Mukesh Thakur vs State of HP

Tarlok Singh Chauhan, J.—The petitioner has approached this Court for the grant of following substantive relief''s:

That the respondent No. 2 may be directed to consider the petitioner for promotion of Senior Assistant from the date prior to the date of appointment of respondent No. 3 as Senior Assistant on secondment basis in the office of respondent No. 2, i.e. 19.6.2012, with all consequential benefits.

That if it is found necessary to quash the appointment on secondment basis of respondents No. 3 and 4 or anyone of them vide Annexures P-5 and P-11 or any other appointment on secondment basis made during the pendency of writ petition, in that event such appointment(s) may also be quashed and set aside.

The petitioner was appointed as a constable in the Himachal Pradesh Police department by direct recruitment on 5.5.1988. He joined as gunman on secondment basis in the erstwhile Administrative Tribunal on 2.8.1994 and was eventually absorbed there as a Clerk on 11.12.2001. After abolition of the H.P. State Administrative Tribunal, the petitioner was put in surplus pool of H.P. Government on 9.7.2008. However, he remained posted as Clerk on the establishment of erstwhile Administrative Tribunal upto May, 2009. Thereafter the petitioner joined the office of Lokayukta on 1.6.2009 and his case for permanent absorption was sent to the government vide order dated 16.8.2010. The petitioner was absorbed permanently in the office of Lokayukta w.e.f. 1.6.2009 vide order dated 6.1.2012. On 7.3.2011, the Recruitment and Promotion Rules for the posts of Senior Assistant Class-III (Non Gazetted) were notified by the office of Lokayukta. As per these rules, the post of Senior Assistant was required to be filled up 100% by promotion failing which on secondment basis. Promotion was to be made from amongst the common clerical cadre of Clerk/Junior Assistant with 10 years regular service or regular combined with continuous ad hoc service rendered in the grade, failing which on secondment basis from the incumbents of the said post working in identical pay scale from other government departments.

Now the grievance of the petitioner is that despite his eligibility, respondents have resorted to fill up the post of Senior Assistant on secondment basis on the erroneous assumption that there was no Clerk eligible in the office of Lokayukta itself. The petitioner claims to fulfill the eligibility of 10 years service in case his service as a Clerk in the erstwhile Tribunal with effect from 11.12.2001 is counted.

The official respondents in the reply have stated that after scrapping of the H.P. State Administrative Tribunal by the government, services of the official like the petitioner were put in the surplus pool of the Finance department of the State Government. The services of the petitioner were then taken on secondment basis as a Clerk from this surplus pool. The petitioner had submitted his option on 18.6.2010 for his permanent absorption in the Lokayukta department. The case of the petitioner was then sent to the government for his permanent absorption in the Lokayukta. Vide letter dated 13.12.2011, government conveyed the decision of the Cabinet and informed that the official could be absorbed permanently in the Lokayukta only subject to fulfilling certain terms and conditions. Out of four total terms and conditions, third condition stipulated as follows:-

"the official being absorbed shall be placed at the bottom in the respective grade/cadre and seniority shall be determined on the basis of joining in the department on secondment basis."

It is further claimed that the petitioner accepted all these terms and conditions without any objections or demur vide acceptance letter dated 22.12.2011. On approval of his permanent absorption by the government, petitioner was permanently absorbed in the Lokayukta vide office order dated 6.1.2012. It is further claimed that one Bhagwan Singh is otherwise senior to the petitioner and once his case has not been considered, the case of petitioner can also not be considered. As per the final seniority list of Clerks, it is claimed that the petitioner is at serial No. 2 below Sh. Bhagwan Singh and as per R & P Rules, the post of Senior Assistant is Class III non-selection post and required to be filled up on seniority-cum-merit basis and, therefore, also the petitioner cannot be considered for the said post. It is claimed that the petitioner has left his parent cadre in the H.P. Administrative Tribunal at the time of its closer and accepted the ex-cadre post at his own will and that is why the petitioner was allocated to the surplus pool of the government.

Respondents have placed reliance on the following instructions of the government:

"Fixation of inter-se-seniority of the staff rendered surplus and redeployed on different occasions but in the same office.

When an employee is declared surplus in a particular grade in an office and is redeployed in a grade in another office, he is not allowed to count his service in his previous office towards seniority in the office where he is redeployed, vide MHA O.M. No. 9/11/55-RPS, dated 22.12.1959."

(MHA O.M. No. 10/1/63-Estt (D), dated 30.11.63 and MHA O.M. No. 9/22/68-Estt (D) dated 6.2.1969).

"7. Transferees

(i)...............

(ii)............

(iii) Where a person is appointed by transfer in accordance with a provision in the recruitment rules providing for such transfer in the event of non availability of a suitable candidate by direct recruitment or promotion, such transferees shall be grouped with direct recruits or promotees, as the case may be, for the purpose of para 6 above. He shall be ranked below all direct recruits or promotees, as the case may be, selected on the same occasion."

(O.M. No. 9/11/55-RPS, dated the 22nd December, 1959).

In rejoinder, the petitioner has clarified that in terms of the R & P rules, if a junior person becomes eligible for consideration, all persons senior to him in the respective category/post/cadre are also deemed to be eligible, if such senior person has minimum 3 years of service. It is claimed that Bhagwan Singh was holding the post in the cadre since 2008 and, as such, on 19.6.2012, when he was selected for appointment on secondment basis even at that time he had more than three years service to his credit and, as such, not only the petitioner but even Sh. Bhagwan Singh was eligible for being considered for promotion to the post of Senior Assistant before resorting to the ''failing which'' clause of the R & P Rules.

I have heard the learned counsel for the parties and have gone through the records of the case. Rule-11 of the R & P Rules for the post of Senior Assistant Class-III in the office of Lokayukta, HP deals with the mode and manner of filling up of the post of Senior Assistant and it is provided as under:

Recruitment and Promotion Rules for The Post of Senior Assistant (Class-Iii) in The Office of Lokayukta, Himachal Pradesh.

The only question required to be determined in the backdrop of these Rules is as to whether the petitioner was fulfilling the eligibility stipulated therein.

It is not in dispute that the petitioner was having 10 years service in the grade of Clerk/Junior Assistant though the respondents would contend that such service was not rendered in the Lokayukta. In case the rules are examined minutely, they do not prescribe 10 years service that must be rendered in the Lokayukta itself. The only requirement of the Rules is that an incumbent must be 10 years regular service or regular combined with continuous ad hoc in the grade of Clerk/Junior Assistant.

The court cannot be oblivious to the fact that the office of Lokayukta is a relatively new office and all the initial employees were/are from the government only that too on secondment basis. Therefore, the question at this stage is that can the service rendered by the petitioner in the erstwhile Tribunal be completely wiped off or rendered otiose. Will it not be a transgression of justice and be violative of the provisions of Articles 14 and 21 of the Constitution of India in case the service rendered by the petitioner in the erstwhile Tribunal is not counted?.

This question is no longer res integra as it stands duly answered in CWP No. 8449 of 2010 titled Andeep Rana & ors Vs. State of HP Subordinate Services Selection Board, wherein the question posed was as to whether services rendered by employees in different government departments before their absorption in the board could be counted for reckoning service rendered in the grade for the purpose of promotion. This question was answered by a learned Single Judge in the following manner:

"3. The undisputed facts are that on their absorption in the Board the petitioners have been given the benefit of their past service for the purpose of seniority, etc. but the Board is not taking into consideration their past service for the purpose of considering them for promotion. The stand of the Board is that it sought a clarification from the State Government and the State Government vide its letter dated 30th March, 2001 directed that only the service rendered from the date of absorption in the Board shall be counted for the purpose of promotion.

In any case, where the Court is called upon to interpret rules, the interpretation must be one which is in consonance with Article 14 of the Constitution of India and in accordance with the well settled principles of service jurisprudence. In case the interpretation given by the State to the Board is accepted it will lead to a highly anomalous situation. A person who has rendered 7 years service in the Board and may have rendered 10 years service prior to that in the Government department will not be considered eligible for promotion but an employee of the Government department who has just rendered 10 years service will be eligible to be posted on transfer on secondment basis to the said post.

The petitioners were all serving in different departments when they were sent on secondment/deputation to the H.P. Subordinate Services Selection Board when the same was created. Thereafter their services were absorbed in the board. They had already put in substantial service in the parent departments and if they had continued in their parent departments they may have been promoted by this time. As per the amended rules a Junior Assistant who has put in 10 years regular service or regular combined with continuous ad hoc service in the grade is eligible for promotion to the post of Senior Assistant and in case no such candidates are available then the post of Senior Assistant shall be filled in on secondment basis from amongst incumbents holding the post of Junior Assistant in the identical pay scale in the H.P. Secretariat, H.P. Public Service Commission or other public departments. The grievance of the petitioners is that their service rendered in the departments prior to their absorption in the Board cannot be just washed away.

In my view there is merit in the contention of the petitioners. It is indeed astounding and shocking that as per the stand of the Board based on annexure R-3 previous service rendered in other departments by the employees of the Board cannot be taken into consideration while considering them for promotion but if candidates in the Board are not available then the services rendered by the people who are not employees of the Board but employees of other departments can be taken into consideration. This is clearly invidious and arbitrary discrimination and violative of Article 14 of the Constitution. There is no difference in the service rendered by the petitioners in other government departments, H.P. Secretariat, H.P. Public Service Commission or their counterparts who are not employees of the Board but are working in the said department(s). Therefore, the service rendered by the petitioners in the grade of Junior Assistant in other departments prior to their absorption in the Board has to be taken into consideration while considering them for promotion.

In view of the above discussion, the writ petition is allowed and the respondent-Board is directed to count the service rendered by the petitioners in the grade in other departments prior to their absorption in the Board for the purpose of promotion also. Needful be done latest by 31st December, 2011. The writ petition is disposed of in the aforesaid terms. The petitioners shall be considered for promotion as and when the post(s) fell vacant and if found eligible shall be promoted with all consequential benefits. In case any monetary benefits are due and payable to the petitioners those shall be paid to them latest by 28th February, 2012 failing which the Board shall be liable to pay interest @ 12 % per annum from the date when the amount fell due. No costs.

The aforesaid judgment rendered by the learned Single Judge was carried in appeal by the H.P. Subordinate Service Selection Board by filing Letters Patent Appeal No. 34 of 2012 which was decided on 9th May, 2012 by holding as under:

The respondent, H.P. Subordinate Service Selection Board has come up in appeal aggrieved by the judgment dated 15.9.2011 in CWP No. 8449 of 2010. The matter pertains to the promotion to the post of Senior Assistant. The writ petitioners went to the Board on secondment basis and they were subsequently absorbed in the Board. It is pointed out that the benefit of their past service has been granted to them and the seniority also has been accordingly affixed.

Promotion to the post of Senior Assistant is by way of promotion; ''from amongst the common clerical cadre of Clerks/Junior Assistants who possesses ten years'' regular service or regular combined with continuous ad hoc service, if any, in the grade failing which by transfer on secondment basis from amongst the incumbents of this post working in the identical pay scale of this post from the Himachal Pradesh Secretariat/HP Public Service Commission/other H.P. Government Departments. ....."

It is not in dispute that the writ petitioners possessed 10 years service in the grade of Clerks/Junior Assistants. Mr. Rajesh Kumar, learned counsel appearing for the appellant points out that 10 years service is not in the Service Selection Board. We find it difficult to appreciate the contention. The Rules have not prescribed that 10 years service should be in the Service Selection Board. The requirement under the Rules is only 10 years service in the grade of Clerks/Junior Assistants. It is a new Board and all the initial employees are from Government only, on secondment basis. The service of the writ petitioners in the cadre of Clerks/Junior Assistants has been counted in the Service Selection Board for the purpose of pay fixation and all other service benefits including seniority. Thus, the writ petitioners possessed the required qualifying service for the post of Senior Assistant.

The issue has also been considered by the learned Single Judge from another angle. It is stated in the Rules that in case people with 10 years of service in the grade of Clerks/Junior Assistants are not available, those having 10 years of service in the grade in the H.P. Secretariat or Public Service Commission or other H.P. Departments can be considered for appointment by transfer on secondment basis. Therefore, the learned Single Judge has correctly held that in case the benefit of service rendered by the writ petitioners in the grade of Clerks/Junior Assistants in the Government prior to their deputation and subsequent absorption is not granted it would be violative of Article 14 of the Constitution. The view taken by the learned Single Judge is the only plausible view in terms of the Rule, as extracted above. We do not find any legal infirmity in the judgment. Accordingly, the appeal is dismissed, so also the pending applications, if any."

The ratio of law laid down by the Hon''ble Division Bench of this Court is equally applicable to this case, not only because of its binding effect, but also on account of identical facts and issues in both the cases. The petitioner has otherwise discharged and performed the same and similar duties in the erstwhile Tribunal before being absorbed in the Lokayukta and has thus gained sufficient experience in the relevant field.

The matter can be looked from another angle. Rule-11 of the R & P Rules provides:

"Provided that in all cases, where a junior person becomes eligible for consideration by virtue of his total length of service (including the service rendered on ad hoc basis followed by regular service/appointment) in the feeder post in view of the provisions referred to above, all persons senior to him in the respective category/post/cadre shall be deemed to be eligible for consideration and placed above the junior person in the filed of consideration.

Provided that all incumbents to be considered for promotion shall possess the minimum qualifying service of at least three years or that prescribed in the Recruitment and Promotion Rules for the post whichever is less."

Indisputably, both the petitioner and Bhagwan Singh had rendered more than three years service on the date of consideration of the case and were, therefore, eligible for being promoted to the post of Senior Assistants in terms of the aforesaid Rules. Therefore, on this ground also they could not have been denied consideration for the post of Senior Assistants prior to filling up of these posts on the basis of secondment.

The upshot of the aforesaid discussion is that there is merit in this petition and accordingly the same is allowed and respondent No. 2 is directed to consider the case of the petitioner for promotion to the post of Senior Assistant from the date prior to the date of appointment of respondent No. 3 as Senior Assistants on secondment basis in the office of respondent No. 2 i.e. 19.6.2012, with all consequential benefits. Insofar as second relief is concerned, it is for the respondent No. 2 to decide about the fate of respondents No. 3 and 4.

Accordingly, present petition is allowed leaving the parties to bear the costs.