Parshu Ram vs The State of Himachal Pradesh and Another

Chet Ram Thakur, J.—By this petition Shri Parshu Ram has prayed for quashing the order, dated 21st November, 1960 and the seniority list in which he has been assigned a place at No. 169.

The Petitioner after having passed his Shastri Examination on 4th April, 1945, was appointed, according to him, as a Hindi and Sanskrit Teacher on 4th January, 1947, in the Princely State of Bilaspur. He was confirmed on 5th March, 1950 as a Shastri Teacher in the grade of Rs. 45-2-55/3-85/4-105. Thereafter Bilaspur State was merged in Himachal Pradesh, then a Part ''C'' State with effect from the 1st of July, 1954. The Part ''C'' State was abolished in November, 1956, and in its place Himachal Pradesh became a Union territory. The Education Department came under the Territorial Council which took steps to determine the seniority of all the school teachers. Consequently, on 23rd January, 1959, a tentative seniority list of O. Ts. (Oriental Teachers) was issued by the Education Department The Petitioner was placed at S. No. 2 in the order of seniority of Shastri Teachers on the basis of the date of appointment of the teachers and their date of confirmation (Annexure B).

Some teachers who felt aggrieved made representations against their seniority in the list ''B'' and on 21st November, 1960, another list described as final was issued by the Education Department in which the Petitioner was pushed down from No. 2 to No. 169 in list ''C'' taking into consideration the date of confirmation in a particular grade and the date of appointment as a teacher. But in assessing seniority of teachers from the defunct Bilaspur State the following criterian was laid down in the covering letter of the said list:

The inter se seniority of Himachal Pradesh and Bilaspur State employees has been fixed according to the length of their continuous service in respective cadre, while fixing seniority, length of service has been calculated as it stood on 1st July, 1954, when Bilaspur State merged with Himachal Pradesh.

This list (Annexure C) was compiled arbitrarily although purporting to formulate this list on a particular formula. In actual fact, it was not compiled in accordance with that. The Shastri teachers including the Petitioner, who felt aggrieved against the compilation of this seniority list (Annexure C) made representations as a result of which the Education Department now after an interval of six years prepared and circulated another tentative integrated list of Shastri Teachers on 23rd October, 1965, making three categories of Shastri Teachers in different grades (Annexure D). The seniority of the Shastri Teachers was fixed on the following criteria--

(i) Date of confirmation in the grade.

(ii) Date of appointment in the Education Department and the date of grant of regular grade.

(iii) Length of service where the dates of confirmation and of grant of regular grade are the same.

(iv) In case where the date of confirmation/appointment/length of service coincide, determining factor would be the date of birth.

But, according to the Petitioner, while preparing this final list his case has been totally ignored. He has been adjusted in category III in the grade of Rs. 60-4-120 and his name figures at No. 52. The juniors to the Petitioner have been put in the 1st and 2nd categories and given the grades of Rs. 140-220 and Rs. 120-175 respectively. That the said discriminatory action of the Respondents in issuing different lists and making changes in determining the seniority of the Shastri Teachers including the Petitioner is arbitrary and opposed to the principles of natural justice as no reasonable, well set and rigid basis or standard has been laid down and the Respondents have violated the provisions of Articles 14 and 16 of the Constitution of India.

The Respondents denied any violation of Articles 14 and 16 and also submitted that after issuing the tentative integrated seniority list on 23-10-1965 Shri Parshu Ram Shastri, the Petitioner, has been given promotion in the selection grade of Rs. 120-175 with retrospective effect from 1st April, 1960, which was due to him on the basis of his seniority arrived at amongst Shastri Teachers. In the seniority list issued in November, 1960, the name of Shri Parshu Ram was placed at S. No. 169 on the basis of his appointment as Shastri Teacher with effect from 22nd December, 1959. It was decided in the year 1962 to absorb the Petitioner along with other Shastri Teachers with effect from 1st July, 1954, (the date from which the posts of Shastri Teachers were available with the department to absorb them) instead of 22nd December, 1959. In accordance with this decision of the department the seniority of Shri Parshu Ram was shifted from S. No. 169 to S. No. 121A.

It was also averred that Shri Parshu Ram was erroneously taken as regularly appointed and confirmed Shastri with effect from 1st March, 1949, and 5th March, 1950, respectively, when he was not actually so, and that he had wrongly been shown at S. No. 2 in the seniority list of Shastris issued on 23rd January, 1959, as also in the list issued on 18th May, 1959. When these facts came to light his seniority was correctly followed.

Only one point was argued that the Respondent had changed the seniority without giving any opportunity and he was only given opportunity after the seniority had been disturbed and this action on the part of the Respondents was bad and was not sustainable in law. Support is drawn from N. Subha Rao, Deputy Director of Public Instruction v. The Union of India by the Secretary of Home Affairs, New Delhi, and Ors. 1969 S.L.R. 537 in which it had been held that:

At the stage when the final list had to be prepared, it should be preceded by an opportunity to make a representation and no such opportunity was afforded. The fact that that opportunity was later made available even if it was, cannot remove the invalidity which fastened itself upon the final list when it was prepared in disobedience to law. At the stage when the Petitioner presented his review petition the list had already been prepared and a secrutiny of the contentions raised in that review petition is not equivalent to a scrutiny which has to be made of a representation at the antecedent stage.

So, now we have to see the facts of the present case in order to apply the principle laid down in this authority. It was a case u/s 115(5) of the States Reorganisation Act, 1956 which provides for integration of services. Sub-section (5) of that Section provides for a fair and equitable treatment of all persons affected by the provisions of that section through a proper consideration of any representations made by them. Therefore, the affected persons have got a right of representation in the matter of integration and drawing of their seniority list.

In this case the Petitioner has averred that he was appointed as a Hindi and Sanskrit Teacher on 4th January, 1947, in the Education Department of the Princely State of Bilaspur and was confirmed as such on the 5th March, 1950. But this averment of the Petitioner is denied by the Respondents in the affidavit of Shri K. L Sethi, the then Director of Education Department, Himachal Pradesh, and it has specifically been stated that the regular appointment held by the Petitioner is that of a teacher in the grade of Rs. 45-2-55/3-85-4-105 in junior basic school rural which was offered to him by the Chief Commissioner of Bilaspur vide Annexure ''RA''. It was only during the Territorial Council regime that he was absorbed as Shastri with retrospective effect from 1st July, 1954. It is apparent from Annexure ''RA'' that Shri Parshu Ram was offered the post of a teacher Junior Basic School Rural in the scale of Rs. 45-105. This Annexure is dated 19th February, 1949. This is a letter apparently issued after the merger of the Bilaspur Princely State into the Union of India. Therefore, the stand of the Petitioner is wholly baseless. This further stands confirmed by Annexure ''RB'' which is a confirmation order, dated 24th January, 1952, whereby he has been confirmed as a teacher in the Education Department Bilaspur in the grade of Rs. 45-2-55-3-85/ 4-105 with effect from 5th March, 1950. So, his averment stands fully rebutted that neither he was appointed as a Shastri Teacher nor he was confirmed as such.

The submission of the Petitioner further stands belied by Annexure ''RC'' that he was appointed as a Shastri. The scale of the Shastris according to this letter is Rs. 64-4-80/5-150, whereas the Petitioner was appointed in the scale of Rs. 45-2-55-3-85/4-105. Therefore, the Petitioner has made a misstatement of facts and on this score the petition is liable to be dismissed because a person who invokes the jurisdiction of the High Court under Article 226 of the Constitution of India must come with clean hands and is under an obligation to the Court to make a full disclosure of all the material facts within his knowledge and if he has deliberately suppressed any material facts then he disentitles himself to get any relief.

It is a common case that the Educational Institutions upto the Higher Secondary Standard and the entire staff working in all such institutions came under the direct control of the Territorial Council with effect from 15th August, 1957. Thereafter the Petitioner also came under the direct control of the Territorial Council. It drew the seniority list of all the teachers. The seniority list of the Shastris of Bilaspur and Himachal Pradesh was issued on 23rd January, 1959, as is stated by the Respondent in Para No. 12 on the basis of the date of confirmation in the grade, date of appointment in the Education Department as Shastris and in case where dates of confirmation and appointment coincided the determining factor had been the date of birth. It was averred that Parshu Ram was shown at No. 2 by mistake based on incorrect information received, as he was erroneously shown therein taking him to be a confirmed Shastri with effect from 5th March, 1950, when actually he was not so. In fact he was never appointed as Shastri during the regime of Bilaspur State. He was included in the category of Shastries wrongly because of his qualification. Therefore it was purely a question of mistake and which mistake the Government could rectify when it came to learn about that mistake.

In K.B. Sharma Vs. Transport Commissioner, U.P., Lucknow and Another, it had been held that the person confirmed does not acquire any special status by virtue of the confirmation. An order of confirmation if passed under some mistake can certainly be revised with a view to correct the mistake, such an order being an administrative order. There is nothing in law to prevent its being revised if circumstances so warrant. An order of confirmation founded on wrong basis when revised would no doubt result in lowering the position of a person confirmed prior in the seniority list but it cannot amount to reduction in rank and does not attract Article 311 of the Constitution. Similarly in Prayag Dass Seth Vs. Secretary to Govt. U.P. and Another, where the promotion of the Petitioner was under mistake which was sought to be corrected because of acceptance of the representation filed by the adversely affected Inspectors, it was held that if he had been sent and another person was senior who had not been appointed the Petitioner was not entitled to the rank and in fact he was appointed ; by mistake, and if that mistake has been corrected, it cannot be said that any right of the Petitioner has been taken away from him. He has been placed at the place, where he should have been, if there had been a proper interpretation as has been made by the State Government.

Therefore, these two authorities fully support the submission of the Respondents that this order being under mistake was rectified and it is quite apparent from the perusal of the appointment order (Annexure RA) as also the confirmation order (Annexure RB) that the Petitioner was never appointed as a Shastri Teacher nor he was confirmed as such. He was only appointed as a Shastri Teacher with effect from July, 1954, by the Himachal Pradesh Government. So on that basis in my opinion, there was no necessity for a notice being issued or an opportunity being afforded because the very seniority that was assigned to him in the earlier list was by mistake. The Government has every right to rectify the mistake when admittedly the Petitioner was not appointed as a Shastri Teacher in the erstwhile Bilaspur State nor he was confirmed as such. Further the Petitioner suppressed this material fact and he came to the Court with unclean hands and he has disentitled himself to a writ being issued.

Consequently, the petition fails and is hereby dismissed with no orders as to costs.