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2023 DIGILAW 543 (HP)

Randhir Singh v. State of Himachal Pradesh

2023-12-15

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. These two petitions preferred by the same petitioner, seeking service benefits are being decided by this common order for involvement and appreciation of common facts and documents. 2. First petition O.A. No.281 of 2018 was filed by the petitioner before the erstwhile H.P. State Administrative Tribunal. The same, on abolition of erstwhile Tribunal, was transmitted to the High Court and was registered as CWPOA No.3865 of 2020 wherein, main reliefs sought by the petitioner, are as under:- “(i) Quash the provisional Seniority List Annexure A-7 which after rejection of representation Annexure A-8 was circulated as the final seniority list. (ii) Quash rejection of representation dated 08.11.2013 Annexure A-8. (iii) Quash letter dated 16.7.2016 Annexure A-14 whereby the appeal filed by the applicant against rejection of representation was dismissed. (iv) That respondents-authorities be directed to re-fix seniority of the applicant after taking into account service rendered in the Army will all consequential benefits of seniority and arrears.” 3. CWP No.72 of 2021 was preferred by the petitioner invoking Article 226 of the Constitution of India for the following reliefs:- “(a) Issue an appropriate writ/order/direction directing the respondent to treat the petitioner to be deemed to have been appointed in service from 23.02.2002 i.e. 15 days of recommendation of came of the petitioner for appointment by H.P. Ex- servicemen Employment Cell Hamirpur alongwith all consequential benefits; (b) Issue an appropriate writ/order/direction directing the respondent to consider the case of the petitioner for pension under CCA Pension Rules 1972 and grant the benefits thereof; (c) Issue an appropriate writ/order/direction directing the respondent to consider the case of the petitioner for GPF subscription under GPF Rules 1960 and grant the benefits thereunder; (d) If this Hon’ble Court finds that prayer a, b & c cannot be granted for any reason then the petitioner be allowed in the alternative compensation for the loss of pension etc. amounting to Rs.40 Lakhs.” 4. amounting to Rs.40 Lakhs.” 4. Undisputed facts, emerging from pleadings and material placed on record, are that in the year 2001 respondents-State/Department had decided to fill up 11 posts of Sub-Inspector by direct recruitment in Police Department, Himachal Pradesh, out of which 9 posts were to be filled through Himachal Pradesh Subordinate Service Selection Board (hereinafter referred to as ‘Selection Board’), one post was reserved for Ex-servicemen to be filled through Ex-servicemen Cell and one post was to be filled from Sports Quota amongst distinguished sports persons through Youth Service and Sports Department (hereinafter referred to as ‘Sports Department’). 5. In furtherance to process initiated for filling up 9 posts through the Selection Board, 9 candidates were recommended by the Selection Board for their appointment in January 2003. Whereas, name of the petitioner was sponsored against the post reserved for Ex-servicemen in February 2002 and name of one Firoz Khan was sponsored by the Sports Department against the post reserved for distinguished sports persons. 6. In the meanwhile, some complaints were received with respect to selection process through the Selection Board and interim stay order was also passed by the erstwhile Tribunal on 01.03.2001 in O.A. No.119 of 2001. There was no complaint or stay of any kind with respect to the seats to be filled through Ex-servicemen Employment Cell or Sports Department. Lateron, process initiated for filling up 9 posts, through the Selection Board, was cancelled. 7. Petitioner kept on representing to the respondents immediately after sponsoring of his name by the Ex-servicemen Cell. Vide communication dated 05.08.2002 (Annexure P-4 in CWP No.72 of 2021), he was informed by the office of Director General of Police, Himachal Pradesh that matter with respect to 9 posts to be filled through the Selection Board was under consideration and after completing the said process the matter for appointment of petitioner shall be considered. Thereafter, petitioner kept on representing and ultimately when no heed was paid to his requests, he preferred O.A.No.1622 of 2005, seeking direction to respondents to offer him appointment. The said O.A. was disposed of vide order dated 07.07.2005, directing Secretary (Home) to the Government of Himachal Pradesh, to decide the representation. Thereafter, petitioner kept on representing and ultimately when no heed was paid to his requests, he preferred O.A.No.1622 of 2005, seeking direction to respondents to offer him appointment. The said O.A. was disposed of vide order dated 07.07.2005, directing Secretary (Home) to the Government of Himachal Pradesh, to decide the representation. The said representation was considered and rejected by the Secretary (Home) vide office order dated 30.08.2005 (Annexure P-6 in CWP No.72/2021/Annexure A-2 in CWPOA No.3865/2020), with observation that as per Punjab Police Rules, applicable in Himachal Pradesh Police Department, recruitment shall be made to all the posts together for which process was going on because it was not possible for the Police Department to impart training, necessary for the police personnel, individually and it was considered by the Secretary (Home) that it would not be appropriate to offer appointment to the petitioner and his case was rejected. 8. Petitioner assailed aforesaid rejection by filing O.A. No.3035 of 2005. During pendency of the said O.A., vide communication dated 23.01.2006 (Annexure P-7 in CWP No.72/2021), it was informed by the Principal Secretary (Home) to Director General of Police that since candidates selected for posts of Sub-Inspector are trained at PTC Phillaur and so it was possible to send individuals for training without waiting for the full batch and inter se seniority will be decided as per final outcome of the case pending in the erstwhile Tribunal filed by 8 other candidates whose appointment for the post of Sub- Inspector of Police through Selection Board was cancelled by the Government. It was further communicated that case of Firoz Khan appointed as distinguished sportsman was also to be considered in the same manner and Court was requested to dispose of the case on the same principle with observation that seniority will be subject to final outcome of the cases. However, nothing fruitful was yielded after this communication. 9. It was further communicated that case of Firoz Khan appointed as distinguished sportsman was also to be considered in the same manner and Court was requested to dispose of the case on the same principle with observation that seniority will be subject to final outcome of the cases. However, nothing fruitful was yielded after this communication. 9. On 21.07.2007, in the matters O.A. No.2860 of 2005, titled as Firoz Khan vs. State of H.P. & others and O.A. No.3035 of 2005, titled as Randhir Singh vs. State of H.P. & others, a communication (Annexure P-8 in CWP No.72 of 2021 and Annexure A-3 in CWPOA No.3865 of 2020), was sent from Principal Secretary (Home) to Director General of Police that it had been decided that there was no justification to withhold the offer of appointment to Firoz Khan and Randhir Singh under the sports and Ex-servicemen quota and since their names were duly recommended by the concerned agencies and duly accepted by the competent authority, it was further communicated vide this letter that once the number of vacancies to be filled up was decided, reservation worked out and the appropriate recruitment procedure invoked, the operation of reservation roster was deemed to be complete, and each such recruitment procedure will function independent of each other for finalization of the names for the respective number of reserved/unreserved vacancies. 10. In sequel to aforesaid communication dated 21.07.2007, Original Applications No.2860 of 2005 and 3035 of 2005 were disposed of by the erstwhile Tribunal, vide order dated 09.08.2007 (Annexure P-9 in CWP No.72 of 2021/Annexure A-4 in CWPOA No.3865 of 2020) with observation that nothing survived to be adjudicated, but with direction to offer appointment to the petitioner within two months from passing of the order. Thereafter, petitioner was appointed on 28.08.2007 (Annexure R-3 and Annexure P-11 in CWP No.72 of 2021). After that petitioner, on completion of his probation period on 15.05.2011, was confirmed w.e.f. 30.05.2011 vide office order dated 30.06.2011. Thereafter, provisional seniority of the petitioner by extending benefits of service in the Armed Forces, vide order dated 13.02.2013 (Annexure A-6 in CWPOA No.3865 of 2020) was fixed deeming his recruitment from 16.10.1993 after counting approved Military service of 13 years 10 months and 12 days and as such his placement of seniority in the rank of Sub-Inspector was also fixed. Provisional seniority list was published on 01.05.2013. Provisional seniority list was published on 01.05.2013. Petitioner made representation on 23.07.2013 (Annexure A-8 in CWPOA No.3865 of 2020) with prayer to consider his appointment since 2002 and to extend benefit to him for the service of five years to fix his seniority. Petitioner had also prayed for his promotion on the basis of such seniority. 11. Vide communication dated 14.02.2012 (Annexure A-9 in CWPOA No.3865 of 2020), Police Department sought clarification in this regard from the Principal Secretary (Home). In response thereto, Principal Secretary (Home) with consultation of Department of Personnel, vide communication dated 31.03.2012 (Annexure A-10 in CWPOA No.3865 of 2020) communicated that as per DAFP (Reservation of Vacancies in H.P. Non-Technical Services) Rules, 1972 read with instructions dated 30.09.1989, re-employed ex-servicemen may be considered for promotion on completion of minimum three years of service subject to availability of posts and suitability against the post which becomes available subsequent to completion of three years of service, but with rider that in case there is some statutory requirement of minimum service exceeding three years under any Act/Code/Rules other than the R & P Rules, in which case the service as prescribed in the said Act/Code/Rules shall be followed. It has been further communicated that where the services are governed under any specific statutory Act/Code/Rules, seniority be maintained pursuant to the provisions of the said Act/Code/Rules. 12. In sequel to aforesaid communication, Director General of Police vide order dated 08.11.2013 (Annexure A-12 in CWPOA No.3865 of 2020) rejected claim of the petitioner for his further promotion on the ground that Rule 13.14 (2) of Punjab Police Rules as applicable to Himachal Pradesh, provides that no Sub-Inspector of Police shall be considered eligible for promotion to the rank of Inspector of Police unless he has at least five years approved service in the rank of Sub-Inspector and it was observed that Police Department is governed under specific Rules and, therefore, Ex-servicemen are also required to fulfill the conditions laid down in the Rules and no relaxation is admissible to the Ex-servicemen. 13. Appeal preferred by the petitioner was also rejected by the competent Authority, in terms of communication dated 31.03.2012 which was communicated vide communication dated 16.07.2016 (Annexure A-14 in CWPOA No.3865 of 2020). 14. Feeling aggrieved by the aforesaid order, petitioner preferred O.A. No.281 of 2018, now registered as CWPOA No.3865 of 2020. 15. 13. Appeal preferred by the petitioner was also rejected by the competent Authority, in terms of communication dated 31.03.2012 which was communicated vide communication dated 16.07.2016 (Annexure A-14 in CWPOA No.3865 of 2020). 14. Feeling aggrieved by the aforesaid order, petitioner preferred O.A. No.281 of 2018, now registered as CWPOA No.3865 of 2020. 15. It is apt to record that petitioner on completion of five years of actual service as a Sub-Inspector was promoted to the post of Inspector vide order dated 18.12.2012 and, thereafter, in April 2018, he was promoted to the Post of Deputy Superintendent of Police. Now petitioner stood retired on 30.04.2021. 16. In December 2020, petitioner preferred second petition (CWP No.72 of 2021) with prayer to consider him appointed in the year 2002 and to extend all consequential benefits to him on the basis of appointment in the year 2002. 17. To substantiate his claim, petitioner has relied upon communication dated 06.11.1985 (Annexure P-10 in CWP No.72 of 2021/A-5 in CWPOA No.3865 of 2020) issued by Secretary (GAD) to the Government of H.P. to all Administrative Secretaries, all Head of the Departments and Deputy Commissioners on the subject of appointment of Ex-servicemen sponsored by the Ex-servicemen Cell, whereby it has been stressed again that in case of Ex-servicemen candidates sponsored by Ex-servicemen Cell, appointment letter shall be issued within fifteen days and lapse in this regard shall be taken seriously. In this regard, reliance has also been placed on behalf of the petitioner on the judgment dated 26.11.2011 passed in CWP No.2059 of 2010, titled as Hridye Prakash vs. State of H.P. & others, reported in 2011(3) Shim. LC 144, wherein similarly situated petitioners were directed to be deemed to have been appointed within fifteen days from the receipt of sponsorship upon nomination from the Ex-servicemen Employment Cell with their entitlement for benefits under CCS (Pension) Rules, 1972 with all consequential benefits as they were entitled prior to Notification dated 15.05.2003. 18. Petitioner stood retired, therefore, issue of fixation of his seniority has become redundant. 18. Petitioner stood retired, therefore, issue of fixation of his seniority has become redundant. Another issue with respect to his promotion, deeming his appointment since 2002, is also not tenable because Punjab Police Rules provide five years approved service in the rank of Sub-Inspector for entitling a person to be promoted to the rank of Inspector of Police and, therefore, even if petitioner is deemed to have been appointed in the year 2002, his actual service, which can be approved, of five years, shall be reckoned from his actual date of appointment i.e. 28.08.2007 and he will be completing five years in August 2012. It is an admitted fact that petitioner stood promoted in December 2012 to the post of Inspector, therefore, on this count petitioner is not entitled for any relief. 19. It is undisputed that though process of selection of nine candidates through the Selection Board, was cancelled, however, process with respect to posts to be filled through Ex- servicemen Employment Cell and Sports Department, was never terminated or canceled, but was completed in the year 2002 itself except offering appointment to the concerned sponsored candidates, i.e. present petitioner Randhir Singh and Firoz Khan sportsman. Appointment of the petitioner was delayed by the Government in order to wait the fate of selection of nine other candidates recommended by the Selection Board, as emerged from the office order dated 30.08.2005, whereby claim of the petitioner for appointing him was rejected by Secretary (Home) [Annexure A-2 in CWPOA No.3865 of 2020]. Reason assigned for not offering appointment to the petitioner was that it would not be possible to impart training individually to the officers as the training is provided to all recruits together. But this ground has been negated by the State itself, as is evident from communication dated 23.01.2006 (Annexure P-7 in CWP No.72 of 2021) and communication dated 21.07.2007 (Annexure P-8 in CWP No.72 of 2021), wherein it has been observed that Sub- Inspectors are trained at PTC Phillaur and it was possible to send individuals for training without waiting for full batch. Therefore, it is apparent that denial of appointment in the year 2002 to the petitioner was misconceived being based on wrong opinion. There is no fault on the part of the petitioner in delaying his appointment as Sub-Inspector after sponsoring name by the Ex-servicemen Employment Cell vide communication dated 07.02.2002. 20. Therefore, it is apparent that denial of appointment in the year 2002 to the petitioner was misconceived being based on wrong opinion. There is no fault on the part of the petitioner in delaying his appointment as Sub-Inspector after sponsoring name by the Ex-servicemen Employment Cell vide communication dated 07.02.2002. 20. In present case, appointment of the petitioner was delayed by the respondents despite the fact that there was no legal impediment for appointing him within 15 days of receipt of sponsorship of his name from Ex-servicemen Cell. Sponsorship of his name has nothing to do with the case pending in the Tribunal or cancellation of appointment of candidates selected through the Board or determination of selection process regarding 9 posts to be filled through the Board. Hence, as has also been noticed in one of the communications of the State referred supra, the selection process to the post reserved for Ex- serviceman was not only independent of each other but also independent of the process with respect to 9 posts to be filled through the Board. But appointment of petitioner was delayed by the respondents unnecessarily, therefore, he is entitled for considering him appointed on 1.3.2002. 21. Undisputedly judgment in Hridye Prakash’s case, has attained finality and the same stands implemented by the respondent-State. 22. I have gone through the facts of the case which are identical to the case on behalf of the petitioner. In the said case also, petitioners’ names were sponsored for the post of TGT on 03.12.02002 and 02.01.2003 and their appointment orders were issued on various dates during 20.09.2003 to 02.11.2004 and thereafter, the petitioners had approached the Court and it was ordered that their appointment be deemed to have been effected w.e.f. 15 days from receipt of their sponsorship/nomination from the Ex-servicemen Employment Cell, with all consequential benefits. 23. There is no difference in the aforesaid facts of present case and in the case of Hridye Prakash as in both cases deemed date of appointment is falling before 15.05.2003, thus, finding returned in Hridye Prakash’s case shall be applicable to the present case mutatis mutandi for all intents and purposes as per law/Rules applicable on the deemed date of appointment. 24. Name was sponsored vide communication dated 07.02.2002. 24. Name was sponsored vide communication dated 07.02.2002. It would be appropriate to consider that even if, at the most, seven days are taken to reach such communication in the DGP office, then also fifteen days thereafter shall be completed on 28.02.2002 and as such, in terms of instructions dated 06.11.1985 (Annexure P-10 in CWP No.72 of 2021/Annexure A-5 in CWPOA No.3865 of 2020) and applying judgment in Hridye Prakash’s case, petitioner is entitled for deeming his appointment from 01.03.2002 for all intents and purposes, entitling him all service benefits accordingly. Though CWP No.72 of 2021 has been filed in December 2020, seeking relief with respect to his deemed appointment in the year 2002 with all consequential benefits, including pensionary benefits. However, it cannot be ignored that he was agitating his cause since 2002 and even after his appointment in the year 2007 by filing various representations as well as Original Applications/Petitions before appropriate competent Court/Tribunal and, it is a case of continuing wrong involving recurring cause of action every month with respect to fixation of pay and pension etc., and therefore, he cannot be non-suited on account of delay and laches on his part. 25. In this regard, Supreme Court in Union of India and others vs. Tarsem Singh, reported in (2008) 8 SCC 648 , has held as under:- “7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which relates to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which relates to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re- fixation of pay or pension, relief may be granted in spite of delay as it does not affect the right of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” 26. The aforesaid has also been reiterated in its recent judgment by the Supreme court in Rushibhai Jagishchandra Pathak vs. Bhavnagar Municipal Corporation, decided on 18.05.2022, reported in JT 2022 (5) SC 470. 27. In view of above discussion, present petitions are allowed. The petitioner is deemed to have been appointed with effect from within fifteen days from the receipt of his sponsorship/nomination from the Ex-servicemen Employment Cell, entitling him for the benefits under the CCS (Pension) Rules, 1972 with all consequential benefits as he is entitled prior to 15.05.2003. Respondents are also directed to extend all benefits, including pension under CCS (Pension) Rules, 1972, and as available to the petitioner on or before 28.02.2024 for which he is entitled as per Rules/law applicable deeming his appointment on 01.03.2002. 28. In present case it is also relevant to notice that petitioner, for the first time, agitated his claim for seniority in the year 2013 by submitting representation dated 23.07.2013 (Annexure A-8 in CWPOA No.3865 of 2020). But this claim was based on the basis of fixation of seniority on the basis of approved Military Service and with request to adjust his seniority in the list of Inspectors. In this representation there was no claim for appointment within 15 days of sponsorship from Ex-servicemen Employment Cell. Such claim has been raised for the first time in December 2020. In this representation there was no claim for appointment within 15 days of sponsorship from Ex-servicemen Employment Cell. Such claim has been raised for the first time in December 2020. Therefore, actual monetary benefits are restricted to 3 years prior to filing of CWP No.72 of 2021. Therefore, petitioner shall be entitled for monetary benefits w.e.f. 01.01.2018 on actual basis and benefits beyond this date shall be notional. 29. In given facts and circumstances, I am of the opinion that petitioner is not entitled for damages as claimed. 30. Both petitions are disposed of in aforesaid terms, so also pending application(s), if any.