IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP-T No. 1584 of 2008 Reserved on : 03.05.2010 Decided on : 29.07.2010 Ramesh Chandera Chajta and others ..…Petitioners. Versus State of Himachal Pradesh and others …… Respondents. Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioners : Mr. P.S. Patwalia, Sr. Advocate, with Mr. Vivek Sharma and Mr. Ajay Mohan Goel, Advocates. For respondent No.1 : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. For respondent Nos. : Mr. Dilip Sharma, Advocate. 3 to 10, 12, 14 to 16, 18 and 26. V.K. Sharma, Judge The present writ petition being CWP-T No. 1584 of 2008, arises out of Original Application (O.A) No. 487 of 2007, filed in the H.P. State Administrative Tribunal, which on the abolition of the said Tribunal was transferred to this Court and has been registered as such. The Original Application and the original applicants shall here-in-after be referred to as ‘the petition’ and ‘the petitioners’. 1Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 2. The dispute between the petitioners and the private respondents, who are direct recruits and promotees, respectively and are governed by the H.P. Police Service Rules, 1973 (in short ‘1973 Rules’), is with regard to the inter se seniority . 3. The petition has been filed against the memorandum dated 22.2.2007 (Annexure P-18), whereby the respondent-State has circulated the final seniority list of H.P. Police Service (HPPS) Officers, as on 1.9.2006, in which the private respondents No. 2 to 27 have been granted seniority as HPPS Officers from the date they were promoted as such allegedly de hors 1973 Rules on adhoc/officiating/temporary basis instead of the date(s) when they were actually inducted into HPPS Cadre. 4. The petitioners are seeking the following substantive reliefs vide para 7 ( a) and (b) of the petition:- “a) Declare memorandum dated 22nd February 2007 (Annexure P18) whereby the respondent State has circulated the final seniority list of HPPS Officers as on 1.9.2006 and in which the private respondents i.e respondents 2 to 27 have been granted seniority as HPPS Officers from the date they were promoted in the said posts by respondents de hors HPPS Rules 1973 on adhoc /officiating / temporary basis rather that the date when they were actually inducted into HPPS Cadre as per HPPS Rules 1973 as bad in law and quash the same. b) That it is further prayed that this Hon’ble Court may be pleased to direct the respondent State to issue the seniority list of Himachal Pradesh Police Officers which has been kept in abeyance for last 3 one decade, in accordance with HPPS Rules 1973 as well as the judgment in Des Raj Sharma’s case wherein it has been specifically held that a person is entitled to get seniority in service only when he is appointed to the service on regular basis and as per committee report dated 14.12.2005 and order of the State dated 23.1.2006.” Petitioners’ case 5. The case set up by the petitioners is that they were recruited to the H.P. Police Service (in short ‘the Service’) through the H.P. Public Service Commission (in short ‘Public Service Commission’), on different dates as given below:- Sr. No. Name Date 1. Mr. Ramesh Chandera Chajta 16.4.1999 2. Mr. Vimukat Ranjan 16.12.1997 3. Mr. Verinder Tomar 04.12.1998 4. Mr. Diwakar Dharma 28.04.1999 5. Mr. Omapati Jamwal 15.12.1998 6. As already noticed, the petitioners and the private respondents are governed by 1973 Rules. As per Rule 3 of these Rules, H.P. Police Service shall comprise of the posts as specified in Appendix `A’ to the said Rules. Rule (6) provides for method of recruitment to the service. 7. According to the petitioners, whereas they have been recruited to the service under 40% quota meant for direct recruits, the private respondents have been recruited under 60% 4 quota meant for Inspectors in the year 2000, after the petitioners and are thus junior to them. The total cadre strength of the service was 93 and is now 134, out of which 40% are to be filled in by way of direct recruitment and 60% from amongst the Inspectors having at least two years service, meaning thereby that at no point of time the service can have HPPS Officers holding HPPS Cadre posts in excess of the cadre strength. Rule 7 of 1973 Rules dealing with selection of candidates from Inspectors, lays down that recruitment under clause (b) of sub rule (1) of Rule 6 shall be made on the recommendation of a Selection Committee consisting of Chairman or member of the Public Service Commission, Chief Secretary or Secretary to the Government in the Chief Secretary’s branch and Inspector General of Police Himachal Pradesh/Director General of Police and Inspector General of Police Himachal Pradesh. Direct recruitment is governed by Rule 8 and the petitioners have been recruited into the service in accordance with the procedure laid down in the said rule. Rule 2 (g) (ii), which is applicable in the present case, provides that “Member of the Service means a person who is appointed to the service in accordance with the provisions of these Rules.” 8. It is averred by the petitioners that they have been recruited to the service in accordance with the procedure laid down in Rule 8 of 1973 Rules. 5 9. It is further averred that at the time when the petitioners were recruited to the service as direct recruits, the State had issued orders of promotion of private respondents from Inspectors to officiate as Dy. Superintendent of Police (in short ‘Dy. S.P’) purely on temporary basis. Copies of few such orders have been attached with the petition. Such orders were issued by the Chief Secretary to the Govt. of H.P. There was a stipulation in the orders that the promotions will not confer any right on the promotee(s) to claim seniority and regular promotion. Thus as per the petitioners, these orders were issued de hors the provisions of 1973 Rules inasmuch as the provisions of Rule 7 were not followed. 10. According to the petitioners the problem started after the year 2000, when appointments were made to the service from amongst the inspectors as per Rule 7 of the Rules. The respondent-State vide notification dated 26.7.2000, issued orders of appointment on probation of 31 permanent inspectors against the regular posts of Dy. S.P and Sub Divisional Police Officer (for short ‘SDPO’) in the cadre. These orders clearly contemplated fresh appointment of 31 inspectors to the cadre with immediate effect against the regular posts. These appointments were prospective and with immediate effect. 11. It is further pleaded that the respondent-State issued tentative seniority list of HPPS Officers as on 1.12.2001, vide memorandum dated 20.12.2001. The petitioners and other 6 similarly situate persons were shocked to see that the private respondents who were recruited in the cadre from inspectors vide order dated 26.7.2000, were not assigned seniority from the date of their appointment to the service as mandated by 1973 Rules, but were given seniority from deemed date, that is, the date(s) when they were fortuitously promoted de hors the Rules to officiate as Dy.S.P. As a result, these officers were reflected above the petitioners and similarly situate persons in the tentative seniority list. Consequently, the petitioners and others filed objections against the same. However, according to the petitioners copies of such representations were not available with them at the time of filing of the petition. 12. Against the above backdrop, a colleague officer of the petitioners, namely Mr. Digvijay Singh Negi, challenged the tentative seniority list inter alia by filing O.A. No, 813/2000, in the erstwhile State Administrative Tribunal. 13. In the meanwhile, the respondent-State vide memorandum dated 22.1.2003, finalized the aforementioned seniority list as it is without taking into consideration the objections raised by the petitioners. According to the petitioners the respondent-State while issuing the final seniority list as above lost sight of the fact that as per the law of the land benefit of adhoc service can be granted only to that person who is appointed to the post, though on adhoc basis, as per procedure prescribed in the Rules and such adhoc appointment ultimately culminates into regular 7 appointment as per Rules. However, in the present case the criteria laid down by the Hon’ble Apex Court was not fulfilled as the promotion from inspectors to officiate as Dy.SP was de hors 1973 Rules and was thus void abinitio and as such no benefit of such service could have been given to any person, especially in view of specific stipulation to the contrary. The incumbents, that is, the private respondents were recruited to the cadre as per 1973 Rules only on 26.7.2000 and they could not have been considered as members of the service as per Rule 2 supra before this date On the day when the petitioners joined as HPPS officers on regular basis, the private respondents were inspectors and for all intent and purposes they have lien to the said post. However, with one stroke the respondent-State made them senior to the petitioners by giving go bye to all legal norms. The private respondents were thus inducted into the cadre from the day when they were not borne in the cadre. Not only this, the action of the respondent-State in effecting such like promotions had resulted in a situation where there were more persons performing jobs of posts of HPPS Cadre than the cadre strength. The officers in excess were from the quota of inspectors. To illustrate, as in the year 2004, against the cadre strength of 93 sanctioned posts of HPPS Cadre, there were 123 personnel manning the said posts including those on orders of adhoc / temporary promotions without any mandate or sanction of the 1973 Rules. 8 14. Further case of the petitioners is that feeling aggrieved, the H.P. Police Service Direct Officers Welfare Association, of which they are also members, filed O.A No. 318/2003, in the erstwhile State Administrative Tribunal against the aforementioned seniority list, dated 22.1.2003. 15. In the meantime, as the matter was also under consideration of the respondent-State to whom representation in this regard had been made by the petitioners’ association, Governor, Himachal Pradesh was pleased to order to constitute a Committee consisting of the following officers to finalize the seniority list of HPPS Officers:- a) Chief Secretary to the Govt. of H.P. Chairman b) Addl. Chief Secretary (Fin) to the Govt. of H.P. Member c) Principal Secretary (Home0 to the Govt. of H.P. Member d) The Director General of Police (H.P) Member e) The Secy (Law) to the Govt. of H.P Member 16. In the meantime, the petitioners’ association moved a representation requesting the respondent- State not to effect any promotion/placement till the finalization of the seniority list of HPPS officers by the Committee constituted on 13.5.2005. 17. In view of the foregoing background, one of the petitioners, Mr. Vimukat Ranjan filed O.A No. 2365/2005, titled Vimukat Ranjan and others Versus State of H.P, in the erstwhile State Administrative Tribunal, with a prayer that the above Committee may be directed to take a decision in the matter. 9 18. This matter was listed before the Tribunal on 23.9.2005, when the Tribunal vide an order of even date Annexure P-1, disposed of the same with a direction that the Original Application itself shall be treated as a representation to the Principal Secretary (Home) to the Govt. of H.P, who was directed to decide the same within a period of two months after giving personal hearing to the original applicants therein, pursuant to which they were given personal hearing on 24.11.2005. Thereafter, the Committee constituted to finalize the seniority of HPPS Officers met on 14.12.2005. A copy of the proceedings of the Committee has been annexed with the petition as Annexure P-2. The Committee after considering the matter from all perspectives decided as under:- “Therefore the Committee decided that the last seniority list should be treated as the one finalized on 28.1.1995 (i.e as on 1.6.94). The Committee decided that a fresh seniority list may be drawn as on 1.12.2001 and 1.1.2005 strictly in accordance with the provisions of HP Police Service Rules, 1973 and as per the directions of the Hon’ble Tribunal passed in OA No. 813/2002 titled Shri Arvind Digvijay Negi Vs. State of HP. The adhoc appointees as Dy. S.Ps will be shown in a separate seniority list. An application may be filed before the Hon’ble Tribunal stating that the respondent State has drawn the tentative seniority list in accordance with the provisions of the Rules ibid as well as directions of the Hon’ble Tribunal and it is proposed to finalize the tentative seniority lists after deciding the objections/representations against the tentative seniority lists. 10 In view of the above discussion the committee decided that the fresh tentative seniority lists will be prepared/drawn strictly as per the HPPS Rules/directions of the Hon’ble Tribunal and after obtaining the prior approval of the Hon’ble Tribunal to avoid any further litigation/contempt petition, the seniority lists shall be finalized after examining/deciding the representations of HPPS Officers if any received thereto.” 19. This was followed by an order of the respondent-State dated 23.1.2006, Annexure P-3. The order stated that “on the recommendations of the committee, the tentative seniority list of HPPS Officers circulated on 20.12.2001, final seniority list circulated on 28.1.2003 and further tentative seniority list circulated on 7.6.2003 respectively are hereby withdrawn with immediate effect. The seniority list of HPPS Officers circulated on 28.1.1995 will be in operation till the next final seniority list is circulated.” The seniority list was however made subject to decision in cases mentioned in the said order. 20. The petitioners go on to aver that the aforesaid Committee headed by the Chief Secretary to the Govt. of H.P. had met in December 2005. The aforesaid order Annexure P-3 was issued by the respondent-State on 23.1.2006. However, since no action on these orders was coming forth from the respondent-State, in consonance with the recommendations of the Committee as per its proceedings and decision Annexure P-2 and the directions issued by the State Administrative Tribunal, a colleague officer of the petitioners, Mr. Sanjeev Kumar Gandhi, filed OA No. 11 1501/2006, titled Sanjeev Kumar Gandhi Versus State of H.P. (Annexure P-4) before the erstwhile State Administrative Tribunal with a prayer that the respondent-State may be called upon to issue the seniority list of HPPS Officers in consonance with the recommendations of the Committee Annexure P-2, Order Annexure P-3 and the Rules so as to obviate the possibility that in case the said process is delayed the adhoc promotees would try to “throttle the recommendations of the Committee and frustrate the entire process”. The matter was listed before the Tribunal on 5.5.2006, when vide order Annexure P-5 a direction was issued to the learned Addl. Advocate General to obtain instructions from the respondent-State as to what was the status of the matter qua implementation of order Annexure A-3 (i.e Annexure P 3 to the present petition) and the case was ordered to be listed on 19.5.2006, when vide order Annexure P-6 on the instructions of the respondent-State that the matter had not been taken to its final stage pursuant to Annexure A-3, the Tribunal inter alia granted three weeks time to the respondent-State to file reply. 21. Thereafter, the matter was listed before the State Administrative Tribunal on 4.8.2006, when the learned Addl. Advocate General submitted that the proceedings initiated/recommendations made vide Annexure A-3, were in the process of being implemented by preparing fresh seniority list, which was likely to take about four weeks. Consequently, the 12 matter was ordered to be listed after six weeks. However, thereafter the respondent-State moved a miscellaneous application (Annexure P-8) dated 15.9.2006, for extension of time by six months for finalization of the issue involved in the case and preparation of the seniority list. The original applicant in the said case also filed a miscellaneous application (Annexure P-9) dated 16.10.2006, praying therein that the State may be directed to come out with fresh and final seniority list of HPPS Officer as per order dated 23.1.2006, Annexure P-3, within 15 days. 22. At this juncture, as per the petitioners, as nothing was happening in the matter or the case, the said Shri Sanjeev Kumar Gandhi, filed CWP No. 1162 of 2006, titled Sanjeev Kumar Gandhi versus State of H.P, in this court (High Court), with a prayer for issuance of a direction to the respondent-State to finalize the seniority list as per the decision dated 14.12.2005 (Annexure P-2) and order dated 23.1.2006 (Annexure P-3). The writ petition came up for hearing on 30.11.2006, when this court by an order (Annexure P-10) directed the respondents therein to file reply, with the observation that “ it will be in the interest of State as well as its own officers that this litigation is brought to an end by the timely in action (sic) of the State in redrawing the final seniority list.” Accordingly, the State Government filed reply, a copy of which was supplied to the petitioner therein on 15.12.2006, when the writ petition came up for hearing it was 13 disposed of with a direction to the respondents therein to issue tentative seniority list within two weeks from the date of convening of meeting of the Committee constituted by this court under the said order (Annexure P-11) dated 15.12.2006 and to issue final seniority list after inviting objections within eight weeks. 23. Thereafter the respondent-State issued a tentative seniority list vide memorandum dated 30.12.2006, Annexure P-12. According to the petitioners they were surprised to see this list, which is totally against 1973 Rules as well as the decision taken by the aforementioned Committee headed by the Chief Secretary to the Govt. of H.P., dated 14.12.2005, Annexure P-2 and order dated 23.1.2006, Annexure P-3, issued in pursuance thereof in consonance with the judgment of the Hon’ble Supreme Court in Des Raj Sharma’s case. According to the petitioners, they tried to find out the reasons for issuance of aforementioned tentative seniority list, dated 30.12.2006 (Annexure P-12). They have been able to obtain a copy of order dated 4.3.2006, Annexure P-13, issued by the Hon’ble Chief Minister, Himachal Pradesh, under the Right to Information Act, 2005, a perusal whereof, according to the petitioners, “clearly shows that this tentative seniority list dated 30.12.2006 has been issued with a pre determined on the basis of the order of Hon’ble Chief Minister of Himachal Pradesh which is clear from reading of the order itself. This tentative seniority list has been 14 issued by the respondent State totally ignoring the decision of the committee constituted for finalizing the seniority list and has been issued only on the order passed by the Hon’ble Chief Minister which is totally contravention of the rules as well as judicial fiat on the subject having been approved by the Hon’ble Supreme Court of India wherein it has been specifically held that officiating charge cannot be counted towards the seniority. A perusal of memorandum dated 30.12.2006 clearly shows that a tentative seniority has been passed with a predetermined mind in the light of the order of Chief Minister. Therefore issuance of this tentative seniority list is merely an eye wash.” 24. The petitioners further go on to aver that not only this, the entire process has been vitiated by the further report dated 30.11.2006, (Annexure P-14) of the Committee constituted by the State Government on 10.07.2006/21.9.2006, vide Annexures P-15 and P-16, a perusal whereof would demonstrate that the purpose of constituting this Committee was simply to examine application of principle of rotation of vacancies in accordance with Rule 14 of 1973 Rules. This notification cannot be read in isolation but has to be considered harmoniously with report dated 14.12.2005, Annexure P-2 of the Committee headed by the Chief Secretary to the Govt. of H.P. and order dated 23.1.12006, Annexure P-3,issued in pursuance thereof, which report and order have not been varied, rescinded or cancelled by the respondent-State till the time of filing of the petition. However, 15 a perusal of the report of the said Committee will demonstrate that it has undone the entire report dated 14.12.2005 and order dated 23.1.2006, though it was not supposed to enter into the question of grant of benefit of adhoc service because it was neither called upon to do so nor it could have done it otherwise also in view of the said report dated 14.12.2005 and order dated 23.1.2006. 25. The aforesaid tentative seniority list dated 30.12.2006, along with orders dated 4.3.2006, Annexure P-13 and report dated 30.11.2006, Annexure P-14, has been challenged by the petitioners No. 2 to 5 by way of Original Application No. 278/2007, titled Vimukat Ranjan & others versus State of H.P & others. 26. Thereafter, the petitioners submitted representations/objections against the above tentative seniority list, one of which filed by petitioner No.1, is appended with the petition as Annexure P-17. However, now the respondent- State vide the impugned memorandum dated 22.9.2007, Annexure P-18, has issued final seniority list of HPPS Officers as on 1.9.2006 and fixed the seniority of the private respondents from the date they were granted officiating/adhoc promotion as Dy. S.P, rather than the date of their appointment to the service and thus despite the fact that the petitioners have been inducted into the service as per the Rules much before the private respondents, who have been inducted as such after the 16 petitioners and ignoring the objections filed by the petitioners against the tentative seniority list. 27. On the strength of the above pleadings, the impugned memorandum dated 22.2.2007, Annexure P-18, whereby the respondent-State has circulated the final seniority list of HPPS officers as on 1.9.2006, showing the private respondents ranking senior to the petitioners, has been challenged on the grounds set up vide para 6 (33) a) to j) of the petition. 28. The petition is contested by the respondent-State and private respondents No. 3 to 10, 12, 14 to 16, 18 and 26. The two sets of respondents have filed separate replies. Case of the respondent-State 29. The respondent-State has raised legal objection as to maintainability of the petition in the following terms:- “That the present O.A. is not maintainable as number of O.As on related matters are already pending before this Hon’ble Tribunal and the Respondent/State has already filed M.As in O.A No. 553/96, 555/96, 2213/2001 and 813/2002 for clubbing and early hearing of the above O.As. It is also respectfully submitted that a Civil Writ Petition No. 1162/2006 was filed by Shri Sanjeev Kumar Gandhi, HPS Vs State of H.P. before the Hon’ble High Court of H.P. The Hon’ble High Court on 15-12-2006 in the aforesaid CWP has passed the following orders:- “A Committee consisting of Dy. Secretary(Home), Under Secretary(Law) and Under Secretary(Personnel) had submitted its report to the Government on 5-12-06 which report is now being examined by the Government and would be placed before the Committee under the 17 Chairmanship of the Chief Secretary. The Committee under the Chairmanship of the Chief Secretary shall be meeting on 18-12-06 to deliberate upon the matter and to issue a tentative seniority list. The tentative seniority list shall be issued within two weeks from the date of meeting of the aforesaid Committee. After inviting objections from all concerned and upon consideration, the final seniority list shall be issued within a period of 8 weeks from the date of issuance of the tentative seniority list. We note the aforesaid statement made in the aforesaid affidavit and, while disposing of this Writ Petition, direct that time shall not be extended under any circumstance and the aforesaid schedule of events having been indicated in the aforesaid affidavit of the Government, shall be strictly adhered to and followed by the State Government. Non-compliance of this direction shall amount to committing contempt of this Court.” Keeping in view the above directions of the Hon’ble