Himachal Pradesh High Court
Parkash Chand & Others vs Hrtc & Another on 4 November, 2023
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 5992 of 2020
.
Date of decision: 4.11.2023
Parkash Chand & others. ...Petitioners.
Versus
HRTC & another. ...Respondents.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioners. r Mr.Shyama Prasad Chatterji, Advocate.
For the Respondents: Mr.Vikas Rajput, Advocate.
Vivek Singh Thakur, Judge (Oral)
Petitioners have approached the Court seeking following main
reliefs:-
"1. To quash and set aside office Memo. HO.9E-Booking
Clerk/2013, dated 7th November, 2013 (Annexure A-6) and
subsequent orders dated 12.11.2013; 14.11.2013; 27.1.2014;
18.11.2013 and 30.11.2013 (Annexure A-9 Colly) issued by the
Regional Manager concerned, qua applicants, placing them as
Booking Clerks, by transfer.
ii) To issue directions to the Respondents;
(a) to maintain applicants lien in the cadre/category of
Conductors; besides restoring their names in the seniority list
of the Conductors as on 31.04.2014 (Annexure A-7) issued
subsequent to their placement as Booking Clerks, by transfer.
(b) be treated a Conductors for all intents and purposes; and
granted all consequential benefits including two additional
increments on completion of 20 years service as Conductors
and promotional avenue available to the Conductors as per
R&P Rules."
2. Grievance of the petitioners is that respondents have not
maintained their lien in the cadre/category of Conductors after posting them
as Booking Clerks by transfer, thereby depriving them from the promotion to
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
the post of Inspector as well as two additional increments granted to the
Conductors w.e.f. 1.7.2015.
3. Details of service records of the petitioners are as under:-
.
Sr. Name of Figuring in Date of Date of Date of Remarks..
No. the seniority appointment completion posting as Serving or
Applicant list of as conductor of 20 years' Booking retired
conductors service as Clerk, by
as on conductor transfer
31.12.2020
at
1. Parkash 935 09.02.1988 09.02.2008 13.11.2013 Sarkaghat
Chand Unit
2. Kewal 525 13.10.1983 13.10.2003 13.11.2013 Retired
Krishan from
Bilaspur
Unit on
31.03.2017
3. Girdhari 1023 01.09.1989 01.09.2009 18.11.2013 Bilaspur
Lal
r Unit
4. Lal Singh 741 19.02.1985 19.02.2005 13.11.2013 Sarkaghat
Unit
5. Gorkh 1000 01.09.1989 01.09.2009 13.11.2013 Retired
Singh from
Bilaspur
Unit on
30.06.2018
6. Ramesh 934 26.12.1984 26.12.2004 16.11.2013 Bilaspur
Chand Unit
7. Suresh 887 05.08.1987 05.08.2007 13.11.2013 Hamirpur
Chand Unit
8. Krishan 519 01.10.1985 01.10.2005 18.12.2013 Retired
Singh from Kullu
Unit on
30.9.2016
9. Dhan 270 23.02.1982 23.02.2002 18.11.2013 Retired
Dev from
Mandi
Unit on
28.02.2018
4. It is evident from the aforesaid details that in the year 2013,
petitioners were serving as Conductors and in the month of
November/December, 2013, they were posted as Booking Clerk by transfer.
Some of petitioners have retired and some of them are in service.
5. Prior to 7.3.2015, as per Recruitment and Promotion Rules
(for short "R&P Rules"), for the post of Booking Clerk (Annexure A-3)
method of recruitment was 100% by direct recruitment. Vide memorandum
dated 7.3.2005 method of recruitment was amended to 100% by transfer
from Adda Conductors/Conductors on the basis of seniority (Annexure A-4).
6. In the year 2011, Conductors and Adda Conductors up to
Seniority List No. 1 to 1000 were asked to submit their willingness in writing
for posting as Booking Clerks by transfer, as evident from communication
.
dated 23.8.2011 (Annexure 4 filed with the supplementary affidavit) and
communication dated 17.10.2011 (Annexure A-5 to the petition).
7. In furtherance to the aforesaid communication, petitioners
communicated their willingness to be posted as Booking Clerks by transfer.
In sequel to willingness, petitioners were posted as Booking Clerks in the
month of November/December, 2013 alongwith others vide different
memorandums, stating therein as under:-
"On recommendations of the Departmental Promotion committee,
the services of the following Sr. Most Conductors are hereby
placed by transfer to the post of Booking Clerks. The placement
as Booking Clerks does not involve assumption of duties and
responsibilities of higher nature and as such FR-22-1(a)(i) shall not
be attracted."
8. Subsequent to the aforesaid placement of the petitioners,
promotion to the posts of Inspectors were made by the respondent
Corporation by promoting candidates from amongst Conductors on the basis
of their seniority, but ignoring the petitioners, rather petitioners were
excluded from the seniority list of Conductors and a separate seniority list of
Booking Clerks was issued.
9. As per R&P Rules, for the post of Inspector recruitment is
100% by promotion, wherein 70% quota has been provided to Sub
Inspectors/Adda Conductors and Conductors, 24% quota has been provided
to Matriculate Drivers and 6% quota for Booking Clerks. In aforesaid
circumstances referring the Office Order of placement of petitioners as
Booking Clerks by way of transfer, it has been contended that they were
having lien to the post of Conductors as their posting of Booking Clerks was
neither appointment nor promotion, but placement and, therefore, they were
entitled to be considered as per their seniority as Conductors amongst the
Conductors for promotion to the post of Inspector and granting two
additional increments.
.
10. The claims of the petitioners have been opposed on behalf of
Corporation on the ground that lien of the petitioners to the cadre of
Conductor, after appointment to the post of Booking Clerks came to an end
because R&P Rules to the post of Conductors and to the post of Booking
Clerks are different, particularly for the reasons that petitioners had
consented for their posting as Booking Clerks, recruitment to which is
governed by separate R&P Rules and, therefore, they are not entitled to
retain lien to the post of Conductor and thus have rightly been excluded from
the Seniority List of Conductors and have been included in the Seniority List
of Booking Clerks. It has been also contended that duties of Conductors
and Booking Clerks are entirely different in nature and further promotion
from Booking Clerks is Cashier, whereas for Conductors promotional post
was Inspector at that time. It has been contended that now Booking Clerks
are in feeder category of two posts, i.e. Cashier and Inspector since
7.3.2015. It has been further contended that two avenues of promotion
were available to the petitioners and they have opted for Booking Clerks
and, therefore, now they cannot be allowed to revert back to seek promotion
as Conductors to the posts of Inspector. It has been further contended that
for appointment as Booking Clerks, which is a regular post, lien of the
petitioners to the post of Conductor stands terminated.
11. By referring FR-13 and 14-A, it has been contended on behalf
of petitioners that they were and are having lien to the post of Conductor. It
has been contended on behalf of petitioners that as per R&P Rules, post of
Booking Clerk is not a promotional post for the Conductors and it provides
placement by transfer only and, therefore, it cannot even be considered as a
recruitment.
12. Learned counsel for the petitioners referring decisions of co-
ordinate Benches dated 5.7.2013 in Sarvan Kumar and others Vs. HRTC &
others, CWPOA No. 6521 of 2019 and Har Gopal & others Vs. HRTC &
.
another, CWP No. 619 of 2020 as well as decision dated 15.3.2023, Sarvan
Kumar and another Vs. HRTC, CWP No. 4406 of 2021, has submitted that
similarly situated persons, taking into consideration entire facts and
circumstances of similar nature, have been promoted by reverting back to
the post of senior conductors alongwith all consequential benefits and,
therefore, it has been contended that petitioners are also entitled for similar
treatment.
13. It has been further submitted that not only petitioners in the
aforesaid petitions decided on 5.7.2023 and 15.3.2023, but some other
persons, as referred in these judgments, were allowed to withdraw their
consent and to revert back to the post of Senior Conductors by the
Corporation itself, who were similarly situated to the petitioners and,
therefore, it has been contended that petitioners being similarly situated
persons are entitled to be treated similarly.
14. Relevant R&P Rules to the post of Booking Clerks instead of
recruitment by direct recruitment, provide recruitment to the said post 100%
by transfer from Adda Conductors/Conductors on the basis of seniority.
Communication vide which willingness of the Conductors was sought for the
post of Booking Clerks also speaks "posting of Booking Clerks by transfer",
but does not say that such posting shall be promotion or appointment by
direct recruitment to the post of Booking Clerk from amongst feeder cadre of
Conductors. RP Rules as well as communication at no stretch of
imagination provide or indicate that cadre of Conductor is a feeder cadre to
the post of Booking Clerk rather reading of posting order with R&P Rules
and communication depicts that post of Booking Clerk and Conductor is
equivalent belonging to the same class. Memorandum whereby petitioners
were posted as Booking Clerks also speaks that the senior most conductors
are placed by transfer to the Booking Clerks with further contention that
such placement does not involve assumption of duties and responsibilities of
.
higher nature, negating the applicability of FR-22-1(a)(i). It is evident from
the aforesaid documents, i.e. R&P Rules, communication seeking
willingness and posting of Conductors to the post of Booking Clerks that it
was neither appointment nor promotion, but was placement of Conductors
on equivalent post.
15. 'Transfer' and 'recruitment by transfer' are entirely two
different concepts. Transfer can be from one category to another category
or within the class in terms of provision of R&P Rules. A 'transfer'
simplicitor' conveys a different meaning and a 'recruitment by transfer'
conveys a different concept altogether. A 'transfer' does not result in the
termination of lien in the present cadre but 'recruitment by transfer' is a
different service concept altogether.
16. Present case is also not a case of transfer to a different cadre
or to a different service amounting to appointment or selection by transfer
but, as mentioned in memorandum, it was placement of senior most
conductors as Booking Clerks. It is not recruitment by transfer terminating
the lien of the employee in previous category or service but is a transfer
simpliciter to a similar post resulting only in change of place and seat of
employment and, therefore, there is no 'termination of lien'. Thus in present
case, the ingredients required for termination of lien are absent. The post of
Booking Clerk may be of a post of different category, but of the same class
as evident from posting orders and as such posting of petitioners as Booking
Clerk is not a recruitment by transfer, but it is only placement by transfer to
the post of Booking Clerk belonging to the same class, not resulting into
termination of lien of the petitioners to the post of Conductors.
17. Petitioners were placed as Booking Clerks by transfer. Unless
petitioners are appointed or recruited to the post of Booking Clerk, they will
not acquire a lien to the said post and in absence of acquiring a lien to the
.
post to which they have been placed by way of transfer, they shall not loose
the lien to the previous post. Though, in R&P Rules to the recruitment to the
post of Booking Clerk has been provided 100% by way of transfer, however
petitioners have been posted against the said post by way of placement
through transfer, therefore, their appointment as Booking Clerks cannot be
termed as fresh appointment or promotion to the Booking Clerks and thus it
is not a recruitment to the said post. Therefore, willingness given by the
petitioners to be appointed as Booking Clerks cannot be treated as an
option exercised by them for their promotion.
18. The exercise of option will be in a situation where there are
two avenues of promotion available. In present case, post of Booking Clerks
is not a promotional post, but is equivalent post available for posting by way
of transfer/placement whereas promotional post available for Conductors is
post of Inspector. There is no other channel of promotion available to the
Conductors and thus plea of Corporation that by giving willingness to the
post of Booking Clerks, petitioners have exercised their option for promotion,
is not tenable.
19. Peculiar facts and circumstances in present case are not
covered by circumstances provided in FR-13 and FR-14-A to terminate the
lien and, therefore, petitioners' lien to the post of Conductor cannot be
treated to be terminated especially when the respondent Corporation itself
has endorsed and followed this view and has acted accordingly by
permitting similarly situated persons to withdraw their consent after their
placement as Booking Clerks, and respondent Corporation has also
reverted similarly situated persons from the post of Booking Clerk to the post
of Conductor on its own even without filing a petition in the Court. Such act
of the respondent Corporation establishes and substantiates the plea of
petitioners that posts of Conductor and Booking Clerk are equivalent and
placement to the post of Booking Clerk from Conductor is reversible and
.
revertible and as such lien of person, posted as Booking Clerk through
placement by transfer, remains alive to the post of Conductor and, therefore,
such person has a right to remain in Seniority List of Conductors and also to
be considered for promotion to the post of Inspector as such.
20. Though in Sarvan Kumar's case, CWP No. 4406 of 2021, it
has been recorded in the order that, that case shall not be treated as a
precedent, however, taking into consideration similar circumstances in
CWPOA No.6521 of 2019, co-ordinate Bench has granted similar relief to
the petitioners by observing that being similarly situated persons, petitioners
in these cases were also required to be given same treatment.
21. Apart from the aforesaid discussion, in view of decisions in
CWPOA No. 6521 of 2019, CWP Nos. 619 of 2020 and 4406 of 2021,
petitioners are also entitled for similar treatment. Otherwise also, as
discussed supra, on merits also petitioners are entitled to retain lien to the
post of Conductor, as they were never appointed or promoted to the post of
Booking Clerks from Conductors, rather it is evident from the material on
record that posting of the petitioners as Booking Clerks was merely a
placement by transfer which does not entail consequences of
appointment/promotion to the post of different cadre.
22. Accordingly petitioners are also held entitled to be included in
the seniority list of Conductors as per their original seniority in the cadre of
Conductors and respondents are directed to extend all consequential
benefits to them, including promotion as well as additional increments as
were extended to their counter parts as well as other Conductors junior to
them. Needles to say any extra benefits availed by the petitioners as
Booking Clerk shall be adjusted against benefits extendable to them by their
inclusion in the Seniority List of Conductors and they shall be given similar
treatment as extended by the Corporation to the similarly situated persons at
its own as well as in furtherance to the decisions dated 5.7.2023 and
.
15.3.2023 referred supra.
23. Needful be done by respondents within a period of one month
from today.
24. Before parting with the case it would be apt to record that to
avoid litigation and to provide fair, transparent and just treatment to all, an
exercise, to carryout suitable amendment in R&P Rule, may be undertaken,
if advised so and deemed fit, by the Corporation including abolition of quota
of Booking Clerks for promotion to the post of Inspector but including
Booking Clerks/Adda Conductors with other Conductors in common feeder
cadre with common seniority list for promotion to the post of Inspector by
specifically providing that the posts of Booking Clerk, Adda Conductors, Sub
Inspector and Conductor etc., having same pay scale and similar
responsibilities are interchangeable by placement through transfer, as per
requirement of the Corporation.
Petition is allowed and disposed of in aforesaid terms,
alongwith pending application(s), if any.
(Vivek Singh Thakur),
th
4 November, 2023 Judge.
(Keshav)
