Himachal Pradesh High Court
Ram Parkash Sharma vs State Of Himachal on 14 November, 2022
Bench: Tarlok Singh Chauhan, Sandeep Sharma
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 14th DAY OF NOVEMBER, 2022
BEFORE
HON'BLE MR. TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SANDEEP SHARMA
EXECUTION PETITION NO. 151 OF 2019
Between:
1. RAM PARKASH SHARMA
AGE 51 YEARS SON OF
LATE SHRI SANT RAM,
PRESENTLY WORKING AS
SUPERINTENDENT GRADE-
II, H.P. SECRETARIAT
SHIMLA-2.
2. SAT PAL SINGH SON OF
LATE SHRI SUMRA SINGH,
PRESENTLY WORKING AS
SUPERINTENT GRADE-II,
H.P. SECRETARIAT
SHIMLA-2.
3. BABU RAM SON OF SHRI
LAXMI DHAR, PRESENTLY
WORKING AS
SUPERINTENDENT GRADE-
II, H.P. SECRETARIAT
SHIMLA-2.
4. RAMESH KUMAR SON OF
SHRI AMAR SINGH RAWAT,
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PRESENTLY WORKING AS
.
SUPERINTENDENT GRADE-
II, H.P. SECRETARIAT
SHIMLA-2
5. RAMA NAND SON OF SHRI
MAHANT RAM, PRESENTLY
WORKING AS SUPERINTENDENT
GRADE-II, H.P. SECRETARIAT
SHIMLA-2
6. SHEETAL WIFE OF KASMAL
PARKASH, PRESENTLY
WORKING AS ASSISTANT/
SENIOR ASSISTANT, H.P.
SECRETARIAT SHIMLA-2
7. TALBIR SINGH SON OF SHRI
DURGA SINGH, PRESENTLY
WORKING AS SUPERINTENDENT
GRADE-II, H.P. SECRETARIAT
SHIMLA-2
8. JEET RAM SON OF LATE SHRI
GOVERDHAN DASS, PRESENTLY
WORKING AS SUPERINTENDENT
GRADE-II, H.P. SECRETARIAT
SHIMLA-2
9. BRIJ PAL SINGH SON OF SHRI
BHABUTI LAL, PRESENTLY
WORKING AS ASSISTANT/
SENIOR ASSISTANT H.P.
SECRETARIAT SHIMLA-2
10. LEKH RAM SON OF SHRI
NATHU RAM, PRESENTLY
WORKING AS ASSISTANT/
SENIOR ASSISTANT H.P.
SECRETARIAT SHIMLA-2
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11. BAL KRISHAN SON OF SHRI
.
RAM, PRESENTLY WORKING AS
SUPERINTENDENT GRADE-II,
H.P. SECRETARIAT SHIMLA-2
12. LEKH RAM SON OF SHRI
TARSEM LAL, PRESENTLY
WORKING AS SUPERINTENDENT
GRADE-II, H.P. SECRETARIAT
SHIMLA-2
13. GOVERDHAN SINGH SON OF
SHRI MURAT SINGH,
PRESENTLY WORKING AS
SUPERINTENDENT GRADE-II,
H.P. SECRETARIAT SHIMLA-2
14. RAMESH CHAND SON OF LATE
SHIR DHANI RAM, PRESENTLY
WORKING AS SUPERINTENDENT
GRADE-II, H.P. SECRETARIAT
SHIMLA-2
15. KAHAN SINGH SON OF SHRI
SUDERSHAN SINGH PRESENTLY
WORKING AS SUPERINTENDENT
GRADE-II, H.P. SECRETARIAT
SHIMLA-2
16. KRISHAN CHAND SON OF SHRI
DAULAT RAM, PRESENTLY
WORKING AS SUPERINTENDENT
GRADE-II, H.P. SECRETARIAT
SHIMLA-2
17. VIJAY SINGH SON OF SHRI
CHET RAM R/O KOTHI JAMOGI,
PO BATHALAG, TEHSIL ARKI
DISTRICT SOLAN, H.P.
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18. NIRMALA WIFE OF SHRI LEKH
.
RAJ, PRESENTLY WORKING AS
SUPERINTENDENT GRADE-II,
H.P. SECRETARIAT SHIMLA-2
19. LEELA DHAR SON OF LATE
SHRI KESHAVE DASS,
PRESENTLY WORKING AS
SUPERINTENDENT GRADE-II,
H.P. SECRETARIAT SHIMLA-2
20. TARA CHAND SON OF SHRI
MANDI RAM NEGI, PRESENTLY
WORKING AS SUPERINTENDENT
GRADE-II, H.P. SECRETARIAT
SHIMLA-2
21 NARINDER SINGH SON OF SHRI
KHIALI RAM, PRESENTLY
WORKING AS ASSISTANT/
SENIOR ASSISTANT H.P.
SECRETARIAT SHIMLA-2
....PETITIONERS
(BY MR. KARAN SINGH
PARMAR, ADVOCATE)
AND
1. STATE OF HIMACHAL
PRADESH THROUGH ITS
CHIEF SECRETARY TO THE
GOVERNMENT OF
HIMACHAL PRADESH,
SHIMLA, H.P.
2. SECRETARY (SA) TO THE
GOVERNMENT OF
HIMACHAL PRADESH
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3. SECRETARY (PERSONNEL)
.
TO THE GOVERNMENT OF
HIMACHAL PRADESH
....RESPONDENTS
(BY MR. ASHOK SHARMA,
ADVOCATE GENERAL WITH
MR. VINOD THAKUR,
ADDITIONAL ADVOCATE
GENERAL AND MR. RAJAT
CHAUHAN, LAW OFFICER,
FOR THE RESPONDENT-
STATE)
RESERVED ON: 31.10.2022
DECIDED ON: 14.11.2022
Whether approved for reporting?. Yes.
This petition coming on for orders before order this day, Hon'ble Mr. Sandeep
Sharma, passed the following:
ORDER
By way of instant execution petition, prayer has been made by
the petitioners to issue direction to the respondents to execute the
judgment dated 22.6.2008 passed by this Court in CWP(T) No. 8902 of
2008 titled Nand Lal v. State of Himachal Pradesh and Ors.
2. Precisely the facts of the case as emerge from the record are
that by way of CWP(T) No. 8902 of 2008, petitioners herein prayed for
following relief:
"(i) That the action of the respondents to fill in the vacancies of the
.
years 1999 to 2002 in accordance with the rules may be held void-ib-
initio and the respondents may be directed to review DPC which has
resulted in passing of the orders Annexure-A5 to A8 may be reviewed
and the respondents may be directed to convene DFPC for the posts
of Senior Assistants by calculating the year wise vacancies and in
accordance with the rules which were in vogue at the time of
occurrence of vacancies and thereafter to promote the applicants to
the posts of Senior Assistants from the due dates with all
consequential benefits."
3. Coordinate Bench of this Court having taken note of the
judgment passed by the Hon'ble Apex Court in case titled A. Manoharan
and Ors v. Union of India and Ors, reported in (2008) 3 SCC 641,
whereby it came to be held that vacancies which arose prior to the
amendment of the Rules should be filled up only in accordance with the
un-amended Rules, disposed of the petition reserving liberty to the
respondents/State to review any promotion granted to any ineligible or
unqualified person.
4. After passing of the aforesaid judgment, petitioners filed
representations for considering their cases for the post of Senior Assistants
keeping in view the fact that persons junior to them were promoted, but
respondents-State vide order dated 10.12.2010, rejected the
representations, as a result of which, petitioners were compelled to
approach this Court again by way of CWP No. 6116 of 2011-G. Learned
.
Single Bench of this court vide judgment dated 21.6.2012 (Annexure E-2),
set-aside order dated 10.12.2010 and directed the respondents to consider
the case of the petitioners for promotion to the post of Senior Assistant in
accordance with law from the date their juniors were considered and
promoted. While passing aforesaid order, learned Single Judge
categorically ordered that all consequential benefits, if any, other than
seniority be also accorded to the petitioners.
5.
Being aggrieved and dissatisfied with aforesaid direction issued
by the learned Single Judge, respondents/State preferred LPA No. 468 of
2012, which came to be disposed of on 10.11.2014, whereby the coordinate
Bench of this Court, observed that observation made in paras-8 to 10 of the
judgment shall not come in the way of the appellants (respondent-State), in
considering the case of the petitioners.
6. Since despite passing of the aforesaid judgment dated
10.11.2014 in the aforesaid LPA, no action was taken by the respondents,
petitioners approached this Court by way of COPC No 809 of 2015, praying
therein for initiation of contempt proceedings against the respondents for
their having willfully and intentionally disobeyed the directions contained
in the judgment alleged to have been violated. Coordinate Bench of this
Court while directing the respondents to pass fresh consideration order
.
categorically observed that respondents have not gone through the
judgment dated 27.5.2010 rendered by the coordinate Bench of this Court
in CWP(T) No. 8902 of 2008, wherein court having taken note of the
submissions made by the then learned Senior Additional Advocate General
reserved liberty to the State to review any promotion granted to any
ineligible or unqualified person. Court further observed in the order that
respondents were to consider the case of the petitioners in terms of the said
judgment and pass consideration order. Vide aforesaid order, court
directed the respondent to consider case of the petitioner in light of the
judgment dated 27.5.2010, passed by coordinate Bench of this Court in
CWP(T) No. 8902 of 2008, titled Nand Lal and Ors v. State of H.P. and Ors.
however fact remains that aforesaid order was again not complied with and
as such, petitioners again approached this court by way of contempt
petition bearing COPC No. 21 of 2017, wherein pursuant to directions
issued by this Court, the then Chief Secretary, Mr. Vineet Chaudhary and
Mr. Sunil Chaudhary, Secretary (GAD & SAD) to the Government of
Himachal Pradesh, came present in the Court. Coordinate Bench of this
Court vide order dated 21.3.2018, disposed of the contempt petition having
taken note of the undertaking given by the learned Advocate General under
instructions from the aforesaid officers that judgment in question shall be
.
positively implemented within two weeks. While passing aforesaid order,
coordinate Bench again reiterated that cases of the original petitioners for
promotion were to be considered on the basis of criteria prevalent as on the
date when the posts fell vacant subject to the relaxation being granted in
the terms of the Rules with respect of the educational qualification.
Coordinate Bench of this Court observed in the order that " abundantly, we
clarify that in view of paras 8 and 9 of the judgment rendered in Nand Lal
(Supra) would mean that relaxation has to be with regard to the educational
qualification."
7. Since undertaking given in the aforesaid contempt petition was
not honoured by the respondents, petitioners herein filed application for
revival of the contempt proceedings, which otherwise stood decided on
24.12.2018. Perusal of order dated 24.12.2018, reveals that learned
Advocate General on the basis of instructions received from the Secretary
(SA) to the Government of Himachal Pradesh vide letter dated 21.9.2018
informed this court that matter was placed before the Council of Ministers
in their meeting held on 11.12.2018, wherein cabinet has approved the
relaxation in the educational qualifications prescribed in the Recruitment &
Promotion Rules of the Senior Assistants for promotion of the petitioners.
Learned Advocate General further apprised this Court that benefit of
.
relaxation shall be extended to the petitioners by convening a Review DPC
and by re-framing the seniority of the incumbents. On the basis of
aforesaid instructions placed on record by the learned Advocate General,
application for revival having been filed by the petitioners was disposed of.
8. Though pursuant to aforesaid undertaking, review DPC vide
order dated 15.2.2019 (Annexure E-7) promoted the petitioners to the post
of Senior Assistants, but on notional basis in the pay-scales from the date
shown against their names till the date of their actual joining/working on
the post. Since petitioners were not given actual benefits on account of
their promotions to the post of Senior Assistants from the due date, they
have approached this court in the instant proceedings by way of execution
petition, seeking therein direction to the respondents to implement/execute
the directions contained in judgment dated 22.6.2008 passed by coordinate
Bench of this Court in CWP(T) No. 8902 of 2008, which has attained
finality.
9. Pursuant to directions issued vide order dated 7.1.2020 in the
instant proceedings, respondents-State has filed compliance affidavit
stating therein that judgment sought to be executed in the instant
proceedings stands duly complied with and nothing remains to be
adjudicated in the instant proceedings. It has been averred in the
.
compliance affidavit that after approval of the cabinet qua relaxation in the
educational qualification, matter was placed before DPC for promotion of
the petitioners from the dates their juniors were promoted. The DPC in
view of the approval of the Cabinet qua the relaxation in educational
qualification recommended the names of the petitioners for promotion to
the post of Senior Assistants from the date their junior eligible incumbents
were promoted in the year 2004. Respondents claimed that petitioners
were promoted as Senior Assistants w.e.f. 22.1.2004 vide office order dated
15.2.2019 by creating the requisite number of supernumerary posts of
Senior Assistants and thereafter, their pay was fixed from the retrospective
dates vide office memorandum dated 16.2.2019 (Annexure R/II).
Respondents hereinafter claimed that after assigning the seniority, the
petitioners were promoted as Superintendent Grade-II from the dates their
juniors were promoted i.e. w.e.f. 4.4.2015 vide office order dated 21.2.2019,
by creating requisite number of supernumerary posts and their pay was
fixed and seniority was assigned vide office memorandum dated 23.3.2019.
In nutshell, respondents have claimed that petitioners have been extended
all the consequential benefits as admissible i.e. seniority, promotion and
pay etc. As regards claim of the petitioners regarding payment of arrears is
concerned, promotion from the retrospective dates was granted to the
.
petitioners by creating supernumerary posts and since petitioners never
worked against the promotional post, they have been not given arrears.
10. Vide order dated 11.3.2020, time was granted to the petitioners
to file counter affidavit to the compliance affidavit and opportunity was
granted to the respondents to implement the judgment sought to be
executed in its letter and spirit. Again, vide communication dated
11.7.2022 addressed to the learned Advocate General from the office of the
Principal Secretary (SA), to the Government of Himachal Pradesh,
respondents have reiterated that the petitioners had already been released
all consequential benefits qua promotion with retrospective dates in
relaxation of the Recruitment & Promotion Rules i.e. benefit of seniority,
pay fixation from back date and counting of service and the claim of the
petitioners regarding payment of arrears is not tenable because they have
been promoted against the supernumerary post created for
accommodating them in compliance to judgment sought to be executed and
as such, no extra financial commitment is involved in creating of such
posts in the shape of increased pay and allowances, pensionary benefits
etc. Rather, as per FR-17 an official shall draw pay and allowances
attached to his tenure post with effect from the date when the benefit of pay
fixation was given on national basis, till the day he/she actually assumed
.
his/her duty.
11. Having heard learned counsel for the parties and perused
material available on record, this Court finds that despite repeated
assurances and undertaking given to this court, respondents have failed to
comply with judgment sought to be executed in its letter and spirit,
whereby it was categorically reiterated that vacancies arose prior to the
amendment of the rules shall be fulfilled only in accordance with the un-
amended rules. Since the respondents ignoring the mandate given by the
Hon'ble Apex Court in A. Manoharan's case (supra), wherein it was held
that only those vacancies which existed prior to the amendment of the
Rules should be filled up in accordance with the Rules prevalent at the
relevant time and only those vacancies which arose after the amendment
alone can be filled up in terms of the amended Rules, Coordinate Bench of
this Court while passing judgment sought to be executed specifically
directed the State to review any promotion granted to any ineligible or
unqualified person and thereafter, fill up vacancies which arose prior to the
amendment of the rules in accordance with the unamended rules. Since
despite there being aforesaid clear direction issued by the coordinate Bench
of this Court, representation filed by the petitioners was rejected, learned
Single Judge again vide judgment dated 21.6.2012, passed in CWP No.
.
6116 of 2011 set aside the order dated 10.12.2010, passed by the
respondents on the representations of the petitioners and again directed to
consider the cases of the petitioners for promotion to the post of Senior
Assistance in accordance with the law from the date their juniors were
considered and promoted. While passing aforesaid judgment, learned
Single Judge categorically ordered that all consequential benefits, if any,
other than seniority be also accorded to the petitioners, however fact
remains that aforesaid judgment though was taken in appeal by way of LPA
No. 468 of 2012, but same was not interfered with save and except one
observation that "observation made in paras 8 to 10 shall not come in the
way of the appellant in considering the cases of the petitioners."
Subsequently, in COPC No. 809 of 2015, coordinate Bench of this Court
while passing order dated 9.11.2016, clarified that respondents were
required to consider the case of the petitioners in terms of the judgment
dated 27.5.2010 rendered by Division Bench in CWP(T) No. 8902 of 2008,
which was though laid challenge, but not interfered with.
12. Leaving everything aside, the then Chief Secretary and the then
Secretary (GAD) Government of Himachal Pradesh, to the Government of
Himachal Pradesh, came present in the Court on 21.3.2018 in COPC No.
21 of 2017 and on the basis of their instructions, learned Advocate General
.
undertook before this court to implement the judgment in question in its
letter and spirit within two weeks. Division Bench while passing aforesaid
order in contempt petition clarified that in view of the paras-8 and 9 of the
judgment rendered in Nand Lal case (supra), relaxation has to be with
regard to the educational qualification.
13. Though respondents specifically undertook before the Division
Bench at the time of the passing of the order dated 21.3.2018 in COPC No.
21 of 2017 to implement the judgment within two weeks, but failed to
honour their commitment and as such, application for revival of the
contempt proceedings came to be filed, wherein learned Advocate General
apprised this Court that Cabinet has approved relaxation in the
educational qualification prescribed under the Recruitment & Promotion
Rules of the Senior Assistant for the promotion of the petitioners, as a
consequence of which, petitioners came to be entitled for promotion in
relaxation of educational qualification prescribed under the Recruitment &
Promotion Rules. Review DPC though ordered for their promotions to the
post of Senior Assistants and thereafter to Superintendent Grade-II, but on
notional basis. Since though repeatedly, it came to be clarified from this
Court that vacancies existing prior to the amendment of Recruitment &
Promotion Rules should be filled upon only on the basis of unamended
.
rules and according to such Rules, petitioners herein were entitled to be
promoted, but yet respondents promoted the persons junior to them on the
basis of amended rules and as such, learned Single Judge while setting
aside order dated 10.12.2010 in CWP No. 6116 of 2011, categorically
observed that all the consequential benefits, if any, other than the seniority
be also accorded to the petitioners, meaning thereby, petitioners were held
entitled to all the consequential benefits consequent upon their promotion
to the posts of Senior Assistant and thereafter Superintendent Grade-II.
14. In the case at hand, though petitioners have been promoted to
the post of Senior Assistants and thereafter, to the post of Superintendent
Grade-II, from the date their juniors were promoted against the post in
question, but they have been denied actual financial benefits on the ground
that they have been promoted against the supernumerary post created for
the purpose of promoting them and they have not worked against such
posts and as such, they are not entitled to financial benefits. However, this
court finds force in the submission of Mr. Karan Singh Parmar, learned
counsel representing the petitioners that since this Court having taken note
of illegality committed by the respondents in promoting the persons junior
to the petitioners to the post of Senior Assistants existing prior to the
amendment of Recruitment & Promotion Rules, specifically clarified in para
.
10 of the judgment dated 21.6.2012 passed in CWP No. 6116 of 2011 that
the petitioners shall be held entitled to all the consequential benefits,
respondents had no option but to grant all the consequential benefits
including the arrears while promoting them to the posts of Senior
Assistants and thereafter Superintendent Grade-II. Though in the case at
hand, respondents have tried to carve out a case that since with a view to
comply with judgment sought to be executed, Government after relaxing the
educational qualification in Recruitment & Promotion Rules, created
supernumerary post and thereafter petitioners were promoted against the
supernumerary post of Senior Assistant and Superintendent, they cannot
be held entitled for consequential benefits especially arrears but such plea
may not be available to the respondents for the reason that this Court
having taken note of the fact that respondents wrongly promoted the
persons junior against the post of Senior Assistant on the basis of
amended Recruitment & Promotion Rules, reserved liberty to the
respondents to review any promotion granted to the ineligible and
unqualified person. Since posts existing prior to the amendment of
Recruitment & Promotion Rules are /were to be filled as per the
unamended rules as has been held by the Hon'ble Apex Court in the case of
A. Manoharan (supra), Mr. R.K. Sharma, the then learned Senior
.
Additional Advocate General, himself submitted before the court at the time
of passing of order dated 27.5.2010, State may be given liberty to review
any promotion granted to any ineligible or unqualified person in terms of
the aforesaid judgment, which was though laid challenge repeatedly, but
same was not interfered with.
15. Having scanned the entire material available on record as well
as taken note of the factum with regard to repeated opportunities granted
to the respondents to comply with/execute the judgment, this Court has
reason to presume and believe that respondents are purposely and willfully
not implementing the judgment with a view to defeat the genuine claim of
the petitioners, which has accrued to them pursuant to directions issued
by the Division Bench of this Court in judgment dated 27.5.2010, however,
before passing any harsh order, we direct the respondents to comply
with/release all financial benefits to the petitioners pursuant to their
promotion to the post of Senior Assistants from the due date within four
weeks, from the date of receipt of this order, failing which petitioners would
be at liberty to file application, furnishing therein details of property of the
department concerned as well as names of the erring officials/officers,
enabling this court to pass order of attachment of property and salary of
the officials towards execution and implementation of the judgment. All
.
pending application shall also stand disposed of accordingly.
List for compliance in the 1st week of January, 2023.
(Tarlok Singh Chauhan),
Judge
(Sandeep Sharma),
Judge
14th November, 2022
(manjit)
