IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 3078 of 2008. Decided on 25.3.2011 Ramesh Chand Sharma ..…Petitioner. Versus H.P Krishi Vishvavidyalaya and others …. Respondents. _____________________________________________________ Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Dushyant Dadwal, Advocate. For respondent No.1 : None. For respondent No.2 and 3 : Mr. Rupinder Singh, Advocate. For respondent No.4 : Mr. Naresh Sood, Advocate. None for the remaining respondents. V.K. Sharma, Judge (Oral) The petition has been filed for grant of the following substantive prayers vide para 7 (i) and (ii) : “i) That the respondent Nos.1 to 3 may kindly be directed to regularize the services of the applicant with effect from the date when he was appointed as Clerk on daily wages or in the alternative on the day when the panel of selected candidates was drawn up in accordance with the tests conducts by the first respondent on August 26, 1985 and September, 1985. ii) That Annexures A-25 and A-31 may be quashed and set aside being illegal, 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 arbitrary, unconstitutional and void and further directing that the name of the applicant be placed in seniority above respondent Nos.4 to 16.” 2. In reply, respondent No.1 has taken the following stand vide para 6 (x) & (xiv) : “ (x) That in reply to the contents of this para it is submitted that a joint panel of selected candidates had been drawn. After the bifurcation of the University, a list of 10 candidates already selected in joint selection, who had appeared for the test of Clerk at Solan and selected against the vacancies at Solan, was sent to the Solan University, for making appointments. Rest of the contents of this para are denied. (xiv) Selected list of candidates had been handed over to Solan University for making appointments but the then Vice Chancellor has informed vide letter at Annexure R-1 that after the bifurcation, Solan University has adopted its own statutes and appointments for Solan University will have to be made a fresh and it will not be possible to make appointments on the basis of Joint Selection made by the HPKV. Further the then Vice Chancellor has stated that the candidates selected in joint selection will be given a reasonable opportunity for the employment for Solan University whenever it takes place (Annexure R-1).” 3 3. The following averments have been set up on behalf of respondents No.2 and 3, vide para 3, on merits : “ That the contents of this para are wrong and hence denied. There is no cause to the applicant to feel aggrieved of Annexure A-25 of OA as his seniority has rightly been determined by the replying respondents. In fact the applicant is not entitled to file and maintain the present OA against the replying respondent University. In this regard, it is submitted that as per procedure, limited departmental test was conducted on 11.7.1986 in the case of Adhoc/daily paid Clerks and appointment of such candidates including applicant was made in order of merit drawn on the basis of their performance in the said test. It is also stated here that while taking up the appointment on 1.8.1986 the applicant did not indicate his reservation with regard to his position assigned to him as on 1.8.1986 in appointment order and he joined as such on 1.8.1986. A copy of his joining report is annexed herewith as Annexure as R-1. Thereafter, the petitioner also did not submit any representation on the tentative seniority list of Clerks as it stood on 1.4.1989 in the respondent University and circulated vide OM dated 22.4.1989 (copy already annexed as A-25 of OA) It is, therefore, clear that the position in the order of merit in appointment order as well as seniority list as it stood on 1.4.1989 was 4 acceptable to the applicant and his plea under this para is a result of an after thought apprehensions just to strengthen his OA on flimsy grounds which is not maintainable. It is, thus too late for the applicant to agitate/stake his claim. So far as Annexure A-31 of OA is concerned; it is submitted that in the faithful observance of the directives of Hon’ble High Court of Himachal Pradesh given on 21.7.1994, the applicant and respondent Nos.4 to 16 were heard in person by the Registrar of respondent No.2 dispassionately. After taking into consideration the relevant record with regard to appointment/promotion of applicant as well as respondent Nos.4 to 16 vis-à-vis the arguments/contentions heard from the both sides, it was gathered that there has been no irregularity or discrepancy on the part of respondent No.2, which warrant any change/amendment in the seniority assigned to the applicant and the respondents No.4 to 16 as well. The respondent No.2 has acted in a fair and proper manner by affording equal opportunity to both the parties to plead their cases. The communication of decision by respondent No.2 to the applicant as per Annexure A-31 of the OA itself speaks of observance of principles of natural justice. Regarding the part of H.P Krishi Vishvavidyalaya, the respondent No.1 in the OA though impressed upon the respondent No.2 (UHF) to accept a panel drawn by 5 respondent No.1 in March, 1986 on the basis of interview/test held during August/September, 1985 yet it was not obligatory on the part of respondent No.2 (UHF) to accept the said panel, as the respondent No.2 had already attained the status of full fledged University as on 1.12.1985. It was for the respondent No.1 to prepare panel of appointment within its own domain instead of thrusting it upon the respondent No.2, which had come into being much earlier i.e. on 1.12.1985 with it own criteria/procedure for appointment to various posts. The respondent No.2 rightly did not accept any panel sent by the respondent No.1 during March, 1986 and even returned the same. Thus, the respondent No.2 could not be held appointed by respondent No.1. It is, thus, evident that the respondent No.2 had acted in a very fair manner. It is, therefore, prayed that the name of respondent No.2 & 3 may be allowed to be deleted from this original application.” 4. Respondent No.4 has averred as under vide para 6 (i), (v) and (x) : “6. That in reply to para 6 relating to the facts of the case as set out in the O.A, the answering respondent submits sub-para- wise reply as under : i) It is not denied that applicant is serving on the establishment of respondent No.2. However, it is denied that there had been any acts of omission 6 and commission on the part of any of the respondents much less respondents 2 & 3 in the matter of seniority and regularization in service of the applicant in the matter of his appointment as Clerk. It is submitted that presently applicant as also the answering respondent, both, are Senior Assistants. However, the applicant was promoted as Senior Assistant in the year 1991 whereas the answering respondent has been promoted as such much later on 22.5.1996. Thus, also as against the answering respondent, the petitioner has no surviving cause in as much as the applicant is presently senior to the answering respondent as Senior Assistant. Otherwise also the applicant is not entitled to maintain the Original Application which is bound to be dismissed on the facts and circumstances in view of the contents of this reply. v) That the contents of this para of the OA are also matter of record. However, the respondents 1 to 3 are in possession of the records pertaining to the conduct of the said written test, typing test and interview held in August, 1985 and September 1985, as such the said respondents be directed to produce the relevant records pertaining to the said test and interview. x) That the contents of this para of the O.A as averred are not correct. It is submitted that the then employees working in the agricultural complex at 7 Solan under respondent No.1 were given option to either opt for respondent No.1 or 2. It seems, as a result of such offer, the applicant had opted to come under the establishment of respondent No.2 for which the process had already started even before the declaration of respondent No.2 as a full fledged University. Under these circumstances also the applicant cannot take advantage of the test conducted by respondent No.1. It is further submitted that the replying respondent had been working as a Beldar on daily wages in H.P. Krishi Vishwa Vidalaya at Solan from 1975 to 1981 where after w.e.f. 3.11.1981 the replying respondent was appointed as Peon on regular basis and continued to work as such till 1.5.1986 when he was promoted as a Clerk on regular basis under the establishment of respondent No.1 at Solan. Thereafter, the replying respondent was promoted as Senior Clerk w.e.f. 10.5.1988 and is continuing to work as Senior Assistant till date w.e.f. 22.5.1996. It is submitted that though the petitioner was appointed as a Clerk on regular basis vide order dated 1.8.1986 (vide Annexure A-17) since the replying respondent by that time had already been promoted as a regular Clerk i.e. w.e.f. 1.5.1986, as such the petitioner was rightly placed below the replying respondent in the Seniority list Annexure A-25. The replying respondent though was performing his duties efficiently and satisfactorily and was also senior to the 8 applicant yet for the reasons best know to them, and in denial to the entitlement and claim of the replying respondent, the applicant has been promoted as Senior Assistant (Accounts) which is a higher post in higher pay scale to that of a Senior Clerk. As such promotion of the applicant made in the year 1991 ignoring the claim and entitlement of the replying respondent to be promoted first being the senior most available senior clerk at the relevant time. Though the replying respondent has represented to the respondent No.2 authorities against such promotion of the applicant and denial of the claim and entitlement of the replying respondent, yet nothing concrete has followed. Therefore, the replying respondent reserves his right to seek appropriate Redressal against such illegal, arbitrary, unjust and unsustainable action of the respondent No.2. Since the entire service record, promotion orders etc. pertaining to the replying respondent, other private respondents Nos.5 to 16 and the applicant are with the respondent No.2 as such the respondent No.2 may be directed to produce the same before this Hon’ble Court in order to facilitate the just decision of the case.” 5. The stand on behalf of respondents No.5 to 9 is akin to that of respondents No.1 to 4. 6. The remaining respondents have not filed any reply. 9 7. Admittedly, the petitioner has been granted seniority as Clerk with effect from August, 1986. However, he claims regularization/seniority from August 26, 1985, relying mainly upon letter dated September 25, 1986, Annexure A- 30, addressed by the then Vice Chancellor of respondent No.1/University to his counter part of respondent No.2/University. 8. In the facts and circumstances of the case, the petition is disposed of with a direction to respondents No.2 and 3 that subject to the petitioner making a detailed representation supported by documents along with copy of this judgment within one month from today, the same shall be considered and decided by the said respondents in accordance with law by taking into consideration the aforesaid letter dated 25.9.1986, Annexure A-30, within next three months, after affording an opportunity of being heard to the petitioner and respondents No.4 to 16, if so desired. Needless to say that consequential benefits, if any, would follow the decision on the representation. 9. The petition stands disposed of, so also pending CMP (s), if any. (V.K. Sharma) Judge 25th March, 2011. cs