Himachal Pradesh High Court
Subodh Kumar & Others vs Rakesh Kumar & Others on 19 July, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
( 2024:HHC:6080 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No. 207 of 2023
.
Date of decision: 31.7.2024
Subodh Kumar & others. ...Appellants.
Versus
Rakesh Kumar & others. ...Respondents.
Corum
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Appellants: Mr.Vishwa Bhushan, Advocate.
For the Respondents: Mr.Onkar Jairath, Advocate, for
respondents No. 1 to 4.
Ms.Seema Sharma, Deputy Advocate
General, for respondents No. 5 to 7.
Vivek Singh Thakur, Judge
Appellants have preferred this appeal against judgment dated
28.8.2023 passed by learned Single Judge in CWP No. 963 of 2023, titled
Rakesh Kumar and others Vs. State of H.P. & others, whereby petition
preferred by private respondents has been allowed, by quashing the
placement of appellants above the private respondents in the seniority list
with further direction to count the entire period of service of private
respondents from their initial date of appointment on contract basis as
Junior Engineer (Electrical) for the purpose of seniority and to re-frame
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
( 2024:HHC:6080 )
seniority list of Junior Engineer (Electrical) accordingly and to make further
promotions to the post of Assistant Engineer (Electrical) on the basis of
.
such re-framed seniority list of Junior Engineer (Electrical), strictly in
accordance with law.
2. It has been pleaded on behalf of appellants that though private
respondents were appointed as Junior Engineers (Electrical) on 28.8.2010,
21.4.2012 and 6.11.2013, but on contract basis and their services were
regularised on 13.5.2016 and 31.3.2017, whereas appellants were
promoted as Junior Engineers (Electrical) on regular basis on 12.2.2016,
i.e. prior to regularisation of private respondents and, therefore, private
respondents were not on regular cadre before promotion of appellants as
Junior Engineer (Electrical), but have borne to the regular cadre of Junior
Engineer (Electrical) on 13.5.2016 and 31.3.2017.
3. It has been contended on behalf of appellants that being appointee on
regular basis on a date later to the promotion of appellants, private
respondents were rightly placed in the seniority list below the appellants,
and thus, learned Single Judge has committed an error of law by directing
to place private respondents senior to the appellants with consequential
benefits.
4. It has been contended that though, for allowing the petition, learned
Single Judge has relied upon judgment of the Supreme Court in Direct
Recruit Class-II Engineering Officers' Association Vs. State of
Maharashtra and others (1990) 2 SCC 715 and judgment dated 6.3.2024
( 2024:HHC:6080 )
of Division Bench of this High Court in CWP No. 2004 of 2017, titled Taj
Mohammad and others Vs. The State of Himachal Pradesh and others,
.
however judgment in Direct Recruit's case does not cover the present case
and judgment passed in Taj Mohammad's case is not binding in the present
matter because the said judgment is per incuriam for the reasons that
Recruitment and Promotion Rules for the post in reference were not
brought to the notice of Division Bench and Division Bench had no occasion
of discussion or deal with mandatory provisions of Recruitment and
Promotion Rules providing appointment on contract basis and further that
judgment of the Supreme Court in case of Rashi Mani Mishra Vs. State of
Uttar Pradesh, 2021 (17) SCC 399; and Civil Appeal Nos. 6026-6028 of
2021 and connected matters, decided on 28.9.2021, titled as Malook
Singh and others Vs. State of Punjab and others, 2021 SCC online SC
867 were not brought in the notice of Division Bench and, therefore,
judgment in Taj Mohammad's case deserves to be ignored and petition filed
by private respondents is liable to be dismissed.
5. It has been contended that word 'regular' cannot be substituted by
'adhoc' or 'contract' and, therefore, status of regular employee cannot be
equated with the adhoc or contractual status of the employee and the
appointment of the private respondents on contract basis was in
accordance with Rule 15 A of the Recruitment and Promotion Rules which
empowers the employer/State to make contract employment to the post
with condition that appointment shall be initially for one year and extendable
( 2024:HHC:6080 )
on year-to-year basis with further condition that contractual appointee will
be paid fixed contractual amount and his services will be purely on
.
temporary basis and such appointment shall be liable to be terminated in
case of unsatisfactory performance/conduct of contract appointee and,
therefore, for peculiar terms and conditions provided under Rule 15 A,
private respondents cannot be considered at par with regular appointees,
so as to confer upon them benefit of seniority against the appellants, who
have been appointed on regular basis prior to them.
6. It has been further contended that at the time of appointment of private
respondents on contract basis, there was no assurance of regularisation
either in advertisement or in posting orders, and joining by private
respondents, on contract basis, was unconditional and, therefore, they had
waived their right to claim benefit as regular appointees from the initial date
of appointment and for waiver and acquiescence on their part to the
condition imposed upon them at the time of contract appointment, they are
not entitled for seniority.
7. It has been contended that impugned judgment has been passed
rendering the Contract Policy of State ineffective and, therefore, liable to be
set-aside.
8. It has been further submitted that contractual appointment was not
substantive appointment. To substantiate this plea, petitioner has relied
upon judgment of the Supreme Court passed in Civil Appeal No. 8324 of
( 2024:HHC:6080 )
2022, titled as Amit Singh Vs. Ravindra Nath Pandey & others, decided on
11.11.2022.
.
9. It is not only undisputed, rather admitted, fact that private respondents
were appointed on contract basis, following the procedure prescribed in
Recruitment and Promotion Rules applicable to the post of Junior Engineer
(Electrical). In Rashi Mani Mishra's case, initial appointment of the
employees were made under the provisions of Uttar Pradesh
subsequently
regularized
Regularisation of Ad hoc Appointments (on posts within the purview of the
Public Service Commission) Rules, 1979 and their services were
under the provisions of Uttar Pradesh
Regularisation of Ad hoc Appointments (on posts within the purview of the
Public Service Commission) (Second Amendment) Rules, 1989 and
services rendered on ad hoc basis were not counted for seniority purpose
and their seniority was determined from the date of their regularisation.
There is a remarkable difference between Rashi Mani Mishra's case and
present case. In present case private respondents have been appointed
by following the due process prescribed for regular appointment under
Recruitment and Promotion Rules, formulated for recruitment to the post,
though initially they were appointed on contract basis, but the said
contractual appointment is followed by regularisation without interruption.
10. Plea of the appellants that appointment of private respondents
was not substantive appointment, is also not tenable for the reasons that
since their initial appointment, private respondents were appointed, though
( 2024:HHC:6080 )
on contract basis, but against post available in sanctioned cadre of the said
post and, therefore, their appointment since beginning was against the
.
substantive post and they were regularized on the same basis with
substantive appointment. Therefore, judgments in Rashi Mani Mishra's
and Amit Singh's cases are not applicable in present case.
11. Plea taken on behalf of appellants regarding terms and
conditions of their initial appointment on contract basis are not relevant for
adjudication of present matter, because ultimately private respondents have
been regularised after completion of requisite length of prescribed contract
service and, therefore, impugned judgment does not render Contract Policy
of the State ineffective.
12. Another plea of appellants regarding alleged delay and laches
on the part of private respondents to put forth their claim assailing the
seniority position of the appellants over and above private respondents, is
also not sustainable because, as recorded by learned Single Judge, that
though the seniority list was finalized and circulated on 23.9.2020, but the
same was kept in abeyance, on account of certain short comings and it was
again circulated on 9.3.2021 and was finalized on 17.2.2022 and private
respondents/petitioners had approached the Court by filing CWP No. 606 of
2023, clearly indicating that private respondents had approached the Court
within a reasonable time.
13. As also observed by learned Single Judge, in Direct Recruit's case, the
Supreme Court in its conclusion has held as under:-
( 2024:HHC:6080 )
"47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his seniority
has to be counted from the date of his appointment and not according to the
.
date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad
hoc and not according to rules and made as a stop-gap arrangement, the
officiation in such post cannot be taken into account for considering the
seniority.
(B) If the initial appointment is not made by following the procedure laid down
by the rules but the appointee continues in the post uninterruptedly till the
regularization of his service in accordance with the rules, the period of
officiating service will be counted.
(C) When appointments are made from more than one source, it is
permissible to fix the ratio for recruitment from the different sources, and if
rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be
substituted by an appropriate rule to meet the needs of the situation. In case,
however, the quota rule is not followed continuously for a number of years
because it was impossible to do so the inference is irresistible that the quota
rule had broken down.
(E) Where the quota rule has broken down and the appointments are made
from one source in excess of the quota, but are made after following the
procedure prescribed by the rules for the appointment, the appointees should
not be pushed down below the appointees from the other source inducted in
the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to
the quota, ordinarily a presumption should be raised that there was such
relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed
by executive instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction, and is not
followed continuously for a number of years, the inference is that the executive
instruction has ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as well as the
officiating Deputy Engineers under the State of Maharashtra belonged to the
single cadre of Deputy Engineers.
( 2024:HHC:6080 )
(J) The decision dealing with important questions concerning a particular
service given after careful consideration should be respected rather than
scrutinized for finding out any possible error. It is not in the interest of Service
.
to unsettle a settled position.
With respect to Writ Petition No. 1327 of 1982, we further hold:
(K) That a dispute raised by an application under article 32 of the Constitution
must be held to be barred by principles of res judicata including the rule of
constructive res judicata if the same has been earlier decided by a competent
court by a judgment which became final."
14. In Malook Singh's case, appellants therein were appointed as
Clerks in Punjab Civil Secretariat on adhoc basis. On 3.5.1977 their
services were regularized w.e.f. 1.4.1977 pursuant to policy of
regularization, in the administrative interest, by observing that in
anticipation of regular appointment, adhoc appointments were resorted to
by various appointing authorities in "administrative interest" after notifying
the vacancies to the employment exchange or, as the case may be, by
issuing advertisements, and since the adhoc employees had acquired
experience, and their ouster after a considerable period of service would
entail hardship, their services were regularized, subject to certain terms and
conditions. Seniority upon such regularized employees were conferred
from 1.4.1977, i.e. from the date of regularisation. In the first round of
litigation benefit of seniority w.e.f. 1.4.1977 to such employees was allowed
by learned Single Judge as against regularly recruited Clerks appointed
after them. Besides above, by referring Direct Recruit's case, it was
observed by learned Single Judge, that once the adhoc services had been
regularized they would relate back to the date of their initial appointment
( 2024:HHC:6080 )
and the adhoc service would have to be kept in view in determining
seniority and other benefits. In Letters Patent Appeal, Division Bench of
.
Punjab and Haryana High Court had upheld the seniority benefits extended
to the adhoc employees from the date of their regularization i.e. 1.4.1977,
with clarification that the Division Bench had expressed no opinion on the
findings rendered by learned Single Judge entitling adhoc appointees to
consider their adhoc service towards seniority on regularisation, with further
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clarification that judgment of learned Single Judge would not be treated as
a binding president.
In second round of litigation referred in Malook Singh's case
claim of adhoc appointee for conferring upon them benefit of seniority from
the initial date of adhoc appointment was not accepted by the Supreme
Court by observing that law on the issue of whether the period of adhoc
service can be counted for the purpose of determining seniority, has been
settled by the Supreme Court in multiple cases including Direct Recruit's
case, wherein the principle has been propounded that adhoc service cannot
be counted for determining the seniority if the initial appointment has been
made as a stop gap appointment and not according to rules, and
accordingly the findings rendered by learned Single Judge in judgment
dated 6.12.1991, whereby, referring Direct Recruit's case supra, learned
Single Judge had held that adhoc service should be counted for conferring
the benefit of seniority, were held clearly misplaced. It was further clarified
by the Supreme Court that principle laid down in Direct Recruit's case was
( 2024:HHC:6080 )
subsequently followed by the Supreme Court in Keshav Chandra Joshi v.
Union of India, 1992 Supp (1) SCC 272. It was also observed by the
.
Supreme Court that in Rashi Mani Mishra's case, by interpreting Uttar
Pradesh Regularization of Ad Hoc Appointment Rules, it has been held that
services rendered on adhoc basis by employees prior to their regularisation
cannot be counted for the purpose of seniority because under the
applicable rules, "substantive appointment" does not include adhoc
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appointment and thus seniority which has to be counted from "substantive
appointment" would not include adhoc service.
The facts and circumstances in present case are entirely
different to Malook Singh and Rashi Mani Mishra's cases, because, in
present case, private respondents were appointed not as adhoc employee
on a stop gap arrangement, but were appointed on contractual basis after
following due process prescribed under the Recruitment and Promotion
Rules in consonance with provisions of Article 14 and 16 of the Constitution
of India and as such they have undergone rigors of selection process
meant for regular appointment, therefore, judgment in Malook Singh's as
well as Rashi Mani Mishra's cases passed in different context, are of no
help to the appellants.
17. It is also undisputed that petitioners/private respondents were
appointed as Junior Engineer (Electrical) by following procedure prescribed
under the Recruitment and Promotion Rules. Private
respondents/petitioners have undergone rigors of procedure prescribed for
( 2024:HHC:6080 )
appointment to the post in relevant service Rules, i.e. R&P Rules, and their
selection is based on merit. However, they, instead of regular appointment,
.
were offered appointment and appointed on contract basis, at initial stage.
Though their initial appointment was made on contract basis, but their
services were regularized without interruption.
18. The private respondents/petitioners are not backdoor entrants.
There is no fault on their part for their initial appointment on contract basis,
rather they were appointed as such on contract, for Policy of the State,
probably formulated and adopted to avoid extension of all service benefits
to the appointees, including full salary and wages, but for such exploitative
Policy of the employer an employee cannot be made to suffer.
19. Except the nature of appointment of the private
respondents/petitioners on contract basis, they were and are equivalent to
the candidates appointed on regular basis on the basis of prescribed
procedure in relevant R&P Rules. Therefore, on regularization of their
contract services, they are to be treated in service from initial date at par
with candidates appointed on regular basis from initial appointment after
following the same prescribed procedure as per Recruitment and Promotion
Rules.
20. Even, in a given case, where employees are appointed as direct
recruits by following the due process prescribed under R&P Rules, and one
set of them, though appointed earlier, is appointed on contract basis and
another set of employees appointed lateron, on regular basis, even then,
( 2024:HHC:6080 )
after regularization, the first set of employees shall be entitled for all service
benefits including seniority, like regular employee appointee, from the date
.
of their initial appointment. Because, the appointment of first set is akin to
the appointment on regular basis as the same has been made following the
rigors of due process provided in R&P Rules, in consonance with Articles
14 and 16 of the Constitution of India, for regular appointment. There is no
lapse or fault on the part of such candidates in their initial appointment on
contract basis, who should have been appointed on regular basis from that
date. Such arbitrary act on the part of the employer cannot be a reason to
make the employees suffer, though eligible, competent and entitled for
regular appointment, but appointed on contract basis at initial stage.
21. State, including its functionaries, has to make appointment by
following procedure prescribed under Recruitment and Promotion
Rules/Service Rules framed under Article 309 of the Constitution of India.
However, sometimes, State or its functionaries resort to make appointment
without following process prescribed under Recruitment and Promotion
Rules i.e. dehors of Service Rules but following some procedure prescribed
in some valid Policy formulated and adopted by it.
22. In appointments in aforesaid manner, sometimes initial
appointments are made on temporary or contract basis and such services
are regularized later on.
23. It is now settled that temporary/contract appointee of first
category on regularization shall be entitled for counting of
( 2024:HHC:6080 )
temporary/contractual service for all service benefits since their initial date
of appointment including seniority, annual increments and pensionary
.
benefits, whereas such appointee of second category, on regularization
shall be entitled for annual increment and pensionary benefits etc. but not
for seniority.
24. Sometimes, not only dehors of Recruitment and Promotion Rules
but also without framing or following any valid policy, appointments are
25.
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made. Such appointments are not protected by law and/or Courts being
backdoor entry.
In addition, it is apt to notice and record that the issue involved in
present case also stands settled by various pronouncements including
recent judgment dated 3.8.2023 passed by a Division Bench of this High
Court in CWP No. 2004 of 2017, titled as Taj Mohammad and others Vs.
State of H.P. Review Petition No. 146 of 2023 preferred against the
judgment dated 3.8.2023 passed in Taj Mohammad's case also stands
dismissed on 6.3.2024.
26. Ratio of Taj Mohammad's case is that persons appointed
following the prescribed procedure in Recruitment and Promotion Rules, on
contract basis, shall be entitled for all service benefits including seniority on
their regularization from the date of their initial appointment on contract
basis.
27. As the private respondents/petitioners were appointed on contract
basis by following the procedure prescribed in Recruitment and Promotion
( 2024:HHC:6080 )
Rules, therefore, judgment passed in Taj Mohammad's case is also
definitely applicable to the petitioners entitling them, to count their
.
contractual service for the purpose of seniority as well as all other service
benefits.
28. As present case is squarely covered by the judgment passed in Taj
Mohammad's case, therefore, reasons assigned for allowing that petition
shall be applicable mutatis mutandis to the present case also for all intents
and purposes.
29. to
A similar view has been taken by learned Single Judge in CWP
No. 1877 of 2020, titled as Aditya Sharma and others Vs. State of H.P.
and others, decided on 15.12.2023; CWPOA No. 5363 of 2020, titled as
Ishwar Verma & others Vs. H.P. University and others, decided on
10.7.2024; and LPA No. 179 of 2024, titled as Desh Raj & others Vs.
State of H.P. & others, decided on 25.7.2024.
With the aforesaid observation, after going through the record and
considering the submissions made by learned counsel for the parties, we
are of the considered opinion that there is no illegality, irregularity or
perversity in the judgment passed by learned Single Judge, warranting
interference. Accordingly, appeal is dismissed.
(Vivek Singh Thakur),
Judge.
(Ranjan Sharma),
Judge.
31st July, 2024
(Keshav)
