Himachal Pradesh High Court
Vinay Modi And Others vs State Of H.P. And Others on 4 October, 2024
2024:HHC:9577
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWPOA No.1224 of 2019 a/w
CWPOA No.1195 of 2019 and
CWPOA No.1386 of 2019
Reserved on: 06.09.2024
Decided on: 04.10.2024
__________________________________________________________
1. CWPOA No. 1224 of 2019
Vinay Modi and others ...Petitioners
Versus
State of H.P. and others ...Respondents
2. CWPOA No.1195 of 2019
Arun Kumar and others ...Petitioners
Versus
State of H.P. and others ...Respondents
3. CWPOA No. 1386 of 2019
Vinay Modi and others ...Petitioners
Versus
State of H.P. and others ...Respondents
__________________________________________________________
Coram
The Hon'ble Mr. Justice Satyen Vaidya, Judge
1 Whether approved for reporting? Yes
______________________________________________________
For the petitioner(s) : Mr. Vijay Kumar Arora, Advocate.
For the respondents: Mr.Anup Rattan, Advocate General,
with Mr. Pranay Pratap Singh,
Additional Advocate General, for the
respondents/State.
Mr. Sanjeev K. Suri, Advocate, for
respondents No. 15 and 16.
Satyen Vaidya, Judge
All these petitions are being decided by a common
judgment as the questions of facts and law involved are
Whether reporters of Local Papers may be allowed to see the judgment?
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identical.
2. In the State of Himachal Pradesh, Tehsildari
Service is regulated by the Himachal Pradesh Tehsildari
Service Rules, 1973 (for short, "Tehsildari Rules"). Rule 7 (1)
of the ibid rules provide as under:
"7(1) Recruitment to the service shall be
made in the following manner:-
(a) 50% by selection of Naib Tehsildars who have four
years continuous substantive/ officiating service in
the grade;
(b) 30% from Class 'A' candidate; and
(c) 20% from Class 'B' candidate."
3. The Class 'A' candidates are those who are
selected by way of direct recruitment on the basis of an
examination and a viva-voce test on the same pattern as
may be prescribed for recruitment to the Himachal
Administrative Services. The direct recruits are
recommended by the Public Service Commission on the
receipt of requisition from Financial Commissioner. The
direct recruits are then accepted by the Financial
Commissioner as Class 'A' candidates in the year in which
they are recommended by the Commission. Thereafter one
year training; service as Naib Tehsildar for another one year
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and passing of departmental examination within two years is
required for declaration by the Financial Commissioner of
candidate as qualified for appointment to the post of
Tehsildar.
4. The petitioners, in CWPOA 1224 of 2019 and
CWPOA 1386 of 2019 were Class 'A' Tehsildars. They were
accepted as Class 'A' Tehsildars on 26.12.1997 and
16.01.1998 respectively.
5. Similarly, the Naib Tehsildari Service in the state
is regulated by the Himachal Pradesh Naib Tehsildars
Service Rules, 1973. As per these rules, the posts of Naib
Tehsildars are also filled from three categories, directly
through competitive examination i.e. "A" class candidates;
from amongst certain categories of ministerial staff i.e. "B"
class and by promotion of Kanungo as per rota and quota
laid down in Himachal Pradesh Naib Tehsildars Service
Rules, 1973 and the procedure of recruitment is same as in
the case of Tehsildars.
6. The petitioners in CWPOA 1195 of 2019 were the
"A" Class accepted Naib Tehsildar candidates in 1983.
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7. Respondent No.1 vide notification dated
7.10.1998 regularized the ad-hoc promotions of 41 Naib
Tehsildars to the post of Tehsildar (Class-1 Gazetted) in
relaxation of rule 16 (ii) of Tehsildari Rules with immediate
effect. A tentative seniority list of Tehsildars as it stood on
31.12.1998 was circulated on 25.2.1999. In the said
tentative seniority list, the placement of petitioners was
above the respondents in CWPOA No. 1224 of 2019 and as
per said petitioners, for such reasons, they had not raised
any objection with respect to said tentative seniority list. The
petitioners in CWPOA 1195 of 2019 had, however, objected
to the issuance of notification dated 7.10.1998 and tentative
seniority list dated 25.2.1999.
8. The final seniority list was issued on 1.6.1999
showing seniority position as on 31.12.1996. In the said
final seniority list, names of 41 Tehsildars regularized vide
notification dated 7.10.1998 also found mention. As per
respondent No.1, ad-hoc Tehsildars whose ad-hoc
promotions followed without break and regularization were
regularized and adjusted by treating them regular from the
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date, posts in the promotion quota were available to their
share.
9. The petitioners in CWPOA 1224 of 2019 and
CWPOA 1195 of 2019 represented against the final seniority
list dated 1.6.1999. Having failed to receive any response to
their representation, petitioners preferred Original
Applications before the erstwhile H.P. Administrative
Tribunal, which later came to be transferred to this Court
and are the petitions being decided hereby as CWPOA No.
1224 of 2019 and CWPOA 1195 of 2019.
10. The regularization order dated 7.10.1998 and
final seniority list of Tehsildars dated 1.6.1999 has been
assailed not only by the petitioners in CWPOA No. 1224 of
2019 but by the beneficiaries of the regularization
notification dated 7.10.1998 by way of CWPOA 1195 of
2019. The challenge in CWPOA 1224 of 2019 is on the
grounds that the regularization of ad-hoc Tehsildars was
notified w.e.f. 7.10.1998 and hence they could not be
assigned seniority from anterior date and also that since the
ad-hoc promotions of Naib Tehsildars to the post of
Tehsildars were dehors the relevant service rules the period
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for which they officiated as such could not be considered for
any purpose whatsoever. In CWPOA 1195 of 2019 challenge
has been laid on the premise that the seniority position of
the promotee Tehsildars regularized vide notification dated
7.10.1998 was not correctly shown in the seniority list dated
1.6.1999. The grounds as raised in CWPOA No.1195 of 2019
can be summed up as under:-
(i) The cadre of Naib Tehsildars being divisional
level cadre, their seniority lists were prepared
and maintained by the respective Divisional
Commissioners and there was no uniformity in
application of Naib Tehsildari Rules for the
purpose of preparation of seniority lists in
different divisions.
(ii) The integrated seniority list of Naib Tehsildar
was required to be prepared for the purpose of
consideration for selection to the post of
Tehsildar, but this exercise was completely
missing.
(iii) The seniority of Naib Tehsildars as per Rule 20 of
Naib Tehsildari Rules, is to be counted from the
date of substantive appointment, which principle
has also been violated.
(iv) The respondents could not be given seniority as
Naib Tehsildars from the date of their
appointment especially when ad hoc appointment
had been made against slots fixed for "A" and
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"B" Class. The private respondents were to be
regularized from the dates/years when posts
meant for their quota as per roster became
available for regularization, whereas, they were
illegally regularized from the date of ad hoc
appointment. Respondent No.1 had constantly
defined H.P. Tehsildari Service Rules.
11. The respondents vide their separate replies, have
contested the claim of the petitioners and have supported
the issuance of regularization notification dated 7.10.1998
and the seniority list dated 01.06.1999.
12. During the pendency of CWPOAs No. 1224 of
2019 and 1195 of 2019 respondent No.1 once again
regularized the services of 44 more ad-hoc Tehsildars vide
notification dated 1.3.2006. In addition to regularization of
ad-hoc Tehsildars, some of the Naib Tehsildars were also
promoted as Tehsildars.
13. Thereafter, a tentative seniority list of Tehsildars
as it stood on 1.3.2006 was issued by respondent No.1 on
6.7.2006. In the said tentative seniority list, petitioners in
CWPOA 1224 of 2019 were shown at serial Nos.4, 5, 6 and 7
respectively. The petitioners filed representations against
said tentative seniority list. Respondent No.1 vide memo
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dated 4.10.2007 issued final seniority list of Tehsildars as it
stood on 1.3.2006 maintaining the seniority position of
petitioners at serial Nos.4, 5, 6 and 7 on the basis of their
dates of acceptance as Class 'A' Tehsildars. The said
seniority list was implemented and the petitioners were
further promoted to the posts of District Revenue Officers on
ad-hoc basis vide notification dated 6.10.2007.
14. Respondent No.1 issued yet another seniority list
on 7.10.2008 of Tehsildars as it stood on 11.9.2008. The
reasons assigned for circulation of tentative seniority list
dated 7.10.2008 was that in the meanwhile the seniority
lists of Naib Tehsildars by respective Divisional
Commissioners had been rectified in consonance with the
instructions of the Government dated 21.11.2006 and the
review DPC meeting had been held on 19, 23 and 28.8.2008.
The tentative seniority list on 7.10.2008 was circulated in
continuation to the earlier seniority list issued on 1.6.1999
and in supersession of subsequent final seniority list of
Tehsildars issued on 4.10.2007.
15. In seniority list dated 7.10.2008, the petitioners
were placed below the private respondents in CWPOA No.
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1386 of 2019. Against the treatment, which according to
petitioners was arbitrary and against the rules,
representation was filed but without any result. Final
seniority list was issued on 24.12.2008 showing the
seniority position as on 11.9.2008.
16. The petitioners in CWPOA 1195 of 2019 appears
to have raised no objection against the regularisation
notification dated 1.3.2006, tentative seniority list dated
7.10.2008 and final seniority list dated 24.12.2008.
17. This seniority list has been assailed by the
petitioners by way of CWPOA No. 1386 of 2019. The
grievance raised by the said petitioners is that the gradation
of regularized ad-hoc Tehsildars by respondent No.1 vide
notification dated 11.9.2008 was contrary to Rules. They
were given promotions to the posts of Tehsildar from the
year 1990 onwards. Consequently, in seniority list dated
24.12.2008, petitioners have been wrongly downgraded.
According to the petitioners, the seniority in the cadre is
required to be given from the date the incumbents were
appointed on regular service. Respondents No.2 to 28 in
CWPOA No. 1386 of 2019 were wrongly given benefit of
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ad-hoc service by placing them above the petitioners in the
seniority. The said petitioners have alleged that they were
directly and regularly appointed to the cadre of Tehsildar
Class 'A'. Respondents No. 2 to 28 are promotee Tehsildars
from Naib-Tehsildars category, therefore, they are to be given
seniority from the dates they were declared as qualified by
virtue of passing the examination and acceptance by the
competent authority. It has also been alleged that the
instructions dated 30.6.2001 and 21.11.2006 as also the
agenda for review DPC, were wrongly given precedence over
the rules.
18. As per petitioners in CWPOA 1386 of 2019, slots
against which the respondents have been promoted from
back dates were not available in the share of their quota.
These slots had already been exhausted by the persons of
the cadre although this was not reflected in the minutes
placed before the review Departmental Promotion
Committee. Accordingly, the impugned seniority is alleged to
be not based on true facts.
19. Another grievance of the said petitioners is that
respondent No.1 wrongly gave benefit to respondents No. 2
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to 28 by promoting them on regular basis to the posts of
Tehsildars right from the year 1990 against the vacancies in
the cadre taking into account ex-cadre posts and each and
every vacancy created during 1990 to 2006 by virtue of
retirement or promotion of Tehsildars from Naib Tehsildars
category. The vacancies caused due to the promotion,
retirement or demise of Tehsildars promoted from Naib
Tehsildars were to be filled in the ratio of 50%, 30% and 20%
from all the three categories as per Rule 7 of Tehsildari
Rules and not from the category of Naib Tehsildars promotee
only.
20. It is also the concern of said petitioners that
though vide notification dated 1.3.2006, the ad-hoc
Tehsildars were regularized with immediate effect, but
seniority assigned to them makes them regular from the
dates when they were not even eligible to hold the post.
21. On the other hand, to support and justify its acts
of promoting the Naib-Tehsildars as Tehsildars on ad-hoc
basis from time to time, respondent No.1 has taken a stand
that since the post of Tehsildar is a functional post, it
cannot be kept vacant.
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22. As per respondent No.1, Rule 17 of Tehsildari
Rules provides 20-point roster to be followed for assigning
inter-se seniority to the three feeder categories i.e. A Class, B
Class and promotees from Naib Tehsildars in respect of a
particular year. The services of ad-hoc promotees were
regularized against vacancies arising in their own quota i.e.
50% by holding regular DPC. Reliance for such purpose has
been placed on the procedure prescribed in the Department
of Personnel Instructions dated 30.6.2001.
23. It has also been submitted that Class 'A' and
Class 'B' candidates in the first instance are accepted as
candidates for the post of Tehsildars. After undergoing
training under Rule 14 of Tehsildari Rules, they are declared
as qualified candidates under Rule 15 for appointment to
the cadre of Tehsildars. In this manner, the quota rule in
respect of appointments of Class 'A' and Class 'B' candidates
is said to have been complied with on the acceptance of such
candidates, even if their formal appointments are made later
on after they are declared qualified for appointment under
Rule 15. In support of decision to make the candidates in
Class 'A' and Class 'B' entitled to seniority from the date of
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acceptance, reliance has also been placed on a judgment
passed by erstwhile H.P. Administrative Tribunal in TA No.
519 of 1986. On the strength of above, it has been
contended that by same analogy, the seniority of Naib
Tehsildars is also to be considered from the date of
acceptance of Class 'A' and Class 'B' Naib Tehsildars in their
cadre.
24. Respondent No.1 has further submitted that while
regularizing the ad-hoc Tehsildars vide notification dated
7.10.1998, the regularization was done from such back
dates when the vacancies had arisen in the quota of
promotees. In this manner, 41 ad-hoc Tehsildars regularized
vide notification dated 7.10.1998, were shown in the
seniority list as it existed on 31.3.1996. As further
contended by respondent No.1, after September 1998, DPC
for regularization of ad-hoc Tehsildars was held in March,
2006. The tentative seniority list was issued on 6.7.2006,
followed by final seniority list on 4.10.2007. While framing
the seniority list, A & B Class appointees were assigned
seniority as per their dates of acceptance. The promotees
who were considered by the DPC as per consolidated
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seniority list of Naib Tehsildars were accordingly placed as
per recommendations of DPC. The petitioners were
subsequently promoted as District Revenue Officers on ad
hoc basis on 6.10.2007. In the meanwhile, the seniority lists
of feeder category of Naib Tehsildars were re-drawn by the
Divisional Commissioners Kangra, Mandi and Shimla during
the year 2007, which necessitated a review DPC for
reviewing the seniority list of Tehsildars. Accordingly, the
review DPC was convened in August, 2008; tentative
seniority list was issued on 7.10.2008 and final seniority list
after inviting objections was issued on 24.12.2008.
25. Respondent No.1 has maintained a categoric
stand that the seniority list dated 24.12.2008, was prepared
in accordance with law. The correct vacancy position was
worked out by the Department and placed before the DPC,
whereafter the seniority list was issued on 24.12.2008. The
promotee Naib Tehsildars were assigned the seniority from
the dates when the posts were available in their quota. No
ex-cadre post had been taken into account while assigning
the seniority to the Naib Tehsildars. It has been pleaded that
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the quota of 50% of the cadre post falling to the share of
Naib Tehsildars was not exceeded at any point of time.
26. Respondent No.1 also has taken a stand that the
petitioners having been promoted as District Revenue
Officers on ad hoc basis, were not proposed to be reverted.
27. I have heard learned counsel for the parties and
have also gone through the records of the case carefully.
28. CWPOA No. 1224 of 2019 is filed by four
petitioners, whereas CWPOA No. 1386 of 2019 is filed by
three petitioners only (petitioners No. 1 to 3 in CWPOA No.
1224 of 2019), the 4th petitioner Ms. Sushma in CWPOA No.
1224 of 2019 has not joined the other petitioners in CWPOA
No. 1386 of 2019.
29. The Tehsildars promoted on ad-hoc basis from
time to time, were ordered to be regularized vide notification
dated 7.10.1998 issued by the 1st respondent. According to
said notification, the regularization was ordered from
immediate effect and by relaxing Rule 16 (ii) of Tehsildari
Rules. A tentative seniority list showing the seniority
position as on 31.3.1998 was circulated vide office
memorandum dated 26.02.1999. The petitioners were placed
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above the Tehsildars regularized vide notification dated
7.10.1998, therefore, the petitioners did not raise any
objection. However, respondent No.1 issued final seniority
list dated 1.6.1999 showing seniority position as on
31.12.1996, which included the names of Tehsildars
regularized w.e.f. 7.10.1998. It was specifically mentioned in
the forwarding memorandum dated 1.6.1999 that the ad-hoc
Tehsildars whose promotions were followed without break
and regularization had suitably been adjusted by treating
them regular from the date posts in the promotion quota
were available to their share.
30. The petitioners in CWPOA No. 1224 of 2019
assailed the above noticed decision of respondent No.1 by
seeking relief to the following effect:-
"(i) Declare the act of the respondent-State whereby
vide the impugned final seniority list dated 1.6.1999,
it has regularized the promotions of the private
respondents 2 to 42 to the post of Tehsildar from Naib
Tehsildar with retrospective effect and thus made
applicants junior to them, ignoring the fact that the
applicants were directly recruited to the said post prior
to order of regularization of ad hoc promotion of private
respondents as Tehsildars with immediate effect vide
order dated 7.10.1998, and further declare the act of
17 2024:HHC:9577
the respondents of omitting the name of the applicants
from the seniority list by preparing it to reflect the
position as on 31.12.1996 and not as on 31.12.1998
and taking this decision at the back of the applicants
without any notice to the applicants in this regard as
arbitrary, discriminatory against the principles of
natural justice, defeats the legitimate expectation of the
applicants and is hence violative of Article 14 and 16 of
the Constitution of India and quash seniority list dated
1.6.1999 qua respondents 2 to 42."
31. Respondent No.1 vide notification dated 1.3.2006
yet again ordered regularization of services of ad hoc
Tehsildars besides promotion of Naib Tehsildars to the post
of Tehsildar (Class-I Gazetted) on regular basis with
immediate effect. On 6.7.2006, a tentative seniority list of
substantive Tehsildars as it stood on 1.3.2006 was
circulated. The final seniority list of Tehsildars as it stood on
1.3.2006 was circulated on 4.10.2007 reflecting the same
position as in the tentative seniority list dated 6.7.2006. The
petitioners accepted the said seniority list. The fact of the
matter is that petitioners were promoted as District Revenue
Officers on ad-hoc basis vide notification dated 6.10.2007.
32. Respondent No.1 issued another tentative
seniority list on 7.10.2008 of Tehsildars as it stood on
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11.9.2008. In the said tentative seniority list, the seniority
position of petitioners was downgraded and they were placed
after the private respondents in CWPOA No. 1386 of 2019.
The petitioners unsuccessfully objected against the said
tentative seniority list dated 7.10.2008. Lastly, final seniority
list of Tehsildars as it stood on 11.9.2008 was circulated on
24.12.2008 maintaining the same seniority position as
shown in tentative seniority list dated 7.10.2008.
33. The petitioners in CWPOA No. 1386 of 2019 then
came up seeking following reliefs:
"(i) That the writ in the nature of certiorari may kindly
be issued for quashing the final seniority list
(Annexure P-11) issued by respondent No.1 on
24.12.2008 whereby the petitioners have been
illegally downgraded. Similarly, the impugned
notification dated 11.9.2008 (Annexure P-12),
whereby the respondents No. 2 to 28 have been
given regular promotions from the year 1990
onwards against the provisions of Rules may be
quashed and set-aside.
(ii) That the writ or order may kindly be issued
directing the respondent No.1 to reassign the
seniority to the petitioners at appropriate places
according to the date of their appointment."
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34. The memorandum dated 7.10.2008 whereby the
tentative seniority list of Tehsildars as it stood on 11.9.2008
was circulated, recorded that the said list was circulated in
continuation to earlier final seniority list of Tehsildars dated
1.6.1999 and in supersession of subsequent final seniority
list dated 4.10.2007. In other words the final seniority list
dated 1.6.1999 showing the seniority position as on
31.12.1996 was kept in continuation while preparing the
tentative seniority list of Tehsildars as it stood on 11.9.2008
vide memorandum dated 7.10.2008. The seniority list dated
4.10.2007 showing the seniority position of Tehsildars as on
1.3.2006 was superseded. Thus, the cause raised by the
petitioners in CWPOA No. 1224 of 2019 remained alive.
35. The grievance of the petitioners in CWPOA 1224 of
2019 and CWPOA 1386 of 2019 is that firstly the grant of
regular status as Tehsildars to the private respondents in
CWPOA No. 1224 of 2019 vide memorandum dated 1.6.1999
and thereafter the same treatment to the Tehsildars whose
services were regularized vide notification dated 1.3.2006
was against the provisions of Tehsildari rules. In CWPOA
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1195/19 a similar grievance was raised alleging violation of
Naib Tehsildari rules.
36. Noticeably, in the first place the petitioners in any
of the above cases have not laid any challenge to the ad-hoc
promotions of Naib Tehsildars to the post of Tehsildars, as
ordered by the 1st respondent, from time to time and in the
second the regularization of ad-hoc Tehsildars ordered by
respondent No.1 firstly vide notification dated 7.10.1998 and
thereafter vide notification dated 1.3.2006 have not been
challenged as such.
37. The petitioners in all the cases have shown their
grievance to the placements in seniority lists prepared and
circulated post the aforenoted regularisation orders dated
7.10.1998 and 1.3.2006. They have taken exception to the
retrospectivity in conferment of regular status or in
alternative grant of seniority from back dates to the private
respondents in all the petitions.
38. According to petitioners, both the notifications
dated 7.10.1998 and 1.3.2006 were made effective from the
date of their issuance respectively and thus, the ad-hoc
Tehsildars whose services were regularized thereby could not
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be allowed seniority positions from any prior when they were
not even born in the cadre. It is also contended that for
being appointed as regular Tehsildar, the requirements of
Tehsildari Rules were to be fulfilled and since the ad-hoc
Tehsildars regularized vide aforesaid notifications did not
fulfill such requirements, they could not be allowed the
benefit of regularization retrospectively or in alternative the
benefit of seniority from back date.
39. Respondent No.1 has taken a specific stand that
the regularized Tehsildars were given seniority from the date
of their officiation as ad-hoc Tehsildars subject to availability
of particular vacancy in their quota. It has also been
submitted that the petitioners have been considered from
the date of their acceptance as Tehsildars, which has not
been changed at any point of time. As per respondent No.1,
the post of Tehsildar being a functional post, could not be
kept vacant for long and for such reason ad-hoc promotions
were made from time to time. While fixing the seniority, the
dates on which the vacancies had occurred in the quota of
promotees were taken into consideration and accordingly,
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the seniority was fixed from retrospective dates. To same
effect has been the stand taken by the private respondents.
40. In the backdrop of above noted diverse stands, an
issue with disputed facts has been posed before this Court
in exercise of writ jurisdiction. The petitioners have
maintained that the seniority positions assigned to
respondents as Tehsildars were from the dates when the
vacancies were not available to their quota and in CWPOA
1195/2019 it has also been alleged that the slots, by grant
of retrospective seniority were dehors the rule of rota-quota
prescribed in relevant service rules.
41. The petitioners in CWPOA 1224/2019 and
CWPOA 1386/2019 have not been able to discharge their
burden by placing on record unimpeachable material to
establish their allegations.
42. Though the petitioners in CWPOA 1195/19 have
tries to exemplify the instances of violation of rules including
rule of rota quota, but they have kept their challenge limited
against the regularisation notification dated 7.10.1998 and
consequent seniority list dated 1.6.1999, whereas much
water has flown thereafter more particularly another
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regularisation of ad-hoc Tehsildars took place on 1.3.2006
followed by circulation of final seniority list dated
24.12.2008 on the basis of review DPC held after redrawal of
seniority lists of Naib Tehsildars and such subsequent
remained unchallenged by the said petitioners.
43. The petitioners have also not been able to
controvert the stand of respondent No.1 that the seniority
was assigned to the ad-hoc Tehsildars after their
regularization from the dates the slot in their own quota of
50% were available.
44. Thus, in absence of the discharge of necessary
burden by the petitioners to prove violation of relevant
service rules while granting seniority positions to the parties
vide seniority lists dated 1.6.1999 and 24.12.2008 and also
in absence of any impeccable material to establish their
contention, this court is unable to find any fault with the
administrative actions impugned by way of these petitions.
45. Another ground taken by respondent No.1 is that
the post of Naib Tehsildar is governed by its own service
rules known as 'Naib-Tehsildari Rules'. It is a divisional level
cadre. The seniority list of Naib Tehsildars is maintained by
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respective Divisional Commissioners in each of the divisions
of Shimla, Mandi and Dharamshala. The Divisional
Commissioners had not applied uniform parameters for
maintaining the seniority lists of Naib Tehsildars in their
respective Divisions, therefore, there were several anomalies
in the consolidated seniority list of Naib Tehsildars prepared
for consideration of their promotion to the post of Tehsildar.
Various representations were pending before the competent
authority. The rectification in terms of rules were made and
the anomalies in consolidated seniority list of Naib
Tehsildars were removed which necessitated the holding of
review DPC and consequent issuance of the tentative
seniority list dated 7.10.2008 followed by final seniority list
dated 24.12.2008. Respondent No.1 has also submitted that
since the date of acceptance of petitioners as Tehsildars was
considered as relevant date for placing them in seniority list,
the same principle was applied in the case of Naib
Tehsildars also.
46. The petitioners have not been able to rebut above
factual position nor have they come up with any additional
material to challenge the process of redetermination of
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seniority lists of Naib Tehsildars at divisional level or
consequent integrated seniority list of such cadre prepared
for promotion to the next higher cadre of Tehsildar.
47. The proposition that seniority can be fixed from
back date cannot be disputed in light of principles laid down
in Direct Recruit Class II Engineers Officers Association Vs State
of Maharashtra (1990) 2 SCC 715 (hereinafter referred to as
'Direct Recruits case'). The relevant extract from Direct
Recruits case is reproduced hereunder:
"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."
48. In one of the numerous interpretations to the
principles enunciated in Direct Recruits Case Hon'ble
Supreme Court in Santosh Kumar v. State of A.P. (2003) 5 SCC 511
expounded as under:
26 2024:HHC:9577
10. A Constitution Bench of this Court in Direct Recruit Class II Engg.
Officers' Assn. case (1990) 2 SCC 715 after considering various aspects
and earlier decisions, summed up the conclusions in para 47 of the
judgment. For our purpose paras (A) and (B) of the said paragraph are
relevant, which are extracted hereunder : (SCC pp. 744-45)
"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 stopgap
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 regularisation of his service in accordance with
the rules, the period of officiating service will be counted."
The respondent and others were appointed as Sub-Inspectors out of
seniority looking to the outstanding merit and record prior to the direct
recruits like the appellant. Their services were admittedly regularised
by relaxing the Service Rules in exercise of power available under Rule
47 of the General Rules. The appellant did not challenge the validity of
Rule 47 and no mala fides were established against the authorities in
exercise of powers of relaxation under the said Rule. The Tribunal has
recorded a finding that the Rule relating to the method of recruitment
was not relaxed but only the conditions which had to be fulfilled for the
purpose of promotion to the category of Sub-Inspector were relaxed;
this finding is not disturbed by the High Court; there was no relaxation
as to the basic qualification; the State Government regularised the
services of the respondent and others with retrospective effect from
the date they were temporarily appointed as Sub-Inspectors (OSSIs). It
is also not disputed that they continued in service uninterruptedly for
about 12-13 years till their services were regularised with retrospective
effect. This being the factual position it could not be said that the
corollary to para 47(A) of the aforementioned Constitution Bench
judgment applies to the facts of the present case. Once their services
were regularised it cannot be contended that their initial appointment
was only on ad hoc basis and not according to the rules and made as a
stop gap arrangement. On the other hand para 47(B) supports the case
of the respondent.
49. Hence, even the period of ad-hoc promotion can
be considered for the purposes of seniority provided the
27 2024:HHC:9577
same is followed by regularization and is in terms of relevant
service rules. The fact that the petitioners have not laid
attack to the regularization of respondents, as such,
impliedly the petitioners have not found any fault in the ad-
hoc promotions of the private respondents ordered by
respondent No.1 from time to time. The only evident
objection has been raised with reference to the relaxation
clause included in notification dated 7.10.1998, but later
when respondent No.1 has raised the plea that relaxation
was with respect to Rule 16 (iv) of Tehsildari Rules and not
Rules 16 (ii), the petitioners have not been able to further
controvert the same. Rule 16 (iv) deals with the requirement
of a Naib Tehsildar to work in tribal/hard area for three
years and it has not been disputed by the petitioners that
such a condition could not have been relaxed or was so
fundamental that the Naib Tehsildar could not have been
considered for promotion in absence thereof. No other
illegality, infirmity or irregularity has been pointed out by
the petitioners in the ad-hoc promotions of the private
respondents.
28 2024:HHC:9577
50. Learned counsel for petitioners in CWPOA 1224 of
2019 and 1386 of 2019 has placed reliance on judgments
passed by Supreme Court in the matter of Suraj Parkash
Gupta and others Vs State of J&K and others (2000) 7 SCC 561
and Union of India Vs Dharampal (2009) 4 SCC 170 to contend
that the power to relax rules is not absolute. In my
considered view the precedent so relied on behalf of
petitioners has no application in instant cases for the
reasons firstly that the Suraj Parkash Gupta (supra) was in the
context of specific requirement under J&K (CCA) Rules,
1956 and secondly as held above the relaxation of rule 16(iv)
of Tehsildari rules in the instant cases was neither proved to
be beyond the power of the government nor so fundamental
which could render the consideration of Naib Tehsildar for
selection to the post of Tehsildar void. Rather, para 69 of the
Suraj Parkash Gupta as reproduced hereafter supports the
case of respondents:
"69. Thus, there is overwhelming authority of this
Court to hold that ad hoc, stopgap service could be
regularised from an anterior date after consulting the
Service Commission from the date of vacancy in the
promotee quota, after considering fitness, eligibility,
suitability and ACRs. Therefore, the ad hoc/stopgap
29 2024:HHC:9577
service rendered by promotees beyond six months
and without the consent of the Public Service
Commission as per Regulation 4(d)(ii) cannot be
treated as non est. It can be regularised later after
consulting the Commission in respect of posts in the
promotion quota and subject to eligibility and
suitability based on ACRs, etc. Only the period
rendered outside the quota or the period rendered
within the quota when the promotee was not eligible
or found fit has to be excluded."
51. The reliance placed by petitioners on R.K.
Mobisana Vs Kh. Themba Singh (2008) 1 SCC 747, Union of India
Vs Dharampal (2009) 4 SCC 170 and Narayana Rao Vs Union of
India (2010) 9 JT 346 to contend that since the ad hoc
promotions of private respondents were dehors the rules
such service could not be considered for seniority purposes
also does not help their cause in view of what has been held
above in respect of failure of petitioners to prove violation of
any service rule while granting ad-hoc promotions to the
private respondents.
52. This Court was informed that the majority of
petitioners and private respondents have already retired. In
absence of petitioners pointing out instances where the
private respondents have been granted seniority from a date
when the vacancy was not existing in the quota of
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promotees, this Court does not find any reason to show
interference in exercise of jurisdiction under Article 226 of
the Constitution of India. Moreover, such an exercise will
amount to unsettling of long standing settled seniority
positions, which otherwise is impermissible. Reference can
be made to recent reiteration of said principle by Hon'ble
Supreme Court in V. Vincent Velankanni Vs Union of India
and others 2024 INSC 748
53. As notices above, the petitioners in CWPOA
1195/2019 had already given up their chase half way by not
laying any challenge to subsequent regularisation of ad-hoc
Tehsildars on 1.3.2006 and consequent circulation of final
seniority list dated 24.12.2008, therefore, the reliefs prayed
by them have become infructuous.
54. In light of what has been discussed above all the
three petitions are dismissed with no order as to costs.
55. Pending miscellaneous application(s), if any, also
stand disposed of.
4th October, 2024 (Satyen Vaidya)
(GR) Judge
