B.R. Lakhanpal vs Union of India (UOI) and Others

R.S. Pathak, C.J.—By this writ petition the Petitioner challenges the orders of appointment and seniority of Respondents Nos. 4 and 5, and the seniority assigned to Respondents Nos. 6 to 11.

The Petitioner was appointed Tehsildar in Himachal Pradesh in 1957. In 1962, he was appointed Extra Assistant Commissioner and placed on probation. On March 15, 1961, the Delhi and Himachal Pradesh Civil Service (shortly referred to as the D.H.P.C. Service) was constituted and the Petitioner, as substantive Tehsildar, was selected and appointed to the newly constituted service under the D.H.P.C. Service Rules, 1961, with effect from June 24, 1963. On successfully completing his period of probation he was confirmed in the service with effect from June 24, 1965. The consequent seniority list of officers in the DHPG Service, issued on April 1, 1964, assigned 1962 as the year of allotment of the Petitioner, Respondents Nos. 4 to 11 were not then members of the service. With effect from December 1, 1965, the 1961 Rules were repealed and were replaced by the Delhi, Himachal Pradesh, Andaman and Nicobar Islands Civil Service Rules, 1965. The Delhi, Himachal Pradesh, Andaman and Nicobar Islands Civil Service (shortly referred to as the DHANIC Service) was constituted. Rule 17 of the 1965 Rules provided that persons who, immediately before the commencement of the 1965 Rules, were members of the DHPC Service would be absorbed into the newly created DHANIC Service. The Petitioner says that having been confirmed earlier in the DHPC Service, he continued to be treated as a confirmed officer in the newly constituted DHANIC service. On November 1, 1966, the erstwhile state of Punjab was reorganised under the Punjab Reorganisation Act, 1966, and u/s 82 of that Act the Respondents Nos. 6 to 11, among other officers of the PCS (Executive Branch ) of Punjab, were allotted for service in Himachal Pradesh. Rule 31-A was added in the 1965 Rules to enable the integration of existing officers belonging to the DHANIC Service with the Punjab officers allotted to the Union Territories.

The Petitioner states that on August 17, 1967, the Union of India issued a provisional integrated seniority list of DHANIC Service officers and the PCS (Executive Branch) officers allotted to Himachal Pradesh. Subsequently, another provisional seniority list dated June 28, 1969, was circulated. The Petitioner represented against in the 1969 list. On September 10, 1970, the Union of India issued a further tentative seniority list. Aggrieved by that list also, the Petitioner filed a representation. Not having been granted relief on his representation, the Petitioner filed a writ petition (Civil Writ Petition No. 137 of 1970) before the Himachal Bench of the Delhi High Court.

The Union Territory of Himachal Pradesh acquired statehood on January 25, 1971, and u/s 40 of the State of Himachal Pradesh Act, 1970, a new service known as the Himachal Pradesh Administrative service was created, and 74 officers of the DHANIG Service were allocated to Himachal Pradesh by an order dated January 24, 1971. The remaining officers of the DHANIC Service were allotted to a newly created service known as Delhi, Andaman & Nicobar Islands civil service (shortly referred to as the Danic Service). The present High Court having been constituted for the state of Himachal Pradesh, the writ petition mentioned earlier came on for hearing on July 30, 1973, and on a statement by counsel for the Union of India the case was adjourned to enable the Union of India to revise the joint seniority list. On August 13, 1973, the Union of India issued a tentative seniority list. The Petitioner filed a representation against the 1973 list. On May 8, 1975, a Final seniority list prepared by the Union of India was issued. The Petitioner''s grievances were not removed by the 1975 list and he has challenged its validity by the present writ petition. At the instance of the Petitioner, who stated that he did not wish to proceed with the earlier writ petition as he had filed the present petition, the earlier writ petition was dismissed as withdrawn by an order dated September 27, 1976.

The validity of the 1975 seniority list is challenged in-so far as it assigns a place of seniority to the Respondents Nos. 4 to 11 above, the place assigned to the Petitioner. The Petitioner contends that the appointments of Respondents Nos. 4 and 5 and the consequent seniority assigned to them are invalied. While the appointment of Respondents Nos. 6 to 11 to the DHANIG service is not challenged, the seniority assigned to them is.

As regards Shri P.G. Kumar, Respondent No. 4, the Petitioner''s contention is that his appointment to the DHPG Service is invalid because it has been made by virtue of Rule 36 of the Rules of 1965 and Rule 36, it is urged, provides only for relaxation of the Rules of 1965 and not of the rules of 1961 which in themselves contain no provision for relaxation. It is also urged that Rule 36 cannot empower an appointment order having retrospective effect. Further, it is complained that no opportunity was given to the Petitioner when the seniority of Shri P.G. Kumar was defined. The Petitioner challenges the appointment of Shri D.P. Bhardwaj, Respondent No. 5, to the D.H.P.G. Service with effect from June 24, 1963. He says that the appointment order dated April 2, 1975, is invalid on the grounds on which he has challenged the appointment of Shri P.C. Kumar, and consequently the seniority assigned to Shri Bhardwaj is erroneous. It may be mentioned that Shri P.C. Kumar and Shri Bhardwaj are now members of the DHANIC service and not officers in the Himachal Pradesh Administrative Service. As regards the validity of the seniority assigned to Respondents Nos. 6 to 11, they were officers in the Punjab Civil Service (Executive Branch) and having been allotted to Himachal Pradesh under the Punjab Reorganisation Act, 1966, they were absorbed in the DHANIC Service. The Petitioner''s contention is that the principles on which their seniority has been determined by the Punjab Reorganisation (H.P.) Advisory Committee are inconsistent with Rule 31-A of the Rules of 1965, specially as the period of length of service has not been given due importance in determining the seniority. All these contentions have been the subject of considerable debate before me, and have been taken through a voluminous record by one party or the other. A number of objections have also been raised on behalf of the Respondents to the maintainability of the writ petition. It is not necessary for me to refer specifically to those objections or even to enter into the merits of the contentions raised by the Petitioner in support of the writ petition. It seems to me that the case can be disposed of on a short ground. It is urged by Shri D. K. Khanna, learned Counsel for responddents Nos. 7 and 11, that by reason of Clause (c) of the proviso to Rule 18 of the Himachal Pradesh Administrative Service Rules, 1973, the seniority list of the DHANIC Service finalised in 1975 cannot now be changed in so far as it affects the seniority of the Petitioner and the Respondents Nos. 6 to 11 in the Himachal Pradesh Administrative service. The contention is sound and must be accepted.

It is plain that the present writ petition is relevant only insofar as it concerns the seniority of the Petitioner in the Himachal Pradesh Administrative Service. The seniority of the Petitioner in the DHPC Service and the DHANIC Service has been challenged because it affects the present seniority of the Petitioner in the Himachal Pradesh Administrative Service. The revision of the Petitioner''s seniority and of the Respondents Nos. 4 to 11 will not of itself confer any benefit on the Petitioner in the DHPC Service and the DHANIC Service, unless that benefit is reflected in a consequential advantage in the Himachal Pradesh Administrative Service. Infact, the Petitioner is concerned with his present position in the last named service. The question is whether the revision of the seniority of the Petitioner in the DHPC Service and the DHANIC Service is left with any relevance if regard be had to Clause (c) of the proviso to Rule 18 of the Himachal Pradesh Administrative Service Rules. Section 40(4) of the State of Himachal Pradesh Act provides that such members of the DHANIC Service as the Central Government may, by order, specify shall be allocated to the cadre of the Himachal Pradesh Administrative Service. It was pursuant to that provision that 74 officers of the DHANIC Service were allocated to Himachal Pradesh by the order of January 24, 1971. Their inter se seniority in the Himachal Pradesh Administrative Service remained to be determined. That determination was effected by Clause (c) of the proviso to Rule 18 of the Rules of 1973. Rule 18 lays down the basis on which the seniority of officers appointed to the Himachal Pradesh Administrative Service has to be determined. The normal rule prescribed thereby is that the seniority of officers appointed to the services will be determined in accordance with the order of their appointment to the service. Then there is a proviso, divided into three clauses. Clauses (a) and (b) deal with exigencies with which we are not concerned. Clause (c) embodies the third exception tothenormal rule that the seniority of officers shall be determined by the order of their appointment to the service. Clause (c) declares that:

(c) The seniority of those Himachal Pradesh Administrative Service officers allocated to Himachal Pradesh under Sub-section (4) of Section 40 of the State of Himachal Pradesh Act, 1970 whose seniority has been finalised and circulated under various letters issued by the Government of India shall remain unchanged.

Unlike the other provisions of Rule 18, Clause (c) deals with the seniority of officers inducted into the Himachal Pradesh Admi-nisatrative Service at its initial constitution or shortly there (after. It is clear that on and from the "appointed day", when Himachal Pradesh became a State and u/s 40(1) of the State of Himachal Pradesh Act, 1970, the Himachal Pradesh Administrative Service was constituted, and u/s 40(3) of the Act the DHANIC Service ceased to refer to Himachal Pradesh and was now known as the DANIC Service, certain officers of the DHANIC Service could simultaneously be allocated to the Himachal Pradesh Administrative Service u/s 40(4) of the Act. They are the officers referred to in Clause (c) of the proviso to Rule 18. Their seniority was not to be determined afresh. Their seniority in the Himachal Pradesh Administrative Service was to be the seniority determined as officers of the DHANIC Service. That seniority, as finalised and circulated under various letters issued by the Government of India, was to remain unchanged for the purposes of the Himachal Pradesh Administrative Service. That the seniority was to be the seniority finalised by the Government of India pointedly refers to the seniority determined as members of the DHANIC Service. If any fresh seniority was contemplated in the case of such officers, it would have been the State Government which would determine the seniority. Moreover, while the normal rule prescribed in Rule 18 read with Clauses (a) and (b) of the proviso envisaged an active process of seniority determination with the application of Judgment involved therein, Clause (c) envisaged a position where seniority in the Himachal Pradesh Administrative Service stood determined automatically by reference to the seniority crystallised in the DHANIC Service. Clause (c) speaks of the finalisation of the seniority list in the DHANIC Service, and when it does so it refers to a factual position and intends that the seniority so finalised will not be disturbed. It is the seniority finalised after the circulation of various letters issued by the Government of India. There are a number of such letters on the record. Among them is the letter No. U. 14019/4/73-UTS dated May 7, 1975 (Annexure p. 21). The final seniority list of members of the DHANIC Service is the one circulated by the Central Government on May 7, 1975. That is the seniority list on the basis of which the seniority of the Petitioner and the Respondents Nos. 6 to 11 in the Himachal Pradesh Administrative Service stands automatically determined. That seniority, by virtue of Clause (c) of the proviso to Rule 18, must remain unchanged. On that view of the matter, plainly it is not open to the Petitioner to assail the position of seniority given to him in the DHANIC list, and since the seniority in that list cannot be altered the revision of seniority in the DHPC list also loses all significance.

In my judgement, in view of Clause (c) of the proviso to Rule 18 of the Himachal Pradesh Administrative Service Rules, 1973, the contentions raised by the Petitioner on the merits against the seniority determined in the DHPC Service and the DHANIC Service do not call for consideration. The writ petition must, therefore, fail.

The writ petition is dismissed, but in the circumstances there is no order as to costs.