IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA 1. CWP(T) No. 2000 of 2008 (OA No.33 of 1992) 2. CWP(T) No.2044 of 2008 (OA No.729 of 92) Judgment reserved on: 2.3.2010 Date of decision: 29.3.2010 1. Dhanwantri Upadhayae ….. Petitioner. Vs. State of H.P.& Ors. …. Respondents. 2. Dhanwantri Upadhayae ….Petitioner Vs. State of H.P. & Ors. ….Respondents Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. Jeevesh Sharma, Advocate. (in both petitions). For the Respondents : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. P.M. Negi, Assistant A.G. for respondents No.1 to 4 in CWP(T) No.2000 of 2008 and for respondents No.1 to 3 in CWP(T) No.2044 of 2008. Mr. Dilip Sharma, Advocate, for respondent No.5 in CWP(T) No.2000 of 2008. Kuldip Singh, Judge. This judgment shall dispose of CWP(T) No.2000 of 2008 and CWP(T) No.2044 of 2008. In both petitions Dhanwantari Upadhayae is the petitioner. 2. In CWP (T) No.2000 of 2008 the petitioner has prayed for quashing his reversion order dated 15.2.1991 Annexure A-7 with all consequential benefits. He has also prayed that orders dated Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 18.4.1991, 31.8.1991, and 16.10.1991, Annexures A-8, A-10 and A- 11 respectively may be quashed and set aside. The respondents may be directed not to effect any recoveries from the petitioner from the salary, pay allowances etc. paid to him from 17.9.1984 to 30.4.1991 when he remained posted on different promotional posts subsequent to the orders passed by the competent authority. He has also prayed that he may be allowed to discharge his duties as Superintendent Grade –II till the final disposal of the petition. 3. The case of the petitioner is that he was initially appointed as Clerk by way of direct recruitment and he joined his duties as such on 17.11.1969. The seniority of Clerks was to be determined on the basis of merit maintained by Selection Committee as per Rule 10(3) of Himachal Pradesh District Subordinate Service Class-III Rules, 1962. The seniority list of Clerks was for the first time circulated on 5.7.1979 and one Om Prakash who was at serial No.6 in the panel drawn by the Selection Committee was shown above the petitioner at serial No.33 in the seniority list, though the petitioner had been placed at serial No.2 of the merit panel drawn by the Selection Committee. On the request of petitioner, the merit list, panel of selection made in 1969 was supplied to the petitioner on 1.9.1984 and since then he has been representing to the higher authorities for correcting the seniority position and also for granting him the consequential benefits for further promotion prior to respondent No.5 Om Prakash. 4. The representation dated 3.7.1986 of petitioner was rejected by respondent No.4 Deputy Commissioner, Kullu on …3… 1.9.1986. The appeal filed by petitioner against the order dated 1.9.1986 was allowed by respondent No.3 Divisional Commissioner on 16.11.1987. Om Prakash had filed further appeal against the order dated 16.11.1987 which was allowed on 20.7.1990 by Financial Commissioner-cum-Secretary (Revenue). 5. The petitioner had filed OA No.842 of 1990 against the order dated 20.7.1990 which was dismissed in limine on 14.11.1990 by the erstwhile Tribunal. The petitioner was working as Superintendent Grade-II at the time when the OA No.842 of 1990 was filed. No challenge was raised to the apprehended action of the respondents to revert the petitioner to the lower post, nor any submission was made against the recoveries likely to be made from the petitioner on account of alleged excess payments. Therefore, the petitioner has challenged the order of reversion to the lower post and the recoveries being made from his salary. 6. The petitioner was given benefit of up-gradation of one post of steno-typist. He was later on promoted/appointed as a Senior Scale Stenographer. He was given further promotion to the post of Superintendent Grade-IV. These orders of promotion were passed by the competent authority and petitioner actually performed the duties of promotional posts under the orders passed by the higher authorities. The petitioner was not a party to the issuance of aforementioned promotion orders. The ultimate order passed by the Financial Commissioner-cum-Secretary (Revenue) does not obliterate the fact that the petitioner had performed the duties of promotional posts held by him from time to time on the basis of orders passed by …4… the competent authorities. There was no direction from the Tribunal that salary paid to petitioner from 17.9.1984 to 30.4.1991 should be recovered. The petitioner was not given any show cause notice or opportunity for hearing before issuing the order of reversion. The respondents had issued two orders dated 31.8.1991 and 16.101991 Annexures A-10 and A-11 and ordered recovery of an amount of Rs.19,140/- in monthly instalments of Rs.200/- each from the salary of the petitioner. 7. The merit was determined by the Selection committee from the seniority list, no deviation from the merit order could be made by the respondents in view of the provisions of Rule 10(3) of Himachal Pradesh District Subordinate Services Class-III Rules, 1962. The seniority position of the petitioner against respondent No.5 was contrary to the relevant provision of law and hence, void ab initio, the same could be rectified at any stage with all consequential benefits given to the petitioner. The petitioner had earned his promotion to the post of Superintendent Grade-II subsequent to the two promotions made earlier in 1984 and 1987 and had got vested right to continue as Superintendent Grade-II made vide order dated 25.6.1988. The order of reversion dated 15.2.1991 is wrong, illegal and liable to be set aside. In these circumstances the petitioner had filed the petition for the reliefs noticed above. 8. The petition was contested by respondents No.1 to 4 by filing reply, in which several preliminary objections have been taken. It has been submitted that the erstwhile Tribunal vide order dated 7.8.1990 and 14.11.1990 passed in OA No.842 of 1990 had upheld …5… the order dated 20.7.1990 of the Financial Commissioner-cum- Secretary (Revenue) to the Govt. of H.P., hence petition is not maintainable. The petitioner was shown junior to respondent No.5 in the seniority lists issued for the cadre of Clerks, Steno Typist and Stenographers. The final seniority lists were also circulated after issuing the tentative seniority lists. The petitioner had never challenged the seniority assigned to respondent No.5. The petitioner first time had filed a representation to the Deputy Commissioner, Kullu which was rejected on 3.7.1986. The Divisional Commissioner had allowed the appeal but the Financial Commissioner-cum- Secretary (Revenue) set aside the order of the Divisional Commissioner. The respondent No.5 is senior to petitioner and after twenty one years of service, it would be highly inequitable, unjust to turn the table to give seniority to the petitioner. The comparative table showing the seniority of respondent No.5 has been given in para-5 of the reply under preliminary submissions. 9. On merits, it has been submitted that the order dated 20.7.1990 of the Financial Commissioner-cum-Secretary (Revenue) was assailed before the erstwhile Tribunal in OA No.842 of 1990 which was dismissed on 14.11.1990. It has been submitted that petition is not maintainable. The respondent No.5 is senior to petitioner. The petitioner was promoted on the basis of wrong order dated 16.11.1987 of Divisional Commissioner, therefore, illegal benefits were given to the petitioner, as a result of wrong order dated 16.11.1987. The further promotions on the basis of wrong order dated 16.11.1987 are required to be withdrawn and amount …6… recovered. The respondents No.1 to 4 have thus prayed for dismissal of the petition. 10. The respondents No.1 to 4 have filed supplementary affidavit wherein it has been submitted that Special Leave to Appeal (Civil) No.1532/91 was dismissed by the Supreme Court on 7.2.1991 against the order dated 14.11.1990 passed by erstwhile Tribunal. The petitioner filed rejoinder to the reply of respondents No.1 to 4 and reiterated his stand taken by him in the petition. 11. In CWP (T) No.2044 of 2008, the grievance of the petitioner is that he was promoted to the post of Stenographer subsequent to the recommendations made by a duly constituted departmental Promotion Committee. The respondent No.2 is now proposing to cancel his promotion and revert him to the lower post of Steno-typist in an illegal manner and without any legal basis for doing so. It has also been submitted that petitioner had filed OA No.33/92 which has now been registered as CWP (T) No.2000/08 challenging the order of reversion and order making recoveries from the petitioner. In that petition on 9.1.1992 an interim injunction staying the operation of the order whereby the recoveries were being effected was passed. On the basis of seniority as Steno-typist subsequent to the reversion of the petitioner he became eligible for promotion to the post of Stenographer and he was promoted to the said post vide order dated 30.4.1991 Annexure A-10. The respondents have not relished the action of the petitioner agitating his grievances by way of petition. The respondent No.1 vide letter dated 7.2.1992 Annexure A 10/A and various telex messages had directed the Deputy …7… Commissioner, Kullu to demote the petitioner vide Annexures -11 to A-13 . In the petition grievance has been made against respondent No.4 K.K. Bali. It has been submitted that respondent No. 1 seems to have been misguided by K.K. Bali who is Superintendent Grade-I in the office of Financial Commissioner (Revenue). K.K. Bali was in litigation with the petitioner. The petitioner has thus prayed for quashing of Annexures A-10 to A-13 with further directions not to cancel the promotion of petitioner or revert him to the lower post on the basis of criminal proceedings. 12. The respondents No.1 to 3 have filed reply in which they have made preliminary submissions. It has been submitted that in view of order dated 14.11.1990 passed by Tribunal in OA No.842/90, the petition is not maintainable. The petitioner had filed SLP in the Supreme Court against the order dated 14.11.1990 of the Tribunal and the SLP was dismissed on 7.2.1991. The order passed by Financial Commissioner (Revenue) on 20.7.1990 has become final. The Annexures A-11 to A-13 were issued on the basis of advise of the law department. On merits it has again been submitted that order dated 20.7.1990 of Financial Commissioner (Revenue) was upheld by the Tribunal vide order dated 14.11.1990 which was subsequently upheld by the Supreme Court. In these circumstances excess payment of pay and allowances have rightly been recovered from the petitioner. The Annexures A-11 to A-13 were issued on the advise of law department to the effect that action taken vide Annexure A 10/A is legal and there is no illegality in the respect. In Annexure 10/A the respondent No.3 had advised that the promotion of petitioner as …8… Stenographer in the office from the post of Steno-typist after his reversion may be reviewed in the light of order passed by learned Addl. Sessions Judge and the High Court and in view of criminal proceedings pending before Judicial Magistrate Ist Class. There was no malafide intention. 13. I have heard learned counsel for the parties. In CWP (T) 2000/08 the grievance of the petitioner is two fold, one quashing his reversion order dated 15.2.1991 Annexure A-7 with all consequential benefit, second directions to respondents not to effect any recovery from the petitioner from his salary, pay allowances etc. paid to him from 17.9.1984 to 30.4.1991 when he remained posted on different promotional posts subsequent to the orders passed by the competent authority. It is the stand of respondents No.1 to 4 that petitioner was shown junior to respondent No.5 in the seniority list issued for the cadre of Clerks, Steno-typist and Stenographer. The petitioner had never challenged the seniority assigned to respondent No.5. The petitioner first time had filed a representation to Deputy Commissioner, Kullu which was rejected on 3.7.1986, but Divisional Commissioner allowed the appeal of petitioner on 16.11.1987. The financial Commissioner (Revenue) vide order dated 20.7.1990 had set aside the order dated 16.11.1987 of the Divisional Commissioner. After the order dated 16.11.1987 of the Divisional Commissioner, the petitioner was promoted but in view of order dated 20.7.1990 of the Financial Commissioner (Revenue) the promotion granted to the petitioner on the basis of order dated 16.11.1987 of the Divisional Commissioner was withdrawn. The petitioner had challenged the …9… order dated 20.7.1990 by way of OA No.842/90 which was dismissed on 14.11.1990. The SLP filed by the petitioner against the order dated 14.11.1990 was dismissed by the Supreme Court on 7.2.1991. The respondent No.5 was senior to petitioner in the cadre of Clerks, Steno-typist and Stenographer. 14. The alleged grievance of the petitioner was set at rest by order dated 20.7.1990 of the Financial Commissioner (Revenue) which was upheld by Tribunal on 14.11.1990 and the SLP filed by the petitioner against the order of the Tribunal dated 14.11.1990 was dismissed by the Supreme Court on 7.2.1991. The petitioner in view of order dated 20.7.1990 of Financial Commissioner (Revenue), order dated 14.11.1990 of Tribunal and order dated 7.2.1991 of the Supreme Court has no right to claim seniority above respondent No.5. Now the petitioner cannot agitate the claim regarding his seniority which has attained finality. The perusal of office order dated 15.2.1991 Annexure A-7 indicates that Divisional Commissioner, Mandi has implemented the order dated 20.7.1990 of the Financial Commissioner ( Revenue) in reverting him from the post of Superintendent Grade-II to Steno-typist. The Divisional Commissioner, Mandi has committed no wrong by issuing office order dated 15.2.1991 reverting the petitioner on the basis of order dated 20.7.1990 of the Financial Commissioner (Revenue). Therefore, the first contention made on behalf of the petitioner that reversion of the petitioner vide office order dated 15.2.1991 Annexure A-7 is wrong and illegal is rejected. …10… 15. It has not been denied that petitioner was promoted from time to time. It is different matter that ultimately Financial Commissioner (Revenue) vide order dated 20.7.1990 has rejected the contention of the petitioner that he is senior to respondent No.5. The Financial Commissioner has set aside the order dated 16.11.1987 of the Divisional Commissioner. The order dated 20.7.1990 of the Financial Commissioner (Revenue) in no way obliterates the work performed by petitioner on promotional post from where he was reverted. It is not the case of the respondents No.1 to 4 that by playing fraud misrepresentation, the petitioner obtained the promotional order. The grievance of the petitioner is that since petitioner had worked on promotional post at the instance of respondents No.1 to 4, therefore, he is entitled to salary, pay allowances for the work which he had performed on the promotional post. 16. The grievance of the petitioner is that respondents No.1 to 4 are not entitled to make recoveries from the pay and allowances of the petitioner for the work which he had performed on promotional post from 17.9.1984 to 30.4.1991. It has been contended on behalf of the petitioner that the respondent No.4 vide Annexure A-11 dated 8.10.1991 has threatened to recover Rs.19140/- from the salary of petitioner starting from August 1991 at the rate of Rs.200/- per month. It has been alleged in the order dated 8.10.1991 that petitioner had been paid excess amount Rs.19140/- from 17.9.1984 to 30.4.1991 in view of his reversion to the post of Steno-typist. The Financial Commissioner (Revenue) vide Annexure A-8 had directed Divisional …11… Commissioner, Mandi for recovery of excess pay and allowances from petitioner. The respondent No.4 vide office order dated 30.4.1991 Annexure A-10 has ordered the recovery of Rs.11861/- from the petitioner. The petitioner had worked on promotional post under the orders of the authorities. It is not the stand of respondents No.1 to 4 that petitioner procured promotion order by adopting illegal means, therefore, respondents No.1 to 4 are not entitled to recover any amount from the pay, salary allowances etc from the petitioner on the grounds that petitioner was illegally promoted and after reversion he is liable to refund the difference amount which he had received on promotional post. The orders of recovery are also against the principle of natural justice. Therefore, to this extent Annexures A-8, A-10 and A-11 are not sustainable. 17. In CWP (T) No.2044 of 2008 the petitioner has prayed for quashing of Annexures A-10 to A-13. The petitioner in para-3 of the petition has pleaded that particulars of the orders against which the petition is made are memo dated 7.2.1992, telex messages dated 23.2.1992, 21.3.1992 and 26.5.1992. The petitioner in the petition has also pleaded that even on the basis of seniority as a Steno-typist subsequent to his reversion, the petitioner became eligible for promotion to the post of Stenographer and he was promoted to the said post vide order dated 30.4.1991 Annexure A-10. Therefore, it appears the petitioner has inadvertently prayed for quashing of Annexure A-10. The grievance of the petitioner for Annexures A-11 to A-13 is to the effect that respondents are illegally threatening to revert him on the basis of criminal proceedings. …12… 18. It has been submitted that petitioner was summoned by the learned Judicial Magistrate Ist Class, Court No.(II) Shimla on 7.8.1990 in a case under Section 500 IPC. The revision filed by the petitioner and others against summoning order dated 7.8.1990 was dismissed by learned Addl. Sessions Judge (1), Shimla on 5.4.1991. The order dated 5.4.1991 was upheld in Criminal Petition No.31/91 by this Court on 5.6.1991. On 12.7.1991 the learned trial Magistrate made an order for summoning some more persons as accused, out of them some had challenged order dated 12.7.1991 of the learned trial Magistrate by filing Cr.MP(M) No.593 of 1991 which was accepted and the order dated 12.7.1991 passed by learned trial Magistrate was set aside. The learned trial Magistrate was directed to proceed in accordance with law against three accused persons. 19. In brief, it has been submitted that the petitioner was promoted on 30.4.1991 vide Annexure A-10. There is nothing on record to show that on that date charge was framed or accusation was put to petitioner, therefore, petitioner cannot be reverted merely on the basis of some criminal proceedings. Once the respondents themselves have not adopted sealed cover procedure and promoted the petitioner then petitioner cannot be reverted except following due process of law. In Union of India and others v. K.V. Jankiraman and others (1991) 4 SCC 109, the Supreme Court has held as follows:- “On the first question, viz, as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal …13… prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point.” There is nothing on record to show that there was any bar to promote the petitioner on 30.4.1991 vide Annexure A-10, therefore, after promotion of petitioner he cannot be reverted except following due process of law. The petitioner to this extent has made out a case, merely on the basis of pendency of some criminal proceedings under Section 500 IPC against the petitioner he cannot be reverted. 20. No other point was urged. 21. In view of above, CWP (T) No.2000 of 2008 is partly allowed. The respondents are directed not to recover any amount from the pay, salary, allowances of the petitioner after reversion on the grounds that petitioner was illegally promoted and he is liable to refund the difference of amount which he had received on promotion post. The remaining claim of the petitioner is rejected. CWP (T) No.2044 of 2008 is allowed. The respondents are directed not to revert the petitioner on the basis of Annexures A-11 to A-13 once he has been promoted vide Annexure A-10 dated 30.4.1991 except following due process of law. All pending applications are disposed of, interim orders, if any, stand vacated. No costs. March 29, 2010 (Kuldip Singh), (sks) Judge.