IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1861 of 2009 Decided on : June 23, 2010 Rajesh Jaswal and others …Petitioners. Versus State of H.P. and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioners : Mr. Anuj Nag, Advocate. For the Respondents : Mr. Ramesh Thakur, Assistant Advocate General, for respondents No.1 & 2. Mr. Ranjan Sharma, Advocate, for the respondents, except respondents No.1 & 2. Surjit Singh, J (Oral) Petitioners, in this case, have challenged tentative seniority list, Annexure P-5, in which they have been shown below private respondents No.3 to 156, as Inspectors Grade-I in the Cooperation Department of the State of Himachal Pradesh. 2. Petitioners were appointed as Inspectors Grade-I in the year 1998, in accordance with Rules Annexure P-1, which pertained to recruitment and promotion of Inspectors. Mode of recruitment, as per Rule 10 of these Rules, is by direct recruitment - 10%, by promotion from Sub Inspectors/Sub Inspectors (Audit) – Whether reporters of the local papers may be allowed to see the judgment? …2… 50%, from amongst Clerks – 30% and from amongst Gram Sewaks – 10%. These Rules were notified in the year 1986. In the year 1996, a Notification Annexure P-2 was issued, in the name of the Governor of Himachal Pradesh, merging 147 posts of Inspectors Grade-II, in the Cooperation Department, with existing cadre of Inspectors Grade-I (General and Audit) or say the cadre to which the petitioners were appointed in the year 1998. As a consequence of issuance of Notification Annexure P-2, respondents No.3 to 156, who were working as Inspectors Grade-II, on the date of issuance of that notification in the Cooperation Department, became Inspectors Grade-I. It may be clarified that respondents No.3 to 156, who were initially recruited as Sub Inspectors, were re-designated as Inspectors Grade-II, by virtue of some Notification issued in the year 1991. 3. Notification Annexure P-2, in addition to providing for the integration of the cadres of Inspectors Grade-I and Inspectors Grade-II also provided for regulating the seniority of the incumbents of the posts of the two cadres, in the integrated cadre. The Notification said that persons already working as Inspectors Grade-I would rank senior, en block, to the persons, who became Inspectors Grade-I, by virtue of the order of merger. …3… 4. Petitioners, who were not borne on the cadre of Inspectors Grade-I, when Notification Annexure P-2 was issued, but were appointed much later, i.e. in the year 1998 and 1999, have challenged the tentative seniority list Annexure P-5, on the ground that the Notification Annexure P-2, merging the cadres of Inspectors Grade-II with that of Inspectors Grade-I, was bad, as it was contrary to the provisions of Rules Annexure P-1. According to the petitioners, without incorporating amendment in Rules Annexure P-1, merger could not have been brought about. 5. Reply was filed only by respondents No.1 and 2. Private respondents have adopted this reply. In the reply, it has been stated that Notification Annexure P-2 having been issued even before the recruitment of the petitioners, they have no locus standi to challenge the Notification nor does it lie in their mouth to say that they are aggrieved by this Notification. 6. I have heard the learned counsel for the parties and gone through the record. 7. Learned counsel for the petitioners submits that merger of cadres could not have been carried out by issuance of a Notification alone and that amendment in the Rules was required. To support this contention, he places reliance upon a judgment of the Supreme Court in C.L. Verma versus State of M.P. and another, AIR 1990 SC …4… 463. In that case Rule-29 of the M.P. Municipality Employees (Recruitment and Service Conditions) Rules, 1968 and M.P. State Municipality Service (Executive) Rules, 1973, provided for the retirement of the employees on the date of completing the age of 58 years. In terms of that Rule, an employee, who had been facing departmental action, retired two days prior to the passing of the order of his dismissal. Order was challenged, on the ground that retired Government servant could not have been dismissed. Plea was raised on behalf of the employer that Rule-29 had been amended by an order of the State Government on 15th May, 1981, providing for the retirement of the employees of the municipalities not on the date of attainment of the age of 58 years, but on the last date of the month in which they attained that age. It was in that background that it was held that an administrative instruction cannot compete with a Statutory Rule and if there be a contrary provision in the Rule, the administrative instruction must give way and the Rule shall prevail. 8. In the present case, Rules (Annexure P-1) do not say that there cannot be merger of cadres. It is the prerogative of the State Government to merge two or more cadres into one cadre or to disintegrate a cadre into different cadres or to abolish a cadre, exercising the power, under Article 162 of the Constitution of India. In this view …5… of the matter, I find support from a three-Judge Bench judgment of the Supreme Court in Reserve Bank of India versus N.C. Paliwal and others, (1976) 4 SCC 838. 9. Another submission made on behalf of the petitioners, based on the averments contained in the writ petition, is that the right to challenge the notification accrued to the petitioners, when advertisement, inviting applications for appointment to the cadre of Inspectors Grade-I, was published in the year 1996 and that such advertisement had been issued prior to the issuance of notification Annexure P-2. Advertisement was issued on 3rd January, 1996. Admittedly, date of notification Annexure P-2 is 1st June, 1996 and it is effective from 1st August, 1995. In support of this contention, reliance is placed by the learned counsel on a Supreme Court judgment in Prafulla Kumar Das and others versus State of Orissa and others, AIR 2003 SC 4506. In that case, notification, merging Orissa Administrative Service (Junior Branch) with Orissa Administrative Service (Senior Branch) and naming the integrated cadre as Orissa Administrative Service Class II, was issued in the year 1974. Prior to the integration of the two cadres, seniority was assigned to the members of junior cadre, promoted to the senior cadre, not from the date of their promotion to the senior cadre, but on the basis of the year of allotment to the senior cadre. …6… Some members of junior cadre challenged the merger, claiming that had they been promoted in routine, their year of allotment would have been prior to the year 1974, in which year integration of two cadres was notified and in that situation they would have ranked senior to the persons appointed subsequent to the issuance of notification of merger. It was in that background that the Hon’ble Supreme Court held as follows vide para-41 of its judgment: “41. It has rightly been stated by the Court in Nityananda Kar’s case (supra) that in the interests of justice regard must be had to the fact that the respondent direct recruits are few in number as compared to the hundreds of mergerists who belonged to the defunct O.S.A.S. Much harm would come to the respondents were they to be placed below the merger recruits in the gradation list, whereas the mergerists are scarcely affected by the miniscule number of direct recruits placed above them. In any event, the Recruitment Rules of 1959 are manifest in their mandate than only the promotees of a particular year are to be placed above the direct recruits of that year. The present petitioners being mere mergerists, but not promotees in accordance with the relevant rules and regulations, may not claim the status of promotees, and have, therefore, been rightly placed in positions below the direct recruits whose year of allotment was 1973.” 10. The aforesaid judgment does not lay down that the persons, who are not even in service on the date of integration of different cadres, can seek seniority above the persons, who are already borne on the integrated cadre or …7… that they have any locus standi to assail the order of integration itself. 11. No other submission has been made. 12. In view of the abovestated position, writ petition is dismissed. In view of the dismissal of the main petition, pending applications also stand dismissed. June 23, 2010(sd) ( Surjit Singh ), J