IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P. No. 395 of 1999 Date of decision: 03.12.2008 Rameshwar Singh and another ..Petitioners Versus State of H.P. and others ..Respondents Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioners: Mr.Dilip Sharma, Advocate For the Respondents: Mr.P.K.Sharma, Additional Advocate General, with Mr.P.M. Negi, Deputy Advocate General. Per Surjit Singh, Judge(Oral) Petitioners have sought judicial review of order dated 24th August, 1999, passed by H.P. State Administrative Tribunal, whereby original application filed by the petitioners for quashing of order dated 31st July, 1987 (Annexure P-7) has been dismissed. Learned Tribunal is alleged to have not appreciated the legal position, applicable to the facts of the case, in right perspective. 2. We may notice the relevant facts. Prior to the establishment of Himachal Road Transport Corporation (in 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 short the Corporation) in the year 1974, there was a Transport Department, known as Himachal Government Transport. Petitioners were recruited as Booking Clerks by Himachal Government Transport. Petitioner No. 1 was recruited on 15th May, 1969, while petitioner No. 2 was recruited on September 13, 1967. Petitioners claim that even though their selection and recruitment was made, as per Recruitment and Selection Rules and they were duly selected by the Selection Committee, yet their appointments were given the nomenclature of ad hoc appointments for the reasons that the posts, against which they were appointed, were temporary and not permanent. In the year 1974, when the Corporation was set up under the provisions of Road Transport Corporations Act, 1950 (for short the Act), services of those employees of Himachal Government Transport, were transferred to the said Corporation. Government of Himachal Pradesh issued instructions, dated Ist October, 1974 (Annexure P-2) in exercise of power under Section 34 of the Act. The said instructions, inter alia, provided that inter se seniority of the employees of Himachal Government Transport, who were transferred to the Corporation, would remain intact, as it existed on 1.10.1974. Petitioners’ names did not figure in the seniority list of Clerks of Himachal Government Transport employees because, according to their appointment letters, they were ad hoc appointees. It appears that on transfer of their services to 3 Corporation, the petitioners alongwith other ad hoc employees, numbering 68, made representations to the Authorities of the Corporation for the regularization of their services from the dates of their initial appointments, i.e. appointments on ad hoc basis. Corporation appears to have forwarded those representations to the Government and the Government took the decision on 9th July, 1984 (Annexure P-3) that services of Clerks and Conductors, who had been appointed on ad hoc basis on the establishment of Himachal Government Transport and whose services stood transferred to the Corporation, be regularized from the dates of their initial appointments by holding reviewed D.P.C. The decision was conveyed to the authorities of the Corporation, who acting upon the said decision passed order dated 5.4.1986 (Annexure P-4), regularizing the services of 32 employees from the dates of their initial appointments. Services of petitioner Joginder Singh were regularized from 13.9.1967 and those of petitioner Rameshwar Singh from 15.5.1969. Directions were issued to the concerned officers of the Corporation to re-cast the seniority list, showing the names of the petitioners at appropriate points in such list. These instructions were issued vide letter dated 19th April, 1986 (Annexure P-5). It appears that thereafter seniority of all the Clerks, working with the Corporation, was recast and on the basis of re-cast seniority, petitioners were given promotions as Assistants vide order 4 dated 29th June, 1987 (Annexure P-6). On 31st July, 1987 Corporation issued orders withdrawing the order dated 19th April, 1986 (Annexure P-7), whereby on account of regularization of services of the petitioners from the dates of their initial appointments, seniority of all the Clerks had been ordered to be re-cast. Before taking this decision (Annexure P- 7), show cause notices were issued to the petitioners, which are Annexures P8-1 and P8-2. They filed replies, one of which is (Annexure P-9). 3. Petitioners challenged the order (Annexure P-7), whereby order, contained in Annexure P-5 for re-casting the seniority list, had been withdrawn. It was alleged in the original application that the petitioners had been appointed in accordance with Recruitment Rules against such posts which were though temporary, but were to continue indefinitely and, therefore, their appointments were in fact regular, though categorized as ad hoc. 4. Respondents opposed the original application and took the plea that Government had no authority to direct the Corporation, vide letter dated 9th July, 1984 (Annexure P-3), to regularize the services of the petitioners and 66 other employees from the dates of their ad hoc appointments. It appears that before the tribunal, a submission was made that Annexure P-3 had been issued by the Government in exercise of the power under Section 34 of the Act. The plea did not find 5 favour with the tribunal. Also the tribunal noticed its earlier judgment dated 3.5.1991 in Naginder Lal Vs. H.R.T.C. and others in TA-155/87, and concluded that as held in the said judgment, the Government did not have the power to direct the H.R.T.C. to regularize the services of the petitioner, (who was an Inspector in that case), from the date of his ad hoc appointment and that the said direction did not fall within the purview of Section 34 of the Act. 5. We have heard the learned counsel for the petitioners as also the learned counsel for the Corporation and gone through the record. 6. Petitioners’ contention that their initial appointments in the year 1967 and 1969 by the Himachal Government Transport was in accordance with the Rules and was made after following the due selection process, has not been controverted by the respondents, meaning thereby that the appointments of the petitioners were not de hors the rules for the reinstatement of Clerks, in the Erstwhile Himachal Government Transport. A reading of the appointment letter of petitioner Rameshwar Singh shows that there was a Selection Board, which recommended his appointment as Booking Clerk. From the reading of the letter, it appears that the appointment was made on ad hoc basis because the post, against which he was appointed, was purely temporary (on year to year basis, but likely to continue). That means, had the posts, against which the 6 petitioners were appointed, not been temporary, they would have been appointed on regular basis in accordance with rules of recruitment. It is true that in the original application as also in the present writ petition, it is stated that in the year 1972 some Clerks were recruited on regular basis, but at the same time, it is alleged that those appointments could not have been made without first regularizing the appointments of petitioners. 7. We have no reason to differ with the view taken by the learned tribunal that the decision (Annexure P-3), taken by the Government, cannot be treated as general instructions issued under Section 34 of the Act, but only for this reason, it cannot be said that the decision is bad. It is required to be seen independent of under Section 34 of the Act, whether the decision could have been taken by the Government or not. Learned tribunal in an earlier decision, i.e. Naginder Lal Vs. H.R.T.C. and others (supra), which was noticed by the learned tribunal while deciding the original application of the present petitioners, had observed that the H.R.T.C. could have regularized the services of ad hoc employees, transferred from Himachal Government Transport, from the date it came into existence and regularization from a prior date could perhaps have been ordered only by the Government. meaning thereby that the learned tribunal, in the earlier judgment, was of the view that the Government had the power to regularize the services of ad hoc transferred employees from a date prior to 7 the setting up of the Corporation. We also feel that the Government, who was the employer of the petitioners prior to the setting up of the Corporation, alone had the authority to decide whether the services of its previous employees, who were appointed on ad hoc basis, could be regularized from a date prior to the date of coming into existence of the Corporation. When viewed from this angle, we find no fault with the decision of the Government, contained in Annexure P- 3, for the regularization of the services of 68 Clerks, who had been appointed on ad hoc basis by the Himachal Government Transport, from the dates of their initial appointment. 8. Coming to the question, whether the decision of the Government, Annexure P-3, is justified, we may notice at the cost of repetition that the initial appointment of the petitioners was not de hors the rules. Their names had been recommended by the Selection Board per contents of appointment letter, Annexure P-1. Their appointment was named ad hoc only for the reason that the posts, against which they were appointed, were temporary (from year to year basis, but likely to continue). In fact the posts continued till they were transferred to the Corporation and the Corporation regularized their services w.e.f. Ist July 1975, even before the Government took the decision, contained in Annexure P-3. The fact that the services of the petitioners had been regularized by the Corporation, w.e.f. July 1, 1975 without holding any fresh 8 selection process, itself suggests that the initial (ad hoc) appointments of the petitioners had been made, after following due selection process and also in accordance with Recruitment Rules. 8. On behalf of the respondents, it has been submitted that both the original application and the present writ petition, are bad on account of non joinder of the Clerks, whose seniority had been upset on account of regularization of the services of the petitioners from retrospective effect. It is true that both, in the original application as also the present writ petition, there is an averment by the petitioners that some Clerks were appointed on regular basis in the year 1972 and that their appointments were bad, but neither the present writ petition nor the original application can be said to be bad for non-joinder of the Clerks appointed in 1972, because before the passing of the impugned Annexure p-7, a decision had been taken for the regularization of the services of the petitioners from retrospective effect and that decision had not been challenged by those Clerks. The decision challenged by the writ petitioners was of recall of earlier decision (Annexure P-4). Clerks, whose seniority had come down, on account of the regularization of the services of the petitioners with retrospective effect pursuant to the decision, Annexure P-3 of the government, could have challenged that decision and also the consequential order passed by the Corporation, Annexure P-4. 9 9. We have been told that by now both the petitioners have retired. Operation of the impugned order, Annexure P-7 and the consequential order of their reversion, Annexure P-10, had been stayed during the pendency of the original application by the learned tribunal and by this court during the pendency of the present writ petition. 10. For the foregoing reasons as also the fact that the petitioners have since retired and they had been holding the posts of Assistants, to which they had been promoted after regularization of their services from retrospective effect till their retirement, we allow this writ petition and set aside the order dated 31st July, 1987 (Annexure P-7) of the learned tribunal and as a sequel thereto, quash the order Annexure P-7 as also the consequential orders passed/decision taken by the Corporation, so far as it affects the petitioners. The writ petition stands disposed of in the aforesaid terms. ( R. B. Misra ), J. December 3, 2008(K) ( Surjit Singh ), J.