AI Structured Summary
Not yet generated for this judgment
Judgment
M.S. Ramachandra Rao, CJ
In this Writ petition, the petitioners are challenging Annexure P-19 letter dt. 08.09.2022, to the extent the same is being applied to the cadre of Patwaris in the District Shimla Cadre. They also seek a restraint on the respondents from effecting any change in the seniority list of the petitioners assigned to them in the Patwari cadre on 24.01.2000 vide Annexure P-2 and not to disturb their promotions to the posts of Kanungos and Naib Tehsildars.
The background facts
The petitioners were appointed as Patwaris in Shimla District, vide Annexure P-1 dt. 14.07.1998.
On 24.09.1999, the Tentative Seniority List of Patwaris in Shimla District was circulated. After considering objections thereto vide Annexure P-2 dt. 24.01.2000, the same was finalized.
Later on 09.03.2005, another Tentative Seniority List of Patwaris of Shimla District was circulated. Vide Annexure P-3 dt. 27.09.2005, this Tentative Seniority List was finalized after considering objections thereto.
Again in the year 2009, a Tentative Seniority List of Patwaris of Shimla District was circulated on 16.11.2009, and vide Annexure P-4 dt. 22.03.2010, it was finalized after considering the objections thereto.
In the year 2013 again on 12.03.2013, a Tentative Seniority List of Patwaris of Shimla District was circulated, and vide Annexure P-5 dt. 21.05.2013, the same was finalized.
On 22.01.2015 also a Tentative Seniority List of Patwaris was circulated in District Shimla and vide Annexure P-6 dt. 07.10.2015, it was finalized.
These Seniority Lists of the Patwari cadre in Shimla District finalized between 2000 and 2015 vide Annexures P-1 to P-6, had never been questioned by anybody and they had all attained finality.
In 2017, on the basis of the undisputed Seniority List of Patwaris, vide Annexure P-9 dt. 08.0.2017, petitioners no.1 & 2 were promoted on the recommendation of a DPC to the posts of Kanungos.
Likewise, petitioners no.3 & 4 were promoted to the posts of Kanungos on 31.03.2017 & 24.04.2017.
In 2018, a Tentative Seniority List dt. 20.03.2018 in Kanungos Cadre of Shimla District was circulated. This was finalized under Annexure P-12 dt. 21.07.2018 and in this Seniority List of Kanungos, petitioners were at serial no.81 to 83 & 85.
In 2019, a Tentative Seniority List of Kanungos was again issued for Shimla District on 31.05.2019 and this was finalized on 17.07.2019.
In 2020, again a Tentative Seniority List of Kanungos of Shimla District was issued on 08.06.2020 and it was finalized vide Annexure P-14 on 20.08.2019.
Petitioner no.1 was further promoted to the post of Naib Tehsildar in Shimla Division on adhoc basis, vide Annexure P-15 dt. 01.06.2022.
Thereafter, another Tentative Seniority List of Kanungos of Shimla District was circulated on 06.06.2022, which was finalized vide Annexure P-16 on 20.07.2022. In this seniority list, petitioners no.2 to 4 were shown at serial nos.3, 4 & 6.
On 12.08.2022, vide Annexure P-17, petitioners no.2 to 4 were promoted to the posts of Naib Tehsildars.
These final seniority lists were also not challenged by anybody.
The decision of the HP High Court in Kuldeep Kumar and others
While things stood thus, it appears that a judgment was rendered by this Court on 22.08.2022 in Kuldeep Kumar and others v. State of Himachal Pradesh ( order dt.22.8.2022 in CWP no.1393 of 2020) in respect of Kanungos of Una District Cadre.
In that judgment, this Court held that Rule 15-A dealing with procedure for selection for training of a Patwari candidate and Rule 15(B) dealing with direct recruitment for the post of Patwari contained in the H.P. Revenue Department (Mohal) Class-III (Non Gazetted) Recruitment and Promotion Rules, 1992, would prevail over certain executive instructions said to have been issued on 30.06.1997, vide Annexure P-8.
While Rue 15A(3) of the 1992 rules had directed the District Collector to maintain a Register of Patwari candidates selected for training in accordance with the merit obtained in the selection list for the said posts as prescribe in sub-Rule(1), on the contrary, the administrative instructions issued on 30.06.1997 had directed the Deputy Commissioner etc. to appoint Patwari candidates from the accepted Patwari candidates in order of merit determined on the basis of the Patwari Examination and Practical Training prescribed in the rules. Such Patwari Examination and Practical Training were provided for in Rule 15-A(4).
The High Court in that case had taken the view that seniority list issued on the basis of executive instructions of 30.6.1997 would have to be set aside, and the respondents should redraw a fresh seniority because since the executive instructions would be bad in law and cannot supplant the Recruitment and Promotion Rules, 1992.
The impugned letter dt.8.9.2022 of the Financial Commissioner (Revenue)
On the basis of the decision in Kuldeep Kumar and others (supra) , the Pr.Secretary-cum-Financial Commissioner (Revenue) to the Government of Himachal Pradesh addressed a letter on 08.09.2022 to all the Deputy Commissioners of Himachal Pradesh stating that the said judgment is not being appealed against and all of them should implement the said judgment.
The instant Writ Petition
Anticipating that their seniority, which had been settled long back in the cadre of Patwaris in the year 2000 & thereafter, and also in the cadre of Kanungo in the District Shimla cadre would now be undone on the basis of the merit obtained in the selection list to the posts of Patwaris, as per Rule 15-A(3) of the 1992 Rules, the petitioners have approached this Court.
They contend that the respondents should not alter their seniority either in the cadre of Patwaris or in the cadre of Kanungos, which had been fixed on the basis of their merit in the Patwari Examination and Training and not on the merit obtained by them in the Selection List for the post of Patwari.
Counsel for the petitioners contended that when there was no challenge to their seniority in the Patwari cadre in Shimla District, which had attained finality in the year 2000, in the year 2022 after 22 years, the same cannot be altered to their disadvantage, since the principle “settled seniority cannot be disturbed after a long period of time”, would apply.
Petitioners relied on judgments of the Supreme Court in Amarjeet Singh & Ors. vs. Devi Ratan & Ors. (2010) 1 SCC 417 , H.S. Vankani & Ors. vs. State of Gujarat & Ors. (2010) 4 SCC 301 in support of their pleas.
It is further contended that none of the petitioners had been parties in the case of Kuldeep Kumar and others (supra) and therefore, the said judgment would not be binding on them and cannot be applied to them.
They contended that whatever the principle for fixation of seniority of Patwaris in Una District, which was the subject matter of the said CWP, it cannot be applied to the District Shimla where they are employed and their settled seniority ought not to be disturbed.
The stand of the respondents
In the reply filed by the respondents, they sought to sustain their decision taken in Annexure P-19 proceeding dt. 08.09.2022, to re-fix the seniority in the cadre of Patwaris in all Districts, primarily on the basis of the judgment in Kuldeep Kumar and others (supra).
They contend that since the seniority of the petitioners in the cadre of Patwaris had been fixed on the basis of the instructions dt. 30.06.1997, (which provided for it to be determined in order of merit determined on the basis of Patwari Examination and Practical Training), which is contrary to Rule 15-A of the Recruitment and Promotion Rules, and since the High Court in the above decision has taken the view that the said instructions of 30.06.1997 will not override the 1992 Recruitment and Promotion Rules, they are justified in issuing Annexure P-19 dt. 08.09.2022.
To the plea raised by the petitioners that their settled seniority cannot be disturbed (Para-c in the Writ petition), there is no reply specifically.
It is also pointed out that the decision in Kuldeep Kumar and others (supra) was challenged in LPA no.165 of 2022 by other employees and that the matter is subjudice. Consideration by the Court.
We have noted the submissions of the respective parties.
It is true that the High Court had taken a view in Kuldeep Kumar and others (supra), that the instructions issued on 30.06.1997 by the Government vide Annexure P-8, which provided for fixation of seniority on the basis of merit determined in the Patwari Examination and Practical Training, cannot prevail over the provision contained in Rule 15-A of the Recruitment and Promotions Rules, which provided for maintenance of a Register of Patwari candidates, selected for training in accordance with merit obtained in the selection list.
But the said judgment pertains to the District Una.
Persons like the petitioners, who are working in District Shimla in the cadre of Patwaris or the next higher position of Kanungos or Naib Tehsildars, were not parties to the said decision.
There is also no dispute that the seniority of the petitioners fixed vide Annexure P-2 dt. 24.01.2000, Annexure P-3 dt. 09.03.2005, Annexure P-4 dt. 22.03.2010, Annexure P-5 dt.21.05.2013 & Annexure P-6 dt. 07.10.2015 had not been challenged by anybody previously and had attained finality.
Admittedly, the petitioners had been promoted to the posts of Kanungos on 08.03.2017, 31.03.2017 & 24.04.2017 and even the Final Seniority List in the cadre of Kanungos Annexure P-12 dt. 21.07.2018, Annexure P-13 dt. 17.07.2019 & Annexure P-14 dt. 28.09.2020 had not been challenged by anybody.
Thus, for a period of 20 years, there had been no challenge to the seniority of the petitioners fixed in the year 2000 in the cadre of Patwaris and for 5 years in the position of Kanungos from 2017.
Thus, their seniority in the posts of Patwaris and Kanungos, stood crystallized and had become settled.
Even thereafter, petitioner no.1 was promoted on 01.06.2022 as Naib Tehsildar and petitioners no.2 to 4 were also promoted to the said posts on 12.08.2022.
The judgment in Kuldeep Kumar and others (supra) was pronounced on 22.08.2022 after all the said events happened and this decision was proposed to be implemented vide Annexure P-19 dt. 08.09.2022 by the respondents, ignoring the fact that settled seniority of the petitioners would thereby get disturbed.
In Amarjeet Singh’s case (supra-1), the principle that the settled seniority cannot be disturbed after a long lapse of time, was laid down by the Supreme Court.
Similar view had been taken in High Court of M.P. vs. Mahesh Prakash & Ors. (1995) 1 SCC 203 (Para-16) and Bimlesh Tanwar vs. State of Haryana & Ors. (2003) 5 SCC 604 (Para 54).
In H.S. Vankani’s case (supra-2), referred to above, the Supreme Court reiterated this principle, observing that seniority is a civil right which has an important and vital role to play in one's service career; future promotion of a Government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority etc.; seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. The Supreme Court held that seniority instills confidence, spreads harmony and commands respect among colleagues, which is a paramount factor for good and sound administration, and if settled seniority at the instance of one's junior in service is unsettled, it will generate bitterness, resentment, hostility among the Government servants and the enthusiasm to do quality work might be lost.
The Supreme Court referred to its previous decisions in Union of India & Anr. vs. S.K. Goel & Ors. (2007) 14 SCC 641 and in T.R. Kapoor vs. State of Haryana. (1989) 4 SCC 71 , and reiterated the said principle in the above terms.
Having regard to this well settled legal position and in the facts and circumstances of the case referred to above, since there was no challenge to the seniority of the petitioners in the cadre of Patwaris in the last 20 years and in the cadre of Kanungos since 2017 and their seniority had become settled seniority, and if the Annexure P-19 dt. 08.09.2022 is implemented, it would unsettle their settled seniority in the said cadres and may also result in their reversion from the post of Naib Tehsildars, which they are holding, the respondents cannot be permitted at this stage to alter their seniority in the cadre of Patwaris and consequently in cadres of Kanungo and Naib Tehsildar cadre.
Therefore, the respondents are restrained from implementing Annexure P-19 dt. 08.09.2022 in respect of the Patwaris in the District of Shimla cadre or to effect any change in the seniority list of the petitioners assigned to them from 24.01.2000 onwards, vide Annexure P-2, or to disturb their promotions in the posts of Kanungos and Naib Tehsildars.
The Writ petition is accordingly allowed, as above.
Pending miscellaneous application(s), if any, shall also stand disposed of.