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2023 DIGILAW 439 (HP)

Parkash Chand v. HRTC

2023-11-04

VIVEK SINGH THAKUR

body2023
JUDGMENT : Vivek Singh Thakur, J. Petitioners have approached the Court seeking following main reliefs:- “1. To quash and set aside office Memo. HO.9E-Booking Clerk/2013, dated 7th November, 2013 (Annexure A-6) and subsequent orders dated 12.11.2013; 14.11.2013; 27.1.2014; 18.11.2013 and 30.11.2013 (Annexure A-9 Colly) issued by the Regional Manager concerned, qua applicants, placing them as Booking Clerks, by transfer. ii) To issue directions to the Respondents; (a) to maintain applicants lien in the cadre/category of Conductors; besides restoring their names in the seniority list of the Conductors as on 31.04.2014 (Annexure A-7) issued subsequent to their placement as Booking Clerks, by transfer. (b) be treated a Conductors for all intents and purposes; and granted all consequential benefits including two additional increments on completion of 20 years service as Conductors and promotional avenue available to the Conductors as per R&P Rules.” 2. Grievance of the petitioners is that respondents have not maintained their lien in the cadre/category of Conductors after posting them as Booking Clerks by transfer, thereby depriving them from the promotion to the post of Inspector as well as two additional increments granted to the Conductors w.e.f. 1.7.2015. 3. Details of service records of the petitioners are as under:- Sr. No. Name of the Applicant Figuring in seniority list of conductors as on 31.12.2020 at Date of appointment as conductor Date of completion of 20 years’ service as conductor Date of posting as Booking Clerk, by transfer Remarks.. Serving or retired 1. Parkash Chand 935 09.02.1988 09.02.2008 13.11.2013 Sarkaghat Unit 2. Kewal Krishan 525 13.10.1983 13.10.2003 13.11.2013 Retired from Bilaspur Unit on 31.03.2017 3. Girdhari Lal 1023 01.09.1989 01.09.2009 18.11.2013 Bilaspur Unit 4. Lal Singh 741 19.02.1985 19.02.2005 13.11.2013 Sarkaghat Unit 5. Gorkh Singh 1000 01.09.1989 01.09.2009 13.11.2013 Retired from Bilaspur Unit on 30.06.2018 6. Ramesh Chand 934 26.12.1984 26.12.2004 16.11.2013 Bilaspur Unit 7. Suresh Chand 887 05.08.1987 05.08.2007 13.11.2013 Hamirpur Unit 8. Krishan Singh 519 01.10.1985 01.10.2005 18.12.2013 Retired from Kullu Unit on 30.9.2016 9. Dhan Dev 270 23.02.1982 23.02.2002 18.11.2013 Retired from Mandi Unit on 28.02.2018 4. It is evident from the aforesaid details that in the year 2013, petitioners were serving as Conductors and in the month of November/December, 2013, they were posted as Booking Clerk by transfer. Some of petitioners have retired and some of them are in service. 5. Dhan Dev 270 23.02.1982 23.02.2002 18.11.2013 Retired from Mandi Unit on 28.02.2018 4. It is evident from the aforesaid details that in the year 2013, petitioners were serving as Conductors and in the month of November/December, 2013, they were posted as Booking Clerk by transfer. Some of petitioners have retired and some of them are in service. 5. Prior to 7.3.2015, as per Recruitment and Promotion Rules (for short “R&P Rules”), for the post of Booking Clerk (Annexure A-3) method of recruitment was 100% by direct recruitment. Vide memorandum dated 7.3.2005 method of recruitment was amended to 100% by transfer from Adda Conductors/Conductors on the basis of seniority (Annexure A-4). 6. In the year 2011, Conductors and Adda Conductors up to Seniority List No. 1 to 1000 were asked to submit their willingness in writing for posting as Booking Clerks by transfer, as evident from communication dated 23.8.2011 (Annexure 4 filed with the supplementary affidavit) and communication dated 17.10.2011 (Annexure A-5 to the petition). 7. In furtherance to the aforesaid communication, petitioners communicated their willingness to be posted as Booking Clerks by transfer. In sequel to willingness, petitioners were posted as Booking Clerks in the month of November/December, 2013 alongwith others vide different memorandums, stating therein as under:- “On recommendations of the Departmental Promotion committee, the services of the following Sr. Most Conductors are hereby placed by transfer to the post of Booking Clerks. The placement as Booking Clerks does not involve assumption of duties and responsibilities of higher nature and as such FR-22-1(a)(i) shall not be attracted.” 8. Subsequent to the aforesaid placement of the petitioners, promotion to the posts of Inspectors were made by the respondent Corporation by promoting candidates from amongst Conductors on the basis of their seniority, but ignoring the petitioners, rather petitioners were excluded from the seniority list of Conductors and a separate seniority list of Booking Clerks was issued. 9. As per R&P Rules, for the post of Inspector recruitment is 100% by promotion, wherein 70% quota has been provided to Sub Inspectors/Adda Conductors and Conductors, 24% quota has been provided to Matriculate Drivers and 6% quota for Booking Clerks. 9. As per R&P Rules, for the post of Inspector recruitment is 100% by promotion, wherein 70% quota has been provided to Sub Inspectors/Adda Conductors and Conductors, 24% quota has been provided to Matriculate Drivers and 6% quota for Booking Clerks. In aforesaid circumstances referring the Office Order of placement of petitioners as Booking Clerks by way of transfer, it has been contended that they were having lien to the post of Conductors as their posting of Booking Clerks was neither appointment nor promotion, but placement and, therefore, they were entitled to be considered as per their seniority as Conductors amongst the Conductors for promotion to the post of Inspector and granting two additional increments. 10. The claims of the petitioners have been opposed on behalf of Corporation on the ground that lien of the petitioners to the cadre of Conductor, after appointment to the post of Booking Clerks came to an end because R&P Rules to the post of Conductors and to the post of Booking Clerks are different, particularly for the reasons that petitioners had consented for their posting as Booking Clerks, recruitment to which is governed by separate R&P Rules and, therefore, they are not entitled to retain lien to the post of Conductor and thus have rightly been excluded from the Seniority List of Conductors and have been included in the Seniority List of Booking Clerks. It has been also contended that duties of Conductors and Booking Clerks are entirely different in nature and further promotion from Booking Clerks is Cashier, whereas for Conductors promotional post was Inspector at that time. It has been contended that now Booking Clerks are in feeder category of two posts, i.e. Cashier and Inspector since 7.3.2015. It has been further contended that two avenues of promotion were available to the petitioners and they have opted for Booking Clerks and, therefore, now they cannot be allowed to revert back to seek promotion as Conductors to the posts of Inspector. It has been further contended that for appointment as Booking Clerks, which is a regular post, lien of the petitioners to the post of Conductor stands terminated. 11. By referring FR-13 and 14-A, it has been contended on behalf of petitioners that they were and are having lien to the post of Conductor. It has been further contended that for appointment as Booking Clerks, which is a regular post, lien of the petitioners to the post of Conductor stands terminated. 11. By referring FR-13 and 14-A, it has been contended on behalf of petitioners that they were and are having lien to the post of Conductor. It has been contended on behalf of petitioners that as per R&P Rules, post of Booking Clerk is not a promotional post for the Conductors and it provides placement by transfer only and, therefore, it cannot even be considered as a recruitment. 12. Learned counsel for the petitioners referring decisions of co-ordinate Benches dated 5.7.2013 in Sarvan Kumar and others Vs. HRTC & others, CWPOA No. 6521 of 2019 and Har Gopal & others Vs. HRTC & another, CWP No. 619 of 2020 as well as decision dated 15.3.2023, Sarvan Kumar and another Vs. HRTC, CWP No. 4406 of 2021, has submitted that similarly situated persons, taking into consideration entire facts and circumstances of similar nature, have been promoted by reverting back to the post of senior conductors alongwith all consequential benefits and, therefore, it has been contended that petitioners are also entitled for similar treatment. 13. It has been further submitted that not only petitioners in the aforesaid petitions decided on 5.7.2023 and 15.3.2023, but some other persons, as referred in these judgments, were allowed to withdraw their consent and to revert back to the post of Senior Conductors by the Corporation itself, who were similarly situated to the petitioners and, therefore, it has been contended that petitioners being similarly situated persons are entitled to be treated similarly. 14. Relevant R&P Rules to the post of Booking Clerks instead of recruitment by direct recruitment, provide recruitment to the said post 100% by transfer from Adda Conductors/Conductors on the basis of seniority. Communication vide which willingness of the Conductors was sought for the post of Booking Clerks also speaks “posting of Booking Clerks by transfer”, but does not say that such posting shall be promotion or appointment by direct recruitment to the post of Booking Clerk from amongst feeder cadre of Conductors. Communication vide which willingness of the Conductors was sought for the post of Booking Clerks also speaks “posting of Booking Clerks by transfer”, but does not say that such posting shall be promotion or appointment by direct recruitment to the post of Booking Clerk from amongst feeder cadre of Conductors. RP Rules as well as communication at no stretch of imagination provide or indicate that cadre of Conductor is a feeder cadre to the post of Booking Clerk rather reading of posting order with R&P Rules and communication depicts that post of Booking Clerk and Conductor is equivalent belonging to the same class. Memorandum whereby petitioners were posted as Booking Clerks also speaks that the senior most conductors are placed by transfer to the Booking Clerks with further contention that such placement does not involve assumption of duties and responsibilities of higher nature, negating the applicability of FR-22-1(a)(i). It is evident from the aforesaid documents, i.e. R&P Rules, communication seeking willingness and posting of Conductors to the post of Booking Clerks that it was neither appointment nor promotion, but was placement of Conductors on equivalent post. 15. ‘Transfer’ and ‘recruitment by transfer’ are entirely two different concepts. Transfer can be from one category to another category or within the class in terms of provision of R&P Rules. A ‘transfer’ simplicitor’ conveys a different meaning and a ‘recruitment by transfer’ conveys a different concept altogether. A ‘transfer’ does not result in the termination of lien in the present cadre but ‘recruitment by transfer’ is a different service concept altogether. 16. Present case is also not a case of transfer to a different cadre or to a different service amounting to appointment or selection by transfer but, as mentioned in memorandum, it was placement of senior most conductors as Booking Clerks. It is not recruitment by transfer terminating the lien of the employee in previous category or service but is a transfer simpliciter to a similar post resulting only in change of place and seat of employment and, therefore, there is no ‘termination of lien’. Thus in present case, the ingredients required for termination of lien are absent. It is not recruitment by transfer terminating the lien of the employee in previous category or service but is a transfer simpliciter to a similar post resulting only in change of place and seat of employment and, therefore, there is no ‘termination of lien’. Thus in present case, the ingredients required for termination of lien are absent. The post of Booking Clerk may be of a post of different category, but of the same class as evident from posting orders and as such posting of petitioners as Booking Clerk is not a recruitment by transfer, but it is only placement by transfer to the post of Booking Clerk belonging to the same class, not resulting into termination of lien of the petitioners to the post of Conductors. 17. Petitioners were placed as Booking Clerks by transfer. Unless petitioners are appointed or recruited to the post of Booking Clerk, they will not acquire a lien to the said post and in absence of acquiring a lien to the post to which they have been placed by way of transfer, they shall not loose the lien to the previous post. Though, in R&P Rules to the recruitment to the post of Booking Clerk has been provided 100% by way of transfer, however petitioners have been posted against the said post by way of placement through transfer, therefore, their appointment as Booking Clerks cannot be termed as fresh appointment or promotion to the Booking Clerks and thus it is not a recruitment to the said post. Therefore, willingness given by the petitioners to be appointed as Booking Clerks cannot be treated as an option exercised by them for their promotion. 18. The exercise of option will be in a situation where there are two avenues of promotion available. In present case, post of Booking Clerks is not a promotional post, but is equivalent post available for posting by way of transfer/placement whereas promotional post available for Conductors is post of Inspector. There is no other channel of promotion available to the Conductors and thus plea of Corporation that by giving willingness to the post of Booking Clerks, petitioners have exercised their option for promotion, is not tenable. 19. There is no other channel of promotion available to the Conductors and thus plea of Corporation that by giving willingness to the post of Booking Clerks, petitioners have exercised their option for promotion, is not tenable. 19. Peculiar facts and circumstances in present case are not covered by circumstances provided in FR-13 and FR-14-A to terminate the lien and, therefore, petitioners’ lien to the post of Conductor cannot be treated to be terminated especially when the respondent Corporation itself has endorsed and followed this view and has acted accordingly by permitting similarly situated persons to withdraw their consent after their placement as Booking Clerks, and respondent Corporation has also reverted similarly situated persons from the post of Booking Clerk to the post of Conductor on its own even without filing a petition in the Court. Such act of the respondent Corporation establishes and substantiates the plea of petitioners that posts of Conductor and Booking Clerk are equivalent and placement to the post of Booking Clerk from Conductor is reversible and revertible and as such lien of person, posted as Booking Clerk through placement by transfer, remains alive to the post of Conductor and, therefore, such person has a right to remain in Seniority List of Conductors and also to be considered for promotion to the post of Inspector as such. 20. Though in Sarvan Kumar’s case, CWP No. 4406 of 2021, it has been recorded in the order that, that case shall not be treated as a precedent, however, taking into consideration similar circumstances in CWPOA No.6521 of 2019, co-ordinate Bench has granted similar relief to the petitioners by observing that being similarly situated persons, petitioners in these cases were also required to be given same treatment. 21. Apart from the aforesaid discussion, in view of decisions in CWPOA No. 6521 of 2019, CWP Nos. 619 of 2020 and 4406 of 2021, petitioners are also entitled for similar treatment. Otherwise also, as discussed supra, on merits also petitioners are entitled to retain lien to the post of Conductor, as they were never appointed or promoted to the post of Booking Clerks from Conductors, rather it is evident from the material on record that posting of the petitioners as Booking Clerks was merely a placement by transfer which does not entail consequences of appointment/promotion to the post of different cadre. 22. 22. Accordingly petitioners are also held entitled to be included in the seniority list of Conductors as per their original seniority in the cadre of Conductors and respondents are directed to extend all consequential benefits to them, including promotion as well as additional increments as were extended to their counter parts as well as other Conductors junior to them. Needles to say any extra benefits availed by the petitioners as Booking Clerk shall be adjusted against benefits extendable to them by their inclusion in the Seniority List of Conductors and they shall be given similar treatment as extended by the Corporation to the similarly situated persons at its own as well as in furtherance to the decisions dated 5.7.2023 and 15.3.2023 referred supra. 23. Needful be done by respondents within a period of one month from today. 24. Before parting with the case it would be apt to record that to avoid litigation and to provide fair, transparent and just treatment to all, an exercise, to carryout suitable amendment in R&P Rule, may be undertaken, if advised so and deemed fit, by the Corporation including abolition of quota of Booking Clerks for promotion to the post of Inspector but including Booking Clerks/Adda Conductors with other Conductors in common feeder cadre with common seniority list for promotion to the post of Inspector by specifically providing that the posts of Booking Clerk, Adda Conductors, Sub Inspector and Conductor etc., having same pay scale and similar responsibilities are interchangeable by placement through transfer, as per requirement of the Corporation. Petition is allowed and disposed of in aforesaid terms, alongwith pending application(s), if any.