IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 84/2006 Reserved on:11.9.2008 Decided on:25.9.2008 Narayan Singh. …Petitioner. Versus Hon’ble High Court of Himachal Pradesh and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the Petitioner : Mr. Keshav Thakur, Advocate. For the Respondents : Mr. Ajay Mohan Goel, Advocate for respondents No.1 and 2. Mr. Rajinder Dogra, Additional Advocate General With Mr. Vikas Rathore, Deputy Advocate General for respondent No.3. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the petitioner was appointed as a Peon in the Civil and Sessions Division Solan in the month of October, 1990. He was appointed as a Clerk (Civil Ahlmad) in the pay scale of Rs. 950-1800 w.e.f. 21.3.1995. He got himself transferred under Inter-District transfer scheme from Civil and 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 Sessions Division, Solan to Civil and Sessions Division, Kullu vide office order dated 1st October, 1999. He was relieved on 13th October, 1999. He joined his duties in Civil and Sessions Division, Kullu on 15th October, 1999. In exercise of the powers conferred under Article 309 of the Constitution of India, the Governor of Himachal Pradesh was pleased to make Himachal Pradesh Civil Services (Revised Pay) Rules, 1998 (hereinafter referred to as ‘the rules’ for brevity sake). These rules came into existence with effect from 1.1.1996. Vide separate notification dated 1.9.1998, the Himachal Pradesh Civil Services (Revised Pay) (First Amendment) Rules, 1998 were notified and the second schedule was added in the Revised Pay Rules, 1998. The petitioner made a representation to the learned District and Sessions Judge on 24th March, 2000 seeking grant of higher pay scale of Rs. 4400-7000 of Junior Assistant on the basis of notification dated 1.9.1998. The representation was rejected by the competent authority on 8.8.2000. On 31st May, 2001, Himachal Pradesh Civil Services (Revised Pay) (Third Amendment) Rules, 2001 came into force whereby it was decided that the post of Junior Assistant shall be filled by a placement to the extent of 100% out of the Clerks who have an experience of working as such for a minimum period of five years in the cadre of department in which he was working at the time of placement with retrospective effect from 1.1.1996. The effect of issuance of notification dated 31st May, 2001 was that the post of Junior Assistant was to be filled up by way of placement instead of promotion. He made a representation after the issuance of notification dated 31st May, 2001 on 13.11.2002 to the learned District Judge, Kullu seeking placement in the next higher pay scale. His representation was rejected on 24.11.2003. He was sanctioned additional increment by way of proficiency step up on 18.11.2004. 3 Mr. Keshav Thakur learned counsel appearing on behalf of the petitioner has strenuously argued that his client was to be considered for promotion to the post of Junior Assistant as per notification dated 1.9.1998 or by way of placement as per notification dated 31st May, 2001. He also contended that though his client was transferred from the Civil and Sessions Division, Solan to Civil and Sessions Division, Kullu, the services rendered by him on regular basis at the previous place of posting i.e. Civil and Sessions Division, Solan could not be excluded for consideration for promotion/placement. Mr. Ajay Mohan Goel and Mr. Rajinder Dogra, Additional Advocate appearing on behalf of respondents have submitted that the petitioner was placed at the bottom of the seniority list of Civil and Sessions Division, Kullu and he was to be considered for promotion only when the persons senior to him were promoted. He also submitted that once the employee is transferred at his request from one unit to another unit, he looses seniority and the services rendered by the incumbent at previous place of posting cannot be considered as an experience for the higher post. I have heard the learned counsel for the parties and perused the record carefully produced by Mr. Ajay Mohan Goel during the course of the hearing of this petition. It is clear from the facts set up in the opening portion of the judgment that the petitioner was appointed as a Clerk on regular basis in the Civil and Sessions Division, Solan on 10.1.1996. He was transferred at his request from Civil and Sessions Division Solan to Civil and Sessions Division Kullu on 1.10.1999. The copy of office order dated 1.10.1999 is available on record at page 196. It is mentioned in the office order dated 1.10.999 that as far as the seniority is concerned, they would rank junior 4 most in the cadre in the respective Sessions Divisions to which the transfer was made. The text of order 1.10.1999 reads thus: “Hon’ble the Chief Justice has been pleased to order the Inter-District Transfer on mutual basis of the following officials as requested by them:- 1. Shri Narayan Singh, Bain Nazir of the Court of Additional District and Sessions Judge, Solan is transferred to Kullu Sessions Division. 2. Shri Vinod Sharma, Naib Nazir of the Court of Sub Judge-cum-Judicial Magistrate, 1st Class, Manali is transferred to Solan Sessions Division. No transfer T.A., D.A. and Joining time, except actual journey day(s) to their new respective places of transfer, is admissible to them. As for their seniority they will rank junior most in the category/cadre in their respective Sessions Divisions to which this transfer is made.” He was relieved on 13th October, 1999. He joined at new place of posting i.e. Civil and Sessions Division Kullu on 15th October, 1999. The promotion to the post of Junior Assistant was regulated under Annexure PC dated 1.9.1998. It is clear from the notification that the post of Junior Assistant was to be filled in by promotion to the extent of 100% out of the Clerks who had an experience of working as such for a minimum period of five years in the cadre of the department in which he was working at the time of placement. He made a representation to the learned District Judge, Kullu. It was rejected on 8th August, 2000. Thereafter another notification Annexure PF came into force with effect from 31.5.2001 whereby for the word ‘promotion’, word ‘placement’ was used. These instructions were made applicable with effect from 1.1.1996. He made a representation on the basis of notification dated 31.5.2001, which was also rejected by the competent authority and by this Court on 3rd May, 2004. 5 The Inter-District transfer of Class-III and Class-IV employees is regulated as per instructions issued on 16th May, 1984. The Inter-District transfers are to the effected after considering extreme hardship as explained in the instructions. The desirous candidates seeking inter-district transfer are required to submit application in prescribed proforma alongwith supporting evidence. The application is to be processed by the learned District and Sessions Judge and thereafter after completing all the codal formalities, the papers are to be sent to the High Court. Annexure ‘C’ of the instructions dated 16.5.1984 lays down the proforma of undertaking. One of the columns of this Annexure ‘C’ is that the candidate has to give undertaking not to claim any seniority on the establishment of the transferred place and he undertakes to be placed below the junior most in the gradation list of the new division. Mr. Ajay Mohan Goel has drawn the attention of the Court to the seniority list filed alongwith reply. It is true that the petitioner was placed at the bottom of the seniority list. The short question involved is whether the service which the petitioner has rendered in Civil and Sessions Division, Solan will be wiped out or can it be counted towards experience for the purpose of eligibility for promotion at the place where he has been transferred i.e. Civil and Sessions Division, Kullu. This question had fallen for consideration before their Lordships of the Hon’ble Supreme Court in Union of India and others versus C.N. Ponnappan, (1996) 1 SCC 524. Their Lordships have held as under: “The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for the purpose of leave and retrial benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the 6 place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred.” In the present case the incumbent who is to be promoted to the post of Junior Assistant should have minimum period of 5 years in the cadre. Their Lordships of the Hon’ble Supreme Court in Scientific Advisor to Raksha Mantri and another versus V.M. Joseph, (1998) 5 SCC 305 had again the occasion to go into whether the services rendered on equivalent in another organization before unilateral transfer at own request could be counted eligibility for promotion. Their Lordships have also held that such service counts for promotion though it may not count for seniority. Their Lordships have further held that the period of services rendered by an employee at the earlier place where he held a permanent post and had acquired permanent status, cannot be excluded from consideration for determining his eligibility for promotion, though he may have been placed at the bottom of seniority list at the transferred place. Their Lordships have finally held that eligibility for promotion cannot be confused with seniority as they are two different and distinct factors. Their Lordships have held as under: “From the facts set out above, it will be seen that promotion was denied to the respondent on the post of Senior Store Keeper on the ground that he had 7 completed 3 years of regular service as Store Keeper on 7th June, 1980 and, therefore, he could not be promoted earlier than 1980. In coming to this conclusion, the appellants excluded the period of service rendered by the respondent in the Central Ordnance Depot, Pune, as a Store Keeper for the period from 27th April, 1971 to 6th June, 1977. The appellants contended that, since the respondent had been transferred on compassionate ground, on his own request to the post of Store Keeper at Cochin and was placed at the bottom of the seniority list, the period of 3 years of regular service can be treated to commence only from the date on which he was transferred to Cochin. This is obviously fallacious inasmuch as the respondent had already acquired the status of a permanent employee at Pune where he had rendered more than 3 years of service as a Store Keeper. Even if an employee is transferred at his own request, from one place to another, on the same post, the period of service rendered by him at the earlier place where he held a permanent post and had acquired permanent status, cannot be excluded from consideration for determining his eligibility for promotion, though he may have been placed at the bottom of the seniority list at the transferred place. Eligibility for promotion cannot be confused with seniority as they are two different and distinct factors.” In the present case even though the petitioner has been placed at the bottom of the seniority list, however, the services rendered by him at Solan could not be excluded by confusing it with the seniority. Their Lordships of the Hon’ble Supreme Court have reiterated the principles as laid down in the case Scientific Advisor to Raksha Mantri and another versus V.M. Joseph (supra) in Union of India and another versus V.N. Bhat, (2003) 8 SCC 714. Their Lordships have held that even on voluntary transfer, employee only loses seniority and not other benefits 8 and cannot be deprived of his experience and eligibility for promotion. Their Lordships have held as under: “The submission of the learned counsel for the appellants in short is that having regard to the admitted fact that the respondent herein has not completed 16/26 years in the postal service, the One Time Bound Promotion Scheme or B.C.R. Scheme is not applicable in his case. The fact that the respondent herein had completed 18 years of service in the Ministry of Defence is not disputed. The question which, therefore, arises for consideration is as to whether the period of service rendered by the respondent in the Ministry of Defence should be wiped off for all purposes ? The well settled principle of law that even in the case where the transfer has been allowed on request, the concerned employee merely loses his seniority, but the same by itself would not lead to a conclusion that he should be deprived of the other benefits including his experience and eligibility for promotion. In terms of the Schemes aforementioned, promotion is to be granted for avoiding stagnation only within the said parties. The said Schemes have been framed because they are beneficial ones and thus required to be implemented. The Scheme merely perused that any person having rendered 16/26 years of service without obtaining any promotion could be entitled to the benefit therefor. It is, therefore, not a case where promotion to the higher post is to be made only on the basis of seniority. Even in a case where the promotion is to be made on the selection basis, the concerned employee, even if he be placed at the bottom of the seniority list in terms of the order of transfer based in his favour, he cannot be deprived of being considered for promotion to the next higher post if he is eligible therefor. This aspect of this Court, namely, A.P. SEB v. R. Parthasarathi - 1998(9) SCC 425 : 1999(1) SCT 268 (SC), Scientific Advisor to Raksha Mantri v. V.M. Joseph - 1998(5) SCC 305 : 1998(2) SCT 779 (SC) and 9 renu Mullick v. Union of India - 1994(1) SCC 373 : 1994(1) SCT 638 (SC).” Mr. Ajay Mohan Goel has referred K.P. Sudhakaran and another versus State of Kerala and others, (2006) 5 SCC 386 while submitting that the period rendered by the petitioner at Solan could not be counted for the purpose while promoting or placing him in the cadre of Junior Assistant. In this judgment rule 27 (a) of the Kerala State and Subordinate Services Rules, 1958 was amended by introducing a proviso providing for the consequences of “own transfer’. In the present case, Mr. Ajay Mohan Goel has failed to draw the attention of the Court to any rules whereby consequences of “own transfer’ were prescribed. What could be gathered from the instructions on the subject and the undertaking which the petitioner had given at the time of seeking his transfer is that he would loose his seniority and will be placed at the bottom of the seniority list. The question whether an employee who is transferred from one unit to another unit and is placed at the bottom of the gradation list can be deprived of being considered for promotion to the next higher by not counting the services which he has rendered in the earlier unit, was answered by their Lordships in the judgment cited hereinabove. Their Lordships have laid down that the services rendered at the previous unit cannot be counted for the purpose of seniority in the new unit, however, the eligibility for promotion cannot be confused with seniority as these are two different and distinct factors. Consequently, in view of the observations made hereinabove, it is held that the services rendered by the petitioner in Civil and Sessions Division Solan are to be counted for the purpose of promotion to the post of Junior Assistant whether by way of promotion or by way of placement as per Annexure PC and PF dated 1.9.1998 and 31.5.2001 respectively. 10 The representations made by the petitioner have been rejected without assigning any reasons. It is settled law by now that as and when the representations are considered, the brief reasons of rejection should be conveyed to an employee to enable him to assess why his representation has been rejected. Accordingly, the writ petition is allowed. Annexure PE dated 8.8.2000 and Annexure PI dated 3.5.2004 are quashed and set aside. The respondents are directed to process the case of the petitioner as per Annexure PF dated 31.5.2001 to the post of Junior Assistant within a period of ten weeks from today with all consequential benefits. There shall be no order as to costs. 25.9.2008 (Rajiv Sharma ), J. *awasthi*