IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 6521 of 2008 Judgment reserved on 24.11.2010 Date of decision: 2 .12. 2010 Dharam Chand Dhiman ….. Petitioners Vs. H.P. State Commission for Backward Classes and Ors …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Ajay Mohan Goel, Advocate. For the Respondents : Mr. D.K. Khanna, Advocate for respondent No.1. Mr. J.S. Rana, Assistant Advocate General, for respondents No.2 and 3. Mr. Dilip Sharma, Advocate, for respondent No.4. Kuldip Singh, J. The petitioner in the context of his claim to the post of Private Secretary in respondent No.1 has prayed mainly the following relief(s):- (i) That the impugned Annexures A-3, A-4, A-6, A-15 & A-17, dated 21st December, 94, 5th April, 1995, 21st March, 1996, 10th May, 1999 and 6th January, 2000 respectively may be quashed and set aside. (ii) That the respondents No. 1 to 3 may be directed to initiate the process for selection for the post of Private Secretary as per Annexure A-11 i.e. Recruitment & Promotion rules for the post of Private Secretary and Whether the reporters of the local papers may be allowed to see the Judgment? …2… to effect promotion w.e.f. the year 1995 when the respondent No.4 had started discharging the duties of Private Secretary. (iii) That the alternative the respondents No.1 to 3 may be directed to upgrade the post of Personal Assistant to that of Private Secretary as per recommendations made by the respondent No.1, vide Annexures: A-5, A-7, and A-16, w.e.f. 5th April, 1995, when the respondent No.4, who was junior to the applicant was appointed as Private Secretary. (iv) That the respondents No.1 to 3 may be directed to consider and promote the applicant to the post of Private Secretary and he may also be held entitled for all the consequential benefits like arrears of salary, seniority and other benefits w.e.f. 5th April, 1995. 2. The facts in brief are that Himachal Pradesh State Commission for Backward Classes Order, 1993 (for short Order) was notified on 30.9.1993. The clause (3) of the Order provides constitution of Himachal Pradesh State Commission for Backward Classes. The clause (5) of the Order provides that State Government shall provide the Commission with such officers and employees as may be necessary for the efficient performance of the functions of the Commission. Sub-clause (2) of clause(5) provides that salaries and allowances payable to, and the other terms and conditions of service of officers and other employees of the Commission shall be such as may be determined by the State Government from time to time. The petitioner vide office order dated 17.1.1995 was appointed as Personal Assistant in the Himachal Pradesh State Commission for Backward Classes …3… (for short Commission) w.e.f. 6.1.1995 pursuant to the creation of the post vide letter dated 14.10.1993 of H.P. Govt. Social & Women’s Welfare Department, the petitioner was appointed on deputation in the Commission for the period of one year which could be extended from time to time. 3. The respondent No.1 before his appointment in the Commission by way of deputation was working as Senior Scale Stenographer in the pay scale of `1800-3200 in Industries Department his parent department. The respondent No.4 was appointed on deputation with the Commission in the month of October, 1993. 4. The petitioner was already drawing the pay scale of `2000-3500 w.e.f. 1.1.1986 in his parent department and he was given the same pay scale of `2000-3500 plus `150/- special pay as Personal Assistant in the Commission. The respondent No.4 was in the pay scale of `1800-3200 in the Industries Department as Senior Scale Stenographer but in the Commission he was given pay scale of `2000-3500 as Personal Assistant. The petitioner was in higher scale in his parent department in comparison to respondent No.4. The petitioner was already working as Personal Assistant in the pay scale of `800-1400 in his parent department w.e.f. 22.10.1980 which was revised to `2000-3500 w.e.f. 1.1.1986. In other words the petitioner had been working as Personal Assistant w.e.f. 22.10.1980 whereas respondent No.4 was appointed as Personal Assistant in October, 1993. …4… 5. The respondent No.4 was promoted to officiate as Private Secretary in the pay scale of `2200-4000 on 21.12.1994 on the repatriation of Ravi Kant Sood, Private Secretary to High Court of Himachal Pradesh. 6. The petitioner was legitimately expecting that his case would be considered for the post of Private Secretary since he had been working as Personal Assistant since 22.10.1980. The petitioner was available for being considered for the post of Private Secretary, however, for the reasons best known to commission the respondent No.4 was appointed as Private Secretary in the pay scale of `2200-4000 + `300 as special pay by the commission vide office order dated 5.4.1995, on deputation for one year on the pretext that respondent No.4 was granted proforma promotion as Superintendent in the parent department from 23.3.1995. The post of Superintendent carried the pay scale of `2000-3500. The Commission had granted this pay scale to respondent No.4 when he was appointed on deputation basis as Personal Assistant on 21.10.1993. The respondent No.4 could not be permitted to officiate as Private Secretary on the analogy that he had earned proforma promotion as Superintendent in his parent department since the post of Superintendent was never a feeder category to the post of Private Secretary. 7. The petitioner was not considered for the post of Private Secretary, the Chairman of the Commission vide letter dated 12.7.1995 had requested for up-gradation of the post of Personal Assistant to the post of Private Secretary. There were …5… two posts of Personal Assistants available in the Commission since the very inception. 8. The Chairman of the Commission vide office order dated 21.3.1996 had extended the deputation of respondent No.4 as Private Secretary for a period of one year w.e.f. 23.3.1996 to 22.3.1997. The Chairman of the Commission on 20/23.9.1996 had written another letter to Chief Minister for upgrading the post of Personal Assistant to the post of Private Secretary. 9. The petitioner had submitted a representation dated 6.6.1996 to the Commission against the illegal promotion of respondent No.4 to the post of Private Secretary without considering the genuine and legitimate claim of the petitioner. The petitioner believes that his representation was kept pending till the framing of Recruitment & Promotion Rules for the post of Private Secretary to settle the matter finally. The petitioner was legitimately expecting that a favourable decision would be taken by the Commission after formulating the Recruitment & Promotion Rules for the post of Private Secretary, but no decision was taken by the Commission, rather respondent No.4 and petitioner were transferred to the Commission vide office order dated 27.9.1996 with a rider that the transfer of respondent No.4 as Private Secretary would be subject to the final decision of the representation of the petitioner. The petitioner was promised that the final decision would be taken only after the framing of Recruitment & Promotion Rules for the post of Private Secretary. …6… 10. In pursuance to the decision dated 5.3.1997 of the Sub Committee for absorption of staff, the petitioner and respondent No.4 were absorbed in the Commission. 11. The Himachal Pradesh Backward Classes, Private Secretary, Class –II ( Gazetted) Recruitment & Promotion Rules, 1998 ( for short Rules) were notified on 9.11.1998. The method of recruitment for the post of Private Secretary as per Rule 10 of the rules is 100% by promotion, failing which by deputation. As per Rule-II, the promotion is to be effected from amongst the Personal Assistants having five years regular service or regular combined with continuous ad hoc (rendered) upto 31.3.91 service in the grade failing which by deputation from the incumbents of the post of Private Secretary working in the identical pay scale from other Government Departments. The respondent No.4 did not fulfill eligibility criteria as he had never worked as Personal Assistant before his coming on deputation with the Commission. 12. It was incumbent upon the Commission to effect promotion to the post of Private Secretary on the basis of Rules by constituting D.P.C. for that purpose but no such steps had been taken by the Commission. The respondent No.4 continue to work as Private Secretary though his appointment as per office order dated 5.4.1995 was for a period of one year vide office order dated 21.3.1996. 13. The petitioner was fully eligible and qualified to be considered for the post of Private Secretary since he had been working in the pay scale of `2000-3500 before that scale was …7… allowed to respondent No.4 for the first time when he came on deputation with the Commission in October, 1993. The appointment of respondent No.4 for all intents and purposes is fortuitous and he cannot be permitted to continue as such without his suitability being adjudged by the properly constituted D.P.C. in conformity with Rules. 14. The petitioner submitted another representation to Commission on 12.1.1999 pointing out the illegality perpetuated by the Commission by promoting respondent No.4 as Private Secretary without getting his suitability adjudged by the properly constituted D.P.C. The Chairman of the Commission instead of deciding the matter promptly, called for the comments from respondent No.4 on the representation of the petitioner and respondent No.4 submitted his comments on 31.3.1999. The Chairman of the Commission on 10.5.1999 rejected the representation of the petitioner. 15. The case of the petitioner was favourably recommended by the Chairman of the Commission vide letters dated 12.7.1995 and 20/23.9.1996 to the State, but no favourable decision was taken on them. In these circumstances, the Chairman of the Commission vide letter dated 11.11.1999 had written to respondent No.2 for upgrading the post of Personal Assistant to the post of Private Secretary. This proposal of Chairman of the Commission was turned down vide communication dated 6.1.2000. …8… 16. It is case of the petitioner that Annexures A-3, A-4, A-15 and A-17 are illegal, arbitrary, discriminatory and in violation of Articles 14 and 16 of the Constitution of India. The mode of recruitment as per Rule 10 is 100% by promotion, failing which by deputation. The petitioner is fully eligible and qualified to be considered for the post of Private Secretary as per Rules. The non-consideration of the petitioner for the post of Private Secretary after coming into force of the Recruitment & Promotion Rules as held out to the petitioner by the Commission is wrong and illegal. The Chairman of the Commission has erred in rejecting the representation of the petitioner. The petitioner was not wrongly considered for appointment to the post of Private Secretary in the Commission. The matter regarding up-gradation of the post of Personal Assistant to the post of Private Secretary had been wrongly rejected by respondents No.2 and 3 without assigning any reasons. The petitioner has a fundamental right to be considered for promotion to the post of Private Secretary from the due date. On these facts, the petitioner has filed the petition praying therein reliefs noticed above. 17. The respondent No.1 has contested the petition by filing reply, in which it has been submitted that when the Commission was constituted it had to recruit its staff in the absence of any Recruitment and Promotion Rules. The respondent No.4 joined the Commission on deputation from the Industries Department as Personal Assistant in the pay scale of `2000-3500 in October, 1993 whereas petitioner joined on …9… deputation from H.P. State Small Industries and Export Corporation Ltd. as Personal Assistant in the same scale on 6.1.1995. Before the petitioner was taken on deputation respondent No.4 had already started officiating as Private Secretary w.e.f. 21.12.1994. In the meantime, the respondent No.4 was promoted as Superintendent in his parent department, he was appointed Private Secretary in the pay scale of `2200- 4000 plus `300/- as special pay w.e.f. 23.3.1995 for a period of one year. The petitioner and respondent No.4 were permanently absorbed in the Commission on 4.4.1997. The respondent No.4 was permanently absorbed as Private Secretary while the petitioner was absorbed as Personal Assistant to Member Secretary. This absorption order was not challenged by the petitioner at any time; the petitioner having accepted the absorption order dated 4.4.1997 cannot now turn to challenge the earlier orders. The absorption order dated 4.4.1997 is the very foundation of the service of the petitioner in the Commission. The rules for the post of Private Secretary in the Commission were notified on 9.11.1998 and came into force from that date. The appointment made earlier to the coming into force of these rules cannot be reviewed after these rules came into force. 18. It has been stated that respondent No.4 was taken on deputation in October, 1993 as Personal Assistant in the pay scale of `2000-3500. The Government vide letter dated 7.3.1994 had clarified that Chairman has full powers to make all appointments in the Commission. The respondent No.4 joined the Commission on …10… 28.10.1993 as Personal Assistant in the pay scale of `2000-3500 earlier in point of time in comparison to petitioner who joined in the Commission on 6.1.1995 as Personal Assistant in the same pay scale. The Government of H.P. was approached for up-gradation of the post of Personal Assistant to the post of Private Secretary but the same was not acceded to by the Government. The respondent No.1 has prayed for dismissal of the petition. 19. The respondents No.2 and 3 have filed joint reply and have submitted that Government has shown its inability to concur with the proposal of respondent No.1 for up-gradation of the post of Personal Assistant to the post of Private Secretary keeping in view the non-justification of the proposal as one post of Private Secretary was already sanctioned to the Commission. It was not necessary to communicate reasons for concurrence. It has been submitted that the petitioner is not entitled to any relief. 20. The respondent No.4 has filed reply wherein it has been stated that submissions made by respondent No.1 in the preliminary objection No.1 except that respondent No.4 was allowed the higher pay scale of `2200-4000 on the basis of the promotion in the parent department as Superintendent Grade-II w.e.f. 23.3.1995, may be considered to be adopted by respondent No.4 except and instead the respondent No.4 reasserted that he was allowed the higher pay scale of `2200-4000 plus `300/- as special pay w.e.f. 21.12.1994. The respondent No.4 has taken the plea of limitation. The Rules notified on 9.11.1998 operates prospectively and not retrospectively. The respondent No.4 was …11… permanently absorbed in the Commission as Private Secretary w.e.f. 4.4.1997 before coming into force of the Rules. The respondent No.4 has prayed for dismissal of the petition. The petitioner has filed rejoinders to the replies of respondents No.1 and 4 and denied their respective defence while reiterating his own case. 21. I have heard learned counsel for the parties. It has been submitted by learned counsel for the parties that respondent No.4 has retired on attaining the age of superannuation as Private Secretary on 31.10.2007, thereafter the petitioner has been promoted as Private Secretary in the Commission. On behalf of the respondents, it has been contended that vide office order dated 27.9.1996 respondents No.4 and petitioner, who were on deputation with the Commission, were taken on transfer in the commission. The Rules were notified on 9.11.1998 and as per rules the method of recruitment for the post of Private Secretary in the Commission is 100% by promotion, failing which by deputation. The promotion is to be effected from amongst the Personal Assistants having five years regular service or regular combined with continuous ad-hoc (rendered) upto 31.3.1991 service in the grade, failing which by deputation from the incumbents of the post of Private Secretary working in the identical pay scale from other Government Departments. 22. The respondent No.4 joined the Commission on deputation from the Industries Department as Personal Assistant in the pay scale of `2000-3500 in October, 1993. The petitioner …12… joined on deputation from H.P. State Small Industries and Export Corporation Ltd. as Personal Assistant in the pay scale of `2000- 3500 on 6.1.1995. The respondent No.4 started officiating as Private Secretary w.e.f. 21.12.1994 even before petitioner joined as Personal Assistant on 6.1.1995. The respondent No.4 was appointed Private Secretary in the pay scale of `2200-4000 plus `300/- as special pay w.e.f. 23.3.1995 for a period of one year. The respondent No.4 was permanently absorbed as Private Secretary in the Commission on 4.4.1997 whereas the petitioner was permanently absorbed as Personal Assistant in the Commission on 4.4.1997 vide Annexure A-10 and before that on 27.9.1996 vide Annexure A-9 the petitioner on transfer was taken on the post of Personal Assistant in the Commission whereas respondent No.4 on transfer was taken as Private Secretary in the Commission vide same office order dated 27.9.1996. These events took place before coming into force the Rules which were notified on 9.11.1998. The Commission was to recruit staff in absence of Recruitment and Promotion Rules and therefore, no fault can be found in the manner, method and procedure adopted by the Commission for the appointments of respondent No.4 as Private Secretary and petitioner as Personal Assistant in the commission. 23. It has been submitted that appointments of respondent No.4 as Private Secretary and petitioner as Personal Assistant by way of transfer were subject to the decision of the representation of the petitioner. It has been submitted that the petitioner had …13… submitted representation and therefore, no benefit of office order dated 27.9.1996 for appointment of respondent No.4 as Private Secretary by way of transfer can be given to respondent No.4. In the meantime on 4.4.1997 vide Annexure A-10, the respondent No.4 was permanently absorbed as Private Secretary and petitioner as Personal Assistant in the Commission. The petitioner has filed a representation dated 12.1.1999 but in the said representation, the petitioner has said nothing specifically about the office order dated 27.9.1996 and order dated 4.4.1997. The representation of the petitioner was rejected. 24. In the writ petition the petitioner has not prayed for quashing of office order dated 27.9.1996 vide which respondent No.4 and petitioner were taken on transfer on the posts of Private Secretary and Personal Assistant, respectively nor the petitioner has prayed for quashing of order dated 4.4.1997 vide which respondent No.4 and petitioner were permanently absorbed as Private Secretary and Personal Assistant in the Commission. In absence of prayer for quashing of office order dated 27.9.1996 and order dated 4.4.1997, it is clear the petitioner has accepted the appointment of respondent No.4 as Private Secretary in the Commission. The grievance of the petitioner that he was already drawing the pay scale of Personal Assistant in his parent department whereas respondent No.4 was in the pay scale of Senior Scale Stenographer in the Industries Department has nothing to do with the appointment of respondent No.4 as Private Secretary prior to petitioner in the Commission. There is no force …14… in the contention of petitioner that since he was drawing pay scale of Private Secretary in his parent department and therefore, he was entitled to appointment of Private Secretary in the Commission in preference to respondent No.4. There were no Recruitment and Promotion Rules in the Commission for the post of Private Secretary when respondent No.4 and petitioner were permanently absorbed as Private Secretary and Personal Assistant. The petitioner has not made out a case that in absence of Recruitment and Promotion Rules, the appointment of respondent No.4 as Private Secretary prior to petitioner was illegal. 25. The petitioner has projected the case that Chairman of the Commission vide letter dated 12.7.1995 and another letter dated 20/23.9.1996 had recommended that one post of Personal Assistant may be upgraded to that of Private Secretary in the Commission. The Chairman vide letter dated 11.11.1999 had again written for upgrading the post of Personal Assistant to the post of Private Secretary. This proposal of the Chairman was turned down by letter dated 6.1.2000. The respondents No.2 and 3 in the reply have stated that there was no justification for up- gradation of the post of Personal Assistant to that of Private Secretary and therefore, the proposal was rejected. The petitioner has not made out a case that rejection of the proposal was arbitrary and illegal. The respondent No.4 has already retired and after his retirement the petitioner is now working as Private Secretary in the Commission and therefore, it is not necessary to …15… give direction to respondent No.1 to initiate process of selection for the post of Private Secretary as per rules. Thus, seen from any angle the petitioner has failed to make out any case. 26. No other point was urged. 27. The result of above discussion, petition fails and is accordingly dismissed. The pending applications, if any also stand disposed of. December 2, 2010 (Kuldip Singh), (sks) Judge.