CWP No.3046 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.3046 of 2007 Date of Decision: 15.09.2010 Hoshiar Singh & Anr. ..Petitioners Vs. State of Haryana & Ors. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.R.K.Malik, Sr. Advocate, with Mr.Kohal Sharma, Advocate, for the petitioners. Ms.Sushma Chopra, Addl.A.G., Haryana, Mr.R.N.Lohan, Advocate, for respondents No. 2 to 5. --- Vinod K.Sharma,J. (Oral) Brief facts leading to the filing of the present writ petition are, that in pursuance to the creation of 3 posts of Junior Auditors, applications were invited from eligible candidates from all the Departments. The petitioners being qualified for appointment, were selected and appointed by way of transfer, in the office Block Development and Panchayat Officer. The petitioners joined on 19.11.1985 and 18.11.1985. CWP No.3046 of 2007 2 The petitioners thereafter filed a representation against their appointment being on ad-hoc basis, on the plea that the appointment was made by transfer by following procedure for regular appointment. In may, 1994 representation of the petitioners was accepted and vide order dated 2.5.1994/4.5.1994, their appointment was converted from ad-hoc to temporary. In view of the fact, that there were no chances of promotion of junior auditor, a conscious decision was taken by the department, to merge the cadre of junior auditor with that of accountant. The decision was taken vide Annexure P.3 on 11.10.1995. In pursuance to the decision of merger, seniority list of accountants was issued, and the petitioners were placed at Sr.No.77 and 78. It may be pertinent to notice here, that before taking decision of merger of cadre of junior auditor with junior accountant, objections were invited from all concerned, and after rejecting the objections, it was decided to bring the petitioners in the cadre of accountant. On 10.3.1999, State Government withdrew the order dated 10.3.199 vide which the cadre of petitioners was ordered to be merged with that of the accountant, so as to enable them to avail promotion to the post of Block Development and Panchayat Officer. The petitioners challenged the order dated 10.3.1999, by invoking the writ jurisdiction of this court, in CWP No.4388 of 1999, primarily on the ground, that the decision to withdraw the order of merger was in violation of principles of natural justice, therefore, could not be sustained in law. CWP No.3046 of 2007 3 On notice the State of Haryana decided to withdraw the impugned order dated 10.3.1999, and consequently the writ petition was disposed of having been rendered infrcutous. After the decision of this court, order Annexure P.3 stood revived and a fresh seniority list was circulated placing the petitioners before Sr.No.11 and above Sr.No.12. The petitioners thereafter continued to be shown in the cadre of accountant. On 1.6.2001 the petitioners were promoted to the post of Block Development and Panchayat Officer, in their own pay scale by giving them current duty charge. The petitioners made representation for their regular promotion to the post of Block Development and Panchayat Officer. The State of Haryana decided to stop the practice of giving current duty charge/additional charge of Block Development and Panchayat Officer of vacant block to the BDPOs or to other official. The decision was taken that in future additional charge of vacant block would be given only to the adjoining Block Development and Panchayat Officers. The orders giving current duty charge of Block Development and Panchayat Officer were withdrawn. The order was passed on 13.1.2006. Petitioners were included in order from whom current duty charge was withdrawn. The petitioners filed CWP No.637 of 2006 to challenge the order withdrawing current duty charge, and also prayed therein for promotion on regular basis as Block Development and Panchayat Officer from the date their juniors were promoted. The writ petition was not decided on merit, and was disposed of CWP No.3046 of 2007 4 with a direction to the respondents to consider the claim raised by the petitioners by taking final decision on the representation made by them. In pursuance to the order passed in the writ petition to consider their claim for promotion to the post of Block development and Panchayat Officer on regular basis from the date their juniors were promoted, the impugned order Annexure P.15 was passed, vide which their claim was rejected. The operative part o the impugned order reads as under:- “ Thus, it is clear that there is no quota of the Junior Auditors in the service rules for promotion to the post of BDPO. The merger of the post of the Junior Auditors at headquarters with those of the Accountants of the blocks is also not provided in the service rules because there are two separate cadres. Their seniority has been shown as bracketed with other Accountants, which, in fact, is no seniority position. Moreover, there is no regular stream for junior auditors getting promoted/absorbed in the cadre of Accountants. The action of placing these Junior Auditors in the cadre of Accountant is neither legally tenable not sustainable. They are the odd man out. Their bracketed is also a farce. Therefore,their representations dated July 2001 and 12.5.2005 have no force and are devoid of any merit and are accordingly filed. They are ordered to be reverted and repatriated to their parent Deparmtment issued on 25.7.2002 may be amended by deleting the names of these two junior auditors from the said seniority list in which their position has been shown as bracketed CWP No.3046 of 2007 5 without serial number.” The petitioners have impugned the order Annexure P.15 by invoking the writ jurisdiction of this court. Notice of the writ was issued. Stand taken by the State of Haryana, as well as private respondents is, that the impugned order deserves to be upheld, inasmuch as the appointment of the petitioners itself was bad, as they were not appointed under the Rules. The contention of the learned counsel for the respondents was, that as the petitioners were appointed on ad hoc basis, and that there was no occasion to convert their appointment to that of temporary and thereafter merge the post in the cadre of accountant, in violation of the Rules governing the appointment to the post of accountant. The Rules did not provide for appointment by merger, that too with retrospective effect. Learned senior counsel for the petitioners challenged the impugned order, primarily on the ground, that vide Annexure P.3 a conscious decision after inviting the objections from affected employees was taken, to merge the cadre of junior auditor to that of accountant. It was not open to the successor in office thereafter to take a different view, while considering the representation as to whether the petitioners were entitled to be promoted to the post of Block Development and Panchayat Officer on regular basis from the date, their juniors were so promoted. It was also the contention of the learned counsel for the petitioners, that it was the prerogative of the employer to merge different CWP No.3046 of 2007 6 post and no right vests with the employee to object to it, specially when their objections considered and rejected. It was also the contention of the learned counsel for the petitioners, that the impugned order Annexure P.15, cannot be sustained in law, inasmuch as it is against the settled law that successor-in-office, without their being any change in circumstances, cannot enter into controversy afresh and take altogether different decision than the one taken by the predecessor. In support of this contention learned counsel for the petitioners placed reliance on the judgment of this court in CWP No.10675 of 2009 titled Sub Inspector Ravi Dutt Vs. State of Haryana & Ors., decided on 20.01.2010, wherein this court held, that successor of an officer in the hierarchy of service has no authority to review his orders. The operative part of the judgment reads as under:- “ I have heard learned counsel for the parties. The controversy involved in these writ petitions is covered by a judgment in the case of Amarjit Kaur Vs. State of Punjab & Ors, 1988 (4) SLR 199 and a Division Bench judgment of this court dated 26.5.2006 passed in CWP No.8356 of 2006 (Bram Niwas Vs. State of Haryana) as also a judgment of the Hon'ble Supreme Court in the case of Rathi Alloys and Steel Ltd. Vs. C.C.E (1990) 2 SCC 324. In the case of Ram Niwas (supra), following observations have been made:- “ ....Firstly, in law there is administrative hierarchy which was not to be respect and any successor cannot set CWP No.3046 of 2007 7 aside the order passed by his predecessor. Secondly, there is no provision under the Punjab Police Rules, 1934, as applicable to Haryana in any instructions or subordinate legislation providing for review of an order passed by the predecessor in office. It is well settled that power or review cannot be exercised unless it is expressly provided by the Statute. In this regard, reliance may be placed on a judgment of the Hon'ble in the case of Urathi Alloys and Steel Ltd. Vs. C.C.E., (1990) 2 SCC 324. Out view also finds support from the judgment of this Court in the case of Amarjit Kaur Vs. State of Punjab and others, 1988 (4) SLR 199....” Following the aforesaid judgment, CWP No.9973 of 2007 and CWP No.12095 of 2007 were allowed by a co-ordinate Bench of this Court vide order dated 23.3.2009. Ratio of all these judgments is that the successors of an Officers in the hierarchy of service has no authority to review his orders.” This settled proposition of law is not disputed by the learned counsel for the respondents. The contention raised by the learned counsel for the respondents was, that successor in office had not entered the controversy again but had decided the representation filed by the petitioners as ordered by this court. This contention of the learned counsel for the respondents CWP No.3046 of 2007 8 deserves to be noticed to be rejected. The impugned order Annexure P.15, has been passed on the representation made by the petitioners claiming promotion to the post of Block Development and Panchayat Officer from the date their juniors i.e. private respondents were promoted. As regard absorption of petitioners as accountant was concerned, the matter attained finality, as would be clear from the fact that after withdrawal of order Annexure P.5, no further order was passed though permitted by this court. The official respondents accepted the merger as would be clear from the fact, that after withdrawing order Annexure P.5, fresh seniority list of accountants was issued in which name of the petitioners was included. The matter did not end here, the petitioners were thereafter promoted to the post of Block Development and Panchayat Officers by giving them current duty charge in their own pay scale, as was done in the case of other accountant in the cadre. In view of the fact, that decision of merger was final, it was not open to review while dealing with the representation filed by the petitioners for their regular promotion to the post of Block Development and Panchayat Officer, in view of law laid down by this court in CWP No.10675 of 2009 Sub Inspector Ravi Dutt Vs. State of Haryana & Ors. (supra). For the reasons stated, this writ petition is allowed, the impugned order Annexure P.15 is ordered to be quashed. The State of Haryana is directed to consider the case of the petitioners for promotion to the post of BDPO, from the date their juniors were promoted. In case the petitioners are found eligible, they be given notional promotion by creating supernumerary post. The petitioners will also be entitled to all CWP No.3046 of 2007 9 consequential benefits, arising from the promotion. No costs. (Vinod K.Sharma) 15.09.2010 Judge rp