C.W.P. No. 19772 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 19772 of 2010 Date of Decision : April 26, 2011 Satya Vir Singh .... PETITIONER Vs. The Punjab and Haryana High Court ..... RESPONDENT CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. Rajiv Atma Ram, Sr. Advocate, with Mr. Nikhil Chopra, Advocate, for the petitioner. Ms. Radhika Suri, Advocate, for the respondent. * * * AUGUSTINE GEORGE MASIH, J. Petitioner, who is presently working as a Reader in High Court of Punjab and Haryana, has, through this writ petition, challenged the decision of the Committee dated 28.04.2010 (Annexure P-19) and 30.08.2010 (Annexure P-22) approved by the Chief Justice, whereby the claim of the petitioner for promotion to the post of Court Secretary and thereafter, Special Secretary stands declined with a further prayer for issuance of a writ of mandamus directing the High Court to count the experience of the petitioner as Reader w.e.f. 03.02.2005 (the date of his C.W.P. No. 19772 of 2010 2 notional appointment) and to promote the petitioner to the post of Court Secretary and thereafter, Special Secretary w.e.f. the date when his batch mates were promoted with all consequential benefits and if required, to invoke the provisions of Rule 38 of the High Court Establishment (Appointment and Conditions of Service) Rules, 1973 (hereinafter referred to as 'the 1973 Rules'), which provides for dispensing with or relaxation for the purpose of counting the experience. The undisputed facts, as per the pleadings of the parties, are that the petitioner was appointed as a Clerk by direct recruitment in the District Courts on 05.08.1981. He was promoted to the post of Assistant on 16.12.1998 and thereafter, as Superintendent on 13.05.2005, on which post he joined on 18.05.2005 in the office of the District and Sessions Judge, Ambala. The High Court, vide Memo dated 27.07.2002, invited applications for the post of Reader to the Hon'ble Judges, which were to be filled up on the basis of a competitive examination, which consisted of written test and interview. The written test was conducted in the year 2003 and the interview in the year 2004. The petitioner participated in the selection process and was placed at Sr. No. 7 in the select list. As six vacancies were available, candidates placed at Sr. No. 1 to 6 of the select list were appointed as Readers on 27.11.2004 (hereinafter referred to as 2004 Batch). Thereafter, 7th vacancy arose on 03.02.2005 but the petitioner was not offered the appointment on the ground that CWP No. 3250 of 2005 stood filed in the High Court by Baljinder Singh Teja and another, who were unsuccessful candidates, challenging the selection. The said writ petition was dismissed as withdrawn on 20.09.2005 with liberty to file another writ petition by impleading the necessary parties. CWP No. 16345 of 2005 was thereafter filed. But the petitioner was not C.W.P. No. 19772 of 2010 3 impleaded as a respondent and was thus not party to the litigation. It would not be out of way to mention here that no order restraining the respondent- High Court to appoint the selected candidates was passed in the said case. The petitioner enquired from the office as to why he was not being appointed despite there being a vacancy, to which he was informed by the office that it was because of the pendency of the writ petition that no appointment letter was being issued to him. In the month of October, 2005, the High Court issued another notification for recruitment to the post of Reader. The petitioner, at that stage, when the selection process for fresh recruitment was in progress, submitted a representation dated 23.03.2006. His request for appointment as a Reader was based on the ground that there was no stay of appointment and at the most, the appointment of the petitioner may be made subject to the final outcome of the said writ petition and as the result of the writ petition would affect all the candidates of the batch, there was no justification to withhold his appointment. He further stated that he was being discriminated against as his other batch mates stood on same footing were working as Readers in the High Court. He stated that the High Court had issued a fresh notification and if the fresh batch is appointed, the interest of the petitioner would be prejudiced. No reply was received by him. He again submitted a representation dated 01.05.2006 but with no result. The High Court proceeded to appoint 7 fresh Readers on 10.05.2006 (hereinafter referred to as 2006 Batch). Petitioner No. 1- Baljinder Singh Teja in CWP No. 16345 of 2005 was one of the appointed candidates. Another selection to the post of Reader in the High Court was initiated and 18 fresh Readers were appointed on 10.12.2007 (hereinafter C.W.P. No. 19772 of 2010 4 referred to as 2007 Batch) but the petitioner was not issued the appointment letter. During the pendency of CWP No. 16345 of 2005, on 20.02.2007, the batch mates of the petitioner i.e. 2004 Batch were promoted to the post of Officiating Court Secretary. Then on 08.08.2008, 2006 Batch was promoted by the High Court as Court Secretary. Ultimately, on the dismissal of CWP No. 16345 of 2005 on 18.1.2008 challenging the selection of the 2004 Batch, in which the petitioner was also selected, the District and Sessions Judge, Jind, vide letter dated 09.08.2008, informed the petitioner that vide letter dated 06.08.2008 of the High Court, he had been directed to inform the petitioner that an offer of appointment by promotion as Officiating Reader on the establishment of the High Court has been given and if the petitioner is interested, he may give his consent. The petitioner submitted a representation dated 13.08.2008 seeking extension of time for joining on medical grounds. He further requested that he be given appointment from the date the 7th vacancy arose i.e. 03.02.2005 and corresponding seniority be granted to him without any arrears of pay. A clarification dated 01.10.2008 was issued by the High Court informing the petitioner that his seniority would be regulated by Rule 30 of the 1973 Rules. The petitioner made a representation dated 30.10.2008 and 18.10.2008 seeking specific clarification as to whether on joining the post of Reader his seniority would be above 26 candidates appointed on the post of Reader in the years 2006 and 2007. These representations of the petitioner were duly considered by the Committee on 08.01.2009 and the petitioner was informed that his appointment would relate back to the date on which the 7th vacancy occurred in the cadre of Readers i.e. 03.02.2005 and his seniority would be regulated by Rule 30 of C.W.P. No. 19772 of 2010 5 the 1973 Rules and accordingly, the petitioner was offered appointment to the post of Reader w.e.f. 03.02.2005 vide letter dated 06.02.2009. The petitioner joined service as Reader in the High Court on 14.05.2009 after relinquishing his charge of the post of Superintendent to the District and Sessions Judge, Jind on 13.05.2009. On joining, the petitioner submitted a representation dated 18.05.2009 requesting for promotion to the post of Court Secretary w.e.f. 07.02.2007, the date on which his other batch mates were so promoted. The High Court issued notification dated 22.05.2009, according to which, the date of appointment of the petitioner as Officiating Reader was shown to be w.e.f. 14.05.2009. He submitted a representation dated 26.05.2009 requesting to rectify his date of appointment as 03.02.2005 in terms of the letter dated 06.02.2009 but no immediate decision was taken thereon and the representation remained pending. On 12.01.2010, 17 out of 18 candidates of 2007 batch were also promoted from the post of Reader to the post of Court Secretary. The representations dated 18.05.2009 and 26.05.2009 submitted by the petitioner were considered by the Committee on 28.04.2010 wherein his representation dated 26.05.2009 seeking rectification of the notification dated 22.05.2009 in which his date of appointment as Officiating Reader was mentioned as 14.05.2009 instead of 03.02.2005, was accepted. However, his representation dated 18.05.2009 claiming promotion as Court Secretary w.e.f. 07.02.2007 i.e. the date when his other batch mates were promoted, was rejected on the ground that the petitioner lacked the three years working experience on the post of Reader, which was mandated under Rule 8 (iii) of the 1973 Rules for promotion to the post of Court Secretary with a further observation that his case for promotion to the post of Court Secretary shall be considered as and when C.W.P. No. 19772 of 2010 6 he completes his three years experience on the post of Reader (Annexure P-19). It requires mention here that all selectees of the 2004, 2006 and 2007 Batch were promoted as Court Secretaries and Special Secretaries by invoking the provisions of Rule 38 of the 1973 Rules, which vests power in the Chief Justice to by order dispense with or relax the requirements of any rule, as none of them fulfilled the mandate of Rule 8 (iii) as regards requirement of experience. In the light of the acceptance of the representation of the petitioner dated 26.05.2009, notification dated 10.05.2010 was issued modifying the earlier notification dated 22.05.2009 stating therein that the appointment of the petitioner as Officiating Reader was w.e.f. 03.02.2005. Two of the batch mates of the petitioner, namely, Ish Kumar and Mam Raj were promoted as Special Secretary on 16.05.2009 and Satish Kumar Vig, Dinesh Mohan and Sushil Gupta on 26.02.2010. The petitioner submitted representation dated 03.05.2010 requesting to be promoted as Court Secretary and Special Secretary from the date when the candidates of his batch i.e. 2004 Batch stood promoted to the said posts and before the date of promotion of the selected Readers of his subsequent batches i.e. 2006 and 2007 Batches. In this representation, the petitioner referred to instructions dated 13.06.1996 issued by the Government of Punjab, which dealt with cases where promotion was made subsequent to the date of promotion of the junior, as to whether the experience has to be counted from the date of actual promotion or from the date his junior was promoted. These instructions stated that whenever a senior official was given promotion from the date of junior official i.e. the promotion is given from the retrospective date, in that case for giving next promotion, the working experience of the senior official has to be treated C.W.P. No. 19772 of 2010 7 from the promotion given from the retrospective date and not from the date of actual promotion. In the meanwhile, when the representation of the petitioner was under consideration, Sh. Onkar Singh, who belongs to the selected candidates of 2006 batch, was promoted as Officiating Special Secretary on 27.08.2010. In this order of promotion, it was specifically mentioned that his promotion would be subject to the claim of the petitioner. The representation dated 03.05.2010 of the petitioner was considered by the Committee in its meeting dated 30.08.2010 and rejected the same again on the ground that the petitioner lacked three years experience for promotion to the post of Court Secretary (Annexure P-22). Faced with this situation, the petitioner has challenged the decision of the Committee of this Court dated 28.04.2010 (Annexure P-19) and 30.08.2010 (Annexure P- 22), vide which the claim of the petitioner for promotion to the post of Court Secretary and Special Secretary has been declined. Counsel for the petitioner contends that the petitioner is a victim of the judicial process with no fault of his. He was duly selected as Reader in pursuance of the Memo dated 27.07.2002, for which the selection process stood completed in the year 2004 and six of his batch mates were appointed on 27.11.2004. The 7th vacancy arose on 03.02.2005, on which date the petitioner was available for appointment being a duly selected candidate and should have been issued appointment letter but was not appointed merely on the ground that the selection was challenged firstly in CWP No. 3250 of 2005, which was withdrawn on 20.09.2005 as there were certain defects therein with liberty to file another one. Thereafter, another CWP No. 16345 of 2005 was filed and was finally dismissed on 18.01.2008. There was no stay on appointment of the C.W.P. No. 19772 of 2010 8 petitioner but merely because the writ petition was pending, he was not issued an appointment letter. Ultimately, the petitioner was given his due when he was, vide letter dated 06.02.2009, offered appointment to the post of Reader w.e.f. 03.02.2005 when the 7th vacancy arose but despite giving the said benefits, the consequential benefits have been denied to him. The only claim, which the petitioner had foregone, was the financial benefits, thus, the petitioner was entitled to be considered for promotion along with his batch mates to the post of Court Secretary and Special Secretary. He contends that Court can do no wrong and the act of Court cannot harm the interest of any deserving person and if it does happen, the same needs to be rectified. To deal with such contingencies, Rule 38 of the 1973 Rules stands enacted which deals with powers of the Chief Justice to relax the Rules in favour of the individuals where the operation of any Rules causes undue hardship in any particular case. This Rule not only provides for relaxation but gives the power to the Chief Justice to dispense with the requirement of the Rule, which causes such undue hardship. His contention is that the said Rule has not been taken into consideration by the Committee in its true spirit and ambit. The claim of the petitioner stands rejected merely on the ground that the petitioner does not possess the minimum experience of three years as Reader and it has further been observed in the impugned decisions that his case would be considered for promotion as and when he completes three years experience on the post of Reader. The Committee has not taken into consideration the fact that even the batch mates of the petitioner and the officials of the subsequent selected batches have been granted promotion by invoking the relaxation Clause of Rule 38 of the 1973 Rules. This he submits on the basis of the proceedings of the meeting attached by the High Court in reply to the writ C.W.P. No. 19772 of 2010 9 petition. Referring to the instructions of the Punjab Government dated 13.06.1996, he submits that the said instructions are applicable to the case of the petitioner and, therefore, he is entitled to the counting of the experience from the date of his notional date of appointment for the post in question. Reliance has been placed on a judgment of the Supreme Court in the case of Union of India vs. Sadhana Khanna, 2008 (2) SCT 628 and a judgment of this Court in the case of Hawa Singh Sangwan vs. Union of India and others, 1991 (6) SLR 753, to contend that delay in appointment due to procedural difficulties cannot be made a reason for denying the selected candidate the benefit which he would have been entitled to, if he would have been appointed on his selection along with others. On the other hand, counsel for the respondent-High Court has argued that mandate of Rule 8 of 1973 Rules cannot be waived. The claim of the petitioner was duly considered by the Committee and on due consideration, it was found that the petitioner did not fulfil the requirement of three years working experience as Reader and, therefore, cannot be promoted as a Court Secretary. In support of this contention, she placed reliance upon the judgments of the Supreme Court in Union of India and another vs. M. Bhaskar and others, JT 1996 (5) SC 500, A. Madhudeswaran and others vs. Government of Tamil Nadu and others, JT 1996 (5) SC 506, wherein it has been held that a person promoted to a higher grade cannot gain experience from the date of notional promotion and the experience has to be taken from the date of actual promotion. Since the petitioner has been notionally appointed on an earlier date, he is not entitled to the benefit of the said appointment as for experience, he would have to work on the said post which the petitioner C.W.P. No. 19772 of 2010 10 has not and thus, the decision of the High Court is in accordance with law. Reliance has further been placed on a judgment of this Court passed in CWP No. 12174 of 2008 titled as Shamsher Singh vs. High Court of Punjab and Haryana, Chandigarh and others, decided on 17.12.2009. I have heard the counsel for the parties and have gone through the records of the case. A perusal of the above facts lead to a conclusion that the right of the petitioner for appointment to the post of Reader with effect from the date of occurrence of the 7th vacancy i.e. 03.02.2005 stood acknowledged and recognized by this Court as is apparent from the minutes of the meeting of the Committee which considered the representation of the petitioner as Reader by granting him seniority in accordance with the merit list of 2004 Batch held on 08.01.2009 (Annexure P-12). On consideration of the representation and detailing the facts, it was noted that after the dismissal of CWP No. 16345 of 2005 on 18.01.2008, wherein selection of the 2004 Batch was under challenge, there was no obstacle in the way of the claim of the petitioner for appointment against the post. In fact, the appointment of the petitioner had remained stalled for the solitary reason of pendency of the aforesaid writ petition. The relevant portion of the minutes of the meeting reads as follows:- “ Intervening the selection of Shri Satya Vir Singh in the year 2004, and the disposal of the pending litigation on 18.1.2008, two further processes of selection were conducted. In the first process of selection held in the year 2006, 8 further appointments were made to the post of Reader. Thereafter, 18 more Readers were appointed in a process of selection C.W.P. No. 19772 of 2010 11 conducted in the year 2007. Justice will be deemed to be done to the representationist only if his appointment relates back to the date when the 7th vacancy in the cadre of Readers against which he was selected in the year 2004 is given to him specially when the said vacancy was kept vacant for him. And additionally on account of the fact that the selection of the representationist was made well before the selection of 8 and 18 candidates during the years 2006 and 2007 respectively. The committee accordingly recommends that the representationist Shri Satya Vir Singh be offered appointment against the post of Reader with effect from the date of the arising of the vacancy in the cadre of Readers against which he was selected. He will however, not be entitled to any arrears in terms of his own undertaking. He be also informed that his seniority will be regulated under Rule 30 of the High Court Establishment (Appointment and Conditions of Service) Rules, 1973 on the basis of the date of his appointment, referred to herein above.” It would not be out of way to mention here that the recommendation of the Committee was accepted by the Chief Justice and in pursuance thereto, appointment letter dated 06.02.2009 was issued to the petitioner to the post of Reader. A perusal of the above would leave no manner of doubt that the appointing authority accepted that the petitioner deserved to be appointed from the date the 7th vacancy arose and specially when the vacancy was kept vacant for him despite there being subsequent selections in the years 2006 and 2007. It further shows that the petitioner C.W.P. No. 19772 of 2010 12 was granted the benefits from the said date but was not entitled to any arrears in terms of his own undertaking. The petitioner thereafter, claimed his other consequential rights i.e. promotion to the post of Court Secretary and Special Secretary from the date his batch mates were promoted and if not, then from the date the members of the subsequent batches i.e. 2006 and 2007 were given promotions as such. The claim of the petitioner for promotion was denied only on the ground that the petitioner did not fulfill the minimum three years experience as Reader as mandated under Rule 8 (iii) of the 1973 Rules. It needs mention here that all selectees of the 2004, 2006 and 2007 batch were promoted as Court Secretaries and Special Secretaries by granting relaxation in the experience as provided in Rule 8 (1) (i) (a) and 8 (iii) of the 1973 Rules by invoking Rule 38 of these Rules, which empowers the Chief Justice to dispense with or relax the requirement of any Rule by order where he is satisfied that the operation of any Rule causes undue hardship in any particular case. At this stage, reference to Rule 8 (1) (i) (a) and 8 (iii) of the 1973 Rules, as it existed at the relevant time, would be necessary, which reads as follows:- “ 8 (1) (i) (a). Special Secretary “ Appointment to the post of Special Secretary shall be made by way of selection from amongst the Secretaries and Court Secretaries, having experience as such for a minimum period of three years and who are graduates.” “ Secretaries 8 (i) & (ii) xxx xxx xxx xxx 8 (iii) By selection from out of the Private Secretaries and Readers to the Judges, who have experience of working as C.W.P. No. 19772 of 2010 13 Private Secretary or Reader for a minimum period of three years and who are graduates. (a) The persons selected from the cadre of Private Secretaries shall be designated as Secretaries and the persons selected from the cadre of Readers shall be designated as Court Secretaries; (b) The Persons who are already promoted as Assistant Registrars or Deputy Registrars or serving elsewhere from cadre of Private Secretaries/Readers but not confirmed, shall be eligible to give their options for being considered to the posts of Secretaries within fifteen days from the date of the notification. (c) The inter-se seniority of the Secretaries and Court Secretaries shall not be disturbed and shall not be interchangeable.” The Committee constituted by the Chief Justice under Article 229 of the Constitution of India i.e. High Court Estt.-I Committee in its meeting held on 28.04.2010 (Annexure P-19) while considering the representation dated 18.05.2009 of the petitioner for promotion, did not take into consideration Rule 38 of the 1973 Rules which was invoked while promoting the batch mates of the petitioner i.e. 2004 Batch as also the subsequent 2006 and 2007 Batch selectees. Similar was the situation when the representation of the petitioner dated 03.05.2010 was considered by the Committee in its meeting held on 30.08.2010. C.W.P. No. 19772 of 2010 14 Reference, at this stage, to Rule 38 of the 1973 Rules would be necessary, which reads as follows:- “ Power to relax rules in favour of individuals: 38. Where the Chief Justice is satisfied that the operation of any rule causes undue hardship in any particular case, he may by order dispense with or relax the requirements of that rule to such extent and subject to such conditions as he may consider necessary for dealing with the case in a just and equitable manner provided that the case is not dealt with in a manner less favourable to the officer or official concerned than in accordance with the rules.” This Rule, when read, gives the power to the Chief Justice to do complete justice befitting to the office held by him. His power to do justice has been given precedence over the shackles and restrictions as imposed by these Rules. As per this rule, the satisfaction is his while dealing with the case of an individual that the operation of any Rule causes undue hardship. Once such satisfaction is reached, the Rule envisages