IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 667/2008 and CWP No.734/2008 Reserved on:25.8.2008 Decided on:22.12. 2008 CWP No. 667/2008: 1. Rajni Devi. 2. Deepika 3. Ashwani Kumar 4. Sunil Kumar …Petitioners. Versus State of Himachal Pradesh and others. …Respondents CWP No.734/2008: 1. Suresh Kumar. 2. Sunil Sharma 3. Neena Sharma 4. Jai Prakash 5. Shyam Lal 6. Manmohan Singh 7. Naresh Kumar 8. Naresh Thakur 9. Nirmal Bhatia 10. Pawan Chauhan 11. Pawan Dharla 12. Sunita Sethi 13. Vikas Jasrotia 14. Anil Kumar 15. Smt. Pushpa …Petitioners. Versus State of Himachal Pradesh and others. …Respondents. 2 Coram The Hon’ble Mr. Jagdish Bhalla, C.J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioners. : Ms. Ranjana Parmar, Advocate. (in both the petitions) For the Respondents : Mr. R.K. Bawa, Advocate General with Mr. J.K. Verma, (in both the petitions) Deputy Advocate General. Rajiv Sharma, J. Since common questions of law and facts are involved in these writ petitions, the same were heard together and are being disposed of by a common judgment. The brief facts necessary for the adjudication of these writ petitions are that the respondent-State issued a communication dated 8th May, 2006 whereby decision was conveyed to all the Heads of Departments in Himachal Pradesh and other Government Undertakings including the Universities that some posts of Clerks in the pay scale of Rs. 3120-5160 shall be filled in the Himachal Pradesh Secretariat on secondment basis initially for a period of one year from amongst clerks with at least two years service. Communication dated 8th May, 2006 reads thus: “I am directed to say that it has been decided to fill up some posts of Clerks in the pay scale of Rs. 312-5160 (with initial start of Rs. 3320) + Secretariat allowance Rs. 80/- in H.P. Secretariat on secondment basis initially for a period of one year from amongst Clerks with at least two years’ service in the parent department from various 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 3 Departments/Boards/Corporations etc. The name(s) of only those desirious Clerks who are proficient in Hindi/English typewriting with knowledge of word processing on computer, which will be additional qualification, may be sponsored to this Department alongwith complete bio-data viz. Mode of recruitment, qualification and complete address. The Department will conduct typing and computer test to assess the suitability of candidates to be taken on secondment basis in the Secretariat. It is, therefore, requested that the options of the Clerks who are willing to serve in the Himachal Pradesh Secretariat on secondment basis may kindly be taken and forwarded to this Department by 3rd June, 2006 positively alongwith ACR dossiers. No direct application/advance copy of the option will be entertained. Further it is also made clear that the resultant vacancies in the parent department/organization will not be allowed to be filled up by any mode of recruitment.” In sequel to communication dated 8th May, 2006, the petitioners submitted their applications for being considered as Clerks in the Himachal Pradesh Secretariat on secondment basis. It is evident from the contents of communication dated 8th May, 2006 that the department was to conduct typing and computer test to assess the suitability of the candidates to be taken on secondment basis in the Himachal Pradesh Secretariat. The suitability of the petitioners was adjudged strictly as per communication dated 8th May, 2006 and they were appointed on secondment basis in the year 2007 and they joined their duties. It is evident from the record produced by the State that the Joint Secretary to the Chief Minister has forwarded the copy of letter of the Chairman, Himachal Pradesh Non-Gazetted Services Federation regarding 4 absorbing the services of those Clerks serving in the Secretariat on secondment basis. The Hon’ble Chief Minister had observed as under: “Secretary, Personnel to please look into this before any further inductions and promotions.” It will be apt at this stage to reproduce the noting portion from notes 337 to 348 respectively as under: -337- Page/245-246 (PUC): The Joint Secretary to the Chief Minister has forwarded the copy of letter of the Chairman, Himachal Non-Gazetted Services Federation regarding absorbing the services of those Clerks serving in the Secretariat on secondment basis. On this request the Hon’ble Chief Minister has observed as under: Secretary (Personnel) to please look into this before any further induction and promotion. -338- It is submitted that due to acute shortage of staff the FD at N/190 allowed this Department to fill up 20 posts of Clerks in H.P. Secretariat by taking the services of official already in position in other Departments/Boards/Corporations etc. on secondment basis. Thereafter the approval of the Cabinet was also obtained and conveyed at N/231. Accordingly this Department takes the services of 20 officials from different Departments/Boards after conducting screening test by the Department Recruitment Committee to assess their suitability to serve in the Secretariat. -339- Presently there are 70 posts of Clerks lying vacant in the Secretariat out of which the process of filling up of 11 posts (9 though SSSB, Hamirpur +2 from Handicapped category) is going on and still 59 posts will remain vacant. By the end of year the vacancy position in the cadre is anticipated to increase upto 100 posts. This short fall in the cadre is affecting the official work adversely. 5 -340- As this is the stop gap arrangement to take the services on secondment basis and until they are not absorbed in the Secretariat they can also seek repatriation. Therefore, it is proposed to absorb these 20 Clerks in the Secretariat keeping in view their working experience for smooth functioning of the Govt. work in relaxation of the R&P Rules. The H.P. Secretariat (Services (Class-III) Association as well as the above officials are also requesting for their absorption in the Secretariat. During 1999 the services of 55 Clerks were taken on deputation basis in the Secretariat who were absorbed in the Secretariat on 9.2.2000. Out of those 55 Clerks there were 25 those Clerks who served in the Secretariat on deputation just for about 8 months at the time of their absorption. The term deputation & secondment are almost the same except that on deputation concerned officials are entitled to deputation allowance whereas on secondment no such monetary benefits are admissible. Therefore on the same analogy and precedent the above 20 officials are proposed to be absorbed in the Secretariat against the available vacant posts of Clerks. -341- Before taking matter with the advisory Departments, the approval of the Worthy Chief Secretary and Hon’ble Chief Minister may kindly be obtained. -342- N/337-341: The Secretariat Administration Department has taken the services of 20 Clerks on deputation basis in the H.P. Secretariat after obtaining the approval of the Cabinet. Out of these 20 officials 18 has joined their duties in the Secretariat during January, 2007 whereas remaining 2 during the first week of May, 2007. Due to acute shortage of staff the FD had allowed this department to fill up the said 20 posts of Clerks by way of secondment basis (N/190). -343- After keeping their past experience in view the 6 Department propose to absorb them in the Secretariat against the available vacant posts of Clerks. Presently there exist 70 vacant posts of Clerks in the H.P. Secretariat. The administrative approval of absorption of these Clerks in the H.P. Secretariat has been accorded by the Hon’ble Chief Minister and this proposal is to be placed before the CMM in its meeting to the held on 25.6.2007. -344- In view of the above position the FD is requested to kindly concur in the proposal of this Department for absorption of the said 20 Clerks in H.P. Secretariat.” N:344 Examined in F.D. The F.D. have “no objection” to proposal of Ab. Subject to the condition that the A.D. will obtain comments of DOP in the matter and also seek approval of CMM for the proposed relaxation in R&P Rules. {This has the approval of Secy. (Fin.)} -346- N/337-341: The Secretariat Administration Department has taken the services of 20 Clerks on deputation basis in the H.P. Secretariat after obtaining the approval of the Cabinet. Out of these 22 officials, 18 has joined their duties in the Secretariat during January, 2007 whereas remaining 2 during the first week of May, 2007. Due to acute shortage of staff the FD had allowed this department to fill up the said 20 posts of Clerks by way of secondment basis as per N/190. -347- After keeping their past experience in view the Department propose to absorb them in the Secretariat against the available vacant posts of Clerks. Presently there exist 70 vacant posts of Clerks in the H.P. Secretariat. The administrative approval of absorption of these Clerks in the H.P. Secretariat has been accorded by the Hon’ble Chief Minister and this proposal is to be placed before the CMM in its meeting to be held on 25.6.2007. -348- In view of the above position the DOP is requested to kindly concur in the proposal of this Department for 7 absorption of the said 20 Clerks in H.P. Secretariat.” The Finance Department and Department of Personnel concurred with the proposal of the Department to absorb the services of 20 Clerks taken in the Secretariat on secondment basis. The Under Secretary (SA) to the Government of Himachal Pradesh has sent a communication dated 27th June, 2007 to the Secretary, Himachal Pradesh Public Service Commission. The text of letter dated 27th June, 2007 reads thus: “I am directed to say that there was acute shortage of staff in the Clerical cadre in the H.P. Secretariat. To meet this emergent administrative necessity, the Secretariat Administration Department had taken the services of 20 Clerks from different Departments/Corporation/Boards etc. on secondment basis after inviting applications from various Departments/Boards/Corporations of the State Government. Out of the 20 selected officials, 18 Clerks joined in the Secretariat during January, 2007 whereas 2 Clerks during the first week of May, 2007. Now keeping in view the performance of these officials and the exigency of official work, the Government has decided to permanently absorb them in the Secretariat against the vacant posts of Clerks. It is therefore, requested that the consent of the Hon’ble Commission to the permanent absorption these 20 Clerks in the Secretariat in relaxation of the provisions of the Recruitment and Promotion Rules of the post of Clerks may kindly be got obtained and conveyed to this Department at an early date. Copy of R&P Rules of the post of Clerks is also enclosed herewith.” The Under Secretary (SA) has sent another communication dated 27th June, 2007 to the Himachal Pradesh Public Service Commission, which reads thus: 8 “In continuation to this Department’s letter of even number dated the 27th June, 2007 the additional information as desired is supplied as under: Name of the applicant Parent Department Date of joining in the Parent deptt. Smt. Sunit Seth Food & Supply 6.2.1997 Sh. Man Mohan Sosta AH 23.8.2002 Vikas Jasrota Rural Development 21.6.2000 Sunil Dutt Health 7.2.2001 Ashwani Kumar Health 31.1.2000 Naresh Thakur H.P. Agro Industries 6.3.2003 Pawan Dharta Forest 3.9.2002 Suresh Kumar Forest Corpn. 8.5.1995 Smt. Rajni Mankotia Health 30.1.1997 Naresh Kumar DC Office Shimla 3.2.2000 Pawan Chauhan PWD 8.5.2001 Smt. Deepika Thakur Health 15.3.2000 Smt. Pushpa Devi Vigilance 3.11.2003 Shyam Lal Forest Corporation 20.12.1997 Sunil Sharma SJ&E 1.5.2000 Nirmal Bhatia HRTC 3.6.2000 Anil Kumar Vigilance 5.4.1994 Durga Ram HRTC 8.10.1990 Jai Parkash Sharma Forest Corporation 27.1.1994 Smt. Neena Sharma SJ&E 24.4.2000 Due to the acute shortage of clerical staff in the H.P. Secretariat to meet this extreme exigency, the matter could not be referred to Hon’ble Public service Commission which is highly regretted. It is, therefore, requested that the consent of the Hon’ble Public Service Commission may kindly be got obtained and conveyed to this Department at an early date.” 9 The Himachal Pradesh Public Service Commission conveyed its approval to the State vide communication 2nd July, 2007. The text of letter dated 2nd July, 2007 reads thus: “I am directed to refer to your letter No.Per(SAS-1)B (2)- 5/84-II dated 27.06.2007 on the subject cited above and to convey approval of the Commission in the proposal regarding permanent absorption of the following 20 Clerks (Class-III-Non-Gazetted) of different Departments/Corporations Working as such on secondment basis in the H.P. Secretariat against the direct recruitment quota, in relaxation of the provision of the notified R&P Rules for the said post:- 1. Smt. Sunit Seth 2. Sh. Man Mohan Sosta 3. Vikas Jasrota 4. Sunil Dutt 5. Ashwani Kumar 6. Naresh Thakur 7. Pawan Dharta 8. Suresh Kumar 9. Smt. Rajni Mankotia 10. Naresh Kumar 11. Pawan Chauhan 12. Smt. Deepika Thakur 13. Smt. Pushpa Devi 14. Shyam Lal 15. Sunil Sharma 16. Nirmal Bhatia 17. Anil Kumar 18. Durga Ram 19. Jai Parkash Sharma 20. Smt. Neena Sharma However, the commission observed that number of posts of Clerk have fallen vacant in lending Departments/Corporations due to taking of the services of these 20 Clerks on secondment basis by the 10 borrowing Department. As such the Commission is of the opinion that all vacant posts of Clerk should also be filled up in those lending Departments/Corporations immediately so that the work in these Departments /Corporations may also not suffer.” Thereafter the memorandum for consideration of the Council of Ministers was prepared on 10th July, 2007. The memorandum dated 10th July, 2007 reads thus: “The Secretariat Administration Department has taken the services of 20 Clerks on secondment basis in the H.P. Secretariat during 2007 from different Departments/Boards/Corporations of the State Government after obtaining the concurrence/approval of the Finance Department and of the Cabinet respectively. The selection has been made as per the recommendations of the Departmental Promotion Committee who conduct the screening test to adjudge their suitability to serve in the Secretariat. The said process of secondment of clerks was resorted to, to meet the acute shortage of Clerical staff in the Secretariat which had been affecting the official work adversely. As this is a stop gap arrangement, therefore, until they are permanently absorbed in the Secretariat they can seek repatriation to their parent offices at any time. Therefore, it is proposed to absorb these 20 Clerks in the H.P. Secretariat against the available vacant posts of Clerks in relaxation of the provisions of the Recruitment and Promotion Rules of the post of Clerks. The Department of Personnel has been consulted who have concurred in the proposal, subject to the condition that the prior approval of the Finance Department, Council of Ministers in consultation with H.P. Public Service Commission would be obtained. 11 The Finance Department has been consulted who have concurred in the proposal as per following advice:- “The FD have no object to the proposal of the AD subject to the condition that the AD will obtain comments of DOP in the matter and also seek approval of CMM for the proposed relaxation in R&P Rules.” The H.P. Public Service Commission was also requested for their consent who have conveyed their approval in the proposed permanent absorption of these 20 Clerks of different Departments/Corporations working on secondment basis in the H.P. Secretariat against the direct recruitment quota with the observations “that number of posts of Clerks have fallen vacant in lending Departments/Corporations due to taking of the services of these 20 Clerks on secondment basis by the borrowing Department. As such the Commission is of the opinion that all vacant posts of Clerks should also be filled up in those lending Departments/Corporations immediately so that the work in these Departments/Corporations may also not suffer.” The observations of the Commission are advisory in nature, for which the Government will consider individual cases of filling up of posts on its merit and as per requirement in due course of time. Approval of the Hon’ble Chief Minister to place the matter before the Council of Ministers has already been obtained. Point for Consideration Whether absorption of 20 Clerks taken on secondment basis from different Govt. Departments/Boards/Corporations, in the H.P. Secretariat, in relaxation of the provisions of the Recruitment and Promotion Rules of the post of Clerks, may be allowed?” The Council of Ministers approved the proposal in its meeting held on 11th July, 2007 and the department concerned was directed to take 12 consequential steps. The approval accorded by the Council of Ministers dated 11th July, 2007 reads thus: “Sub: Absorption of 20 Clerks working in the H.P. Secretariat on secondment basis. The above proposal was discussed by the cabinet in its meeting held on 11.7.2007 and the same was approved. The implementation report of the above decision may please be sent to this Department within a fortnight from the receipt of this communication.” Consequently, the petitioners were absorbed vide communication dated 21st July, 2007. The office order dated 21st July, 2007 reads thus: “In pursuance of the decision of the Government the following Clerks who were taken on secondment basis in the Himachal Pradesh Secretariat from different Government/Boards/Corporation are hereby absorbed in the Secretariat with immediate effect subject to the terms and conditions as detailed below the table:- Sr.No. Name Department 1. Sh. Shyam Lal Forest Copn. 2. Sh. Pawan Kumar PWD 3. Sh. Vikas Chand Jasrotia RD 4. Sh. Naresh Kumar DC Office, Shimla. 5. Sh. Sunil Kumar Health 6. Sh. Naresh Thakur Agro Industries 7. Sh. Durga Ram HRTC 8. Sh. Anil Kumar Vigilance 9. Sh. Sunil Dutt Sharma SJ&E 10. Sh. Man Mohan AH 11. Smt. Rajni Mankotia IGMC, Shimla 12. Smt. Sunita Seth Civil Supplies 13. Sh. Ashwani Health 14. Deepika Thakur IGMC, Shimla 13 15. Smt. Pushpa Devi Vigilance 16. Sh. Pawan Dharta Forest Deptt. 17. Sh. Suresh Kumar Forest Corporation 18. Smt. Nirmal Bhatia HRTC 19. Jai Parkash Sharma Forest Corporation 20. Smt. Neena Sharma SJ&E 2. Terms and Conditions of absorption. a) The absorption as Clerk shall be strictly in the pay scale of Rs. 3120-5160+120 Sectt. Allowance. In the case of any official if working in higher pay scale of the cadre of Clerks in the parent Department at the time of absorption, only the basis pay of such an employee shall be protected and the difference beyond the maximum of the said pay scale if any shall be treated as Personal Pay; b) For the present this absorption will be on temporary basis and they shall be on probation for a period of 2 years. In case their work and conduct is not found satisfactory during this probation period they are liable for repatriation to their Department; c) The seniority of the officials being absorbed shall be as per the order as shown above in Para-1; d) The absorption shall also be as per satisfactory verification of character and antecedents, if notice be earlier; e) The pensionery benefits of the officials mentioned at Sr. No. 1,6,17 and 19 will be regulated as per the instructions of the State Government issued vide FD’s letter number No. Fin (Pen) A(3)-1/96 dated 15th May, 2003. 3. In case the above terms and conditions are acceptable to the above officials they may submit their joining report to this Department within a week’s period positively, failing which the 14 absorption of non reporting official(s) shall be deemed as cancelled.” In sequel to office order dated 21st July, 2007, their pay was fixed in the pay scale of Rs. 3120-5160 + Rs. 120 secretariat allowance vide letter dated 25th September, 2007. The expression used in letter dated 25th September, 2007 is “permanent absorption”. However, vide letter dated 26th February, 2008, the petitioners were repatriated to their parent departments. The petitioners assailed the office order dated 26th February, 2008 by way of OAs No. 287, 397, 398, 399, 400, 401, 402, 403, 404, 406 and 408 of 2008 before the Himachal Pradesh Administrative Tribunal. The learned Tribunal rejected the OAs preferred by the petitioners on 25th April, 2008. Ms. Ranjana Parmar learned counsel appearing on behalf of the petitioners has strenuously argued that the order dated 25.4.2008 passed by the learned Tribunal is not sustainable in the eyes of law. She also contended that the absorption of the petitioners was strictly in conformity with law. According to her, the Recruitment and Promotion Rules were relaxed after consultation with the Himachal Public Service Commission and the proposal was approved by the Department of Finance and Department of Personnel before the absorption of the petitioner. She further contended that there was nothing adverse against the petitioners and they could not be repatriated to their departments. She then contended that there is violation of principles of natural justice. She further contended that after the absorption of the petitioners, they will be deemed to have been confirmed and they have lost their lien in their parent departments. She lastly contended that once a conscious decision has been taken by the State Government after completing all the codal formalities with the change of the Government, the decision could not be 15 reviewed without any cogent and convincing reasons. Mr. Shrawan Dogra has also adopted the arguments advanced by Ms. Ranjana Parmar when CMP No. 3465/2008 in writ petition No. 734/2008 was taken up along with other writ petitions on 20.11.2008. Mr. R.K. Bawa, learned Advocate General appearing on behalf of the respondent-State has supported the decision of the State Government whereby the petitioners have been repatriated to their respective parent departments on the basis of order dated 26.2.2008. He then contended that the initial recruitment of the petitioners on secondment basis was contrary to the Recruitment and Promotion Rules. According to him, the necessary eligibility criteria could not be relaxed and there is no stipulation of filling up the posts on the basis of secondment basis in the Recruitment and Promotion Rules. He also contended that it is always open to the State to change the policy decision. He further contended that this being a policy decision, the jurisdiction of the Courts is very limited. He lastly contended that since the petitioners were put on probation, there is no question of their acquiring lien in the Himachal Pradesh Secretariat. We have heard the learned counsel for the parties and perused the record carefully. The appointment to the post of Clerks in the Himachal Pradesh Secretariat is governed under the rules called “The Himachal Pradesh Department of Personnel (Secretariat Administration Services) Clerk (Class-III-Non-Gazetted) Recruitment and Promotion Rules, 1996” (hereinafter referred to as ‘the rules’ for brevity sake). The posts of Clerks are to be filled 90% by direct recruitment and 10% by promotion failing which by direct recruitment. The incumbent is required to be placed on probation for two years subject to further extension for next one year as ordered by the competent authority for reasons to be recorded in writing. 16 Rule 18 provides for relaxation in the rules. It is stipulated therein that where the State Government is of the opinion that it is necessary or expedient to do so, it may, by order, for reasons to be recorded in writing and in consultation with the Himachal Pradesh Public Service Commission or other recruiting authority, relax any of the provisions of the rules category of persons of posts. The petitioners were recruited on secondment basis on the basis of communication dated 8th May, 2006. The entire text of letter dated 8th May, 2006 has already been reproduced hereinabove. The posts of Clerks were to be filled in the Himachal Pradesh Secretariat on the basis of typing and computer test to assess the suitability of the candidates. The petitioners have submitted their applications for consideration to be appointed on secondment basis and thereafter their suitability was adjudged by the department concerned and thereafter they were appointed as Clerks in the month of January, 2007 and they have joined their duties in the month of February, 2007. It is evident from the record produced by the State Government that a conscious decision was taken by the State Government to absorb the petitioners due to exigency of