IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 2984/2008 alongwith CWP (T) No.5415/2008 Reserved on: 6.8.2010 Decided on:17.8.2010 _____________________________________________ 1. CWP No. 2984/2008 Vishwa Mitter Sharma and another. Petitioners. Versus State of Himachal Pradesh and others. …Respondents. 2. CWP No. 2984/2008 Sunder Singh Aukta. Petitioner. Versus State of Himachal. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. CWP (T) No.: 2984/2008 For the petitioners : Mr. Dilip Sharma, Advocate. For the Respondents: Mr. R. K. Sharma, Sr. Addl. A.G. with Mr. P.M. Negi, Dy. A.G. and Mr. R.P. Singh, Asstt. Advocate General for respondent No.1. Ms. Salochna Kaundal, Advocate vice Mr. O.P. Thakur, Advocate for respondent No.2. CWP (T) No. 5415/2008: For the petitioner : Ms. Salochna Kaundal, Advocate vice Mr. O.P. Thakur, Advocate. For the Respondent: Mr. R. K. Sharma, Sr. Addl. A.G. with Mr. P.M. Negi, Dy. A.G. and Mr. R.P. Singh, Asstt. Advocate General. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 _____________________________________________________ Justice Rajiv Sharma, Judge. Since common questions of law and facts are involved in both these petitions, the same are taken up together for hearing and are being disposed of by a common judgment. CWP No. 2984/2008: 2. Petitioner No.1 was appointed as Assistant Physical Training Supervisor on 5.6.1964. He has passed M.A. D.P.Ed. Petitioner No.2 was appointed as D.P.E. on the basis of his qualification of B.A. B.P.Ed. The post of Assistant Physical Training Supervisor was re-designated as Assistant District Physical Education Officer (hereinafter referred to as ‘ADPEO’ for brevity sake). Petitioner No.1 was promoted to the post of Assistant Director (Physical Education) and he joined his duties on 3.8.1992. According to the seniority list issued in the month of September, 1995, petitioner No. 1 was at Sr. No. 1 and petitioner No.2 was at Sr. No.2 whereas respondent No.2 was at Sr. No.14. The post of Deputy Director (Physical Education) was upgraded to that of Joint Director (Physical Education) in the year 1989-90. In fact, initially the post of ADPEO was in feeder category for promotion to the post of Deputy Director (Physical Education). State Government took a decision to create ex-cadre post of Deputy Director of Physical Educatio) (ex-cadre) on 12.12.1995. Petitioners served a legal notice that ex-cadre post has been 3 created for respondent No.2 and they will be over looked for promotion. The post of Deputy Director of Physical Education (ex- cadre) was created on 1.1.1996 and respondent No.2 was deployed on 22.1.1996. Office order dated 22.1.1996 reads thus: “The Governor, Himachal Pradesh is pleased to deploy Shri S.S. Aukta, Asstt. District Physical Education Officer, Shimla against the newly created post of Deputy Director of Physical Education (ex-cadre) with Headquarters at Shimla in the Education Department in his own pay scale with immediate effect till the post is filled up on regular basis.” Respondent-State has filed response to the petition. CWP (T) No. 5415/2008 According to the averments made in this petition, petitioner was appointed as Physical Education Teacher on 6.12.1958. However, in the seniority list issued on 14.12.1978, his date of appointment was shown as 7.2.1960. Thereafter in final seniority list, the same position was reiterated. In subsequent seniority list issued on 29.3.1996, as it stood on 30.9.1995, the position qua the date of appointment of the petitioner remained the same. However, petitioner was deployed against the ex-cadre post of Deputy Director (Physical Education) vide order dated 22.1.1996. Order dated 22.1.1996 was rescinded and one Sh. B.S. Sen was appointed on 15.5.1998 against the post on which the petitioner was deployed. Petitioner has filed OA No. 699/1998 and 794/1998, which according to him, had become infructuous after his retirement on 31.8.1998. Case of the petitioner, in a nutshell, is that he should have been paid pay scale of Rs. 2850-4375 instead 4 of Rs. 1800-3200 after his deployment vide office order dated 22.1.1996 or in the alternative he should be given the benefit of FR 22-C. Mr. Dilip Sharma has strenuously argued that action of the respondent-State of deploying respondent No.2-Sunder Singh Aukta against the post of Deputy Director (Physical Education) on 22.1.1996 was in violation of Articles 14 and 16 of the Constitution of India. According to him, his clients were senior to respondent No.2, i.e. Sunder Singh Aukta and they were required to be considered for deployment and not respondent No.2. Mr. R.K. Sharma, learned Senior Additional Advocate General submits that the deployment of Sh. Sunder Singh Aukta was on temporary basis and it was made clear in the letter dated 22.1.1996 that it will not confer any monetary benefits. Ms. Salochana Kaundal has opposed the petition filed by Vishwa Mitra and another and has argued in support of CWP (T) No. 5415/2008. According to her, Sunder Singh Aukta had worked on a higher post and was entitled to pay scale of Rs. 2850-4375 instead of Rs. 1800-3200 and in the alternative, he was entitled to benefit under FR 22-C. She further pleaded that at one given time, Director Education had supported case of her client for higher salary. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. Respondent-State has taken diametrically opposite stand while filing reply to CWP (T) No. 2984 and CWP (T) No. 5 5415/2008. While opposing CWP (T) No. 2984/2008, the stand of respondent-State is that respondent-Sunder Singh Aukta was temporarily deployed and in the absence of Recruitment and Promotion Rules for this post, it was open for the State to recruit a person, who was most suitable. Their further stand in the reply is that it was not necessary to follow the principle of seniority and the deployment of Sunder Singh Aukta could not be termed as promotion. However, while filing reply to CWP (T) No. 5415/2008, the stand of the respondent-State is that Sunder Singh Aukta could not be promoted/deployed and the senior persons were required to be considered. It will be apt at this stage to reproduce relevant portion of the reply filed by respondent-State, which reads thus: “The applicant was not possessing extra-ordinary qualification which his seniors/were/are possessing. It is well settled principle of law and rule that every higher post is filled up after drawing a panel of eligible persons and on the basis of recommendation of the DPC, but in the case of the applicant neither the panel of eligible ADPEO was drawn nor the DPC was convened. But the exigencies of the matter forced the respondent to deploy the applicant in his own pay scale against the higher post. In the Department of Education, when the post (s) is/are not filled up on regular basis, the seniority is followed and the senior most incumbent(s) is/are either deployed or ordered to officiate against the higher post in his own pay scale, having no conformity of right to regular promotion or seniority.” Respondents have gone to the extent by saying that even in the matter of deployment/officiation, seniority prevails and in the Department of Education when the post(s) is/are not filled up on 6 regular basis, the seniority is followed and the senior most incumbent(s) is/are either deployed or ordered to officiate against the higher post in his own pay scale, having no conferment of right to regular promotion or seniority. Respondent-State cannot take different stand according to its convenience. Reply of the State should be consistent and based on facts supported by records and law. It is further averred in the reply filed to CWP (T) No. 5415/2008 that Sunder Singh Aukta was not entitled to benefit under FR 22-C. It is not in dispute that the petitioners in CWP (T) No. 2984/2008 ranked senior to Sunder Singh Aukta in all the seniority lists. However, Ms. Salochana Kaundal has argued that her client has made representation for the change of date of induction in the service from 7.2.1960 to 6.12.1958 but the respondent-State has not taken any positive steps towards the same. According to the reply filed in CWP (T) No. 5415/2008, Sunder Singh Aukta was appointed as untrained J.B.T. Teacher on 6.12.1958 but he qualified the examination on 31.5.1962. Since the petitioners in CWP (T) No. 2984/2008 were senior to Sunder Singh Aukta, they ought to have been considered against the post, which was created on 1.1.1996 vide Annexure A- 5, i.e. Deputy Director of Physical Education (ex-cadre) in the pay scale of Rs. 2850-4375. Post of ex-cadre Deputy Director of Physical Education was created in the higher pay scale of Rs. 2850-4375. 7 Petitioners in CWP (T) No.2984/2008 ought to have been considered for the higher post on the basis of their seniority, particularly, when petitioner No.1 had already started functioning as Assistant Director (Physical Education) Primary with effect from 3.8.1992. It is admitted by the respondent-State that whenever the higher posts are filled up in the Education Department, these are filled up on the basis of seniority. However, in this case, departure was made definitely to favour Sunder Singh Aukta. It is strange that a person, who was at Sr. No. 14 has been promoted/deployed to discharge the duty of higher post even in his own scale by ignoring persons, who were at Sr. No.1 and 2 of the seniority list. Petitioners had right to be considered under Articles 14 and 16 of the Constitution of India even if the post was filled up by way of deployment on temporary basis. Stand taken by the respondent- State in CWP (T) 5415/2008 is in conformity of law and the earlier stand taken in CWP (T) No. 2984/2008 was apparently against Articles 14 and 16 of the Constitution of India. State could not pick up Sunder Singh Aukta whimsically and thereafter permit him to function as Deputy Director. In these circumstances, deployment of Sunder Singh Aukta as per Annexure A-1 dated 22.1.1996 was illegal and the same is liable to be set aside. Since the deployment of Sunder Singh Aukta was contrary to Article 14 and 16 of the Constitution of India, he could not derive any monetary benefits in CWP (T) No. 5415/2008. He could not also be granted benefit of FR 22-C since his appointment/deployment from the very inception 8 was out come of colourable exercise of powers and favourtisim. Public employment is to be made strictly on merits. Accordingly, in view of the observations made hereinabove, CWP (T) No. 2984/2008 is allowed. Annexure A-1 dated 22.1.1996 is quashed and set aside. Respondents are directed to consider the case of petitioner No.1 for the post of Deputy Director of Physical Education (Primary) from the date Sunder Singh Aukta was considered and respondent-State is further directed thereafter to consider the case of petitioner No.2 against resultant vacancy after the promotion of petitioner No.1 with all the consequential monetary benefits, i.e. pay scale of Rs. 2850-4375. Consequently, CWP (T) No. 5415/2008 is liable to be dismissed. Order accordingly. There shall, however, be no order as to costs. (Rajiv Sharma), Judge 17.8. 2010 *awasthi*