Dismissed

State v. Surender Kumar Parmar

Himachal Pradesh HC31 Aug 2017LPA/110/2011

Case brief

AI extract

What is this about?

This Letters Patent Appeal against a single judge's award of higher pay scales was dismissed by the HP High Court. Upholding the lower court, the court ruled that despite available posts, the respondent's lack of promotion over 28 years warranted higher scales under K.K. Roy principles.

What did the court decide?

Appeal dismissed; judgment of learned Single Judge granting two higher scales and imperative of two years of service.

State Vs Surender Kumar Parmar — Pension and Retirement Benefits | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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LPA No. 110 of 2011 Reserved on: June 29, 2017 Decided on August 31, 2017

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--------------------------------------------------------------------------------State of Himachal Pradesh and others …………….Appellants Versus Shri Surender Kumar Parmar ……….Respondent --------------------------------------------------------------------------------Coram Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice Hon'ble Mr. Justice Sandeep Sharma, Judge

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Whether approved for reporting?

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------------------------------ For the appellants	------------------------------------- Mr. Shrawan Dogra, General with Mr. Anup Mr. Romesh Verma, Advocate Generals and Verma, Deputy Advocate	-------------- Advocate Rattan and Additional Mr. J.K. General.
For the respondent	Mr.Sanjeev Bhushan	, Senior
	Advocate with Ms.	Abhilasha
------------------------------	Kaundal, Advocate. -------------------------------------	--------------

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Sandeep Sharma, Judge

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By way of instant Letters Patent Appeal, challenge has been laid to judgment dated 4.1.2011 rendered by the learned Single Judge in CWP No. 5104 of 2010, whereby learned Single Judge, while allowing writ petition having been preferred by the respondent-petitioner (hereinafter, ‘respondent), directed the appellant-respondent (hereinafter, ‘appellant’) to grant two higher scales to the respondent, in the hierarchy of pay scales, one on completion of 12 years of service and other on completion of 24 years of service with consequential monetary benefits alongwith arrears.

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1 Whether the reporters of the local papers may be allowed to see the judgment? .

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2. Facts as emerges from the record are that the respondent was initially appointed in the year 1981 as Computer Operator in the Health Department of Himachal Pradesh. It is also not in dispute that respondent in the aforesaid capacity worked with the appellant till 31.1.2010, when he was superannuated, after having attained age of 58 years. In nutshell, the case of the respondent before the learned Court below was that after having been appointed as Computer Operator in the year 1981, he continued to be deployed by the appellant in various offices to render services of a Clerk. Since other Clerks working in the Department were granted promotions as Assistants, Senior Assistants, Deputy Superintendents etc., respondent also claimed that he be also granted promotion in the line of Clerk and thereafter at par with the similarly situate employees, who had joined with him, alongwith consequential benefits of pay scales granted from time to time. Respondent, by way of writ petition, which is subject matter of this appeal, also sought quashing of order dated 6.7.2010, annexure P-15, whereby representation made by him in terms of order dated 9.3.2010, passed in CWP No. 4210 of 2009, came to be dismissed by the appellants.

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3. Appellants, while refuting aforesaid claim of the respondent, claimed that respondent was appointed as Computer Operator, which is altogether a different post from that included in the Clerical cadre. Appellants, further contended before the learned Court below that there is different channel of promotion available

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to the category of Computer Operator, to which the respondent belonged. Appellants, while claiming that the appointment of the petitioner with the appellants was, for all intents and purposes, as Computer Operator, categorically contended that the respondent was never assigned duties of clerical cadre by the competent authority, hence, no benefit, as claimed by the respondent as per Annexures P1 to P-5, can be granted to him, especially, when he belonged to the category of Computer Operator, which is/was a separate and distinct category, from that of Clerks, having separate seniority, R&P Rules etc. Appellants, while refuting the claim of the respondent, with regard to absorption of another incumbent namely Padam Chand, Computer Operator, to clerical cadre, contended that though Padam Chand had claimed absorption in clerical cadre, but he was only allowed post of Senior Statistical Assistant, that too in his own cadre of Computer Operator, that too, for a limited period, while he worked as Cashier in the Project by the orders of competent authority.

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4. Learned Single Judge, taking note of the aforesaid pleadings adduced on record by the respective parties, came to the conclusion that there are no promotional avenues for the post of Computer Operators in the Department, wherein respondent was an employee.

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5. Perusal of judgment passed by learned Single Judge, suggests that it had come to the conclusion that though work of Clerk was taken from the respondent as claimed, but that does

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not make him a member of the Clerical cadre, since he was appointed as a Computer Operator. Learned Single Judge, taking note of the fact that there are no promotional avenues for the post of Computer Operator, held the respondent entitled to two higher scales in the hierarchy of pay scales, as has been taken note above, after completion of 12 and 24 years of service. Learned Single Judge, taking note of the law laid down by the Hon'ble Apex Court in State of Tripura and others versus K.K. Roy , (2004) 9 SCC 65, wherein it was held that, where there are no promotional avenues, concerned Department should formulate a policy, based on recommendations of Pay Commissions, granting at least two higher scales to an employee, held the respondent entitled to grant of two higher scales in the hierarchy of pay scales, one on completion of 12 years and other on completion of 24 years.

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6. In the aforesaid background, appellants have come before this Court, in the present proceedings, praying therein for quashing of the judgment passed by learned Single Judge.

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7. Mr. Shrawan Dogra, learned Advocate General duly assisted by Mr. Anup Rattan, learned Additional Advocate General, strenuously argued that impugned judgment passed by learned Single Judge is not sustainable, as the same is not based upon factual matrix of case and is not in consonance with the law and facts pleaded, as such, same deserves to be set aside. Learned Advocate General further contended that there was no occasion for the learned Single Judge to direct the appellant-department to

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grant two higher scales to the respondent, on completion of 12 and 24 years of service, especially, when it was specifically pleaded before the learned Single Judge that separate promotional avenues and channel to the category of Computer Operators, are available and promotion, if any, to the respondent can be granted only in that channel only. While inviting attention of this Court to the judgment passed by Hon'ble Apex Court, in K.K. Roy’s case (Supra), learned Advocate General contended that the same is not applicable in the present case, because, promotional avenues are/were available to the category of Computer Operators. Mr. Dogra, learned Advocate General, further contended that learned Court below failed to appreciate that for the category of employees, where there are no promotional avenues, State introduced Assured Career Progression Scheme (ACPS), to avoid any kind of stagnation, whereby financial benefits are/were allowed to all regular employees, on completion of 8, 16 and 24 years of service in the same post including grant of next higher scale besides additional increments as per admissibility. Learned Advocate General further contended that recommendations of Pay Commission stand already implemented by the Government of Himachal Pradesh, in the form of Assured Career Progression Scheme, as such, no benefits as have been ordered to be granted to the respondent by the Court, are admissible to any such employee benefited under Assured Career Progression Scheme. Lastly, the learned Advocate General contended that in case,

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respondent is allowed benefit in terms of judgment dated 4.1.2011, over and above the scheme of Government, it would be contrary to Rules and policies of the government, as such, impugned judgment having been passed by the learned Single Judge, deserves to be set aside.

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8. Mr. Sanjeev Bhushan, learned Senior Advocate duly assisted by Ms. Abhilasha Kaundal, Advocate, while refuting submission having been made on behalf of the appellant, contended that the respondent, who had performed same and dissimilar duties since his initial appointment in the year 1981, without there being any change, was not provided with any promotion, as such, there is no illegality or infirmity in the judgment passed by learned Single Judge. Learned Senior Advocate, further contended that it stands duly proved on record that appellant, after having appointed respondent, as Computer Operator, compelled/ forced him to perform duties of a Clerk, as such, he rightly claimed to be promoted in the line of Clerical cadre. Learned Senior Advocate, while inviting attention of this Court to the averments contained in para-16 of the petition, contended that one Shri Padam Chand,

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who had filed OA No. 2434 of 1999, was also posted as a Computer Operator, and Himachal Pradesh Administrative Tribunal in the aforesaid Original Application, directed appellant to release pay scale of post of Senior Statistical Assistant in the Project till the time, he worked as Cashier or till the time, Project is complete, as such, respondent, who though was posted as

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Computer Operator, but rendered services of Clerk, was also entitled to be promoted to the post of Senior Statistical Assistant. While placing reliance upon judgment in K.K. Roy’s case (Supra), learned Senior Advocate contended that the appellant is bound to promote the respondent atleast after completion of 12 years of service and thereafter on completion of 24 years of service and also to give increments under Assured Career Progression Scheme, as such, there is no illegality or infirmity in the judgment passed by learned Single Judge.

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9. We have heard the learned counsel for the parties and gone through the record carefully.

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10. After having carefully perused the pleadings adduced on record by the respective parties, this Court finds substantial force in the arguments of learned Advocate General that promotional avenues are/were available to the respondent as well as other similarly situate persons. At this stage, it may be noticed that during the pendency of the instant appeal, a supplementary affidavit came to be filed on 23.2.2016, by Dr. D.S. Gurung, Director, Health Services. It would be profitable to take note of following paras of the aforesaid affidavit:

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“2. That it is submitted that there is a definite channel of promotion available to the category of Computer to which the present respondent belonged. The category of Computer was/is a feeding category to the post of Junior Statistical Assistant and the Statistical Assistant as well, which promotion is otherwise subject to the seniority and fulfilling the other eligibility criteria as per the Recruitment and Promotion Rules to the category of Junior Statistical

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Assistant and the Statistical Assistant, are collectively placed on record as Annexure-I for kind perusal of the Hon'ble Court.

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That it is further submitted that the present respondent was initially appointed in the Appellant Department in the year 1981 and stood retired from Government service on 31-1-2010 on attaining the age of his superannuation. The present respondent during the course of his employment with the Appellant State and the Department stood already granted the additional financial benefit on account of the completion of 8 years, 16 years and 24 years of service on 10-8-198, 11-8-1987 and 11-8-2005 respectively under the Assured Career Progression Scheme framed and notified by the Government from time to time. The attested photocopies of the letter dated 03.02.2016 alongwith the relevant pages of service book containing such entries of having been granted benefits of proficiency increment/ under Assured Career Progression Scheme, to the present respondent, are collectively placed on record as Annexure-II for kind perusal of the Hon'ble Court.”

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11. Perusal of aforesaid affidavit though suggests that separate channel of promotion is/was available to the category of Computer Operators, to which respondent belonged. Even, as per Recruitment and Promotion Rules annexed to the affidavit as Annexure I, clearly suggest that category of Computer Operators is a feeder category to the post of Junior Statistical Assistant and Statistical Assistant as well. Perusal of Recruitment and Promotion Rules, referred to above, suggest that promotion to the post of Junior Statistical Assistant and Statistical Assistant is subject to seniority and fulfilling other eligibility criteria. It would be profitable to take note of following portion of Recruitment and Promotion Rules of the post of Junior Statistical Assistant as under:

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“RECRUITMENT AND PROMOTION RULES FOR THE POSTS OF JUNIOR STATISTICAL ASSISTANT (NON GAZETTED) CLASS-III IN THE DEPARTMENT OF HEALTH & FAMILY WELFARE, HIMACHAL PRADESH

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1.	Name of the post	Junior Statistical Assistant
2.	Number of posts	14 (Fourteen)
3.	Classification	Class-III (Non-Gazetted) (Ministerial Services)
4.	Scale of pay	Rs.4020-120-4260-140- 4400-150-5000-160- 5300-200-6800
5.	Whether Selection
	post or Non Selection Post	: Non Selection
6.	Age for direct Recruitment	:Between 18 to 38 years.
7.	xx
8.	xx
9.	xx
10.	xx
11.	In case of recruitment by promotion deputation, transfer,	By promotion from amongst computers who
	grade from which promotion/deputation/transfer is to be made	possess three years regular services or regular combined with continuous adhoc (rendered upto
		31.03.1991) services, if any, in the grade.

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12. It is clear from the Recruitment and Promotion Rules reproduced herein above that Computer Operators having three years regular service or regular combined with continuous ad hoc services rendered upto 31.3.1991, if any, is entitled to be promoted to the post of Junior Statistical Assistant. Appellants have also annexed Notification No. Per(AP)-C-A(3)-4/2012 dated 11.2.2013, thereby amending Recruitment and Promotion Rules for the post of Statistical Assistant, notified vide Notification No. Per(A)-C-A(3)-1/2010-II dated 20.8.2011, perusal of which shows that column No. 11 of the earlier Rules, stood amended as under:

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“By promotion from amongst the Investigators, Junior Statistical Assistants/Computer-cum-Typists/ Computers

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and Enumerators of the concerned Departments subject to possessing of essential qualification prescribed for direct recruitment against Column No. 7(a) above with ten years regular service or regular combined with continuous adhoc service rendered, if any, in the grade, failing which from amongst the incumbents of Common Clerical cadre (which include Clerks/ Junior Assistants) of the concerned Departments subject to possession of essential qualification prescribed for direct recruitment against Column No. 7(a) above with ten years combined regular service or regular combined with continuous adhoc service rendered, if any, in the cadre.

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Provided that for the purpose of promotion a combined seniority list of eligible Investigators, Junior Statistical Assistants, Computer-cum-typists, Computers, Enumerators and Clerks/ Junior Assistants on the basis of their lengthy of service without disturbing their cadre wise inter-se-seniority, shall be prepared.....”

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13. Record further reveals that the financial benefits under Assured Career Progression Scheme were granted to the respondent on 10.8.1989, 11.8.1997 and 11.8.2005, on completion of 8, 16 and 24 years of service.

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14. Though the above facts brought on record by the appellant by way of affidavit suggest that post of Computer Operator is a feeder post for promotion to the post of Junior Statistical Assistant, on completion of 3 years of regular or regular combined with ad hoc service but there is nothing on record brought by the appellant, why respondent was not promoted to the post of Junior Statistical Assistant, especially when he was appointed in 1981 on the post in question or to the post of Statistical Assistant. There is also nothing on record suggestive of the fact that promotion was offered to the respondent but same was foregone by him; or that he was not found fit for promotion thus rejected, or that due to

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some disciplinary proceedings, he was not promoted to the post of Junior Statistical Assistant or Statistical Assistant. It is strange that no averments to this effect have come forth on behalf of either of parties, that in case promotional posts were available, why respondent was not promoted to such post(s). It is also not clear that when were initially Recruitment and Promotion Rules for the post of Junior Statistical Assistant framed, whether it was prior to his superannuation or later, though perusal of Recruitment and Promotion Rules for the post of Statistical Assistant definitely suggest that same were notified initially in 2011 and thereafter amended in 2013.

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15. This Court also finds that though financial benefits under Assured Career Progression Scheme were made available to the respondent, but same can not be compensated for the benefits to be conferred on account of promotion. In this backdrop, findings returned by the learned Single Judge to the effect that there were no promotional avenues available to the respondent, seem correct and based upon correct appraisal of the record.

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16. Hon'ble Apex Court in K.K. Roy’s case (supra) has also held

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as under:

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“6. It is not a case where there existed an avenue for promotion. It is also not a case where the State intended to make amendments in the promotional policy. The appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondent having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein

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accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue of appointment, he cannot resile therefrom. It is not a case where the principles of estoppel or waiver should be applied having regard to the constitutional functions of the State. It is not disputed that the other States in India Union of India having regard to the recommendations made in this behalf by the Pay Commission introduced the scheme of Assured Career Promotion in terms whereof the incumbent of a post if not promoted within a period of 12 years is granted one higher scale of pay and another upon completion of 24 years if in the meanwhile he had not been promoted despite existence of promotional avenues. When questioned, the learned counsel appearing on behalf of the appellant, even could not point out that the State of Tripura has introduced such a scheme. We wonder as to why such a scheme was not introduced by the Appellant like the other States in India, and what impeded it from doing so. Promotion being a condition of service and having regard to the requirements thereof as has been pointed out by this Court in the decisions referred to hereinbefore, it was expected that the Appellant should have followed the said principle..

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We are, thus, of the opinion that the respondent herein is at least entitled to grant of two higher grades, one upon expiry of the period of 12 years from the date of his joining of the service and the other upon expiry of 24 years thereof.”

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17. Mr. Sanjeev Bhushan, learned Senior Advocate, while placing reliance upon judgment of the Hon'ble Apex Court in Food

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Corporation of India v. Parashotam Das Bansal , (2008) 5 SCC

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100, vehemently argued that so far as introduction of grant of selection grade is concerned, the same does not provide for a promotional scheme. It is available to a limited number of employees. The Hon'ble Apex Court has held as under:

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“11. The question also came up for consideration in M/s. Ujagar Prints etc. etc. v. Union of India & Ors. [AIR 1989 SC 972] and Council of Scientific and Industrial Research & Anr. v. K.G.S. Bhatt & Anr. [(1989) 4 SCC 635]. In the latter decision, this Court held :

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"It is often said and indeed, adroitly, an organisation public or private does not 'hire a hand' but engages or employees a

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whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See : Principles of Personnel Management by Flipo Edwin B. 4th Ed. p. 246). Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors". (See : Personnel Management by Dr. Udai Pareek p.

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277). There cannot be any modern management much less any career planning, man-power development, management development etc. which is not related to a system of promotions."

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23. So far as introduction of grant of selection grade is concerned, the same does not provide for a promotional scheme. It is available to a limited number of employees. By reason thereof a promotional scheme cannot be said to have been framed. The scheme of Accelerated Career Progression is distinct and different from grant of selection grade. We have noticed hereinbefore that although such a provision has been made for the unionized employees but even then they are also entitled to grant of selection grade as well.”

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18. In the case at hand, admittedly the respondent worked on one post only i.e. Computer Operator from 1981 to 2010, till his superannuation, and no reason has come forth why he was no promoted even once in his whole service career, if there were promotional posts available, as canvassed by the appellants. There are also no averments whether respondent was ever offered promotion, which was either denied by him or for which he was found not eligible. Thus, the fact remains that the respondent has remained on one post for around 28 years, which definitely amounts to stagnation. The learned Single Judge has rightly

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allowed the petition and held the respondent entitled to two higher

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scales in the hierarchy of pay scales.

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19. In view of the detailed discussion made herein above, this Court finds no reason or justification to interfere with the well reasoned judgment of learned Single Judge.

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20. Accordingly, there is no merit in the present appeal, and the same is accordingly dismissed. Judgment passed by learned Single Judge is upheld. Pending applications, if any, are disposed

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of. Interim directions, if any, are vacated.

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(Sanjay Karol) Acting Chief Justice

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(Sandeep Sharma) Judge

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August 31, 2017 (vikrant)

State v. Surender Kumar Parmar

Case brief

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State v. Surender Kumar Parmar

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