IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 224 of 2006. Decided on: 14.5.2010. __________________________________________________ State of H.P. … Petitioner. Versus Sada Ram and another. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. P.M Negi, Deputy Advocate General. For the respondents : Mr. Dilip Sharma, Advocate. ___________________________________________________________ R.B. Misra, Judge (Oral). Initially, writ petition No. 134 of 1982 was preferred by respondents No. 1 & 2 herein, which was subsequently transferred as TA No. 545 of 1986 before the Himachal Pradesh Administrative Tribunal, Shimla (in short learned Tribunal), where respondents No. 1 & 2 were applicants and respondents No. 2 to 88 were the private respondents, said to be juniors who were given benefit of promotion to the post of ‘Assistant’ by the State Government. The respondents No. 1 & 2 herein had preferred CWP No. 134 of 1982 (TA No. 545 of 1986) with following prayer: “(a) That the promotion of respondents No. 2 to 88 be quashed. (b) That the petitioners be considered for the purpose of promotion to the post of Assistant and be eventually promoted w.e.f. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 27.2.1980, i.e. from the dates the respondents 27.2.1980 were promoted. (c) The petitioners may also be paid arrears of pay allowances and allied benefits ensuing from quashing of the promotion.” 2. Writ Petition No. 134/82 on transfer became the T.A. No. 545/1986, which was adjudicated and decided by an order dated 7.12.2005 of learned Tribunal. The said order was challenged by the State Government in Writ Petition No. 224/2006. This Court while adjudicating writ petition No. 224 of 2006 was pleased to dismiss the writ petition summarily, vide an order dated 24.3.2006 which was challenged by way of Special Leave Petition No. 12627 of 2006 (Civil Appeal No. 1717 of 2009, after grant of S.L.P.) and after hearing, Hon’ble Supreme court, vide order dated 18.3.2009, was pleased to dispose of the same relegating the Writ Petition No. 224 of 2006 to this High Court with direction for the disposal of the same. This is how, this Court is considering the C.W.P. No. 224 of 2006 afresh for disposal. 3. Undisputed facts are that the respondents at the relevant time were working as Senior Clerks in the H.P. Secretariat. The respondent No.1 was in the Armed Force of India w.e.f. 3.5.1963 to 1.7.1967, whereas respondent No.2 worked in Army w.e.f. 5.10.1965 to 17.11.1977. Being Ex-servicemen, they were appointed respectively as Clerks in the H.P. Secretariat w.e.f. 4.8.1979 and 18.8.1979. By virtue of the provisions of “The Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972” (hereinafter referred to as the Rules) as amended from time to time, 3 the respondents, vide Annexures P-1 and P-1/A were given the benefit of military service and their pay and seniority was accordingly fixed and they ranked higher in the order of seniority over several persons who were already working in the Secretariat as shown in the seniority list, Annexure P-2 to P-2/A and P-2/B. As many as 88 promotions were made from the Clerks to Assistants in the Secretariat from amongst the officials mentioned in the seniority list at serial No. 78 to 191, who were party-respondents in TA, before learned Tribunal, whereas the promotion as Assistant was denied to the present respondents herein on the ground that they had not rendered service of five years in their capacity as Clerk/Senior Clerks, as such, length of service was the condition to be eligible for consideration for promotion to the post of Assistant, according to the relevant Rules prevalent at relevant time. The respondents, who had not the requisite service as Clerks claimed that the service rendered by them in the Army should have been counted for the purpose of eligibility for the post of Assistants otherwise very idea of giving benefit of such service in the fixation of seniority would be defeated. 4. The private respondents No. 1, 2, 3, 13 to 15, 18, 20, 27, 43, 45, 48, 54, 64, 72 and 75 before the learned Tribunal contested the claim of the applicants, i.e. (respondents No. 1 & 2). State Government raised preliminary objection before learned Tribunal that the application was pre-mature and not maintainable. On merits, it was claimed that the benefit of approved military service was restricted only for fixation of pay and seniority and not for all intents and purposes, therefore, fixation of the pay and 4 seniority to the respondents No. 1 & 2 was done as per Rule 5 of the Rules. However, for the purpose of promotion as Assistants, the applicants/respondents No. 1 & 2 herein were to become eligible after completion of five years of service as Clerks in the H.P. Secretariat as provided under the H.P. Secretariat Class III Service (Recruitment & Promotion and Certain Conditions of Service) Rules, 1973. Since the applicants (respondents No. 1 & 2) had not completed five years of service as Clerks in the Secretariat, therefore, they were not eligible and were not considered for promotion as Assistants. It is on the strength of these submissions that the claim of the applicants (respondents herein), was denied by the State Government. 5. Other contesting respondents before the Tribunal in their joint reply raised the preliminary objection that the applicants/respondents herein had claimed to be Ex-servicemen and not the Demobilized Armed Forces Personnel, therefore, they are not entitled for any benefit under the Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972. On merits, the claim of the applicant being Ex-servicemen has been refuted and that the benefit of rules stood given to them at the time of their appointment and that too without proper scrutiny because such benefit could not have been given to those army personnel who were released from Army on their own request, misconduct or inefficiency or as Ex- servicemen. It was also contended that the applicants (respondents herein) were not eligible for being considered for promotion as Assistants and were thus, rightly not considered and promoted. 5 6. During the pendency of the matter in the High Court, an application dated 28.7.1983 was moved by the learned Deputy Advocate General under Section 151 of the CPC on the ground that the challenge in the case was to the promotions of private respondents No. 2 to 88 before the learned Tribunal and such promotions have also been given to the applicants/respondents herein by promoting them as Assistants in relaxation of the Recruitment & Promotion Rules, therefore, the writ had become infructuous. This application was registered as CMP No. 1592/83. The application was, however, opposed on the ground that the promotion has not been given to the applicants from 27.2.1980 but has been given from 1983, therefore, the writ petition cannot be said to have become infructuous. Thereafter, the writ stood transferred to the Tribunal vide order dated 8.9.1996. 7. It has also been brought to our notice that during pendency of TA No. 545 of 1986 before the Tribunal, the petitioners were given promotion with retrospective effect, i.e. from 16.12.1982 by giving notional benefit with effect from 16.12.1982 to 23.5.1983 with the condition that no arrears shall be admissible to them but difference in the period between date of notional promotion and actual date of promotion would be counted for the purpose of seniority in the higher grade and increments. 8. In consonance to the submissions made before the Tribunal, it has been contended on behalf of respondents No. 1 & 2 before us that the seniority allotted to the applicants i.e. respondents herein by virtue of Rule 5 of the Rules should have been taken into account for the purpose of counting their service for 6 the purpose of eligibility for being considered for promotion as Assistants. The assumed distinction in actual and notional seniority did not deserve any consideration for the purpose of determination of the eligibility. Thus, by not taking into account the allotted seniority of the applicants, the selection process is vitiated. It has also been submitted that in view of the seniority of the applicants as assigned to them to make them eligible for consideration for promotion and the State Government have not considered them for promotion, the respondents herein were liable to be considered and promoted from the date when their juniors were promoted and they are entitled for arrears as a consequence of such promotion. 9. On the other hand, in consonance to the submissions made on behalf of the State Government before learned Tribunal, the learned Deputy Advocate General has submitted before us that the requirement of five years service for eligibility for consideration for promotion in this case was in fact of the service rendered as Clerks in the Secretariat and not any notional seniority as was allotted to the applicants/respondents herein under Rule 5 of the Rules. Subsequently, the length of service for eligibility in the case of Ex-servicemen was reduced to three years actual service and on completion of such service the applicants before learned Tribunal have been given notional promotions for a fraction of period and regular promotions thereafter. Since the applicants did not work during the period of notional promotion, therefore, they are not entitled for the arrears. 10. The learned Tribunal, however, has mainly considered the question that where benefit of seniority so assigned 7 to respondents No. 1 and 2 herein (the applicants before learned Tribunal) could be denied to them in the matter of promotion. Learned Tribunal has very categorically observed in the order dated 7.12.2005 as below: “In our view once the seniority of the applicants has been fixed whether notional or fictional as provided under Rule 5 of the Rules respondents cannot claim that the applicants are not entitled for the benefit of such seniority for the purpose of promotion.” 12. Learned counsel Shri Dilip Sharma for the respondents herein has referred to the decision in O.N. Tandon (dead) and others versus Food corporation of India and others (1984 (2) All India Services Law Journal 288), Delhi High Court while dealing with a similar question as in hand has observed as under: “20. Why should I restrict the words of the circular and hold that only seniority and pay are covered and not promotion? Promotion is comprehended within the word ‘seniority’. I not only see no good reason for restricting the words, but I see every good reason to give them their full and proper significance. The corporate author of the circular cannot say: “I give seniority but not promotion”. It is always important to consider the purpose for which the fiction is introduced. Its primary function was to bring in something which would otherwise be excluded. The petitioners’ military service will have to be included which otherwise would have been excluded. Fiction here was introduced for the advancement of the ends of justice. 8 21. In East End Dwellings versus Finshury Borough Council (1951) 2 All ER 587 (599) Lord Asquith said: “If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and “incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it….. The statute says that one must imagine a certain state of affairs. It does not say, that having done so, one must cause or permit one’s imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” 22. Promotion is the ‘consequence’ of seniority. It is an inevitable corollary. The authorities fell into this err that they permitted their imagination to boggle when it came to the ‘inevitable corollaries of that state of affairs’ which the circular bids us to imagine as real.” 13. The learned counsel for the respondents herein has also referred the decision in Union of India and others versus K. B. Rajoria, (2000 (3) Supreme Court Cases 562), where the Hon’ble Supreme Court has held as under: “20. In the context of this case, the High Court erred in equating the words “regular service” with “actual experience” relying on the decision in Union of India versus M.Bhaskar. In that case the eligibility criterion expressly was of “completion of two years’ experience in Grade-II”. The case is, therefore, entirely distinguishable. 21. The notional promotion was given to Krishnamoorthi to right the wrong that had been done to him by his supersession on 22.2.1995. If 9 Krishnamoorthi is denied the right to be considered for promotion to the post of Director General on the basis of such notional promotion, particularly, when the relevant provisions so provide, it would result in perpetuating the wrong done to him. That is exactly what the High Court has done.” 14. Learned Tribunal on adjudicating TA No. 545 of 1986 (CWP No. 134 of 1982) has arrived at the conclusion that allotment of seniority to applicants (respondents No. 1 & 2 herein) after taking into account their military service cannot be said to be illegal or irregular, therefore, the benefit of such seniority could not have been denied to them for the purpose of eligibility for consideration for promotion to the post of Assistant. 15. Learned Tribunal has also observed in paras 15 and 16 as below: “15. In view of the above position we hold that the army service rendered by the applicants which was counted for fixation of their seniority deserves to be counted for the purpose of determining their eligibility for consideration for promotion and when so counted the applicants were entitled for being considered for promotion when the impugned promotions were made i.e they deserves to be considered for promotion to the posts which were available for being filled in by promotion on 27.2.1980 from which date the respondents 2 to 88 were promoted. 16. It may be pointed out here that it may not be proper now to upset the promotions which had already been made by respondent No.1 and which are under challenge in this TA because of 10 lapse of considerable period after such promotions and some of the respondents by now having retired and died. Interest of justice will be met if the applicants are considered for promotion on and w.e.f 27.2.1980 when their juniors were promoted. It may also be pointed out that the applicants’ claim did not suffer from latches and delay but has been rendered old because of the pendency of the case initially in the High Court and thereafter in this Tribunal for considerable time. Therefore, if promoted on the basis of seniority come rejection of unfit consequential benefits of arrears etc. cannot be denied to the applicants.” 16. In order to elaborate the issue in question, it is necessary to refer to Notification, dated 6.12.1980 issued by the Government of Himachal Pradesh, General Administration Department, in reference to Demobilize Armed Forces Personnel (Reservation of Vacancies in the Himachal Pradesh State Non- Technical Services) Rules, 1972, wherein Rule 5 (I) of said notification, dated 6.12.1980 reads as below: “5 (I). Service rendered in the Army Forces, including the period spent on training prior to Commission in the case of Commissioned Officers, shall count, in full, toward seniority and fixation of pay under the State Government in the post to which he is first appointed against the vacancy reserved under rule 3.” Rule 6 also reads as below: “6. The provisions of these Rules shall have effect, notwithstanding anything to the contrary contained in any other rules.” 11 17. The Notification, dated 6.12.1980, issued by the Government of Himachal Pradesh, General Administration Department has clarified in Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal State Non-Technical Services) 7th Amendment Rules, 1979 by way of Rule 5 (I), which reads as below: “5 (I). Only the period of approved military service rendered after attaining the minimum age prescribed for appointment to the service concerned by the candidates appointed against reserved vacancies under the relevant rules shall count towards fixation of pay and seniority in that service.” 18. The State of Himachal Pradesh by way of affidavit has contended in paras 12 & 13 in its reply to the Writ Petition No. 134 of 1982 as below: “Paras 12 -13: There is no such foot note-8 in the Himachal Pradesh Secretariat Class III Services (Recruitment & Promotion) Rules, 1973 as wrongly stated by the petitioners. As such, grant of any benefit to them on that basis does not arise. However, note (iii) in the said rule reads as under: “(iii) In all cases where junior person becomes eligible for consideration by virtue of his total length of service (including ad hoc one) in the feeder post, all persons senior to him in the respective category shall be deemed to be eligible for consideration and placed above the junior officials in the field of consideration.” 12 As none of the persons has been granted benefit of ad hoc service for consideration for promotion to the post of Assistant, there is even otherwise also no question of becoming eligible for the petitioners for consideration on the ground that persons junior to them have been considered. All the persons concerned had five years’ regular service as Clerk. Hence, being eligible, they have rightly been considered for promotion to the post of Assistant.” 19. In the present case, the promotion of Assistant in the Department of Personnel, Government of Himachal Pradesh in question and Rule 11 of the Government of Himachal Pradesh, Department of Personnel Recruitment Rules for Class III services, H.P. Secretariat provides that for recruitment to the post of Assistant, the eligibility criteria is as below: R . B 20. Learned counsel for the State/petitioner has contended that in view of the letter dated 23.2.1989 (Annexure P-5) issued by the Government of Himachal Pradesh, the Department of Personnel has categorically indicated that the Ex-servicemen on completion of at least three years’ service in the civil post, are to be “11. In case of recruitment by promotion/ deputation/ transfer, grades from which promotion/de putation/ transfer to be made. Promotion from Senior Clerks/Clerks and Junior Scale Stenographers with five years of service as such as long as the category of Senior Clerks exists, quota of Senior Clerks and Junior Scale Stenographers for promotion to the post of Asstt. shall be in proportion to the number of posts sanctioned for these respective categories as on 1.12.71. After the category of Senior Clerks becomes extent, the proportion shall be between the number of Clerks and Junior Scale Stenographers.” 13 considered eligible for promotion to the higher post if their juniors are eligible and also promoted subject to suitability and availability of posts. 21. According to Mr. P.M. Negi, learned Deputy Advocate General, the requirement of five years service for eligibility for consideration for promotion to the post of Assistant in the case of incumbents, who have rendered service as Senior Clerks or Clerks in the Secretariat by virtue of Rule 5 (I) of the Notification, dated 6.12.1980 was prevalent, however, subsequently length of five years service for eligibility in the case of Ex-servicemen, since was reduced to three years actual service by virtue of letter dated 23.2.1989 (Annexure P-5), therefore, on completion of such service, respondents No. 1 & 2 herein have been given notional promotion for a fraction of period and regular promotion thereafter. In the facts and circumstances since the respondents No. 1 & 2 herein did not work during the period of notional promotion, therefore, they are not entitled for the arrears. 22. Whereas, on the other hand, Mr. Dilip Sharma, learned counsel for respondents No. 1 & 2 herein, has referred and relied upon the decision of Union of India versus Smt. Sadhana Khanna, AIR 2008 SC 860, wherein Supreme Court has observed that where junior had completed eligibility requirement of promotion then their seniors will also be considered even if they have not completed eligibility period. For convenience, paras 9 to 11 of Union of India versus Smt. Sadhana Khanna (supra) is quoted as below: 14 “9. The Tribunal allowed the O.A. by its order dated 24.9.1999. In the said O.A. it was held that the Department of Personnel and Training had issued an office memorandum dated 19.7.1989 soon after the decision of this Court in R.Prabha Devi and others versus Government of India through Secretary, Ministry of Personnel and Training, Administrative Reforms and others, 1988 (2) SCC 233 stating that where the junior had completed the eligibility requirement of promotion then their seniors will also be considered even if they have not completed the eligibility period. 10. The appellant filed a writ petition before the Delhi High Court which was dismissed and hence, this appeal. 11. It may be noted that the respondent was offered appointment vide letter dated 5.7.1983 which is after 1.7.1983 from which the eligibility was to be counted. Hence, it is the Department which to blame for sending the letter offering appointment prior to 1.7.1983. Hence it was the Department which is to blame for this. Moreover, in view of the Office Memorandum of the Department of Personnel and Training dated 18.3.1988 and 19.7.1989 the respondent was also to be considered, otherwise a very incongruous situation would arise namely that the junior will be considered for promotion but the senior will not.” 23. We have gone through the impugned order, dated 7.12.2005, passed by the learned Tribunal in T.A. No. 545/86, wherein observations have been made as have been noted by us since the respondents No. 2 to 88 of T.A. No. 545/86 of learned Tribunal are not at all being affected undisputedly being juniors to 15 the respondents No. 1 & 2 herein and they are not parties before us, as such, in our considered view the directions issued in para 17 of the impugned order, dated 17.12.2005, are legal in view of the decision of Supreme Court in Smt. Sadhana Khanna (Supra) requires no interference. We do not find any merit in the writ petition and therefore, the same is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. May 14, 2010. (cr)