IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 666 of 2000 with CWPs No.974 & 807 of 2000 Judgment reserved on: 14.5.2009 Date of Decision: 20th May, 2009 1.CWP No.666 of 2000. Chuni Lal Sharma …Petitioner(s). Versus. State of H.P. & Ors. …Respondent(s). For the Petitioner (s): Mr. Bimal Gupta, Advocate. For the Respondent(s): Mr. R.K.Bawa, Advocate General, with Mr.P.K. Sharma, Addl.A.G. & M/s J.K.Verma and P.M.Negi, Dy.AGs, for respondent 1. Mr. Y.P.S. Dhaulta, Central Government Counsel, for respondent No.2. Ms Meena Thakur, Advocate vice Mr. Rahul Mahajan, Advocate, for respondent No.8. Mr. Surinder Sharma, Advocate, for respondent No.12. CWP No. 974 of 2000. Rajinder Singh (deceased) through LRs. Jaswant Kaur & Ors. … Petitioners Versus. State of H.P. & others. .. Respondents. For the Petitioner(s): Mr. Dushyant Dadwal, Advocate. For the Respondent(s): Mr. R.K.Bawa, Advocate General, with - 2 - Mr.P.K. Sharma, Addl.A.G. & M/s J.K.Verma and P.M.Negi, Dy,AGs, for respondent No.1. Mr. Surinder Sharma, Advocate, for respondent No.4. Ms Meena Thakur, Advocate vice Mr. Rahul Mahajan, Advocate, for respondent No.5. 3. CWP No. 807 of 2000 Capt. Satpal Singh ..Petitioner. Versus State of H.P. & others ..Respondents. For the petitioner(s): Mr. Bimal Gupta, Advocate For the Respondent(s): Mr. Y.P.S.Dhaulta, Central Government Counsel, for respondent No.1., Mr. R.K.Bawa, Advocate General, with Mr.P.K. Sharma, Addl.A.G. & M/s J.K.Verma and P.M.Negi, Dy,AGs, for respondent No.2. Coram: The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for Reporting? Per Surjit Singh, J. Common questions of law, based on applicability of same or similar provisions of two different sets of rules, having been raised in these three civil writ petitions, they are being disposed of by a single judgment. For comprehending the points raised in the three writ petitions, relevant are as follows. In two writ petitions, i.e. CWP No. 666 of 2000, Chuni Lal Sharma versus State of H.P. - 3 - & others, and CWP No. 974 of 2000, Rajinder Singh (deceased), now represented by legal heirs Jaswant Kaur & others versus State of H.P. & others, facts are somewhat similar. Chuni Lal petitioner in CWP No.666 of 2000, joined Police Department of the Union Territory of Himachal Pradesh, in the year 1954, as Prosecuting Sub Inspector. Later- on he was promoted as Prosecuting Inspector, in the year 1958. He continued to work as Prosecuting Inspector till 20.9.1965, when on the basis of the recommendation of Departmental Promotion Committee, the Administrator, i.e. Lt. Governor, Himachal Pradesh, appointed him as officiating Deputy Superintendent of Police. In July 1967, his name was approved for appointment as officiating Deputy Superintendent of Police (for short: Dy.S.P.), after he was included in the list prepared under Rule 24 of Delhi, Himachal Pradesh and Andaman & Nicobar Islands Police Service Rules, 1965 (for short: DHANIPS Rules) and he was appointed to a duty post under Rule 25(1) of the said Rules. In the year 1966, reorganization of erstwhile State of Punjab took place and some officers working in Punjab Police Department, including some Dy.S.Ps., were allocated to the Union Territory of Himachal Pradesh, because certain areas of - 4 - erstwhile State of Punjab were transferred to and merged with the said union territory. In the year 1971, Himachal Pradesh became a State, on account of the enactment of State of Himachal Pradesh Act, 1970. Thereafter, Himachal Pradesh Police Service Rules, 1973 were framed. DHANIPS rules were repealed. Initially, there were twenty six posts of Deputy Superintendents of Police, in Himachal Pradesh. As per Rules of 1973, the strength of Deputy Superintendents of Police was fixed as 37. Petitioner, who had been promoted and appointed as Deputy Superintendent of Police with effect from 23.9.1965, was re-appointed to the Himachal Pradesh Police Service w.e.f. 12.2.1974 and was confirmed on the same day. Because of this fresh appointment, respondent No.1 started treating the petitioner as appointee to the service w.e.f. 12.2.1974 and because of this, he was assigned seniority below respondents No.3 to 11, who were appointed directly to the service against the quota of direct recruits, in the years 1975 and 1977, as per Rules of 1973. Officers recruited in the year 1974, were placed above the petitioner, because the relevant rules said that all the direct recruits appointed in any particular year shall rank senior to the promotees of that - 5 - particular year. One direct recruit of 1975 and another of 1977 batch, i.e. respondents 6 and 11, were placed above the petitioner, by being given the benefit of service rendered by them in the Armed Forces, under Demobilized Armed Forces Personnel (Service of vacancies in Himachal Pradesh Non- Technical Service) Rules, 1972. Petitioner felt that he having been appointed as Dy.S.P. in the year 1965 and thereafter his name having been included in the list prepared in the year 1967, under Rule 24 of DHANIPS Rules, ought to have been assigned seniority above all the private respondents, who were appointed in the years 1974, 1975 and 1977 against the quota meant for direct recruits as per State Rules of 1973. He also felt aggrieved by the act of benefit of Army service to respondents No.6 and 11, in the matter of fixation of seniority. His feeling was that the rules, under which the benefit had been given, were not applicable to the H.P. Police Service. The petitioner was not considered for inclusion in the Indian Police Service select list, in the year 1981, on the ground that he had not completed eight years service, which was one of the essential qualifications. He was aggrieved for this act also. According to him, his entire service as Dy.S.P., right from - 6 - 1965, was required to be counted not only for fixation of seniority in the cadre of H.P. Police Service, but also for inclusion in the Indian Police Service select list. He filed a writ petition in this Court in the year 1981. In the year 1986, when the said petition was still pending, Himachal Pradesh State Administrative Tribunal came into being and the writ petition was transferred to that Tribunal. It has been dismissed by the Tribunal vide impugned judgment/order dated 3.3.2000, which has been challenged in CWP No. 666 of 2000. Petitioner Rajinder Singh, in CWP No.974 of 2000, was initially recruited as Inspector in Punjab Police in the erstwhile State of Punjab. He was allocated to the Union Territory of Himachal Pradesh, when reorganization of that State took place in November, 1966. He was appointed as officiating Dy.S.P. in the year 1967, after his name had been included in the list, prepared under Rule 24 of DHANIPS Rules, when H.P. Police Service Rules, 1973 came into force, he was re- appointed to the service w.e.f. 12.2.1974 and confirmed on the same date. In his case also as in the case of Chuni Lal petitioner in CWP No. 666 of 2000, service rendered by him prior to 12.2.1974, was not taken into account, while fixing his seniority in H.P. Police Service. So, he also challenged the - 7 - seniority list and claimed all consequential benefits especially his name being considered for inclusion in the select list of IPS on completion of eight years service as Deputy Superintendent of Police, to be counted from 1968. He filed a writ petition in this Court in the year 1986. The same year, Himachal Pradesh State Administrative Tribunal was set up and the writ petition was transferred to that Tribunal. It has been dismissed by the Tribunal, vide impugned judgment/order dated 1.6.2000. CWP No.974/2000 has been filed for judicial review of this judgment/order. Third writ petition has been filed by Captain Satpal Singh, a Himachal Pradesh Administrative Service Officer. This petitioner joined service under the Government of India on 5.9.1952. Thereafter, he passed competitive examination, held by Punjab Public Service Commission, for the post of Block Development Officer and was appointed as such in June, 1955. While working as Block Development Officer, he joined Indian Army as Emergency Commissioned Officer, on 11.4.1963. In June, 1967, he was demobilized and was reverted to his post as Block Development Officer. On reorganization of the erstwhile State of Punjab, he had been allocated to Himachal Pradesh. So, on being demobilized, he was posted - 8 - as Block Development Officer at Shimla by the Government of Himachal Pradesh. In November, 1967, he was selected for officiating appointment to a duty post under Rule 24 of Delhi, Himachal Pradesh and Andaman & Nicobar Islands Civil Services Rules, 1965, hereinafter called as DHANICS Rules, and was appointed under Rule 25(1) of the said Rules. He continued to work as Member of DHANICS till Himachal Pradesh, which was initially a Union Territory, attained Statehood in the year 1971 and thereafter until Himachal Pradesh Administrative Service Rules, 1973, for short HAS Rules, came into force. After coming into force of the HAS Rules of 1973, a notification was issued re-appointing him to HAS w.e.f. 21.3.1974. Thereafter, his seniority was fixed, taking him to be an appointee to the service from 21.3.1974 and ignoring his service under Rule 25(1) of DHANICS Rules. He was also not considered for inclusion in IAS select list, though private respondents, who, according to him, were junior to him, were considered and included in the said select list. He filed a Civil Suit, challenging the seniority list and the act of non-consideration of his name for inclusion in IAS select list, after retirement from service. During the pendency of the suit, Himachal Pradesh Administrative Tribunal was - 9 - constituted and his suit was transferred to the said Tribunal. Tribunal registered it as Original Application and dismissed the same. Stand taken by the respondent – State, as also the private respondents, in all the three writ petitions, is that though the petitioners had been selected for officiating appointment against duty posts of DHANIPS/DHANICS, their names had not been included in the select list, prepared under Rule 15 of the both sets of Rules, nor were their appointments made, under Rule 16 of the said rules, and that their selections were under Rule 24 and appointments under Rule 25(1) of the said Rules. It was pleaded that only those persons, who were selected for inclusion in the list, under Rule 15, and were appointed on the basis of said list, under Rule 16, became the Members of DHANIPS/DHANICS and those, who were selected for officiating appointments, under Rule 24, and were appointed on the basis of such selection, under Rule 25, were not to be treated as Members of the DHANIPS/DHANICS, for the purpose of determination of seniority in Himachal Pradesh Police Service or Himachal Pradesh Administrative Service, as - 10 - per Rule 29 of DHANIPS Rule and DHANICS Rules, which are in pari materia the same. Plea of delay and latches had also been raised in all the three matters before the learned Tribunal. The learned Tribunal without dealing with the plea of delay and latches, has concluded, in all the three cases, that the petitioners were not Members of DHANIPS or DHANICS, as their selections were not under Rule 15 and appointments were also not under Rule 16, but were under Rules 24 and 25, respectively, and, hence, they were not the Members of the said services and so the period, for which they officiated on duty posts of the said services, was not to be counted in the matter of fixation of seniority. Consequently, the petitioners’ Original Applications have been dismissed by the learned Tribunal. Petitioners have challenged the judgments/orders of the learned Tribunal, in all the three cases. During the course of hearing, learned counsel, representing petitioner Chuni Lal Sharma, stated that the said petitioner did not want to press his claim arising out of the alleged wrongful assignment of seniority to respondents No.6 and 11, above him by counting the service rendered by them in the Armed Forces of India. Therefore, the only question - 11 - that needs to be determined in these cases is – whether the service rendered by the petitioners on duty posts of DHANIPS and DHANICS, after their appointment under Rule 25(1) of the two sets of rules which are couched in the same words and before their appointment to State Services in 1974, is to be taken into account for fixation of their seniority in the Himachal Pradesh Police Service/ Himachal Pradesh Administrative Service, or not? For answering the poser, reference is required to be made to Rules 14, 15, 16, 24 25 & 29 of DHANIPS/DHANICS Rules. The wording of the aforesaid provisions, appearing in both the sets of the rules, is verbatim the same except that in DHANIPS rules, reference is to DHANIP service and in DHANICS Rules, the reference is to DHANIC service. The same are reproduced below: “14. Conditions of Eligibility and Procedure for Selection.- (1)The Committee shall consider from time to time the cases of officers eligible under clause (b) of sub-rule (1 of Rule 5, who have served in the respective cadre or posts, as the case may be, for not less than two years and prepare a list of officers recommended for appointment after taking into account the actual vacancies at the time of selection and those likely to occur during a year. The selection for inclusion in the list shall be based on merit and suitability in all respects for appointment to the Service with due regard to seniority. 2 The seniority of the officers eligible for consideration by the Committee under sub-rule (1 shall be determined by the central - 12 - government with due regard to the dates of their appointments on a regular basis to the respective cadre or posts, the pay scales of the posts etc.: PROVIDED that the persons belonging to the same parent service or Department shall be ranked inter se in order of their relative seniority in the parent Service or Department, as the case may be; 3 The names of persons included in the list shall be arranged in order of merit. 4 The list so prepared shall be forwarded by the Committee to the central government. 15. Consultation with the Commission.- (1 The list prepared under Rule 14 together with the relevant records shall be forwarded by the central government to the Commission, where consultation with the Commission is necessary or where the Chairman of the Committee desires that a reference be made to the Commission along with the relevant records. 2 If the Commission considers it necessary to make any change in the list received from the central government the Commission shall inform the central government of the changes proposed by it. 3 The list shall finally be approved by the central government after taking into account the changes, if any, proposed by the Commission, and where any changes suggested by the Commission are not accepted, the reasons for such non- acceptance shall be recorded in writing. 4 The list thus finally approved shall be in force until a fresh list is prepared for the purpose in accordance with these rules. All persons except those under the Himachal Pradesh Administration who immediately before the commencement of these roles were borne on the list approved by the central government under sub- rule (4 of Rule 15 of the Delhi, Himachal Pradesh and Andaman - 13 - and Nicobar Islands Police Service Rules. 1965, shall be deemed to have been included in the same order in a list approved under sub-rule (4 of this rule. *Substituted w.e.f. 12.74 vide MHA Notification No. U14012/10/73-UTS, dated 2/12/1974. 16. Appointment to the Service.- Appointment to the Service shall be made in order of merit in the list referred to in sub-rule (4 of Rule 15 with due regard to the proportion specified in Rule 5. 24. Selection for Officiating Appointment.-If at any time the central government is of the opinion that the number of officers available in the list referred to in sub-rule (4 of Rule 15 for appointments to duty posts is not adequate having regard to the vacancies in such posts, it may direct the Committee to consider the case of officers who have officiated for a period of not less than three years in any of the cadres mentioned in clause (b) of sub-rule (1 of Rule 5 and prepare a separate list of officers selected. The selection for inclusion in the list shall be based on merit and suitability in all respects for officiating appointments to duty posts with due regard to seniority. The provisions of sub- rules (3 and (4 of Rule 14 and Rule 15 shall apply mutatis mutandis in the preparation of the selection list under this rule. 25. Officiating appointment to duty posts of the Service.- (1 If a member of the Service is not available for holding a duty post, the post may be filled on an officiating basis- (a) by the appointment of an officer included in the list referred to in sub-rule (4 of Rule 15, or (b) if no such officer is available, by the appointment of an officer included in the list prepared under Rule 24. (2 Notwithstanding anything contained in these rules if the exigencies of public service so require, a duty post for which a member of the Service is not available may be filled on an officiating basis by the appointment with prior consultation with the Commission of an officer belonging to a State Police Service - 14 - on deputation for such period or periods ordinarily not exceeding three years as the central government may consider necessary. (3 Notwithstanding anything contained in these rules, where appointment to a duty post is to be made purely as a local arrangement for a period of not exceeding six months, such appointment may be made by the administrator from persons who are included in the list prepared under sub-rule (4 of Rule 15, or Rule 24 or who are eligible for inclusion in such a list. (4 Any appointment made under sub-rule (3 shall be reported by the Administrator to the central Government forthwith. 29. Seniority.- The central government shall prepare a list of members of the Service arranged in order of seniority as determined in the manner specified below: (A) Member of the Service appointed at the initial constitution under Rule 17 shall be ranked inter se in the order of their relative seniority in the Delhi, Himachal Pradesh and Andaman and Nicobar Islands Police Service: Provided that if the seniority of any such officer had not been specifically determined before the commencement of these rules, it shall be as determined by the central government. (2 Seniority of person appointed to the Service under clauses (a) and (b) of sub-rule (1 of Rule 5 after the initial constitution under Rule 17, shall be determined as follows: (a) Persons recruited on the results of the competitive examination in any year shall be ranked inter se in the order of merit in which they are placed at the competitive examination on the results of which they are recruited, those recruited on the basis of an earlier examination being ranked senior to those recruited on the basis of later examination. (B) The seniority inter se of persons recruited by selection shall be determined on the basis of the order in which their names are arranged in the list prepared under Rule 14, those recruited on the - 15 - basis of an earlier selection being ranked senior to those recruited on the basis of a later selection. (C) The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion under Rule 5." While dealing with a case of seniority of a Member of DHANIPS, who had been selected for officiating appointment to a duty post under rule 24 and was appointed under Rule 25(1), the Hon’ble Supreme Court in Union of India & anr. versus Harish Chander Bhatia & others, (1995) 2 SCC 48, noticed the provisions of rules 14, 15, 16, 24, 25 & 29, and rejected the contention raised on behalf of the Union of India, that only those persons appointed, under Rule 16, after inclusion of his name in the select list, referred to in sub-rule (4) of Rule 15, were to be treated as Members of the service for the purpose of Rule 29, pertaining to seniority and not those appointed under Rule 25(1), on being selected under Rule 24. The reason given by the Hon’ble Supreme Court is that even for selection, under Rule 24, for officiating appointment to duty post, requirement of provisions of sub-rules (3) and (4) of Rules 14 and 15 is to be satisfied and if it is so, the persons selected under Rule 24 need to be treated on par with those - 16 - selected under rules 14 and 15. After rejecting the aforesaid contention and noticing the provisions of Rule 29, the Hon’ble Supreme Court, held vide para-11, as follows:- “11. According to us, the just and proper order to be passed would be to direct the appellants to treat the dates of officiating appointments of the respondents as the dates of their regular appointments and then to place them in the seniority list as required by Rule 29 i.e. to interpose a direct recruit in between two promotees as per their respective inter se seniorities; and we direct accordingly. The seniority would, therefore, be refixed of all concerned, not as per length of service alone as ordered by the tribunal, but as indicated by us.” A similar question again cropped up before the Hon’ble Supreme Court in L. Chandrakishore Singh versus State of Manipur and others, (1999) 8 SCC 287. The view taken in Harish Chander Bhatia’s case supra, was endorsed and it was categorically ruled that where a person is selected under Rule 24 for officiating appointment to a duty post and is appointed under Rule 25, he should be assigned seniority from the date of his appointment under Rule 25 and that there is no need for his fresh selection under Rules 14 & 15 and then appointment under Rule 16 to treat him as Member of the service. - 17 - Placing reliance upon the Supreme Court’s judgment in S.B. Dogra versus State of Himachal Pradesh & Ors, JT1992 (5) SC 667, learned counsel for respondent No.1 (in CWPs No. 666 & 974/2000) and respondent No.2 (in CWP No. 807/2000), argued that the settled seniority of the Members of the service cannot be un-settled in a writ matter filed long after the finalization of seniority. We have gone through the judgment. What happened in that case was that no objections had been filed to the provisional gradation lists within the prescribed time. Objections were filed only after the final gradation lists were published. It was held that belated representations were liable to be rejected outrightly. In the present case, admittedly, representations had been made not only against the provisional seniority list, but also against the final seniority list, which was circulated some time in the year 1979. So, the arguments raised by learned counsel for respondent No.1 (in CWPs No. 666 & 974/2000) and respondent No.2 (in CWP No. 807/2000), cannot be accepted. As a result of the above stated position, particularly the law laid down by the Hon’ble Supreme Court, in the above referred to two cases, i.e. Union of India & anr. versus Harish - 18 - Chander Bhatia & others, (1995) 2 SCC 48, and L. Chandrakishore Singh versus State of Manipur and others, (1999) 8 SCC 287, we hold that the view taken by the learned Tribunal is not correct being contrary to the law laid down by the Supreme Court in the above referred to two cases and, therefore, the orders passed by the Tribunal which are under challenge, in these writ petitions, are liable