Reserved On : 23.08.2024 vs State Of Himachal Pradesh & Another
2024 Latest Caselaw 14874 HP

Himachal Pradesh High Court

Reserved On : 23.08.2024 vs State Of Himachal Pradesh & Another on 4 October, 2024

Author: Virender Singh

Bench: Virender Singh

                        1       2024:HHC:9535




IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                    CWPOA No. :         3071 of 2019
                                    Reserved on :       23.08.2024
                                    Decided on :        04.10.2024


   Jai Lal Kamal
                                                        ...Petitioner

                                   Versus

   State of Himachal Pradesh & Another

                                                    ...Respondents

   Coram

The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting? Yes

For the petitioner : Mr. Mohit Thakur, Advocate.

For the respondents : Mr. Mohinder Zharaick, Additional Advocate General.

Virender Singh, Judge

Petitioner-Jai Lal Kamal has invoked the

jurisdiction of the erstwhile Himachal Pradesh State

Administrative Tribunal (hereinafter referred to as the

'Tribunal'), by way of Original Application No.913 of 2019,

preferred, under Section 19 of the Administrative Tribunals

Act, 1985 (hereinafter referred to as the 'Act').

2 2024:HHC:9535

2. After the abolition of the Tribunal, the matter

was transferred to this Court and thereafter, registered as

CWPOA No.3071 of 2019.

3. By way of the Civil Writ Petition, the petitioner

has sought the following reliefs:-

"(a) That the respondents especially respondent No.2 may be directed to consider and count the service rendered by the applicant in the parent department (Agro Industrial Packaging India Limited) and also in the present department (HIPA) on secondment/deputation basis prior to absorption as a clerk in the present department (HIPA) for the twin purpose of eligibility and seniority.

(b) That on account of the above mentioned consideration the applicant may be allowed to be promoted to the post of Senior Assistant without any further delay.

(c) That any rule, condition, any office memorandum or any condition of order which curtails or denies to the applicant the right to seek the benefit of counting of service rendered in the present department for the purposes of seniority and eligibility in the present post may be declared as null and void and unconstitutional. That seniority list Annexure A-3 may also be quashed and set aside and be redrawn keeping in view the seniority and eligibility of the applicant with effect from 15.11.2000."

4. The abovementioned reliefs have been sought,

by the petitioner, on the ground that he was working on

the post of Clerk in the office of respondent No.2, where he

had initially joined on 27.04.2010 on 3 2024:HHC:9535

deputation/secondment basis and ultimately, he was

absorbed in the year 2014. Prior to the year 2010, the

petitioner was regular employee of Agro Industrial

Packaging India Limited, a Government Undertaking,

(hereinafter referred to as the 'AIPIL'), since 15.11.2000.

Thereafter, he was transferred and appointed as Clerk on

secondment basis with respondent No.2 on 27.04.2010

and was absorbed in the said Department on 02.12.2014.

After secondment, he was placed at the bottom of the

seniority list of Clerk and his services, rendered prior to

absorption/secondment, have not been counted for the

purpose of service benefit including seniority and eligibility.

4.1. It is the case of the petitioner that he was

having 10-year-regular service with AIPIL as Clerk. In the

year 2018, the petitioner had filed OA No.5924 of 2018,

which was disposed of by the Tribunal, vide order dated

03.10.2018, with a direction to the respondents to decide

the representation, in the light of the judgment of the

Hon'ble Supreme Court in Appeal (Civil) No.5363-64 of

1997, titled as 'S.I. Roop Lal and Anr. Versus Lt. Governor

through Chief Secretary Delhi & Ors.', decided on 4 2024:HHC:9535

14.12.1999 and of this High Court in CWP No.4420 of

2010, titled as 'Pratap Singh Verma Versus State of HP &

Anr.', decided on 18.06.2011. On 22.12.2018, the said

representation was rejected.

4.2. Highlighting the fact that in the parent

Department, the petitioner was holding the equivalent post

of Clerk and thereafter, he was transferred to the present

Department by way of secondment and ultimate

absorption, while relying upon the decision of the Hon'ble

Supreme Court in 'Sub-Inspector Roop Lal & Another

Versus Lt. Governor through Chief Secretary, Delhi

and Others', reported in (2000)1 Supreme Court Cases

644, a prayer has been made to allow the petition, by

declaring the act of the respondents, as violative of Articles

14 and 16 of the Constitution of India.

5. When put to notice, the stand of the petitioner

was contested by pleading that vide order dated

02.12.2014 (Annexure R-1), the petitioner was permanently

absorbed in the Department i.e. respondent No.2. The

terms and conditions were approved vide Office Order

dated 02.12.2014 (Annexure R-I).

5 2024:HHC:9535

5.1. According to the respondents, it has specifically

been mentioned in the letter dated 28.08.2014 (Annexure

R-II) that one of the conditions for permanent absorption

was "the Incumbent on absorption will be treated as a fresh

appointment in HIPA and he will be placed at the bottom of

the respective grade/cadre and seniority in the cadre shall

be determined from the date of absorption in HIPA". These

conditions, according to the respondents, were duly

conveyed to the petitioner, vide letter dated 25.09.2014

(Annexure R-III). Subsequently, the petitioner has accepted

all the terms and conditions of permanent absorption vide

his letter/application dated 13.10.2014. However, it has

not been denied that the petitioner was the regular

employee of AIPIL since 15.11.2000, but, according to

them, the petitioner was initially appointed as Plant

Attendant in AIPIL, not as Clerk and he was

re-designated as Plant Attendant-cum-Clerk, in the year

2007, vide Office Order dated 27.06.2007 (Annexure R-V).

6. Supporting the action of respondent No.2,

according to which, the petitioner was placed at the bottom

of the seniority list of Clerk, a prayer has been made that 6 2024:HHC:9535

the petitioner is not entitled for any relief. Hence, a prayer

has been made to dismiss the petition.

7. In view of the stand, taken by both the parties,

it is not in dispute that the petitioner was earlier serving

with AIPIL and thereafter, on secondment basis, his

services were placed at the disposal of Director, Himachal

Pradesh Institute of Public Administration (hereinafter

referred to as the 'HIPA'). Subsequently, vide Office Order

dated 02.12.2014, he was absorbed in HIPA. The terms

and conditions of his appointment were duly

communicated to the petitioner, vide Annexure R-III and

admittedly, those terms and conditions were accepted by

the petitioner, vide Annexure R-IV.

8. In the acceptance letter, the petitioner has

specifically mentioned that the conditions at Sr. No.1 to 4

are accepted to him. Those conditions, as mentioned in

Annexure R-III, are reproduced, as under:-

"1. Your absorption will be treated as fresh appointment in HIPA as Clerk and you will be placed at the bottom of the cadre and seniority in the cadre shall be determined from the date of your absorption in HIPA.

2. The absorption will be on temporary basis and you shall remain on probation for a period of 2 years. In case your work and conduct is 7 2024:HHC:9535

not found satisfactory during your probation period, you are liable to be repatriated to AIPIL.

3. The permanent absorption shall be strictly in the revised Pay Band+Grade Pay corresponding to the Pre-revised pay scale of the post. You will however be entitled for pay protection. In case you are working in higher pay scale in the cadre as a result of grant of benefits under ACPS in AIPIL at the time of your absorption, your basic pay will be protected and the difference shall be treated as personal pay to be absorbed in future increments. You will get annual increments in a normal course on normal date(s) of increment(s) which you used to draw in your own pay scale on the post you held in AIPIL prior to your secondment/ absorption in HIPA.

4. You will be governed by the H.P. Civil Services Contributory Pension Rules, 2006 from the date of your absorption in HIPA. You will be entitled to receive pensionary benefits from your parent organization (AIPIL) in respect of your entire past service, as admissible under the relevant Rules/Instructions of the said organization (AIPIL) or in accordance with the provision of EFP and MP Act, 1952."

9. In this admitted background, learned counsel

for the petitioner has relied upon the decision, rendered by

the Hon'ble Supreme Court in Sub-Inspector Roop Lal's

case (supra). In the said judgment, the Hon'ble Supreme

Court has held the offending portion of Office

Memorandum dated 29.05.1986, issued by the

Government of India, by virtue of which, the benefit of

services, rendered by a deputationist of equivalent post, in 8 2024:HHC:9535

his parent Department, was denied, to be violative of

Articles 14 and 16 of the Constitution and quashed the

offending words "whichever is later" from the text of the

impugned Memorandum.

10. The learned counsel for the petitioner could not

satisfy the judicial conscience of this Court as to how the

petitioner is able to derive the benefit of the decision of

Sub-Inspector Roop Lal's case (supra), as, the petitioners,

in the said case, were taken on deputation, in view of the

creation of 12 new Police Stations in Delhi. Paragraphs 3

and 4 of the said judgment will clear the fact that the

suitable persons, in the rank of Inspector, Sub-Inspector,

Head Constable, Constable and Driver, were taken on

deputation. Meaning thereby, those persons were taken on

deputation with Delhi Police in public interest and when,

they were absorbed in the cadre, there was no stipulation

similar to the stipulations, as contained in Annexure R-III.

The Hon'ble Supreme Court in Sub-Inspector Roop Lal's

case (supra), has struck down the offending portion of

Office Memorandum dated 29.05.1986, issued by the 9 2024:HHC:9535

Government of India, by virtue of which, the use of word

'whichever is later' has been held to be unreasonable.

11. In the present case, the petitioner has accepted

the terms and conditions of the appointment, in which,

there was clearly stipulated that his absorption will be

treated as fresh appointment. Even otherwise, his earlier

services have been considered for all other purposes,

except the seniority and in unequivocal terms, it has been

mentioned that he will be placed at the bottom of the cadre

and his seniority will also be stipulated to be counted from

the date of his absorption in HIPA.

12. When, the terms and conditions were accepted

by the petitioner, then, judging the facts and

circumstances of the present case, in the light of the

decision of the Hon'ble Supreme Court in 'Union of India

and Others Versus Deo Narain and Others', reported in

(2008) 10 Supreme Court Cases 84, the petitioner cannot

now resile from those terms and conditions. Relevant

paragraphs 25 to 28 of the said judgment are reproduced,

as under:-

10 2024:HHC:9535

"25. By a communication dated May 20, 1980, the Government of India, Central Board of Excise and Customs informed all Collectors of Central Excise for consideration of cases of transferee employees. It was stated that transfer of all Group `C' officers from one Collectorate to another Collectorate having separate cadres were allowed on compassionate ground with the approval of the Commissioner subject to certain conditions. It was then stated that requests received for inter-

Collectorate transfers from Group `C' officers on genuine compassionate grounds can be considered on merits. It was also expressly provided that such transfers wherever considered necessary, should be effected on the conditions laid down in the said letter.

26. Condition (ii) which is relevant for the purpose of present controversy, reads as under:

"(ii) The transferee will not be entitled to count the service rendered by him in the former Collectorate for the purpose of seniority in the new charge. In other words, he will be treated as a new entrant in the Collectorate to which he is transferred and will be placed at the bottom of the list of the temporary employees of the concerned cadre in the new charge." (emphasis supplied)

In para 3 it was stated;

"A written undertaking to abide by the requisite terms and conditions may be obtained from the employees seeking transfers before the transfers are actually effected".

It is thus clear that as early as in 1980, a policy decision was taken by the appellants that in certain circumstances, LDCs could be transferred from one Collectorate to another Collectorate purely on compassionate grounds. But, it was also provided that such transferee 11 2024:HHC:9535

would not be entitled to count the service rendered by him/her in the former Collectorate for the purpose of seniority in the new Collectorate. In other words, such transferee would be treated as new entrant in the Collectorate in which he/she is transferred and will be placed at the bottom of the list of temporary employees of the cadre in the new charge.

27. From the above policy decision, it is abundantly clear and there is no doubt whatsoever that when any LDC working in one Collectorate seeks transfer to another Collectorate on compassionate ground, the said action can only be taken on the terms and conditions of the decision of the Government of India, dated May 20, 1980. In that case, he/she will not be entitled to get his/her service rendered in the former Collectorate to be counted for the purpose of seniority and will be placed at the bottom of the list of employees in the transferred Collectorate.

28. It is an admitted fact that in 1992, the applicants got themselves transferred to Meerut and they had, in consonance with the policy decision of May 20, 1980, foregone their seniority in the Collectorate where they were working and were placed at the bottom of the seniority list of the Meerut Collectorate where they were transferred. In view of the above fact and legal position, in our opinion, the contention of the appellants that placement of the respondents at the bottom of the seniority list in the transferee Collectorate was legal and valid is well founded and in consonance with the decision of the Central Government. There was no infirmity in the said order and it ought not to have been disturbed."

13. The Hon'ble Supreme Court in 'Mrigank Johri

and Others Versus Union of India and Others', reported

in (2017) 8 Supreme Court Cases 256, has considered 12 2024:HHC:9535

the similar situation, where the conditions of absorption

were categorically stated by mentioning the word 'deemed

to be new recruits', and in this case, also, in letter

(Annexure R-III), it has been mentioned that his absorption

will be treated as fresh appointment. Relevant paragraphs

31 to 34 of the said judgment are reproduced, as under:-

"31. It is no doubt true that the OM dated 29.5.1986 as modified by OM dated 27.3.2001 did provide for the benefit of the previous service rendered in the cadre. This is in effect also the ratio of the judgment in SI Rooplal case (supra). This would also be inconformity with the normal service jurisprudential view. However, it would be a different position if the absorbing department clearly stipulates a condition of giving willingness to sacrifice the seniority while preserving all other benefits for the absorbee (which are accepted) failing which the option was available to the absorbee to get himself repatriated to the parent department. The terms and conditions are categorical in their wording that the absorbees would be "deemed to be new recruits" and the previous service would be counted for all purposes "except his/her seniority in the cadre".

The appellant accepted this with open eyes and never even challenged the same. Their representations to give them the benefit of their past seniority was also turned down and thereafter also they did not agitate the matter in any judicial forum. The controversy was thus not alive and it was not open for them to challenge the same after a long lapse of period of time. In fact on the day of filing of the OM, any prayer to set aside the terms and conditions of absorption would have been clearly barred by time under Section 21 of the Administrative Tribunals Act, 1985.

13 2024:HHC:9535

32. The appellants sought to rake up the issue only when the seniority list was finalized. This was preceded by the draft seniority list. Whatever may be the dispute of seniority qua other persons, insofar as the appellants were concerned, their seniority was based on the terms and conditions of their absorption. The position of the appellants in the seniority list was thus a sequitur to the terms and conditions of their absorption. We are of the view that it is precisely for this reason, anticipating that their claim would be time barred, that a challenge was laid only to the seniority list without challenging the terms and conditions of absorption though in the grounds, a plea was raised against the terms and conditions of absorption. Unless the terms and conditions of absorption were to be set aside, the seniority list prepared was inconformity with the same.

33. Even otherwise, as noted above, since the appellants accepted the terms and conditions of absorption, they could not plead otherwise.

34. We are in agreement with the submission of the respondents that this issue has been squarely dealt with in Indu Shekhar Singh's case (supra) where almost identical issues have been dealt with by holding that the State was within its right to impose conditions where the employees had the option to exercise their right of election. The entitlement was not under any rules but under what was called the residuary power.

14. The petitioner is also not entitled for the relief

on another count, as, there is nothing in the office order,

by virtue of which, he had been absorbed in HIPA, that the

same is in public interest, as such, he cannot take the

benefit of Office Memorandum dated 29.05.1986. In order

to get the benefit of the said OM, it was incumbent upon 14 2024:HHC:9535

the petitioner to prove that his absorption was in public

interest. In this regard, it is apt for this Court to place

reliance upon the decision of the Hon'ble Supreme Court in

'Govinda Chandra Tiria Versus Sibaji Charan Panda

and Others', reported in (2020)3 Supreme Court Cases

803. Relevant paragraphs 7 to 15 of the said judgment are

reproduced, as under:-

"7. The instructions were to take effect from 14.12.1999, which was the date of the judgment of the Supreme Court (the latter part is not an aspect which we are examining). The final seniority list was published on 3.7.2001, maintaining the provisional seniority list and thus respondent No.1 filed an Original Application NO.584/2001 before the Central Administrative Tribunal, Cuttack Bench challenging the seniority list on the ground that his seniority had been calculated in violation of Government of India circulars and guidelines issued from time to time, and his name had been placed below two persons (including the appellant). This Original Application was, however, dismissed by order dated 17.10.2003 based on the counter affidavit filed by the Central Government to the effect that the latter part of the O.M. No.22011/7/86-Est.(D) would govern the present case as the absorption of respondent No.1 was not in public interest. The relevant clauses of O.A. No.20020/7/80-ESTT(D) dated 29.05.1986 are being extracted hereunder:

"NO. 20020/7/80-ESTT(D) GOVERNMENT OF INDIA/BHARAT SARKAR, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE AND PENSIONS DEPARTMENT OF PERSONNEL & TRAINING NEW DELHI, the 29-5-1986 OFFICE MEMORANDUM 15 2024:HHC:9535

Subject: Seniority of persons absorbed after being on deputation.

The undersigned is directed to say that the existing instructions on seniority instructions on seniority of transferees contained in para -7 of the Annexure to this Department's O.M. No.9/11/-55- RPS dated the 22nd December, 1959 (copy enclosed) mainly deal with cases where persons are straight way appointed on transfer. It is, however, observed that most of the cases of permanent absorption are those where the officers were taken on deputation initially under the method of transfer on deputation/transfer contained in the relevant recruitment rules. The O.M. is intended to fill this gap in the existing instructions.

2. Even in the type of cases mentioned above, that is, where an officer initially comes on deputation and is subsequently absorbed, the normal principle that the seniority should be counted from the date of such absorption, should mainly apply. Where, however, the officer has already been holding on the date of absorption in the same or equivalent on grade on regular basis in his parent department, it would be equitable and appropriate that such regular service in the grade should also be taken into account in determining his seniority subject only to the condition that at the most it would be only from the date of deputation to the grade in which absorption is being made, it has also be ensured chart the fixation of seniority of a transfer in accordance with the above principle will not effect any regular promotions made prior to the date of absorption. Accordingly, it has been decided to add the following sub-para

(iv) to para 7 of general principles communicated vide O.M. dated 22-12-1959. "(iv) In the case of a person who is initially taken on deputation and absorbed later i.e. where the relevant recruitment rules provide for transfer on deputation/transfer, 16 2024:HHC:9535

his seniority in this grade in which he be absorbed will normally be counted from the date of absorption. If he has, however, been holding already from the date of absorption), the same is equivalents grade on regular basis in parent department, such regular services in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from

- the date he has been holding the post on deputation.

OR

- the date from which he has been appointed on a regular basis in the same or equivalent grade in his parent department. Whichever is later.

The fixation of seniority of transferee in accordance with the above principle will not, however, affect any regular promotions to the next higher grade, made prior to the date of such absorption. In other words, it will be operative only in filling up of vacancies in higher grade taking places after such absorption.

In cases in which transfers are not strictly in public interest, the transferred officers will be placed below all officers appointed regularly to the grade on the date of absorption."

(emphasis supplied) We may repeat here that the expression whichever is later as appearing in the Circular stood modified in pursuance to the judgment of this Court in Sub-Inspector Rooplal (supra).

8. Respondent No.1, aggrieved by the order of the Central Administrative Tribunal filed a Writ Petition before the Orissa High Court under Articles 226 and 227 of the Constitution of India, being Writ Petition No.1645 of 2004, which was allowed vide judgment dated 22.08.2008, directing a fresh gradation list of LDC to be drawn and to consider the case of respondent No.1 for 17 2024:HHC:9535

promotion to the post of UDC, if he is so entitled. The judgment took note of the opinion of this Court in Sub-Inspector Rooplal (supra) and simultaneously also took note of the conditions imposed at the time of absorption of respondent No.1, which had been accepted by respondent No.1 as "the only hurdle". Thereafter, it proceeded to record its reasons in para 11:

"The learned Assistant Solicitor General has not been able to place any rule/circular/office memorandum to show that if an employee is to be permanently absorbed in the borrowing department he has to accept the bottom most seniority in the cadre. In absence of anything in support of such condition, we are of the view that imposition of such condition on contrary to the office memorandum dated 29th May 1986 and 27th March 2001 and, therefore, the petitioner cannot be bound by that. Since we are of the view that the seniority of the petitioner in the cadre of LDC in the Eastern Regional Office is to be reckoned from the date he joined on deputation in the office of opposite party No. 2, the gradation list prepared for LDC is liable to be set aside and, therefore, a fresh gradation list is required to be drawn."

9. The appellant, his seniority being disturbed thus, approached this Court, though the Union of India did not approach this Court. Leave was granted on 16-04-2010, and the matter is listed before us, unfortunately, after almost a decade.

10. We have heard learned counsel for parties.

11. In sum and substance, there are really two submissions on behalf of the appellant - (a) the terms of the absorption of respondent No.1 itself stipulated that his seniority would rank below the others, and having accepted the terms and conditions of absorption, he cannot be permitted to resile from the same, and consequently affect the seniority of the appellant, (b) the High Court fell into error while observing in para 11 that the office memorandum dated 29.05.1986 and 18 2024:HHC:9535

27.03.2001 will prevail, and that in those memorandums, there was nothing which could affect the seniority of respondent No.1 from his initial date of appointment at Delhi.

12. The second aspect is assailed on the basis that the crucial aspect of extracted O.M. dated 29-5-1986 has not been considered i.e. that such seniority would not be available in cases in which transfers are "not strictly in public interest". This was a pre- condition. The fact that the department wanted respondent No.1 to go back to his parent cadre, the communication substantiated the same. It was the insistence of respondent No.1, by way of repeated representations, which resulted in the office order for his absorption on the terms and conditions set out in the said office order dated 13.11.1996. Thus, such an observation can hardly be stated to be "strictly in public interest", much less in public interest. This is also the stand of the Union of India taken in the counter affidavit filed in the Court below.

13. Learned counsel for respondent No.1 endeavoured to persuade us to the contrary by referring to the judgment of this Court in Sub- Inspector Rooplal (supra). We may note that all principles of law arise in the given factual situation. If we consider the factual situation of that case, which had quashed a part of OM No.20020/7/80-ESTT (D) dated 29.5.1986 insofar as it provided for 'whichever is later', and replaced it with 'whichever is earlier', we are faced with a scenario where the police authorities, with a view to strengthen their existing security system in the capital, had created 12 new police stations in Delhi, and the posts were required to be filled in the shortest possible time so that there was an immediate impact on the law and order situation in Delhi. As the normal course of recruitment would take a longer period of time, in view of the urgent need of the hour, a decision was taken for suitable persons to be deployed on deputation basis to the ranks of Inspector, Sub-Inspector, Assistant Sub- Inspector, Head Constable, Constable and Driver.

19 2024:HHC:9535

The request letter also stated that those officials taken on deputation were likely to be considered for permanent absorption after one year, if found suitable.

14. The opinion of this Court was that such deputationists were permanently absorbed but were not being given the benefit of service of equivalent post, and that they should have been so conveyed in order to make an informed choice of whether to seek or not to seek permanent absorption i.e. there had to be full disclosure and transparency in respect of the terms and conditions of the absorption. It was not a case of request for absorption, but, the exigencies of service, and that too, without putting them to notice of this fact.

15. The facts of the present case are completely to the contrary. Despite departmental communications wanting respondent No.1 to go back to the parent cadre it is respondent No.1's insistence and persuasion which prevailed, with the department absorbing respondent No.1 with the terms and conditions aforementioned. One of the terms and conditions was that seniority would be counted from the date of absorption and respondent No.1 accepted the same. That absorption was never challenged in any proceeding, nor the terms thereof, when he was treated as a fresh appointee. It is only when the seniority list was circulated that the challenge was sought to be made to the seniority list, in an oblique manner, and the terms and conditions of the absorption were sought to be assailed. This is not permissible."

(self-emphasis supplied)

15. When, the petitioner has accepted the terms

and conditions and now, he cannot resile from those terms

and conditions, which had been communicated/conveyed 20 2024:HHC:9535

to him in unequivocal terms, as such, he is not entitled for

the relief, as sought.

16. In view of the above discussions, the petitioner

is not held entitled for any relief, as claimed.

17. Consequently, the present petition is dismissed.

18. Pending miscellaneous application(s), if any,

shall also stand disposed of.

(Virender Singh) Judge October 04, 2024 Gaurav Thakur