Decided On : 7.1.2023 vs H.P. University
2023 Latest Caselaw 442 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWPOA No. 1435 of 2020 Reserved on 23.12.2022

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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

Whether reporters of Local Papers may be allowed to see the judgment?

etc. along with arrears and interest @ 9% per annum.

iii) That the respondent-University may be directed

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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.

5. The grievance of the petitioners is that their service

as Clerks has been wrongly reckoned from the date of issuance

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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

19.9.2007 and in their absence as parties to the petition, no

relief could be granted to the petitioners. On merits, it has

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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

Clerks as on 12.4.2005 of 243 posts. Only 24 posts were to be

filled up from Category-D employees. However, as on

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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

respondent, rather it has been submitted that since these

persons were senior even to some of the persons promoted vide

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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

the exigency, the promotions were made by relaxing the rules.

Similar reason would apply to the case of petitioners, as no

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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.

12. Respondent has also raised an objection that the

representation of the petitioners was rejected by the university

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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

petitioners had submitted their representation even on

5.12.2015, which had remained unanswered. The O.A. was

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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)