Dismissed

Himachal Pradesh State Civil Supplies Corporation Ltd. v. Arun Sood

Himachal Pradesh HC2 Jul 2024LPA/47/2022

Case brief

AI extract

What is this about?

In letters patent appeal against a Single Judge's order directing an employer to promote an employee, the Division Bench held that the earlier Division Bench decision in a related writ petition (CWP-T No.2650/2008) barred the employee from claiming promotion as it was not a feeder category as per Recruitment and Promotion Rules.

What did the court decide?

Impugned judgment dated 07.01.2022 set aside and CWPOA No.4058 of 2019 dismissed.

Himachal Pradesh State Civil… — Pension and Retirement Benefits | Himachal Pradesh HC (2024)

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Citation No. : 2024:HHC:4283

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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LPA No.47 of 2022 Reserved on 20.06.2024 Decided on: 02.07.2024

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H.P. State Civil Supplies Corporation Ltd. ….. Petitioner

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Versus

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Arun Sood & another .....Respondents

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Coram

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The Hon’ble Mr. Justice M. S. Ramachandra Rao, Chief Justice

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The Hon’ble Mr. Justice Satyen Vaidya, Judge

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Whether approved for reporting?¹ No

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For the Petitioner : Mr. Prashant Sharma, Advocate. For Respondent No.1: Mr. S.M Goel, Advocate. For Respondent No.2: None

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Satyen Vaidya, Judge

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Aggrieved against the judgment dated 7^th of January, 2022 passed by learned Single Judge of this Court in CWPOA No.4058 of 2019, the appellant has approached this Court by way of Letters Patent Appeal. 2. Respondent No.1, who was initially appointed as Public Distribution Clerk by the appellant on 05.04.1989, has been agitating a claim for being promoted to the post of Computer Programmer by alleging that he was qualified to hold such post

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1 Whether reporters of print and electronic media may be allowed to see the order? Yes

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and had been discharging the functions of said post on the directions of superior officers.

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In the first instance, respondent No.1 approached the Managing Director of the appellant with his representation dated 23.12.1996. By way of said representation, a prayer was made for grant of higher pay scale as also promotion to the higher post relating to Computer Programmer on the premise that respondent No.1 had been performing the duties concerning the Accounts Section independently by preparation of monthly pay bills; preparation of CPF Account and submission thereof; preparation of sugar levy bills and preparation of bills concerning incentive amount payable to the Public Distribution Clerk/Assistant.

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Thereafter, proforma respondent was promoted to the post of Computer Programmer on 22.12.1997. Respondent No.1 assailed such promotion order and claimed promotion to the post of Computer Programmer by filing OA(M) No.355/98 before the erstwhile State Administrative Tribunal. The original application of the respondent No.1 was transferred to the files of this Court on closure of the Tribunal and was registered as CWP-T No.2650 of 2008. The reliefs sought by respondent No.1 in OA(M) No. 355/98 (CWP-T No.2650 of 2008) were as under :

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(i) To direct the respondent Nos.1 and 2 to promote the applicant as Computer Programmer w.e.f. 22.12.1997 when Sh. R.D. Sharma was promoted as such vide Annexure ‘PB’ dated 22.12.1997;

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(ii) To grant the service benefits which became due on promotion as Computer Programmer w.e.f. 22.12.1997;

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(iii). To quash and set-aside the impugned Recruitment & Promotion Rules for the post of Computer Programmer at Annexure ‘PA’ dated 09.10.1998;

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(iv) To direct the respondent Nos.1 and 2 to include the cadre of Public Distribution Clerks for promotion to the post of Computer Programmer who possess requisite qualifications to man the post;

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A Division Bench of this Court vide Judgment dated

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14^th June, 2011 decided CWP-T No.2650 of 2008 by holding as

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under:-

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“2 In 1998, it is seen, that R&P Rules were framed. It is seen from the Rules (Annexure PA) that feeder category has been restricted to Senior Assistant/Technical Assistant/Legal Assistant/Sales Supervisors/Senior Scale Stenographers/Personal Assistants/Senior Accountant GradeI/Senior Assistant (Accounts)/Computer Operator having five years experience in maintenance of computensed accounts.......... According to the petitioner, the classification has been made in such a way as to carve out the category of post held by the petitioner. We are afraid, the contention cannot be appreciated. The post of Public Distribution Clerk held by the petitioner is admittedly in the lower category to the posts mentioned in the Rules. Therefore, it is not a case of equals being treated un-equally. Conversely unequals cannot be treated equally and, therefore, there is no basis in the contention that the category of post held by the petitioner has been left out while making classification. Hence, R&P Rules do not suffer from any legal infirmity and in particular of infraction of principle of equality.

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3. Learned counsel for the petitioner submits that he has been working in the post of Public Distribution Clerk for decades and he has been stagnating. This is certainly a matter the Corporation should look into. Therefore, while holding that the R&P Rules are otherwise valid. The petitioner is permitted to make an appropriate representation before the second respondent detailing his grievances. In the event of such representation being filed within a month from today, including in the matter of stagnation, the matter will be duly considered by the second respondent and appropriate action in accordance with law shall be taken within another one month. It will be open to the petitioner to bring to the notice of the second respondent the experience he has gained in working in the

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Corporation so as to make him suitable for appropriate position.

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Thus, the claim of the petitioner for promotion to the post of Computer Programmer was declined firstly by holding the validity of R&P Rules and secondly, by not finding the post of Public Distribution Clerk in the feeder category of the promotional post of Computer Programmer. However, Court made an observation that the petitioner had been allegedly working on the same post of Public Distribution Clerk over decades and had been stagnating, therefore, this aspect was required to be looked into by the appellant. In this backdrop, petitioner was permitted to make appropriate representation before the appellant detailing his grievances. The respondent No.1 was also afforded opportunity to bring to the notice of appellant the experience gained by him while working with the appellant, so as to make him suitable for appropriate position.

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Thereafter, respondent No.1 submitted his

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representation to the appellant on 02.08.2011 detailing therein his qualifications and the nature of duties performed while serving the appellant-corporation. He raised grievance with respect to the qualifications acquired by proforma respondent and thus objected to his promotion to the post of Computer Programmer. Respondent No.1 once again asserted that he had performed the duties with higher responsibilities including the

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post of Computer Programmer. Petitioner, thus, reiterated his prayer to be promoted as Computer Programmer w.e.f. 13.12.1996 along with proforma respondent and also to allow him all financial and consequential benefits as were given to the proforma respondent.

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The appellant-corporation considered and rejected the representation of the petitioner vide order dated 01.09.2011. Noticeably, the appellant-corporation had not found any substance in the submission of respondent No.1 that he had performed higher duties as that of Computer Programmer. A finding of fact was specifically recorded that respondent No.1 had failed to produce any documentary evidence to substantiate his contention.

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The petitioner sought review of the order dated 01.09.2011 passed by the competent authority by way of subsequent representation dated 06.04.2012, which also was rejected vide order dated 07.07.2012.

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Thereafter, petitioner approached this Court by way of CWP No. 2305 of 2013 seeking quashing of the orders dated 01.09.2011 and 07.07.2012 whereby the representations of petitioners were rejected. Again, a mandamus was sought against appellant to promote the respondent No.1 to the post of Computer Programmer w.e.f. 13.12.1996 and to grant him pay scale of said post w.e.f. July 1993, when he was assigned the duties of the said

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post. A prayer was also made to probe the qualification certificates of proforma respondent. CWP No.2305 of 2013 was transferred to the State Administrative Tribunal on its constitution and was again re-transferred to this Court on closure of the Tribunal and came to be registered as CWPOA No.4058 of 2019.

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The appellant had contested the claim of the petitioner, however, learned Single Judge passed the impugned judgment dated 07.01.2022 by holding as under : -

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“8 Obviously, the respondent-corporation was required to consider the representation of the petitioner, as when respondentcorporation had promoted respondent No.2, Sh. R.D. Sharma, the petitioner was also similarly situate. Non consideration of the representation of the petitioner is gross violation of Article 16 of the Constitution of India, as both the petitioner and respondent No.2 were sailing in the same boat. There is no plausible reason for not considering the petitioner and to consider respondent No.2 for the post of Computer Programmer.

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9. This Court finds that as the petitioner was having experience like respondent No.2 for being considered to the post of Computer Programmer, the respondent-corporation should have considered his representation sympathetically. In these circumstances, as the petitioner is going to superannuate within two months and it has also come on record that the petitioner has been granted two promotions, the only order which can be passed is that the respondent-corporation will take option from the petitioner that whether he wants to be promoted as Computer Programmer or he wants to avail his promotions which have already been granted to him to avoid stagnation, and if he opts for being promoted to the post of Computer Programmer, to grant him promotion. Ordered accordingly.

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We have heard learned counsel for the parties and

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have also minutely perused the record of the case.

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It has been contended on behalf of appellant that the impugned judgment passed by learned Single Judge was clearly in the teeth of the judgment dated 14.06.2011 passed by Division Bench of this Court in CWP-T No.2650 of 2008, whereby the issue raised by the respondent No.1 in CWPOA 4058 of 2019 stood already decided against the said respondent. Though, in absence of the challenge to the judgment passed by the Division Bench in CWP-T No.2650 of 2008, the findings in respect of the validity of R&P Rules for the post of Computer Programmer and the non-eligibility of respondent No.1 to be promoted to the post of Computer Programmer operated as res-judicata , and so the learned Single Judge while deciding CWPOA of 4058 of 2019 could not consider this aspect of the matter. It is also contended that the learned Single Judge could not have gone into the same issue again to hold the entitlement of respondent No.1 to the post of Computer Programmer at par with proforma-respondent.

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We are in agreement with the above contention of the appellant and find the same worth sustaining for the simple reason that the judgment dated 14.06.2011 passed by Division Bench of this Court had categorically held the petitioner not entitled to be promoted to the post of Computer Programmer as the post held by him was not found in the feeder category as per R&P Rules. The contentions of respondent No.1 that he had been

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performing the assigned work of Computer Programmer also stood rejected either expressly or by implication

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In this view of the matter, the respondent No.1 was not entitled to rake up the same issues by filing a subsequent writ petition. Learned Single Judge has not taken into consideration the above position, which has resulted in returning a finding of fact in contradiction to a finding of the fact which had become res-judicata inter-se the parties.

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As regards, the limited window available to the respondent No.1 as sequel to the observation made by the Division Bench of this Court while deciding CWP-T No.2650 of 2008, we have no hesitation to observe that it was merely to hypothecate without issuance of any mandate to the appellant. Such observation, obviously, could not be read out of context to treat it as mandatory against the appellant. Further, the observations so made could also not be considered ignoring the relevant Service Rules. In such backdrop, the action of appellant in rejecting the representation of respondent No.1 cannot be faulted with more particularly for the reason that we have found the rejection order a reasoned one having taken into consideration the factual background of the case. 17. It has also been brought to our notice that respondent No.1 has been granted two promotions, firstly, as Junior

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Assistant w.e.f. 29.11.2016 and thereafter as Sales Supervisor w.e.f. 06.10.2018.

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In light of the above discussion, the appeal is allowed, impugned judgment dated 07.01.2022 passed by learned Single Judge in CWPOA No.4058 of 2019 is set aside and CWPOA

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No.4058 of 2019 is dismissed with no order as to costs.

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The appeal is accordingly disposed of in the above

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terms, so also the miscellaneous applications, if any.

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( M. S. Ramachandra Rao) Chief Justice.

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2^nd July, 2024 (Ankit)

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(Satyen Vaidya) Judge

Himachal Pradesh State Civil Supplies Corporation Ltd. v. Arun Sood

Case brief

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What did the court decide?

Himachal Pradesh State Civil Supplies Corporation Ltd. v. Arun Sood

Case brief

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