of protection of rights of petitioner, such prayer to above effect is sufficient. 22. The objections of respondents that the claim of petitioner has become stale also deserve to be rejected. As noticed above, petitioner immediately represented against final seniority list. Thereafter, he initiated legal process to challenge the action of respondents within reasonable time by filing CWP No. 8077 of 2011. Respondents were parties in the said petition. It was only for technical reasons that the petitioner was permitted to withdraw the said petition vide order dated 09.03.2021 and was afforded opportunity to agitate the cause against respondent No. 3 (respondent No. 5 in the said petition) afresh. The petitioner has been prosecuting his remedies bona-fide in the Court of law right from the beginning. After passing of order dated 09.03.2021, in CWPOA No. 443 of 2019, the petitioner has approached this Court by way of instant petition in June, 2021. Respondents never objected to the grant of liberty, as above said, in favour of petitioner. Now, they cannot come forward with the plea that the claim of petitioner has become stale. After passing of order dated 09.03.2021, in CWPOA No. 443 of 2019, the petitioner has approached this Court by way of instant petition in June, 2021. Respondents never objected to the grant of liberty, as above said, in favour of petitioner. Now, they cannot come forward with the plea that the claim of petitioner has become stale. 23. In light of the above discussion, the petition is allowed and order dated 09.04.2008, Annexure P-7 is held inoperative in so far as it has affected the seniority position of the petitioner as Inspector Grade-I. Accordingly, seniority list, Annexure P-9 is quashed and set aside to the extent it placed respondent No. 3 above the petitioner. Respondents No. 1 and 2 are directed to redraw the seniority list, Annexure P-9 by placing respondent No. 3 at appropriate place on the basis of her promotion to the post of Inspector Grade-I w.e.f. 09.04.2008. Respondents No. 1 and 2 are further directed to allow all consequential benefits to the petitioner as will be available to him by recasting the seniority list of Inspector Grade-I. Needful be done within eight weeks from the date of passing of this order. The petition is accordingly disposed of, so also, the pending applications, if any.