State Of Himachal Pradesh & Others vs Raj Kamal Verma & Another
2021 Latest Caselaw 3435 HP

                                                    1



                     HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                        CMP(M) No. 400 of 2020 and
                                                        LPA No.73/2021.




                                                                                        .
                                                        Date of decision: 03.08.2021





           State of Himachal Pradesh & Others                                   ...Appellants





                                              Versus


           Raj Kamal Verma & Another               ...Respondents





           ____________________________________________________
           Coram:
           The Hon'ble Mr. Justice Ravi Malimath, Acting Chief Justice

           The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge

           Whether approved for reporting1 :


            For the Appellants:               Mr. Ashok Sharma, Advocate General,



                                              with Mr. Ranjan Sharma, Mr. Vikas
                                              Rathore, Ms.Ritta Goswami, Additional
                                              Advocates General and Ms. Seema




                                              Sharma, Deputy Advocate General.





            For the Respondents:              Mr. Tarun K. Sharma, Advocate, for
                                              respondent No.1





                                Through Video Conference
           ____________________________________________________
           Jyotsna Rewal Dua,J.

CMP(M) No. 400 of 2020 Heard learned counsels.

For the reasons assigned in the application, the

same is allowed and delay in filling the appeal is condoned.

Whether Reporters of local newspaper are permitted to see the judgment ?

LPA No.73 of 2020

The writ petition filed by respondent No.1 has been allowed

by the learned Single Judge on 06.01.2020. The appellants have been

.

directed to enter the name of respondent No.1 in the GPF list by striking

out his name from CPS list. The appellants have further been directed

to release all the benefits in favour of respondent No.1 as have been

granted to all other employees, who were appointed alongwith

respondent No.1 in the same recruitment process. The aforesaid

judgment has been assailed by the appellants.

2(i). The respondent No.1/writ petitioner was appointed

alongwith others on 07.05.2003. The appointment order prescribed 20

days time for joining. Writ petitioner accordingly joined on 27.05.2003.

2(ii) The State of Himachal Pradesh issued a notification on

17.08.2006, whereunder Central Civil Services (Pension), Rules, 1972

were not to be made applicable to the 'appointments made in the State

on or after 15.05.2003'. Treating respondent No.1's appointment to be

w.e.f. 27.05.2003 i.e. after the cutoff date of 15.05.2003, the appellants

held the writ petitioner not entitled to GPF but to CPS in terms of

notification dated 17.08.2006.

2(iii). Learned Single Judge held that respondent No.1 (writ

petitioner) was entitled to the benefit of GPF in terms of CCS Pension

Rules 1972, which stood extended to other employees, who had been

appointed alongwith respondent No.1 in the same recruitment process.

3. We have heard learned Additional Advocate General and

gone through the case file.

4(i) In 2011(2) Shimla Law Cases 36, titled Desh Raj Vs.

.

Secretary, H.P. State Electricity Board and Another, learned Single

Judge of this Court while interpreting the clauses of appointment order

held that seniority was to be prepared on the basis of order of merit and

not from the date of joining.

4(ii) In CWP 9266/2014 titled Harish Kumar & Another Vs.

State of H.P. & Others, decided by a Division Bench of this Court on

31.12.2014, the petitioners therein had called in question the action of

the respondents in drawing seniority on the basis of date of joining and

not as per merit obtained in the same selection process. Taking note of

AIR 1990 SC 1607 the Direct Recruit Class-II Engineering Offices

Association and other Vs. State of Maharashtra & Others, (1994) 6

SCC 301 Chairman Puri Gramya Bank and another Vs. Ananda

Chadra Das and others, AIR 2003 SC 2000 Bimlesh Tanwar Vs.

State of Haryana and others, (2007) 1 SCC 405 Suresh Chandra

Jha Vs. State of Bihar & Others, the Court held that seniority of those

appointed in same recruitment process shall be assigned from their

order of merit in the appointment order and not from dates of their

joining.

4(iii). In (2020) 13 SCALE 406 titled Manohar Lal Jat & Ors Vs.

The State of Rajasthan & Ors., while interpreting Rajasthan

Commercial Taxes Subordinate Services General Branch Rules, it was

held as under:-

"30. Plainly, the principal mandate of the rule is that seniority is determined on

.

the basis of date of appointment ("shall be fixed from the date of their

appointment"). Proviso (2) lists out two rules. The first is that those selected and appointed through a prior selection would rank senior to those selected and appointed through a later selection process. The High Court, in this case, was of the opinion that this rule (i.e. proviso) applied to selections from the

same source, i.e. where two sets of direct recruits were appointed, those selected through a previous recruitment process, would rank senior to those recruited through a later recruitment process. This interpretation is, in this court's opinion, salutary. There may be various reasons why the ultimate appointment of one batch of recruits may be delayed: challenges to some part of the recruitment process (such as shortlisting, calling of candidates for

interviews etc.), during which period, a subsequent recruitment may be undertaken. To forestall any apprehensions as to which of the appointees would be senior, and if those from the earlier process are appointed later, the proviso clarifies that candidates from the earlier process would rank senior, despite the main rule speaking of a date of appointment based seniority. The same logic would apply to departmental promotees, as well, if two batches of

promotees are appointed, through selection. The second limb of the second proviso clarifies that when merit based, or seniority based promotions are

resorted to, the applicable norm would be seniority in the feeder cadre, to forestall any debate about the rule of merit (in the selection) being the guiding principle".

5. It is thus settled law that seniority of those selected in the

same recruitment process relates to the date of appointment in the

order of their merit and not to the date of their joining. Admittedly,

respondent No.1 was appointed on 07.05.2003, meaning thereby,

respondent No.1 was appointed prior to the cutoff date of 15.05.2003

indicated in the notification dated 17.08.2006. The appellants have

themselves mentioned the date of appointment of respondent No.1 as

07.05.2003 in the order dated 31.07.2013 and rightly so because the

date of joining can be different of different persons appointed under the

same recruitment process. Date of joining within the prescribed joining

time may depend upon various fortuitous circumstances. Date of joining

of respondent No.1/writ petitioner i.e. 27.05.2003 is irrelevant for

determining his eligibility to the applicability of CCS (Pension) Rules. It

is his date of appointment i.e. 07.05.2003, which will determine his

.

eligibility. There is no error in the judgment passed by the learned

Single Judge.

Therefore, this appeal fails and is dismissed accordingly.

                          r              to      ( Ravi Malimath )
                                                Acting Chief Justice


                                              ( Jyotsna Rewal Dua )



                                                     Judge
      3rd August, 2021 (rohit)