IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 2014 of 2008. Reserved on: 9.4.2009. Decided on:15.5.2009. Joginder Singh Mandla. … … … Petitioner. Versus H.P.S.E.B and others. … … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting? Yes.1 For the petitioner: Mr. J.P. Upadhaya, Advocate. For the Respondents: Ms. Anjula Khajuria, Advocate. No.1 and 2. For the Respondents: NEMO. No.3 to 13. Rajiv Sharma, Judge. The petitioner was appointed as T-Mate in the respondent-Board on 7.11.1970. His name was sponsored by the Employment Exchange as a departmental candidate for the post of Lineman. The interviews were held on 21.6.1982. He was offered appointment pursuant to his selection to the post of Lineman on 29.6.1982. He joined his duties on 12.7.1982 in REC Sub Division, Rehan. The REC Sub Division Rehan was shifted to Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - Panchrukhi Electrical Sub Division on the basis of letter dated 31.5.1983. He joined his duties at Panchrukhi Electrical Sub Division on 11.7.1983. He was transferred to Electrical Division, Chamba on 12.7.1984. He joined his duties on 13.7.1984. The respondent-Board issued integrated seniority list on 1.1.1987 (Annexure A-4). He was assigned Sr.No.863 and his date of appointment was shown as 13.7.1982/13.7.1984, which was subsequently changed to 12.7.1982 instead of 13.7.1982. He made representation to the Secretary of the Board for assigning him correct date of seniority w.e.f. 12.7.1982. As per the particulars of the persons who were to be considered for promotion for the post of Junior Engineers, the petitioner was at Sr.No. 105 and his date of appointment/joining was shown as 13.7.1984. He made representation against this verification as well. However, on the recommendation of the Class-III Departmental Promotion Committee (Technical), the persons junior to him have been promoted to the post of Junior Engineer. He made another representation on 20.5.1999. Mr. J.P. Upadhaya, Advocate has strenuously argued that the petitioner was required to be assigned seniority w.e.f. 12.7.1982. He then contended that the action of the respondents of not assigning him correct seniority is violative of Articles 14 and 16 of the Constitution of India. He also contended that the petitioner has never sought his transfer and the averments made to this effect in the reply are wrong. Ms. Anjula Khajuria, Advocate has vehemently argued that the petitioner has sought his transfer as per Annexure R-1, dated 16.6.1984 and he was consequently transferred from Panchrukhi, Electrical Sub - 3 - Division to Electrical Division, Chamba, vide Annexure R-2. She has strongly relied upon office memorandum dated 14.1.1976. Respondents No.3 to 13 though served are not represented by any Advocate. I have heard learned counsel for the parties and perused the record carefully. It is evident from Annexure R-1 dated 16.6.1984 that the petitioner has sought his transfer. The application preferred by the petitioner was duly considered and he was transferred as noticed above, vide Annexure R-2 to Electrical Division, Chamba. He joined his duties in Chamba Electrical Division on 13.7.1984. It is in these circumstances that the seniority was assigned to him from 13.7.1984 in place of 12.7.1982. A bare perusal of office memorandum dated 14.1.1976 suggests that the technical staff (field) borne on the Divisional/Circle level cadre may be ordered by the competent authority subject to their loosing seniority in the Division/Circle in which they are transferred. Their seniority was to be dove-tailed at the end of the seniority list of the corresponding cadre of Division/Circle to whom they were transferred. The representation made by the petitioner was also rejected on the basis of office order dated 25.6.1984. It has been specifically mentioned in the office order dated 25.6.1984, whereby the petitioner was transferred from Electrical Sub Division, Panchrukhi to Electrical Division, Chamba that these officials will loose their seniority in their respective Divisions/Circles and will be dove-tailed in the corresponding Circles/Divisions. In fact the seniority list was required to be maintained in the cadre of lineman on the basis of letter dated 17.3.1986 at Circle level. Consequently, it cannot be said as - 4 - Mr. Upadhaya argued that seniority was to be maintained at State level. In fact Electrical Sub Division, Rehan was shifted to Panchrukhi under Electrical Division, Baijnath. In view of the above discussion and reasons assigned, it is clear that the petitioner was transferred on his request and was bound to loose his seniority as per transfer order dated 25.6.1984. Even the perusal of office memorandum as noticed above dated 14.1.1976 reveals that the seniority of the persons borne on the Divisional/Circle level could be ordered by the competent authority to be transferred subject to their loosing seniority in the Division/Circle. Their seniority was to be dove-tailed. The petitioner has also given instance of persons whose seniority was effected namely Parkash Chand and Haminder Kumar. The petitioner cannot take any support from these instances in view of office memorandum dated 14.1.1976 and more particularly since he has been transferred on his own request as per Annexure R-1. However, as per the law laid down by their Lordships of the Supreme Court in Scientific Advisor to Raksha Mantri and another versus V.M. Joseph (1998) 5 SCC 305, the petitioner is held entitled to get benefits of the service w.e.f. 1982 to 1984 for the purpose of promotion. Their Lordships in (1998) 5, SCC 305 (supra) have held as under:- “6. 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 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 - 5 - 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.” The judgment in (1998) 5 SCC 305 (supra) was considered by their Lordships of the Supreme Court in a recent judgment in Union of India and Others versus Deo Narain and Others, (2008) 10 SCC 84. Their Lordships have held as under:- “40. Referring to Renu Mullick, the High Court observed that "it is not in dispute that the persons on voluntary transfer, would lose their seniority but the same by itself would not mean that their entire past service is wiped off. For the purpose of consideration of their cases for promotion, their past service is - 6 - required to be taken into consideration". We are in agreement with the High Court. Renu Mullick and other cases referred to by us, clearly lay down the above proposition of law that even if the transfer is voluntary and unilateral, services rendered by an employee would not be wiped off for considering eligibility for promotion to the higher cadre.” Accordingly, in view of the observations made here-in-above, the petition is disposed of. No costs. May 15, 2009. (Rajiv Sharma) (rkv). Judge. - 7 -