Dharam Pal Gupta vs State of Himachal Pradesh And Another

Sandeep Sharma,J.

Instant Letters Patent Appeal is directed against the judgment dated 29.04.2013, passed by learned Single Judge of this Court, whereby Writ

Petition having been filed by the appellant-petitioner (hereinafter referred to as the ‘petitioner’) came to be dismissed.

At first instance, petitioner approached Himachal Pradesh State Administrative Tribunal by way of Original Application No.1713 of 1995, which

subsequently registered as CWP(T) No.2662/2008, praying therein following main reliefs:-

“(i) That the notification dated 27th April, 1994 (Annexure A-5) deserves to be quashed being arbitrary, illegal, unilateral and violative of Article 14

& 16 of the Constitution.

(ii) The respondents be directed to consider the case of the applicant for the promotion to the post of Registrar which is going to be vacated in the

Deptt. of Irrigation and Public Health Deptt. on 31.8.95 immediately as the applicant is to retire on 28 th Feb., 1996 just after about 6 months.â€​

Succinctly facts, which may be relevant for adjudication of present appeal, are that the petitioner was appointed as Clerk in the Public Works

Department on 25.9.1956. The petitioner served the aforesaid department in various capacities i.e Steno-typist, Circle Stenographer, Junior Scale

Stenographer, Head Clerk re-designated as Superintendent Grade-II, Legal Assistant and then Superintendent Grade-I in the scale of Rs.2200-4000

Class-II Gazetted. The petitioner worked as Head Clerk, re-designated as Superintendent Grade-II from 14.11.1969 to 13.1.1983. During the

pendency of writ petition, petitioner came to be promoted as Vigilance Officer on 31.10.1995 on the basis of seniority in Public Works Department.

Prior to the year 1984, Public Works Department was also executing Irrigation Schemes, Water Supply Schemes, Sewerage Schemes, and Flood

Protection Schemes, in addition to construction of building (residential as well as non-residential), roads and bridges etc. The respondent-State, with a

view to provide speedy water supply and better irrigation facilities to the public at large, decided to separate the Irrigation and Public Health Wing of

Public Works Department and to make it as an independent and separate Department headed by Chief Engineer.

Vide Notification dated 22.9.1984 (Annexure A-2 annexed with the O.A.), Government of Himachal Pradesh was pleased to order bifurcation of

aforesaid Himachal Pradesh Public Works Department into two separate Departments, as has been noticed hereinabove. Vide aforesaid Notification,

it was ordered that w.e.f. 1.10.1984 two Departments, as referred above, shall function independently under the respective Heads of Departments

and officers/officials working with each wing of combined Departments will continue to work against the respective posts on “as is where is

principleâ€​, pending finalization of the allocation as per the procedure approved.

Vide Notification dated 28.9.1984 (Annexure A-2B), Screening Committee of Officers came to be constituted to consider the options of the

officers/officials of the existing Public Works Department and decide the allocation into two above named Departments.

Vide separate Notification dated 28.9.1984 (Annexure A-3), it was ordered that consequent upon the bifurcation of the H.P. Public Works

Department into two separate Departments i.e. Public Works Department and Irrigation and Public Health Department, each and every

officer/official of the Himachal Pradesh Public Works Department borne on its strength on 30.9.1984 (including those employees of the Department

who are on deputation/or on foreign service elsewhere) shall exercise his/her option for his/her allocation to any one of the two aforementioned

Departments, within a period of 3 months w.e.f. 1.10.1984. It further emerge from the record that process of calling the options came to be extended

repeatedly from time to time, but same could not be materialized till 27.4.1994 (Annexure A-5), on which date bifurcation was effected unilaterally on

the principle of “as is where is†and it was made clear that Recruitment and Promotion Rules applicable in Himachal Pradesh Public Works

Department as on 1.10.1984 shall be applicable to the employees of Irrigation and Public Health Department.

Careful perusal of aforesaid Notification dated 27.4.1994 suggests that the Governor of Himachal Pradesh was pleased to issue specific order

regarding bifurcation with respect to Public Works Department and Irrigation and Public Health Department, wherein it was provided that with effect

from 27th April, 1994, those officers and employees who are working in Public Works Department and Irrigation and Public Health Department are

bifurcated on the basis of their postings in their respective Departments on the principle of “as is where is†in the concerned Departments.

Notification further provided that the Architect and Electrical wings will remain in the Public Works Department, whereas, the Design and the

Mechanical wings will be divided in to two Departments on half-half basis and in case some difficulty arises in the division, the matter shall be placed

in front of the Government. It appears that process of option in terms of Notification dated 28.9.1984 could not be finalized/ completed on account of

various representations made by the Unions of the employees working in the Public Works Department, wherein they opposed action of the State

inasmuch calling of options is concerned. It is also not in dispute that in combined seniority list of Superintendent Grade -IV, re-designated as

Superintendent Grade-II as on 31.1.1989, the petitioner was shown at Sr.No.38.

All the Superintendents senior to the petitioner in the seniority list had either retired or left the Department except Rajesh Kumar mentioned at

Sr.No.5, who stood promoted as Registrar and posted in the office of the Chief Engineer (N), Dharamshala. Amar Singh Sen shown at Sr.No.29

posted in the office of the Superintending Engineer, Ist Circle, HPPWD, Mandi was not eligible for promotion to the post of Registrar for want of

clearing the Departmental Examination meant for Gazetted Officers. Since the petitioner had already passed the Departmental Examination meant for

Gazetted Officers, he claimed that he ought to have promoted to the post of Registrar. However, as per Notification dated 16/19.2.1976 and

subsequent amendment issued on 20.11.1984 in the Recruitment and Promotion Rules of Registrar in Public Works Department, the post of Registrar

was required to be filled up from the posts of Vigilance Officers with three years regular service or Superintendent Grade-I having five years regular

service in the office of the Chief Engineers, failing which by promotion from amongst the Superintendents in the office of the Chief Engineers, PWD

with five year regular or ad hoc service in the cadre/grade.

As per petitioner, post of Registrar was to be vacated in the office of Engineer-in-Chief, IPH Department after 31.8.1995 on account of retirement of

one R.D. Kaundal, whereas, one post of Vigilance Officer was going to be vacated on 31.8.1995 in the office of Engineer-in-Chief, Irrigation &

Public Health Department on the retirement of S.D. Bansal, as such, petitioner, being senior most eligible person for promotion to the post of

Registrar, ought to have been considered for promotion, but, the Government, intended to promote the junior persons to him on the basis of notification

issued on 27.7.1994, whereby two Departments i.e. Irrigation & Public Health and Public Works Department came to be in existence and in case

respondent-department is permitted to do so, it would cause injustice to the petitioner, who was senior in the joint seniority list. He further alleged that

even after the notification dated 27.4.1994, whereby the employees came to be allocated on the principle of ‘as is where is’, the

officers/officials are being posted from one department to other department on promotion.

Respondents, while refuting the aforesaid averments, claimed that in the seniority list of Superintendent Grade-II circulated on 31.8.1994, the

petitioner has been shown at Sr.No.27, whereas, in another seniority list of Superintendent Grade-II circulated on 17.8.1994 on the basis of bifurcation

order dated 27.4.1994, the petitioner is not shown in the list of Superintendent Grade -II in Irrigation & Public Health Department and, as such,

petitioner cannot claim himself senior in the seniority list of Superintendent Grade-II in the Irrigation & Public Health Department. Respondents

further claimed that the petitioner has no right in the Irrigation & Public Health Department since he failed to exercise option in pursuance to the

notification issued by the Government with regard to bifurcation of two Departments. Respondents further claimed that the Government has

bifurcated the combined cadres of the Departments of Public Works and Irrigation & Public Health on the principle of ‘as is where is’ on the

basis of notification dated 27.4.1994, which is legal, just and expedient in the public interest. However, petitioner by way of rejoinder claimed that he is

entitled to be promoted to the post of Registrar in the Department of Irrigation & Public Health on the basis of combined seniority list of

Superintendent Grade-II and not on the basis of two seniority lists of Superintendent Grade-II of Irrigation & Public Health Department and Public

Works Department prepared after bifurcation and the principle of ‘as is where is’ is arbitrary and contrary to the principle of natural justice.

Record reveals that during the pendency of petition, Special Secretary(PWD) to the Government of Himachal Pradesh filed supplementary

affidavit dated 4.7.1996 stating therein that the bifurcation of Public Works Department and Irrigation & Public Health Department was ordered on

27.4.1994, when the staff was bifurcated into Pubic Works Department and Irrigation & Public Health Department on ‘as is where is’ basis.

Under Secretary(PWD) to the Government of Himachal Pradesh also filed affidavit dated 28.7.2009 stating therein that the petitioner upon the

bifurcation of Public Works Department and Irrigation & Public Health Department on the basis of ‘as is where is’ principle was allocated to

Public Works Department and accordingly he was assigned seniority in the seniority list of Superintendent Grade-II issued by the Engineer-in-Chief,

HPPWD on 31.8.1994. Petitioner was promoted as Superintendent Grade-I on 20.7.1991 and on the date of bifurcation i.e. 27.4.1994, the petitioner

was Superintendent Grade-I in Public Works Department and not in Irrigation & Public Health Department.

Accordingly, in view of his seniority maintained in Public Works Department, he was promoted as Vigilance Officer in Public Works Department on

30.10.1995. Respondents refuted the claim of the petitioner for promotion to the post of Registrar in the Department of Irrigation & Public Health on

the ground that in the seniority list circulated by Engineer-in-Chief, I&PH on 17.8.1994. Since the name of the petitioner did not figure in that seniority

list of feeder category, he could not be considered for promotion to the post of Registrar in the Department of Irrigation & Public Health. It also

emerge from perusal of the record that till the passing of order dated 9.10.1995, whereby learned Tribunal, while modifying its earlier order dated

4.9.1995, had directed the respondents to consider the petitioner alongwith others, if found eligible, for the post of Registrar in the office of the

Engineer-in-Chief, I&PH Department, neither the petitioner nor any other person was considered nor any person was promoted as Registrar in the

Irrigation & Public Health Department.

We have heard learned counsel for the parties and gone through the record of the case.

We are not persuaded to agree with the contention of Mr.B.C. Negi, learned Senior Counsel representing the petitioner that since in the combined

seniority list of Superintendent Grade-IV, re - designated as Superintendent Grade-II, as it stood on 31.8.1987, where petitioner was shown at

Sr.No.38, the petitioner ought to have been considered for the promotion to the post of Registrar in the Department of Irrigation & Public Health being

only eligible candidate. It is not in dispute that vide notification dated 22.9.1984 Public Works Department came to be bifurcated into two Departments

as Public Works Department and Irrigation & Public Health Department on the principle of ‘as is where is’ w.e.f. 1.10.1984.

True, it is, that after bifurcation of the two Departments, the officers/officials in both the Departments continued to have common cadres, but, it is

also the matter of record, that the common cadres of the two Departments were also bifurcated on 27.4.1994, whereby it was ordered that w.e.f.

27.4.1994, those officers and employees, who are working in Public Works Department and Irrigation & Public Health Departments, are bifurcated on

the basis of their postings in the respective Departments on the principle of ‘as is where is’ in the concerned Department. Notification dated

27.4.1994 specifically ordered that Architect and Electrical wings will remain in the Public Works Department, whereas Design and the Mechanical

wings will be divided in two Departments on half-half basis. It is also not in dispute that on the date of bifurcation i.e. 22.9.1984, petitioner was

employee of Public Works Department and on 27.4.1994, he was Superintendent Grade-I in Public Works Department. Interestingly, in the case at

hand, the petitioner has laid challenge to the decision of the Government to bifurcate the cadres of two Departments, but he has failed to lay challenge

to the decision of Government to bifurcate Public Works Department into two Departments, namely; Public Works Department and Irrigation &

Public Health Department on ‘as is where is’ principle w.e.f. 1.10.1984.

There is no specific challenge, if any, to the decision taken by the respondents for creation of two Departments, rather it is quiet apparent from the

record as well as conduct of the petitioner that he continued to work in Public Works Department after its bifurcation in the year 1984. As has been

noticed hereinabove, Screening Committee was also constituted with a view to examine options exercised by the officers/officials of the Public Works

Department with a view to decide their postings, but it appears that in view of resentment/opposition of employees unions matter with regard to

exercise of option remained undecided and ultimately on 27.4.1994 Government of its own issued order with regard to bifurcation in respect of Public

Works Department and Irrigation & Public Health Department. Vide aforesaid notification dated 27.4.1994, respondents provided the Recruitment

and Promotion Rules, which, were applicable to the Public Works Department as on 1.10.1984, will also be applicable in the Department of Irrigation

and Public Health and any amendment in future to these rules will be made by the concerned Department according to the need and circumstances.

In nutshell, case/grievance of the petitioner is that Government ought to have called for option before bifurcation of the Public Works Department

into two Departments, but matter with regard to exercising option as well as bifurcation of cadres remained pending for a decade and all of a sudden

Government allocated the officers and officials in two Departments on the principle of ‘as is where is’ basis on 27.4.1994, which action is not in

accordance with law. Though reply filed by the respondents itself suggests that it was not obligatory for Government to have obtained options from the

employees including officers for their deployment in either of the two Departments, but, admittedly, as per original notification dated 22.9.1984 and

28.9.1984, options exercised, if any, by officers and officials of the Public Works Department were required to be considered and decided by

Screening Committee. But, in the case at hand, it is none of the case of the petitioner that he, in terms of aforesaid notification dated 22.9.1984,

exercised his option for allocation in the newly created Irrigation & Public Health Department nor it is the case of the petitioner that the Wing in which

he was working in Public Works Department at the time of bifurcation lateron became part of the newly created Irrigation & Public Health

Department. Rather, it appears that the petitioner also adopted wait and watch policy and never exercised option for allocation of any Department and

suddenly in the year 1994 when Government of its own decided to bifurcate the cadre on the basis of principle ‘as is where is’ basis staked his

claim for promotion to the post of Registrar in the newly created Department Irrigation & Public Health on the basis of combined seniority list of

Superintendent Grade-IV, re-designated as Superintendent Grade-II, as it stood on 31.8.1989. As has been noticed hereinabove, petitioner never laid

challenge to the notification of the Government to allocate the staff in two Departments, rather he, after having been filed petition at hand, accepted

promotion to the post of Vigilance Officer on 31.10.1995 in the Public Works Department on the basis of its seniority in the Public Works Department,

which itself suggests that the petitioner had accepted allocation in the Public Works Department, as such, learned Single Judge rightly returned finding

that once petitioner accepted Public Works Department, he has no right to claim over the post of Registrar in another separate Department; namely;

Irrigation and Public Health Department.

Though having carefully perused record, we find force in the argument of Mr.B.C. Negi, learned Senior Counsel representing the petitioner, that

learned Single Judge has erred in recording findings that option given by the petitioner was not considered because admittedly there is no averment in

the petition that at any point of time after issuance of notification dated 22.9.1984 petitioner ever gave option to remain in one particular Department,

rather record suggests that in view of consistent protest by the employees union, matter with regard to exercise of option remained un-decided till

issuance of notification dated 27.4.1994 i.e. allocation of officials and officers of both the Departments on the principle of ‘as is where is’, but

that may be of no consequence because careful perusal of notification dated 27.4.1994 suggests that Government proceeded to bifurcate employees

of Public Works Department and Irrigation & Public Health Department on the basis of their postings in the respective Departments on the principle

of ‘as is where is’ in the concerned Departments.

Vide aforesaid notification, Department carved out special category and ordered that Architect and Electrical wings will remain in Public Works

Department, whereas Design and Mechanical wings shall be divided in two Departments on half-half basis. Employees working in the Public Works

Department other than aforesaid category i.e. Architect and Electrical wings and Design and the Mechanical wings were ordered to be bifurcated on

the basis of their postings in the respective Departments on the principle of ‘as is where is’.

In the petition at hand, though petitioner at one hand sought quashing of notification dated 27.4.1994, whereby officers and officials working in

Public Works Departments came to be bifurcated on the basis of principle of ‘as is where is’ and on the other hand, sought direction to the

respondents to consider his case for the promotion to the post of Registrar, which at that time was going to be vacated in the newly carved out

Department of Irrigation & Public Health from 31.8.1995. This Court is in agreement with the findings returned by learned Single Judge that since the

Government is to run the Departments; it may not be possible for it to accept option of each and every employee. In the present case, matter with

regard to exercise of option remained pending for ten years, whereafter respondent-State of its own vide notification dated 27.4.1994 bifurcated the

Departments and decided to allocate officials and officers in the Departments on the basis of ‘as is where is’ principle. Mr.Negi, learned Senior

Counsel, was not able to dispute that after bifurcation of two Departments, common cadres of two departments were also bifurcated on 27.4.1994.

There is considerable force in the arguments of Mr.Ashok Sharma, learned Advocate General, that the case of the petitioner for promotion to the

post of Registrar in the newly carved out department i.e. Irrigation & Public Health Department could not be considered on the basis of seniority list

of Superintendent Grade-IV, re-designated as Superintendent Grade-II, as it stood on 31.1.1989. It is also not in dispute that subsequent to issuance of

combined seniority list of Superintendent Grade-IV, re-designated as Superintendent Grade-II, as it stood on 31.1.1989, other seniority list of

Superintendent Grade-II came to be circulated on 17.8.1994, after bifurcation of two departments, wherein petitioner had been shown at Sr.No.27.

Similarly, another seniority list of Superintendent Grade-II circulated on 17.8.1994, on the basis of bifurcation order dated 27.4.1994, came to be issued

in the Department of newly carved out Irrigation & Public Health Department, wherein admittedly petitioner was not shown in the seniority list of

Superintendent Grade-II and, as such, it is not understood as to how he could be considered for the promotion to the post of Registrar in the newly

carved out Irrigation & Public Health Department. Most importantly, as we have noticed hereinabove, there is no challenge, if any, to the initial

notification dated 22.9.1984, whereby Government took decision to bifurcate Public Works Department into two separate departments, i.e. Public

Works Department and Irrigation & Public Health Department w.e.f. 1.10.1984, as such, learned Single Judge rightly arrived at a conclusion that the

petitioner never objected to the decision of the Government to allocate the staff in two departments, rather it is undisputed that after filing of petition,

petitioner accepted his promotion as Vigilance Officer on 31.10.1995 in the Public Works Department on the basis of his seniority in the Public Works

Department, which fact itself suggests that at the time of his promotion in the Vigilance Officer, he accepted his allocation in the Public Works

Department.

Apart from above, petitioner, while filing his petition on 31.8.1995, described himself as Superintendent Grade-I in the office of the Engineer-in-

Chief, HP PWD, US Club, Shimla, meaning thereby, even at the time of filing of petition, which was filed two months prior to his promotion to the post

of Vigilance Officer in the Public Works Department, petitioner had accepted himself to be Superintendent Grade-I in the office of Engineer-in-Chief

Himachal Pradesh Public Works Department.

It is only in view of aforesaid facts the learned Single Judge arrived at conclusion that “it can be safely inferred from the conduct of the

petitioner for not giving any option for allocation to any Department that he never wanted his allocation to the newly created Irrigation & Public Health

Department. On the contrary, he wanted to move safely by sailing in two boats with an eye to lay claim in both departments at appropriate stageâ€​.

As per own case set up by the petitioner, post of Registrar in the newly carved out Department Irrigation & Public Health was to be vacated on

31.8.1995, on which date he stood promoted to the post of Vigilance Officer in the Public Works Department and as such, even, for the sake of

arguments, it is presumed that post of Registrar in the newly created Department of Irrigation & Public Health was to be filled up on the basis of

combined seniority list as it stood on 31.1.1989, petitioner was not eligible to be promoted to the post of Registrar in the Department of Irrigation &

Public Health on 31.8.1995 because admittedly as per Recruitment and Promotion Rules of Registrar in Public Works Department, which were also

applicable to the newly carved out department, the post of Registrar could be filled up from the post of Vigilance Officers with three years regular

service or Superintendent Grade-I having five years regular service in the office of the Chief Engineers. In the case at hand, admittedly, the petitioner

was promoted as Superintendent Grade-I in the scale of Rs.2200-4000 Class-II Gazetted on 20.7.1991 and as such he would have become eligible for

the post of Registrar in the newly created department on the basis of Recruitment and Promotion Rules after completion of his five years of service as

Superintendent Grade-I i.e. 20.7.1996, whereas, by way of petition at hand, he prayed that respondents be directed to promote him to the post of

Registrar in the newly created department w.e.f. 31.8.1995 which could not be done.

During arguments Mr.B.C. Negi, learned Senior Counsel, placed reliance upon judgment rendered by Hon’ble Apex Court in Jagdish Parsad

Sinha and Others vs. Bhagwat Prasad and Others, (1989)3 SCC 610 to state that bifurcation was the outcome of an attempt to provide quick

promotional avenues to those who were lower down in the joint cadre and would not have come within the range of consideration for promotional

benefits but by bifurcation became entitled to such benefits. The High Court, in our opinion, rightly found fault with such action. This Court having

carefully perused aforesaid judgment has no hesitation to conclude that the same has no application in the present facts and circumstances of the

present case because admittedly there is no challenge to the bifurcation, moreover, it is none of the case of the petitioner that decision of bifurcation

has been taken by the Department to provide quick promotional avenues to those who were lower down in the joint cadre, rather in the case at hand

bifurcation of two departments was on the ground of speedy water supply and better irrigation facilities to the public at large.

Consequently, in view of detailed discussion made hereinabove, we see no reason to interfere in the well reasoned judgment rendered by the

learned Single Judge, which otherwise appears to be based upon proper appreciation of material available on record and, as such, the same is upheld.

This appeal fails and is dismissed, accordingly.

All interim orders are vacated and all the pending miscellaneous applications are disposed of.