Shashi Sharma vs State Of Himachal Pradesh And Others

Ajay Mohan Goel, J

CMP No.5629 of 2023

This application is disposed of as not pressed with liberty to the petitioner to agitate the issue by way of a fresh petition, if so advised.

CWP No.1999 of 2021

The petitioner was initially appointed as a Legal Assistant on regular basis in the year 1998 with the respondent-Department. He was promoted against the post of Law Officer (Class-II Gazetted) in the year 2003 and as a Senior Law Officer in the year 2017. To cut the controversy short, one Ms. Sonia Banyal, who was appointed as a Legal Assistant in the Panchayati Raj Department, in the year 2000, filed Original Application No.5858 of 2017, titled Sonia Banyal vs. State of Himachal Pradesh and others, before erstwhile Himachal Pradesh Administrative Tribunal, praying for the following reliefs:-

“7(i) That keeping in view the facts and circumstances mentioned here-in-above, the post of the applicant may very kindly be ordered to be up-graded as Deputy Director (Legal) Class-I Gazetted in the pay band of Rs.15,600-39, 100+600 Grade Pay instead of Senior Law Officer, Class-I, Gazetted in pay structure of Rs.10,300-34,800+5400/- grade pay and accordingly the impugned order notification dated 28.09.2017 passed by respondents may very kindly be modified to the aforementioned extent in the ends of justice and fair play.”

Said Original Application was disposed of by learned Tribunal by returning the following findings:-

“ 13. Admittedly, the proposal submitted by the Department to the Government in this case was for upgradation of the post of Law Officer being held by the applicant to that of Deputy Director (Legal) in Panchayati Raj Department in the pay scale of Rs.15600-39100 + Rs.6600/- Grade Pay on the analogy of upgradation of post of Law Officer to Deputy Director (Legal) in I&PH Department and more so in view of the fact that apart from her own duties as Law Officer in the Panchayati Raj Department, she was also looking after the legal work of i Rural Development Department. Strangely enough, though the Finance Department had concurred with the proposal of the Administrative Department, which also had the prior concurrence of the Department of Personnel in consultation with the Law Department, yet it downgraded the level of the post from Deputy Director (Legal) to Senior Law Officer as also the pay band from Rs.15600-39100-Rs.6600/- Grade Pay to Rs. 10300-34800+Rs 5400/- Grade Pay and that too without assigning any reason what to say of a cogent one.

The above discussion brings us to hold that the applicant is entitled for relief. The original application is accordingly allowed with a direction to respondents No.1 to 4/competent authority(s) to relook into the entire matter in the peculiar facts and circumstances of the present case coupled with the observations made hereinabove in this order and consider the case of the applicant for upgradation of the post of Senior Law Officer in the pay scale of Rs. 10300-34800+Rs.5400/- Grade Pay presently held by Fier to that of Deputy Director (Legal) in the pay scale of Rs. 15600-39100 Ra 6600/- Grade Pay on the analogy of I&PH Department, where the post of Law Officer was upgraded to Deputy Director (Legal) (Class-1 Gazetted), vide the aforesaid notification dated 24th November, 2016, Annexure A-6, as expeditiously as possible, but in any case roc later than forty-five days from the date of production of certified copy of this order before the said authority(a) by the applicant.

While parting, we deem it proper to impress upon respondent No.1, through the Chief Secretary to the Government of Himachal Pradesh, to look into the entire matter in a holistic manner and take steps for formulation of Recruitment & Promotior. Rules alongwith provision for a hierarchical set up of promotion for such like posts in the concerned departments of the State Government in the light of the law laid down by the Hon'ble Supreme Court and followed by our own Hon'ble High Court in judgments referred to hereinabove.”

Thereafter, Secretary Panchayati Raj issued a Notification, dated 28.12.2018 (Annexure P-8), which reads as under:-

“ The Governor Himachal Pradesh is pleased to order to upgrade the post of Senior Law Officer, in the post of Deputy Director (Legal) (Class-I, Gazetted) Panchayati Raj in the pay structure of Rs.15600-9100+ Grade Pay Rs.6600. The upgraded post of Deputy Director (Legal) in Panchayati Raj Department shall exist till the retirement of the present incumbent.”

As the petitioner was similarly situated as the original applicant in O.A. No.5558 of 2017 referred to above, except the factum of the petitioner being an employee of the Food, Civil Supplies and Consumer Affairs Department, he also approached the erstwhile learned Tribunal by way of Original Application No.166 of 2019, titled Shashi Sharma vs. State of H.P. and others, praying for same relief. Said Original Application was disposed of by erstwhile learned Tribunal vide Annexure P-9, dated 09.01.2019, in the following terms:-

“4. The applicant claims the benefit of order rendered by this Tribunal in OA No.5858 of 2017, Sonia Banyal versus State of Himachal Pradesh and others, decided on 4th April, 2018, annexure P-8. Lammed Additional Advocate General submits that the factual aspects are to be verified and if the applicants found similarly situate, benefit of the order referred to above, shall be extended to him.

In view of the shove, the present original application is disposed of with a direction to the respondents/competent authority to extend the benefit of the order referred to above, to the applicant herein, in case he is similarly situate, if the same has attained finality and implemented also, within three months from the date of production of certified copy of this order as well as copy of the aforementioned order.”

This was followed by issuance of Notification, dated 27.02.2020, (Annexure P-10), which reads as under:-

“ The Governor, Himachal Pradesh, is pleased to order up-gradation of the existing post of Senior Law Officer to the post of Deputy Director (Legal) (Class-I, Gazetted) in the pay scale off 15000-39100 16600 Grade Pay, as a measure personal to the incumbent and as a special case, in the Food, Civil Supplies & Consumer Affairs Department, Himachal Pradesh. The upgraded post of Deputy Director (Legal) shall cease to exist as and when it falls vacant.

The Governor, Himachal Pradesh, is further pleased to order the appointment of Shri Shashi Sharma, Senior Law Officer in Deputy Director (Legal) (Clams-l, Gazetted) in the pay scale of 15600-39100 +6600 Grade Pay, with immediate effect on regular basis.

This issue with the prior concurrence of the Finance Departments obtained vide U.O. No. 54938224-Fin-E-2020 dated 12.02.2020.”

Learned counsel for the petitioner has argued that admittedly the petitioner was appointed as a Legal Assistant in the year 1998, as compared to Ms. Sonia Banyal, who was appointed as such in the year 2000. He submited that though relief was granted by the State to Ms. Sonia Banyal w.e.f. 28.12.2018, the same has been granted to the petitioner only with effect from 12.02.2020. He accordingly prayed that as the petitioner in fact had joined his parent Department much before Ms. Sonia Banyal had joined her parent department, therefore if not prior to the date on which Ms. Sonia Banyal was conferred the benefits, the Department at least ought to have conferred the benefits upon the petitioner from the date, same were conferred to Ms. Sonia Banyal. Accordingly he prayed that the petition be disposed of by directing the respondents to promote the petitioner w.e.f. 28.12.2018, or at least from the date the order was passed by learned Tribunal, i.e. 09.01.2019.

On the other hand, learned Additional Advocate General, by referring to the reply filed by the State has submitted that the post of Senior Law Officer was upgraded to the post of Deputy Director (Legal) in the respondent No.2- Department, vide Notification dated 27.02.2020 and the petitioner has been appointed against this post with effect from the said date and in light of this fact, there is no merit in the petition because the petitioner has been conferred the benefit from the due date, i.e. as from the date when the post was upgraded. He further submitted that in this view of the matter and taking into consideration the fact that the petitioner had approached learned Tribunal only in the year 2019, the reliefs as prayed for, cannot be granted. Accordingly, learned Additional Advocate General, prayed for rejection of the case.

I have heard learned counsel for the parties and have also carefully gone through the pleadings as also the documents appended threwith.

The facts, as have been narrated by me hereinabove are not in dispute. The moot issue involved in this petition is that whether the act of the respondents of granting the benefit of promotion to the petitioner w.e.f. 27.02.2020 is justified or is the petitioner entitled for the benefits from a retrospective date, as has been prayed.

It is not in dispute that whereas the petitioner was appointed on regular basis as a Legal Assistant by way of direct recruitment with the respondent No.2- Department in the year 1998, Ms. Sonia Banyal was appointed as such in her parent Department in the year 2000. It has also not been disputed before this Court that the promotional avenues/channels in both the Departments were same and similar.

In these circumstances, when on the basis of the directions passed by learned Tribunal in the Original Application that was filed by Ms. Sonia Banyal, the benefit was conferred upon her with w.e.f. 28.12.2018 and when the petitioner was not only similarly situated as Ms. Sonia Banyal, but was on a better footing as his service as a Legal Assistant with his parent Department was at least two to three years more as compared to Ms. Sonia Banyal, the least that was expected from the Department was that when it took a conscious decision to confer the benefit to the petitioner in terms of Annexure P-10, the same ought to have been conferred from the due date.

The issue is that what the due date in the present case could have been. Admittedly, whereas on one hand, Ms. Sonia Banyal had approached learned Tribunal for the grant of relief in the year 2017 and after the decision in her case on 04.02.2018, relief was granted to her on 28.12.2018, the petitioner had not approached the Court earlier and he approached the Court only in the year 2019, i.e. on 09.01.2019. It was on the said date that a direction was issued by learned Tribunal to the Department to consider the case of the petitioner in light of the adjudication made in Ms. Sonia Banyal’s case and to extend the benefit of the order in case the petitioner was found similarly situated. Three months’ time was granted by learned Tribunal to do the needful.

But of course, the benefit was given to the petitioner by the Department vide Notification dated 27.02.2020, because the Department found the petitioner to be similarly situated as Ms. Sonia Banyal. However, whereas needful was to be done within a period of three months as from 09.01.2019 in terms of order of learned Tribunal, the benefit has been given to the petitioner w.e.f. 12.02.2020, i.e. almost after one year from the passing of the order by learned Tribunal in the case of the petitioner.

This Court is of the considered view that when there was a mandate issued by learned Tribunal to do the needful within a period of three months from the date of passing of the order and as subsequently finding the petitioner to be similarly situated as Ms. Sonia Banyal, he was given promotion w.e.f. 12.02.2020, interest of justice would be served by disposing of this petition with the direction that the post shall be deemed to be created and petitioner shall be deemed to have been appointed/promoted on the said post w.e.f. 09.04.2019, i.e. three months as from the date of the disposal of O.A. No.166 of 2019, with all consequential benefits.

Accordingly this Writ petition is disposed of by holding that the conferment of promotion to the petitioner by the respondents in terms of Annexure P-10, dated 27.02.2020, is bad as far as the date from which the said benefit is concerned and a mandamus is issued to the respondents to issue an order of promotion in favour of the petitioner w.e.f. 09.04.2019, i.e three months as from the date of the decision that was made by learned Tribunal in O.A. No.166 of 2019 by also ordering the creation of post from said date with all consequential benefits. Now, let the needful be positively done within a period of six weeks from today.

As far as the prayer made by the petitioner for the grant of FR(1)a(1) is concerned, the same is left open and the petitioner may approach the Court afresh if so advised. Pending miscellaneous applications, if any, also stand disposed of.