IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No. 1435 of 2020 Reserved on 23.12.2022 .
Decided on : 7.1.2023.
Dinesh Kumar & others ...Petitioners.
Versus
H.P. University ...Respondent
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes.
For the petitioners : Mr. Sanjeev Bhushan, Sr. Advocate with Mr. Rajesh Kumar, Advocate.
For the respondent : Mr. Surender Verma, Advocate.
Satyen Vaidya, Judge:
By way of instant petition, petitioner has prayed for the following substantive reliefs:-
"i). That the respondent-University may very kindly be directed to place/promote the applicants as Junior Assistants with effect from 12.4.2010 and thereafter to promote them as Senior Assistants from 12.4.2015, strictly in accordance with recruitment regulations on completion of 5-10 years of service as Clerks combined with Junior Assistants with all consequential benefits of pay, arrears, seniority 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 07/01/2023 20:36:39 :::CIS -2-
etc. along with arrears and interest @ 9% per annum.
iii) That the respondent-University may be directed .
to assign seniority to the applicants as clerks from 12.4.2005 by further assigning consequential seniority from due dates in the interest of law and justice."
2. The Executive Council of respondent University in its meeting held on 28.12.2004 passed a resolution, whereby it was decided to promote Category-D officials serving the Himachal Pradesh University. The respondent promoted some of Class-D officials of the university as Clerks vide orders dated 12.4.2005, 4.5.2005 and 20.9.2005. The officials promoted as Clerks vide orders dated 4.5.2005 and 20.9.2005 were also promoted from retrospective date i.e. 12.4.2005.
3. The petitioners were also promoted as Clerks vide orders dated 19.9.2007 from Category-D. Their promotion was ordered to be made on notional basis w.e.f. 12.4.2005 and with financial benefits from the date of their respective joining.
4. The Clerks in the respondent University were entitled to be placed as Junior Assistants after completion of five years of service as Clerks and thereafter to be as Senior Assistants after completion of further five years of service as Junior Assistants.
::: Downloaded on - 07/01/2023 20:36:39 :::CIS -3-5. The grievance of the petitioners is that their service as Clerks has been wrongly reckoned from the date of issuance .
of office order dated 19.9.2007, whereas they were ordered to be promoted, though on notional basis w.e.f. 12.4.2005.
Petitioners were placed as Junior Assistants in the year 2012 and then promoted as Senior Assistants in the year 2017.
Petitioners claim their placement and promotion as Junior Assistants and Senior Assistants respectively w.e.f. 2010 and 2015.
6. The petitioners have alleged discrimination on the ground that the persons who were promoted as Clerks vide orders dated 4.5.2005 and 20.9.2005 were also ordered to be promoted retrospectively on notional basis w.e.f. 12.4.2005 and with financial benefits from the date of joining, but they were granted further placements and promotions by reckoning their date of promotion as 12.4.2005.
7. Respondent University has contested the claim of the petitioners on the grounds, firstly that their claim was time barred as the representation submitted by them was rejected by the respondent on 10.6.2014 and hence the petition filed in January, 2017 was highly belated and secondly, that many persons have been appointed as Clerks between 12.4.2005 to ::: Downloaded on - 07/01/2023 20:36:39 :::CIS -4- 19.9.2007 and in their absence as parties to the petition, no relief could be granted to the petitioners. On merits, it has .
been contended that all the Category-D officials promoted vide orders dated 12.4.2005, 4.5.2005 and 20.9.2005 were senior to the petitioners. In fact, the persons promoted vide orders dated 4.5.2005 and 20.9.2005 were inadvertently ignored while issuing the order dated 12.4.2005. Such persons were higher in seniority to some of the persons promoted vide order dated 12.4.2005. Therefore, the persons promoted subsequently vide orders dated 4.5.2005 and 20.9.2005 were placed in the same position as those who were promoted vide order dated 12.4.2005. As per respondent University, ten persons were appointed as Clerks between 12.4.2005 and 19.9.2007. Nine of whom were appointed on compassionate ground and the tenth was appointed on daily wage basis as clerk. The respondent University has further tried to justify its stand on the ground that as per Himachal Pradesh Ministerial Administrative Rules, 1973, all the petitioners were promoted as Clerks in relaxation of prescribed 10% quota. The method of recruitment as per aforesaid rules in the case of clerks is 90% by direct recruitment and 10% by promotion from amongst the Category-
D employees. Respondent had sanctioned cadre strength of ::: Downloaded on - 07/01/2023 20:36:39 :::CIS -5- Clerks as on 12.4.2005 of 243 posts. Only 24 posts were to be filled up from Category-D employees. However, as on .
12.4.2005 against direct recruitment quota, only 108 Clerks were appointed and against promotional quota 59 employees were promoted from Category-D. Since the respondent was facing acute shortage of staff, the Vice Chancellor in exercise of powers vested in him had promoted 17 persons from Category-
D on 12.4.2005. Similarly two incumbents were promoted vide order dated 4.5.2005 and another was promoted on 20.9.2005.
Lastly, the petitioners were also promoted in pursuance to the decision of Executive Council taken on 28.12.2004.
8. I have heard learned counsel for the parties and have also gone through the record carefully.
9. Order dated 10.5.2005 (Annexure A-1) reveals that two incumbents namely S/Sh. Mohan Singh and Tilak Raj were promoted on notional basis w.e.f. 12.4.2005 till 4.5.2005.
Similarly, vide office order dated 20.9.2005 (Annexure A-2), Sh.
Keshwa Nand was promoted on notional basis w.e.f. 12.4.2005 and with financial benefits from the date of joining. Petitioners have alleged that their promotions of S/Sh. Mohan Singh, Tilak Raj and Keshwa Nand has been reckoned for all intents and purposes from 12.4.2005. This fact has not been denied by the ::: Downloaded on - 07/01/2023 20:36:39 :::CIS -6- respondent, rather it has been submitted that since these persons were senior even to some of the persons promoted vide .
order dated 12.4.2005, they were given the benefits from the date their juniors were promoted i.e. 12.4.2005. Nonetheless, the fact remains that in cases of persons promoted vide orders dated 10.5.2005 and 20.9.2005, it was clearly stipulated that their promotion w.e.f. 12.4.2005 was on notional basis and with financial benefits from the date of their joining. Similar was the stipulation in office order dated 19.9.2007, whereby the petitioners were promoted.
10. It is also not denied by the respondent that the promotion of Category-D officials, who were promoted vide orders dated 12.4.2005, 4.5.2005 and 20.9.2005 and also that of the petitioners was in pursuance to the same decision of the Executive Council, which was taken vide Resolution No. 24 dated 28.12.2004. Respondent University has categorically submitted in its reply that the petitioners were promoted by relaxing the rules. Noticeably, even the promotion of the persons promoted vide orders dated 12.4.2005, 4.5.2005 and 20.9.2005 was also in relaxation of the rules. It is specific case of respondent that as on 12.4.2005, the promotion quota of clerks was already exceeding, but with a purpose to meet out ::: Downloaded on - 07/01/2023 20:36:39 :::CIS -7- the exigency, the promotions were made by relaxing the rules.
Similar reason would apply to the case of petitioners, as no .
other specific reason has been assigned for promoting the petitioners by relaxing the rules. That being so, no distinction could be drawn between the petitioners and the persons promoted vide orders dated 12.4.2005, 4.5.2005 and 20.9.2005.
11. Petitioners were promoted on notional basis w.e.f.
12.4.2005 and there was a specific stipulation to that effect in office order dated 19.9.2007 (Annexure A-3). The Executive Council is the highest decision making body of the University.
The order Annexure A-3 was issued in pursuance to the decision of the Executive Council. Petitioners are not claiming any financial benefits for the period between 12.4.2005 to 19.9.2007. There is nothing on record to suggest that the office order dated 19.9.2007 was reviewed by the competent authority at any time. In absence of the review of aforesaid orders, the respondent University cannot now turn around and say that the petitioners were to get the benefits prospectively from 19.9.2007 and not from the date of their promotion i.e. 12.4.2005.
::: Downloaded on - 07/01/2023 20:36:39 :::CIS -8-12. Respondent has also raised an objection that the representation of the petitioners was rejected by the university .
on 10.6.2014 vide Annexure R-1/F and since the petitioners have not laid any challenge to such rejection orders, they were not entitled to any relief. The objection so raised deserves to be rejected for the reasons that the promotion of the petitioners was in pursuance to decision of the Executive Council and perusal of Annexure R-1/F reveals that the representation of the petitioners was considered and rejected by the Recruitment and Promotion Committee. There is nothing on record to suggest that such a Committee had authority to take administrative decision having civil and evil consequence on the rights of the employees of the university. Merely, because the Memorandum dated 10.6.2014 was issued under the signatures of Vice Chancellor cannot be taken to be a factor to legitimize the action of the respondent university.
13. As regards the plea of time barred claim of the petitioners, the same also does not hold good in the given facts and circumstances of the case. As held above, the Memorandum dated 10.6.2014 was not issued by the competent authority. Therefore, that cannot be an impediment in adjudication of the rights of the petitioners. Further, the ::: Downloaded on - 07/01/2023 20:36:39 :::CIS -9- petitioners had submitted their representation even on 5.12.2015, which had remained unanswered. The O.A. was .
preferred by the petitioners in January, 2017. It cannot be said that the petitioners had slept over their rights for unduly long period or were grossly negligent in pursuing their remedies.
The claim of the petitioners, therefore, cannot be said to be barred by delay and laches, which may be sufficient to defeat their claim.
14. In result, the petition is allowed. The petitioners are entitled to be considered for placement/promotion as Junior Assistants w.e.f. 12.4.2010 and thereafter for promotion as Senior Assistants w.e.f. 12.4.2015, strictly in accordance with regulations applicable to the employees of Himachal Pradesh University. The respondent university is directed to do the needful within eight weeks from the date of production of a copy of this judgment. Needless to say the consequential benefits shall also follow.
15. The petition is disposed of. Pending applications, if any, also stand disposed of.
(Satyen Vaidya)
7th January, 2023 Judge
(kck)
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