IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 958/2007 Reserved on:27.10.2008 Decided on:6.11.2008 Chaman Singh. …Petitioner. Versus Bharat Sanchar Nigam Limited and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the Petitioner : Mr. Ashwani Sharma, Advocate. For the Respondents : Mr. Ashok Sharma, Advocate. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that the petitioner was promoted purely on temporary and ad hoc basis in the pay scale of Rs. 1320-2040 with effect from 1.6.1994 vide memo dated 23.6.1994. The memo dated 23.6.1994 was superseded vide memo dated 17.1.1995 whereby 27 persons mentioned therein were promoted in the cadre of Senior TOA purely on temporary and ad hoc basis. The name of the petitioner was not mentioned therein. The Superintendent 1 Whether the reporters of Local Papers may be allowed to see the judgment? no. 2 Engineer (Civil), Telecom Civil Circle, Mandi, favourably recommended the name of the petitioner and similarly situate persons, namely, Bhumi Ram, Hira Singh, Chaman Singh, Aswani Kumar and Hoshiar Singh on 19.9.1995 to the Assistant Director Telecom (Staff). The Superintendent Engineer (Civil), Telecom Civil Circle, Mandi again brought to the notice of the Assistant Director Telecom (Staff) on 24.4.1996 that the name of the petitioner has not been included in the extension orders though he was working against the same post and was performing the same duties as per memo dated 23.6.1994. The recommendations were reiterated by the Superintendent Engineer (Civil) on 18.7.1996, 23.8.1996, 31.10.1996, 8.1.1997, 17.1.1997 and 25.2.1997. It will be apt at this stage to take note of memo dated 31.10.1996 whereby the petitioner was also promoted in the cadre of Senior TOA. He made a representation for fixation of his pay with effect from 1.6.1994 in the pay scale of Rs. 1320-2040 under FR 22 (1) (a) (i). His pay was fixed in the pay scale of Rs. 1320-2040 vide communication dated 18.4.2007. The pay fixed on the basis of letter dated 18.4.2007 was withdrawn vide communication dated 1.6.2007 (Annexure P-16). In sequel to order dated 25.8.2007 (Annexure R-2), the office order dated 10.9.2007 was issued whereby the sanction for grant of officiating arrangement was made with effect from 11.7.1996 to 30.10.1996 qua the petitioner, however, in the cases of Hira Singh, Hoshiar Chand and Bhumi Ram, it was sanctioned with effect from 1.6.1994 to 7.4.1996, 1.6.1994 to 2.6.1996 and 1.6.1994 to 29.7.1996, , respectively. Mr. Ashwani Sharma has strenuously argued that a conscious decision has been taken to promote the petitioner on officiating basis with effect from 23.6.1994. He was subsequently promoted on regular basis with effect from 31.10.1996 and on the basis of the representation made 3 by the petitioner, his pay was fixed in the pay scale of Rs. 1320-2040 with effect from 1.6.1994 vide Annexure P-13, but the same has been withdrawn without issuing any show cause notice on 1.6.2007. His further contention is that his client has been promoted on officiating basis after taking into consideration his eligibility and seniority vide Annexure P-3 dated 23.6.1994. He also contended that the case of the petitioner is at par with that of Hira Singh, Hoshiar Chand and Bhumi Ram, however, in their cases sanction has been granted with effect from 1.6.1994 and in case of the petitioner, the sanction has been granted with effect from 11.7.1996. His further contention is that his client worked uninterruptedly with effect from 23.6.1994 and his pay was correctly fixed as per FR 22 (1) (a) (i). Mr. Ashok Sharma has strenuously argued that the petitioner was not eligible for officiating promotion with effect from 23.6.1994 and he has strenuously relied upon order dated 25.8.2007 on the basis of which order dated 10.9.2007 has been issued by the respondents. His further contention is that the petitioner has neither qualified the aptitude test nor he has completed the training course thus he has rightly been given benefit with effect from 11.7.1996 to 30.10.1996. I have heard the learned counsel for the parties and perused the record carefully. It will be apt at this stage to take note of Annexure PY dated 1.10.1993. The text of letter dated 1.10.1993 reads thus: “Kindly refer to this office letter of even number dated the 23rd July, 1993 wherein it was decided that officiating chance may be given to the existing officials in the basic grade who are performing the duties of Sr. T.O.A.’s for Operation of Computers etc. against the sanctioned posts of Sr. T.O.A.’s pending their formal appointment 4 after selection and training. We have been receiving representations from the staff unions about the date of effect of the officiating charge. The matter has been examined and I am directed to say that the officiating chance may be given retrospectively w.e.f. 1.5.1993 only against the sanctioned posts of Sr. T.O.A.’s etc. remaining unfilled. This issues with the concurrence of Finance Advice vide their U.O. No. 3302/93-FA-1 dated 14.10.1993.” The petitioner was promoted purely on temporary and ad hoc basis vide memo dated 23.6.1994. However, his name did not figure in Annexure P-5 dated 17.1.1995. His case was strongly recommended as is evident from Annexures P-5 to P-8. The petitioner was, however, promoted on regular basis with effect from 31.10.1996 (Annexure P-9). He made a representation, as noticed above. His representation was duly considered and vide order dated 18.4.2007, his pay was fixed under FR 22 (1) (a) (i). It will be appropriate at this to take note of Annexure P-18 dated 24.1.1997, which reads thus: “I am directed to refer to this office letter of even No. dated 15.7.1996 and NCG section letter No.7-24/96-NCG dated 30.7.96 under which guidelines for making ad hoc appointments in restructured cadres (Sr. TOA, TTA and Phone Mechanic) for a period of maximum one year was circulated. On the demand of staff side of JCM and concurrence of DOP&T, it has now been decided that adhoc appointment in the above restructured cadres may be continued up to 31st March, 1997 without any break in between. Breaks, if any in the past due to administrative reason may be regularized by treating as if there was no break. 5 Training of the officials who opted for restructured cadres, should, therefore, be completed before 31.3.97.” Letter dated 18.4.2007 has been withdrawn vide Annexure P-16 dated 1.6.2007. It was necessary for the respondents at least to call upon the petitioner why the order dated 18.4.2007 be not withdrawn. It is settled law by now that any order which entails civil consequences must be issued in conformity with the principles of natural justice. The contention of the petitioner that no notice was issued before the issuance of Annexure P-16 has not been denied by the respondents in their reply. The order dated 1.6.2007 read with office order dated 10.9.2007 is liable to be quashed and set aside on this short ground alone. However, the matter is required to be looked into from another perceptive. The petitioner has been promoted on the basis of Annexure P-Y dated 1.10.1993. The Department of Telecommunications (Senior Telecom Operating Assistant (Phones) Grade 1, Sr. Telecom Operating Assistant Grade (General), Sr. Telecom, Operating Assistant Gr-1 (Telegraphy), Sr. Telecom Officer Assistant Grade-I (Tel general) Recruitment Rules, 1992 were notified on 6.9.1993. These rules were in existence at the time when Annexure P-3 dated 23.6.1994 was issued. The petitioner was promoted on the basis of his seniority on 23.6.1994. The case of the petitioner has been strongly recommended as already noticed in the preceding paras of the judgment (Annexure P-5 to P-8). No condition of passing of the aptitude test or training course was stipulated in Annexure P-3 dated 23.6.1994. He has been promoted on regular basis with effect from 31.10.1996 (Annexure P-9). S/Sh. Hira Singh, Hoshiar Chand and Bhumi Ram had qualified their aptitude/screening test on 1.7.1994, however, the sanction has been granted qua them with effect from 1.6.1994. In the 6 case of the petitioner, the sanction has been granted with effect from 11.7.1996 to 30.10.1996. According to the respondents, the petitioner had qualified the written test on 10.7.1996. If S/Sh. Hira Singh, Hoshiar Chand and Bhumi Ram had been granted the benefit with effect from 1.6.1994 though they have qualified the test on 1.7.1994, there is no reason that the same principle would not apply qua the petitioner. Though it has already been taken note in this judgment that the passing of the test was not pre-condition in Annexure P-3 dated 23.6.1994. It has been communicated vide communication dated 31.10.1996 that the petitioner and similarly situate persons have been discharging the same duties and were working on the same posts. The petitioner was promoted with effect from 23.6.1994 and the benefit under FR 22 (1) (a) (i) has rightly been granted to him and the same could not be withdrawn by the respondents on the grounds which are not sustainable in the eyes of law. It is evident from the combined reading of Annexure PY and P-18 that the respondent- corporation had decided that ad hoc appointment in the restructured cadre may be continued up to 31.3.1997 without any break in between. It was further ordered vide Annexure P-18 dated 24.1.1997 that the breaks, if any, in the past due to administrative reason should be regularized by treating as if there was no break. It is thus evident that there was a practice prevalent in the respondent-corporation since 1993 to have officiating/ ad hoc arrangement taking into consideration the exigency of service. However, the fact of the matter is that the petitioner had discharged the duties of higher officer as Senior TOA and was entitled to consequential benefits. The points raised in communication dated 25.8.2007 had already been answered by the Superintendent Engineer (Civil) (Annexure P-5 to P-8). Thus the office order dated 10.9.2007 based on letter dated 25.8.2007 is not sustainable in the eyes of law. The 7 ad hoc promotions are made after taking into consideration the exigency of service. It is reiterated that while promoting the petitioner and similarly situate persons, the condition of qualifying the aptitude test was not prescribed. The officiating promotion was not based on qualifying the aptitude test as canvassed before this Court. The other question relevant in this petition precisely is: whether the petitioner is entitled to get the benefit of officiating appointment or not? The answer is: yes. Their Lordships of the Hon’ble Supreme Court in Secretary-cum- Chief Engineer, Chandigarh versus Hari Om Sharma and others, (1998) 5 SCC 87 have held as under: “Learned counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer-I, he had given an undertaking to the appellant that on the basis of stop- gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma holders available for promotion to the post of Junior Engineer-I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be 8 unenforceable in view of Section 23 of the Contract Act.” In view of the aforesaid reasoning, the writ petition is allowed. Annexures P-16 dated 1.6.2007 and R-1 dated 10.9.2007 are quashed and set aside. The effect of quashing of Annexures P-16 and R-1 will be that Annexure P-13 dated 18.4.2007 shall stand restored and the pay of the petitioner will remain fixed in the pay scale of Rs. 1320-2040 with effect from 1.6.1994 with all consequential benefits. There will, however, be no order as to costs. 6.11.2008 (Rajiv Sharma ), J. *awasthi*