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Himachal Pradesh High Court · body

2023 DIGILAW 4 (HP)

Sanjeev Singh v. State of H. P.

2023-01-02

SATYEN VAIDYA

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JUDGMENT : SATYEN VAIDYA, J. 1. By way of instant petition, the petitioners have prayed for following substantive reliefs: “(A) That this Hon'ble Court please to direct the respondent to take over the service of the petitioners as per notification dated 25.08.1994 and extended all benefits to the petitioners for which they were entitled with all consequential benefits including pay fixation, salary and arrears etc. (B) That this Hon'ble Court may kindly be pleased to issue the writ of mandamus whereby the respondents may kindly be directed to take over the services of the petitioners as Junior Assistant with all consequential benefits (pay fixation and arrears etc.). (C) That in alternate respondent be directed to grant the same scale to the petitioner as they were getting on the day of the takeover with further seniority, pay fixation, arrears etc. from the day of take over till today.” 2. Maharaja Sansar Chand Memorial (MSCM) College, Thural, Tehsil Palampur, District Kangra, H.P. along with its teaching and non teaching staff was taken over by the State Government w.e.f. 09.11.2005. Notification to this effect, however, was issued on 18.10.2006. 3. Petitioners were working as Clerks in MSCM College at the time of its take over by State Government. The date of initial appointments of petitioners as Clerks in the MSCM College was 18.03.1996. They had rendered 9 years, 7 months and 22 days service each in MSCM College till its take over. 4. The MSCM College was taken over by the State Government along with its staff subject to application of UGC guidelines, R&P Rules and terms and conditions of taking over of staff of private colleges notified vide notification dated 25.08.1994. As per said notification, services of taken over staff was to be treated as fresh entrants and were liable to be placed at the bottom of seniority list maintained in respect of Government employees in their respective cadre from the date of taking over of private college. In the case of ministerial staff, persons with 10 years experience as Clerk was to be absorbed as Junior Assistant. 5. The grievance of the petitioners is that they had already rendered 9 years, 7 months and 22 days of service as Clerks and their service fell a little short of the required 10 years so as to entitle them to be absorbed as Junior Assistant. 5. The grievance of the petitioners is that they had already rendered 9 years, 7 months and 22 days of service as Clerks and their service fell a little short of the required 10 years so as to entitle them to be absorbed as Junior Assistant. Their first contention is that though the date of taking over of the College was 09.11.2005, but notification to this effect was issued at much subsequent date i.e. 10.10.2006 and till such date the petitioners had completed more than 10 years of service. In alternative, petitioners have raised the contention that the respondents could relax the condition of 10 years in the case of petitioners, keeping in view the peculiar facts applicable to their case. 6. Respondents have contested the claim of the petitioners. It is submitted that the claim of the petitioners was barred by delay and laches. The cause of action had arisen to the petitioners on 07.12.2006 when their services were taken over by the government w.e.f. 09.11.2005 as Clerks and thereafter on 06.07.2007 as Senior Clerks. In this view of the matter, the claim of the petitioners preferred in the year 2011 is alleged to be stale. It is further submitted that services of petitioners were taken over w.e.f. 09.11.2005. They were paid the emoluments as per government scales from the said date, hence the petitioners cannot turn around and say that the benefit of service in MSCM College should be extended to them till the date of notification i.e. 18.10.2006. Respondents have also refuted the entitlement of the petitioner for any relaxation. 7. I have heard learned counsel for the parties and have also gone through the record carefully. 8. Dealing with the objection regarding delay and laches in filing the petition, it can be seen that the notification regarding taking over of the staff of MSCM College was issued on 18.10.2006 and thereby services of teaching and non teaching staff were taken over from a back date retrospectively. Petitioners were offered the appointment as Clerks by the Director Higher Education on 07.12.2006. Another notification was issued on 06.07.2007, whereby the services of petitioners were placed as Senior Clerks. In this way, the respondents had undertaken the process of taking over the services of petitioners and their posting/placement in piecemeal manner. The uncertainty had prevailed. Petitioners were offered the appointment as Clerks by the Director Higher Education on 07.12.2006. Another notification was issued on 06.07.2007, whereby the services of petitioners were placed as Senior Clerks. In this way, the respondents had undertaken the process of taking over the services of petitioners and their posting/placement in piecemeal manner. The uncertainty had prevailed. Petitioner No. 1 had represented to the Director Higher Education vide his representation dated 25.11.2008 through proper channel, which remained undecided. Finally, the petitioners approached this Court in the year 2011. In the given facts of the case, it cannot be said that the petitioners had slept over their rights and were grossly negligent in pursuing the remedy. The objections of respondents with respect to the claim of the petitioners being stale is thus decided against the respondents. 9. MSCM College was the college aided by the State Government. It was a pure administrative decision of the State Government to take over the College as well as its staff. Petitioners cannot be said to have any say in such decision making. They had rendered the service in MSCM College regularly since their initial appointments i.e. w.e.f. 18.03.1996 till the time they were posted in other government establishment. It cannot be overlooked that the notification for taking over of services of the petitioners, though from retrospective effect, was issued on 18.10.2006. Their postings were done for the first time on 07.12.2006. By such time, they had completed more than 10 years of service as Clerks. Their claim for considering the aforesaid entire period from 18.03.1996 till 18.10.2006 for the purposes of their absorption in the Government service cannot be said to be wholly unjustified and required consideration. 10. Petitioners have placed on record judgment passed by a coordinate bench of this Court in CWP(T) No. 14695 of 2008 with COPC(T) No. 365 of 2008, dated 08.12.2010, whereby almost in identical fact situation, the right of consideration for relaxation in the qualifying period was upheld. It will be gainful to reproduce the relevant extract of aforesaid judgment as under: “4. Petitioner was working as Superintendent Grade-II with effect from 11 August, 2001. A decision has been taken by the State Government to take over the erstwhile D.A.V. College, Daulatpur Chowk on 14.9.2006, Petitioner's services were taken over as Junior Assistant vide notification dated 4.1.2007. It will be gainful to reproduce the relevant extract of aforesaid judgment as under: “4. Petitioner was working as Superintendent Grade-II with effect from 11 August, 2001. A decision has been taken by the State Government to take over the erstwhile D.A.V. College, Daulatpur Chowk on 14.9.2006, Petitioner's services were taken over as Junior Assistant vide notification dated 4.1.2007. It will be apt at this stage to take note of Notification dated 25.8.1994, more particularly Para-9. Para 9 read thus: “All members (including Principal) of the staff will be treated as fresh entrants and they will be placed at the bottom of the seniority list maintained in respect of the Government employees in their respective cadre from the date of taking over, provided, in the case of ministerial staff: 1. A person with 25 years experience may be absorbed as Superintendent Grade-II. 2. A person with 17 years of service as clerk may be absorbed as Senior Assistant. 3. A person with 10 years experience as clerk may be absorbed as Junior Assistant. 4. Having 5 years experience may be absorbed as Senior Clerk and less than 5 years as clerk.” 5. A bare perusal of these conditions reveals that a person with 25 years experience was to be absorbed as Superintendent Grade-II, a person with 17 years experience as clerk was to be absorbed as Senior Assistant, a person with 10 years experience as clerk was to be absorbed as Junior Assistant and a person with 5 years experience as Senior Clerk and less than 5 years as a clerk. 6. Since the petitioner has not gained 25 years' experience, he could not be absorbed as Superintendent Grade-II. The fact of the matter is that he had worked for 16 years with effect from 9.9.1990 till taking over his services vide notification dated 4.1.2007. Thus, strictly construing the notification dated 25.8.1994, petitioner could only be absorbed as Junior Assistant. However, the Court is of the considered view that it would be very harsh for a person to work as Junior Assistant after working as Senior Assistant with effect, from 9th September, 1990 and thereafter as Superintendent Grade-II with effect from 11 August, 2001 till his services were taken over. If the college had not been taken over, he would have been working still as Superintendent Grade-II. If the college had not been taken over, he would have been working still as Superintendent Grade-II. The terms and conditions dated 25th August, 1994 are required to be tinkered with justice. In this case, the strict compliance of notification dated 25th August, 1994 will cause immense hardship to the petitioner. The respondent-State ought to have considered the case of the petitioner at least for the post of Senior Assistant taking into consideration that he had worked for 16 years in two spells, as Senior Assistant as well as Superintendent Grade-II by relaxation of one year of condition No. 9. 7. It is not that the petitioner has lost the higher post of Superintendent Grade-II in terms of the status, but he has also suffered monetary loss when he was absorbed as Junior Assistant instead of Senior Assistant. The administrative decision must be reasonable and arbitrariness must be avoided. The decision should be just and fair. 8. Accordingly, in view of the above discussion, the petition is disposed of with a direction to the respondents to consider the case of the petitioner for relaxation of one year and thereafter consider his case for absorbing him as Senior Assistant instead of Junior Assistant, in view of the observations made hereinabove, within a period of two months after the production of certified copy of this judgment. The pending applications, if any also stands disposed of. No costs.” 11. Petitioners have placed on record an order dated 23.06.2014 issued by Director of Higher Education which records the implementation of aforesaid judgment passed by a co-ordinate bench of this Court in letter and spirit. The petitioner in that petition was granted due benefits after granting relaxation of one year in qualifying period. 12. Respondents cannot apply different parameters for similarly situated persons as the same will amount to discrimination. 13. Accordingly, in view of the above discussion, the petition is disposed of with a direction to the respondents to consider the cases of the petitioners for relaxation of period of four months 8 days and thereafter consider their cases for absorbing them as Junior Assistants in view of the observations made hereinabove, within a period of two months after the production of copy of this judgment. Pending applications also stand disposed of.