IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Ex. Petition No. 3 of 2005 and COPC (T) No.: 83 of 2008 Reserved on : 14.12.2009 Date of Decision: 24.12.2009. Ex. Petition No. 3 of 2005 ------------------------------------------------------------------------ Gurbachan Singh Bajwa & another Petitioners Versus. State of H.P. Respondent COPC No. 83 of 2008 Gurbachan Singh Bajwa and another …Petitioners. Versus. Subhash Chander Negi …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for Reporting? No. For the petitioners: Mr. Vijay Chaudhary, Advocate. For the Respondent-State.: Mr. Ram Murti Bisht, and Mr. Vikas Rathore, Dy Advocate General. Per Deepak Gupta, J. This case is a sad testimony of the delays which plaque with the judicial system. The petitioners, Gurbachan Singh, H.S.Bist, and Satish Chander were working as Assistant Engineers in the H.P.Public Works Department, Shimla. After the formation of the State of Himachal Pradesh by merging old areas of Himachal Pradesh with certain hilly areas of the erstwhile Punjab State an integrated seniority list of Assistant Engineers was finalised on 26.12.1978 which reflected the position on 1.11.1966 i.e. the date of formation of the State of Himachal Pradesh. In this list the three petitioners were shown senior to respondents No. 2 to 14. 2 The petitioners claimed that though they were shown senior in the integrated seniority list, the respondents No. 2 to 14 were arbitrarily given ad hoc promotion as Assistant Engineers on various dates between 4.3.1963 to 11.6.1968 before the petitioners. The petitioners on the other hand were promoted after holding proper DPC and consultation with the H.P.Public Service Commission on 11.4.1968, 22.11.1972 and 29.12.1970, respectively. The respondents No. 2 to 14 were declared regular Assistant Engineers with retrospective effect from 5.2.1963 to 22.6.1965. On the other hand the petitioners were appointed as AEs on regular basis on 2.5.1974. According to the petitioners whereas their promotion was after due approval by the H.P.Public Service Commission, the retrospective promotion of respondents No. 2 to 14 were against the Rule and despite the said respondents having been found unfit for such promotion in the DPC held on 23.11.1966. Thereafter, the respondents No. 2 to 12 were appointed as Executive Engineers on ad hoc basis during the period from 14.6.1978 to 12.1.1982. A fresh seniority list of AEs was circulated on 5.4.1975 in which the petitioners’ name appeared below respondents No. 2 to 14. Thereafter, the petitioners filed a representation against the seniority given to respondents No. 2 to 14. Show cause notices were issued to respondents No. 2 to 14 on 8.5.1979 as to why the representation of the petitioners be not accepted. After considering the reply of the respondents, the representation of the petitioners was accepted and the regularisation orders of the 3 private respondents were set-aside on 13.9.1979. Surprisingly, the operation of the order dated 13.9.1979 was stayed by the State of Himachal Pradesh on 26.9.1979 and this stay was vacated only on 12.2.1982 when the H.P.Public Service Commission directed the State to comply with the earlier orders. Despite the fact that the representation of the petitioners was accepted they were not given promotion as Executive Engineer and continued to work as Assistant Engineers. They made representations in this regard but to no avail. Finally, the petitioners filed CWP No. 245 of 1983 in this Court on 17th August, 1983. Reply to the writ petition was filed by the State on 30th August, 1983. All the averments made by the petitioners were admitted and it was clearly stated that the position in respect of respondents No. 2 to 14 being junior to the petitioners was admitted and it was stated that the entire promotion are being reviewed but time is required to do the needful. Despite such clear cut statement in the reply review was not done. Thereafter, the matter was transferred to the H.P.State Administrative Tribunal. The petitioners repeatedly requested that they are senior to the respondents and they be promoted as Executive Engineer but no orders were passed. The matter finally came up for hearing before the Tribunal on 29.9.2004. In the meantime, a final seniority list of Assistant Engineers was circulated on July 7, 1988. In this seniority list the petitioner were again shown senior to the respondents 2 to 12. Since the 4 main grievance of the petitioners had been met they did not press the writ petition and the following order was passed:- “The substantive grievance of the applicant was that the promotion of respondents NO. 2, 4, 6, 7 9, 10, 11, 13 and 14 as Executive Engineers be held non est, they too should vacate these offices forthwith and their names be struck off from the list of Assistant Engineers. The respondents, already referred to above, have taken a specific plea with regard to these respondents and it was being reviewed as a consequence thereof, as a result of which they issued final seniority list. As a consequence thereof final seniority list of Assistant Engineers (C) was circulated on July 7, 1988 Annexure R-3. The seniority list Annexure R-3 referred to above was drawn by and circulated on the basis of panel prepared by the review Departmental Promotion Committee and the position of the applicant as well as that of the respondents is reflected therein as under:- “ On the basis of panel drawn by the review Departmental Promotion Committee a final seniority list of Assistant Engineers ( C) as on 1.3.1975 was issued on 7.7.1988 and is Annexed as RIII. The names of petitioners appear in this final seniority list at Sl. No. 79,121 and 113 and that of respondents except S/Sh. Mukhtiar Singh and M.L. Sautha at Sl. No. 139, 141, 159, 173, 163, 177, 171, 181 , 197, 80 and 82 respectively. As the final seniority list of Assistant Engineers as on 1.3.1975 issued on 7.7. 1988 it also became 5 necessary to review the proceedings of the Departmental Promotion Committee meeting held on 7th and 8th April, 1975 for promotion to the post of Executive Engineers.” The learned counsel for the applicant during the course of arguments stated that the applicants are satisfied with the final seniority list Annexure R- 3 and their claim to this extent remains satisfied. As a consequence thereof it being final seniority list and the applicant having been placed at the correct places, they are legally entitled to the consequential benefits flowing therefrom. The respondents are, therefore, directed to give consequential benefits to the applicants on the basis of the seniority list Annexure R-3 within four months from today. Original application as well as Miscellaneous Application No. 1146 of 1992 are disposed of accordingly. (Bakhshish Kaur, J (Retd.) Chairman. (D.S. Amist), Member (A)” Despite this order the consequential benefits flowing therefrom were not granted to the petitioners. Thereafter the petitioners filed an execution petition being Execution Petition No. 3 of 2005 and contempt petition before the Tribunal because the State according to the petitioners did not implement the orders passed by the learned Tribunal. On the abolition of the 6 H.P.State Administrative Tribunal these matters have come to us. This Court had passed a number of orders in contempt petition COPC(T) No. 83 of 2008. We had clearly indicated that despite the orders passed by the Tribunal on 29th September, 2004 they had not been implemented and the petitioners have not been paid the monetary benefits due to them though notional promotion has been granted. On May 21, 2009 we had passed an order directing the State to ensure that the orders are complied with on or before 15th July, 2009. Thereafter, an affidavit was filed by the Under Secretary (Public Works Department) to the Government of Himachal Pradesh purportedly in compliance of our direction dated 21st May, 2009. Thereafter on 15.7.2009 we passed a detailed order, relevant portion of which reads as follows:- “It is obvious that when the original application filed by the applicant was pending before the Tribunal, the State itself admitted that the seniority list of Assistant Engineers which had been previously issued, was not correctly drawn up and accordingly revised seniority list was issued in which the petitioners were shown as Sl. No. 79, 121 and 113 and a number of respondents were shown junior to them. The State itself had made an averment before the learned Tribunal that in view of the fresh seniority list issued, it was necessary to review the proceedings of Departmental Promotion Committee held on 7th/8th April, 1975. We now find from the compliance affidavit that review D.P.C. is being held only from the year 1985-86. There 7 is no explanation as to why no review D.P.C. has been held in respect of the earlier D.P.C. held on 7th/8th April, 1975. This amounts to non-compliance of the order. The petitioners have also filed the execution petition No. 3 of 2005 which is tagged with the case file today. The Registry is directed to list both the cases together on the next date. It has been urged before us that after the bifurcation of the H.P.P.W.D., the matter has to be dealt with by the I & P.H. and prior to that it relates to the Public Works Department. We are not at all concerned with such an issue. The writ petition was filed before this court in the year 1983 much before the bifurcation of the Department and the writ petition was allowed after about 21 years on 29.9.2004. This order of the Tribunal has become final and we expect the State in a matter, which has been pending for more than 26 years to comply with the order at the earliest. The petitioners, who are senior citizens, cannot wait till eternity to get the fruits of the litigation which has been decided in their favour. Since two departments are involved, we issue directions to the Chief Secretary to the Government of H.P. to personally look into the matter and ensure that the order of the Tribunal is complied with, as indicated by us hereinabove, within two months from today.” Thereafter, the Chief Secretary to the Government of Himachal Pradesh filed an affidavit in which it was mentioned 8 that the case of the petitioners for promotion was considered and petitioner No.1. Shri Gurbachan Singh, was granted ad hoc promotion on 7.8.1984 and regular promotion on 31.12.1985. Petitioner No.2 H.S.Bist was granted ad hoc promotion on 14.6.1985 and regular promotion on 31.12.1986 and petitioner No.3 Satish Chander was granted regular promotion on 31.12.1986 in accordance with the Rules. As far as the respondents No.2 to 12 are concerned, it was mentioned that some of them were never regularly promoted as Executive Engineer and all other diploma holders have been promoted after the petitioners between the years 1988-1991. The Chief Secretary in her affidavit had clearly omitted to give the details of the ad hoc promotion of the private respondents. Not satisfied with this affidavit, we had called for certain more information. The situation of the petitioner vis-à-vis the respondents, which now emerges is as follows:- Sl. No. Sr. No. Name of the Officer/D.O.B S/Shri Date of promotion as A.E. Date of promotion as XEN 1. 79 G.S.Bajwa/15.11.33 23.4.68 Ad. 7.5.74 Reg. 7.8.84 Ad. 31.12.85 Reg. 2. 121 H.S.Bist/28.3.31 28.11.72 Ad. 7.5.74 Reg. 14.6.85 Ad. 31.12.86 Reg. 3. 113 Satish Chander/30.5.33 16.1.71 Ad. 7.5.74 Reg. 31.12.1986Reg Sl. No. Sr. No. Name of the Officer/D.O.B S/Shri Date of promotion as A.E. Date of promotion as XEN 1. 139 Tulsi Ram/14.1.34 27.11.64 Ad. 7.5.74 Reg. 22.6.78 Ad. Not promoted as regular. 2. 159 I.K.Kapoor/3.6.33 6.4.64 Ad. 7.5.74 Reg. 23.10.79 31.12.90 9 3. 173 Amar Chand Gupta/29.5.34 7.5.64 Ad 7.5.74 Reg. 9.9.80 31.12.89 Reg. 4. 163 Thakur Dass Sharma/7.1.36 4.11.65 Ad. 7.5.74 Reg. 2.11.81 Ad. 31.12.88 Reg. 5. 177 Rajinder Dutt/19.7.34 4.10.64 Ad. 7.5.74 Reg. 19.10.81 Ad. 31.12.91 Reg. 6. 171 B.P.Kapoor/16.12.35 4.12.64 Ad. 7.5.74 Reg. 16.5.86 Not promoted as regular. 7. 181 Rajeshwar Dyal Sharma/1.1.37 29.11.64 Ad 7.5.74 Reg. 28.1.81 Ad. Not promoted as regular. 8. 80 K.K.Sharma (Degree)/4.3.37 5.2.63 Ad. 7.5.74 Reg. 26.5.75 Reg. 9. 82 R.C.Gupta (Degree)/12.7.39 25.6.63 Ad. 7.5.74 Reg. 26.5.75 Reg 10. 197 Hans Raj Kapoor/13.2.34 22.6.65 Ad. 7.5.74 Reg. 10.9.84 31.12.92 Reg. 11. 141 K.S.Dhaulta/15.12.31 17.11.64 Ad. 7.5.74 Reg. 17.12.86 31.12.88 Reg. We are not concerned with Shri K.K.Sharma and Shri R.C.Gupta, who were decree holders and may fall in a different category. The other respondents were all diploma holders. The position which now emerges is that the date of regular promotion of the respondents and the petitioners as Assistant Engineers is 7.5.1974. It is also not disputed that the respondents were junior to the petitioners as Assistant Engineer. However, they were granted ad hoc promotion as Executive Engineers in the year 1978-79 and given all the monetary benefits of such posts but now the petitioners have been given such benefit only from the years 1984-1885 only. Despite repeated opportunities given, the State has not been able to give any satisfactory reply to our query as to why the case of the petitioners for grant of monetary benefits should not be considered from the date their juniors 10 were given such monetary benefits as ad hoc Executive Engineers. This is not a case of some persons who have slept over their rights. Right from the year 1978 when the first of the respondents was promoted as ad hoc Executive Engineer, the petitioners had been making representations. The State accepted their representations and gave them seniority above the respondents. But for some oblique and extraneous reasons these orders were stayed by the State itself till 1982. Thereafter, also benefit of promotion to the post of Executive Engineer was not given to the petitioners. They filed the writ petition in 1983. In the final seniority list again they were made senior to the respondents but now the State wants to restrict the monetary benefits to the petitioners from the date of their regular promotion. This is in our view is highly objectionable and against the spirit of the order passed by the Tribunal. The learned Tribunal had clearly directed that since the applicants have been placed in the correct place they are legally entitled to the consequential benefits flowing therefrom which should be paid to them within four months from the date of the order. In our opinion there is no manner of doubt that the only interpretation which can be given to the order of the learned Tribunal is that the petitioners are entitled to monetary benefits from the date when their immediate juniors were given ad hoc promotion as Executive Engineers and the petitioners were wrongly bye-passed. 11 We, therefore, dispose of the execution petition with a direction to the respondents to ensure that the monetary benefits to the petitioners in respect of the post of Executive Engineers and all other consequential benefits are given by promoting them on ad hoc basis from the date when their immediate juniors were promoted. These monetary benefits alongwith interest @ 9% per annum from the date when the amount fell due shall be paid to the claimants latest by 31st March, 2010. In case the State does not comply with such direction we shall deem this to be an aggravation of the contempt already committed. As far as the contempt petition is concerned, we discharge the notices issued with a direction that the State shall now pay the amount within the time granted failing which it would be deemed to be an aggravation of the contempt. Both the petitions are disposed of accordingly. No order as to costs. ( Deepak Gupta ) Judge. 24th December, 2009. ( Surinder Singh ) ™ Judge.