Manohar Lal Vs State of Hp

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWPOA No. 2604 of 2020 Reserved on: 29.04.2024 Decided on: 06.05.2024

__________________________________________________________ Manohar Lal and others …Petitioners Versus State of H.P. and others …Respondents _________________________________________________________ Coram_

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The Hon'ble Mr. Justice Satyen Vaidya, Judge

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1 Whether approved for reporting? Yes

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_______________________ For the petitioners	_______________________ : Mr. Dilip Sha Advocate, with Sharma, Advocate.	______ rma, Mr.	__ Senior Manish
For the respondents:	Mr. Dalip K. Sha Advocate General, No. 1 & 2/State.	rma, for re	Additional spondents
	Mr. A. K. Sharm respondents No. 3	a, Ad to 39.	vocate, for

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Satyen Vaidya, Judge

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The instant petition has been filed for the grant of following substantive reliefs:

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“i) That the directions may kindly be issued to the respondents to count the contractual service of the applicants with effect from the date of their appointment on contractual basis for all intents and purposes i.e. seniority (as per merit list issued by the HPSSSC, Hamirpur), pay scale revised time to time, annual increment, proficiency step-up and promotion against the post of Junior Assistant etc. as per the

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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judgment passed by the Hon’ble Tribunal in O.A. No. 3337 of 2016, titled as Lekh Ram and others vs. State of H.P. and others, decided on 25.05.2017 (Annexure A-5).

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ii) That Annexure A-4 may kindly be quashed and setaside with the directions to re-draw the seniority list whereby inducting the names of the applicants at a proper place over and above the private resp0ondents striatum wise, whereby giving the benefit to each applicant of his contractual service from the date of his initial appointment in the Department.

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iii) That the respondent department may kindly be directed to pay all consequential benefits to the applicants from the due dates with interest @ 12% per annum till the date of realization.”

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The petitioners are claiming seniority and other

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consequential benefits in the cadre of Clerks in the Department of Excise and Taxation, Government of Himachal Pradesh by seeking relief of addition of their contract services for aforesaid purposes.

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The petitioners were appointed as Clerks on contract basis in Excise and Taxation Department in the years 2010, 2012 and 2014, respectively in the pay scale of Rs.5910 – 20200 + 1900 Grade Pay with initial start of salary of Rs.7810/- per month. The petitioners were

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selected after due process of recruitment held by the Himachal Pradesh Subordinate Services Selection Board (for short, “HPSSSB”) in accordance with the Recruitment and Promotion Rules (for short, “R & P Rules”) for the posts of Clerks in the Respondent-Department.

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The services of petitioners were regularized in the years 2016-2017 in terms of the regularization policy of the State Government.

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Respondents No. 3 to 39 were appointed as Clerks in Respondent-Department either by way of promotion or limited direct recruitment. Indisputably, respondents No. 3 to 39 prior to their induction in ClassIII cadre of Clerks had served the Respondent-Department as Class-IV employees for requisite period of service. Their appointments as Clerks by way of promotion or limited direct recruitment was after the initial appointment of petitioners as Clerks on contract basis.

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Respondents No. 1 and 2 prepared seniority list of Clerks as was circulated vide office order dated 18.7.2017 in which respondents No. 3 to 39 were placed

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above the petitioners. In this background, petitioners have filed the instant petition for the reliefs as noticed above.

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Respondents No. 1 and 2 have filed their reply and the factual position as stated by the petitioners has not been denied. As per official-respondents, 34 vacant posts of Clerks on contract basis by direct recruitment were required to be filled in the Excise and Taxation Department and for such purpose requisition was sent to HPSSSB on 14.6.2008. The HPSSSB after undertaking the selection process recommended the names of 34 selected persons to the Respondent-Department on 31.5.2010. Accordingly, the appointments of some of the petitioners were made in June, 2010.

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Respondents No. 1 and 2 have further submitted that the services of petitioners were regularized in 2016-2017 in terms of the regularization policy.

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As regards the private respondents No. 3 to 39, it has been submitted that as per R & P Rules for the post of Clerks in Respondent-Department, 70% posts are to be filled by direct recruitment and remaining 30% by promotion, out of which 20% are to be filled from amongst

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Class-IV officials by way of limited direct competition to be conducted by the HPSSSB. It has not been denied that the appointment of private respondents in the cadre of Clerks were after the initial contract appointments of the petitioners. The official-respondents, however, have tried to justify the placement of private-respondents above the petitioners in the seniority list prepared in the year 2017 on the ground that the private-respondents were appointed on regular basis from the very inception, whereas, the initial appointment of petitioners was on contract basis.

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The private-respondents have filed their

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separate reply alleging inter alia that under the prevalent R & P Rules, the right of seniority belongs to the private respondents as their appointment as Clerks was on regular basis prior to the date of regularization of the services of the petitioners. As per respondents No. 3 to 39, the petitioners cannot claim any right against substantive posts of Clerks merely on the ground that they worked as Clerks on temporary basis as contract employees terminable every year. It has further been submitted that

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the birth of petitioners in the cadre of Clerks cannot be deemed to be at any time prior to their regular appointment in the said cadre. Another contention raised on behalf of the private-respondents is that some of them, who have been selected directly under limited direct recruitment quota have undergone a special selection process undertaken by the HPSSSB and the petitioners cannot claim seniority above them as they were not holding any employment against any substantive post.

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I have heard learned counsel for the parties and have also gone through the records of the case carefully. 12. The Himachal Pradesh Department of Excise and Taxation, Clerk, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 1996 were amended vide Notification dated 03.06.2008. Column 15-A was added whereby a provision for appointment to the post of Clerk in the Department of Excise and Taxation, Himachal Pradesh on contract basis, was made. Nonetheless, the selection was to be made in accordance with the eligibility conditions as prescribed in the R & P Rules. It was further provided that the selection for appointment to the post of

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Clerk on contract basis will be made by the HPSSSB by adopting the mode of viva-voce test or a written test or practical test as may be found expedient by the HPSSSB.

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The petitioners were appointed as Clerks on contract basis in June, 2010 and thereafter on the basis of recommendations made by the HPSSSB. The petitioners had qualified the selection process undertaken by the HPSSSB. Thus, the appointments of petitioners, though on contract basis, were under the prevalent R & P Rules and also in accordance with the procedure prescribed under the said Rules.

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The official-respondents in their reply have specifically stated that the HPSSSB had undertaken the selection process on the requisition of RespondentDepartment to fill up 34 vacant posts of Clerks with prior concurrence of the Government.

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It is not in dispute that respondents No. 3 to 39 were appointed as Clerks through different modes prescribed under the R & P Rules viz. by promotion and limited direct recruitment. However, their dates of

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appointments were subsequent to the date of appointments of petitioners as Clerks on contract basis. 16. A Division Bench of this Court vide its judgment dated 03.08.2023 passed in CWP No. 2004 of 2017 titled

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as Taj Mohammad and others vs. State of H.P. and others , has held that the contractual employment under the State Government, if made in accordance with R & P Rules, is liable to be considered for the purposes of seniority etc.

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This Court in CWP No.963 of 2023 , titled as Rakesh Kumar Sharma and others vs. State of H.P. and others , decided on 28.08.2023, has already held as under:

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“ 15 . It is no more res-integra that the initial appointment, though not on regular basis, if had been made after holding selection process in terms of Rules shall be counted towards seniority.

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16 . The law on the issue has been articulated by the Constitutional Bench of Hon’ble Supreme Court in Direct Recruit Class-II Engineering Officers’ Association Vs. State of Maharashtra and others (1990) 2 SCC 175 as under:-

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“13. When the cases were taken up for hearing before us, it was faintly suggested that the

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principle laid down in Patwardhan's case was unsound and fit to be over-ruled, but no attempt was made to substantiate the plea. We were taken through the judgment by the learned counsel for the parties more than once and we are in complete agreement with the ratio decidendi, that the period of continuous officiation by a government servant, after his appointment by following the rules applicable for substantive appointments, has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by articles 14 and 16. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two un-equals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service

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for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary. This principle has been followed in innumerable cases and has been further elaborated by this Court in several judgments including those in Baleshwar Dass v. State of U.P. and others, [1981] 1 SCR 449, and Delhi Water Supply and Sewage Disposal Committee and others v. R.K. Kashyap and others, [1989] Supp. 1 SCC 194, with which we are in agreement. In Narender Chadha and others v. Union of India and others, [ 1986] 1 SCR 211, the officers were promoted al- though without following the procedure prescribed under the rules, but they continuously worked for long periods of nearly 1520 years on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16. There is considerable force in this view also. We, there- fore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.

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47. To sum up, we hold that:

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(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.

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The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

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(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.

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(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.

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(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.

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(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.

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(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.

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(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.

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(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the

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executive instruction has ceased to remain operative.

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(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.

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(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinized for finding out any possible error. It is not in the interest of Service to unsettle a settled position.

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With respect to Writ Petition No. 1327 of 1982, we further hold:

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(K) That a dispute raised by an application under article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final.”

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17 . Recently, Hon’ble Division Bench of this Court, vide judgment dated 03.08.2023, passed in CWP No. 2004 of 2017 along with CWP No. 629 of 2018, has held as under:-

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“15. The above judgments of the Hon’ble Supreme Court make it amply clear that if the initial appointment is made after considering the claims of all eligible candidates and the appointees continued on the post uninterruptedly till the regularization of the service in accordance with the Rules made for regular substantive appointments, there is no reason to exclude the officiating service for the

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purpose of seniority and same will be the position if the initial appointment itself is made in accordance with the Rules applicable to substantive appointments.

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16. Coming to the facts of the present case, the initial appointment of the original applicants admittedly was made in accordance with the Rules applicable to substantive appointment to the post in issue and through the Recruitment Agency prescribed in the Recruitment Rules. The only thing was that rather than offering appointment to the original applicants on regular basis, they were offered appointment on contract basis and their services were subsequently regularized, as has already been mentioned hereinabove.

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17. Thus, in the backdrop of the factual scenario of the present case, learned Tribunal rightly held the original applicants to be entitled for seniority from the date of their initial appointment on contract basis, followed by regularization, as their initial appointment was made by following the Rules in vogue for making substantive appointment against the post and the process of recruitment was undertaken by the Subordinate Selection Board in which the claims of all eligible candidates were considered.”

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18. The abovesaid view has been taken by Hon’ble Division Bench after placing reliance upon the judgments passed by Hon’ble Supreme Court in Direct Recruit’s case supra (1990) 2 SCC 715, Aghore Nath Dey (1993) 3 SCC 371 and also the judgment of Hon’ble Division Bench of this Court in Narender

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Singh Naik, LPA No. 271 of 2011 and affirmed by Hon’ble Supreme Court in Special Leave to Appeal (C) No(s). 34038 of 2012.

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19 . Thus, the legal position is well settled. The initial appointment, even though made on temporary or ad-hoc basis, if had been made in terms of prevalent recruitment rules and after holding the due process of selection, the service rendered thereafter continuously till regularisation is liable for consideration for the purposes of seniority.

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20 . The private respondents have made an attempt to persuade this Court to take a different view in the matter on the premise that the contract service of the petitioners was governed under specific contracts entered by them with the state Government and their regularisation also not being the part of the recruitment rules but result of policy of the Government that too having prospective operation, cannot be treated as regular service and counted towards seniority. The contention so raised, in my considered view, deserves rejection for the reason that contract was one of the modes of appointment prescribed under the Rules. The appointments were to be made against existing sanctioned posts. That being so, petitioners cannot be faulted and their case cannot form an exception to the dictum of law as noticed above.”

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A similar view has again been reiterated by this

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Court while deciding CWP No. 1877 of 2020 titled as

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Aditya Sharma and others vs. State of H.P. and others, decided on 15.12.2023.

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Thus, the issue is no more res integra . Since the appointments of petitioners on contract basis was made strictly in terms of R & P Rules, they are entitled to the benefit of consideration of their contract period for the purpose of seniority and other service benefits as held in the aforesaid judgments. The private-respondents, who were born in Class-III grade as Clerks on subsequent dates cannot be placed higher in seniority than the petitioners. Merely because some of the private respondents were appointed as Clerks through limited direct recruitment process, they cannot supersede the petitioners, who were appointees of earlier date.

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In light of above discussion, the petition is allowed and respondents No. 1 and 2 are directed to count the contractual services of the petitioners with effect from the date of their initial appointment on contract basis for the purpose of seniority, pay scale revision, annual increments, proficiency-step-up and promotion against the post of Junior Assistant. The seniority list, Annexure A-4,

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is quashed and set-aside to the extent it places the private respondents No. 3 to 39 above the petitioners with direction to respondents No. 1 and 2 to re-frame the seniority list of the Clerks in the Department of Excise and Taxation, Himachal Pradesh in light of what has been held above. Consequential benefits be also granted to the petitioners.

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The entire exercise shall be done by respondents No. 1 and 2 within three months from the date of passing of this judgment, failing which, the monetary benefits available to the petitioners shall entail interest @ 6% per annum.

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The petition stands disposed of in the aforesaid terms, so also the pending miscellaneous application(s) if any.

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6^th May, 2024 (Satyen Vaidya) (GR) Judge

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(GR)

Manohar Lal v. State of Hp

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Manohar Lal v. State of Hp

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