HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. : 665 of 2006. Reserved on: 17.11.2009. Decided on: 23.11.2009. State of H.P. and another ……… Petitioners. Versus Manohar Lal Parmar ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioners: Mr.Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr.P.P. Chauhan, Advocate. Per V.K. Ahuja, J.: This judgment shall dispose of the civil writ petition filed by the petitioners/State of H.P. for quashing and setting aside the order passed by the erstwhile H.P. State Administrative Tribunal, dated 17.3.2006, in O.A.(M) No.95 of 2005. Briefly stated the facts of the case are that the respondent, hereinafter also referred to as the applicant, filed an Original Application under Section 19 of the Administrative Tribunals Act, 1985. The case of the applicant was that he was appointed as an Excise and Taxation Inspector on 29.12.1970. He joined as such at Mandi on 4.1.1971. The applicant alleged that as per Rule ___________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. 14 of the Recruitment and Promotion Rules of 1963, he was required to pass the departmental examination within three years of his appointment. It was alleged that the respondent/State had neither framed the Departmental Examination Rules, nor conducted any departmental examination of its own for a period of 3 years since his joining. This led to the denial of confirmation of the applicant due to non-conducting of departmental examination. He alleged that he was issued a show cause notice on 11.12.1972 as to why his services should not be terminated due to non-passing of departmental examination within 3 years of his entry into the service. The applicant replied to the show cause notice. Reply of the applicant is not on the record. However, the grounds taken by such Excise Inspectors were dealt with by the State in Annexure A-4. The fresh Rules were framed in the years 1976 and 1978 and the incumbents were required to pass the departmental examination within two years. The applicant alleged that he appeared in the departmental examination and passed the same on 7.8.1992. It was alleged that since the applicant had not passed the departmental examination prior to 1992, on the date of issuing the final seniority list, his name was shown in the category of Inspectors, who had not passed the departmental examination. He, therefore, filed the Original Application before the learned Tribunal alleging that he had rendered the service for more than 34 years and there were no promotional avenues available to the applicant and as such he was liable to be confirmed w.e.f. 4.1.1974 when he had completed 3 years probation period since no departmental examination was conducted by the Department earlier and as such he was liable to be confirmed after 3 years. In reply filed by the respondent/State, it was pleaded that according to Rule 14 of the Recruitment and Promotion Rules of 1963, the applicant was legally bound to clear the departmental examination within a period of 3 years for confirmation/seniority from the neighbouring States i.e. Punjab/Haryana in order to get himself confirmed from the said date in the absence of Departmental Examination Rules. It was clearly pleaded that since no Departmental Examination Rules were in existence for Excise and Taxation Inspectors prior to 1978, the Excise and Taxation Inspectors were legally bound to qualify the departmental examination from the neighbouring States i.e. Punjab and Haryana to get themselves confirmed to claim seniority from the date of their confirmation. The applicant could not pass the departmental examination from the neighbouring States for the reasons best known to him and accordingly he was issued a show cause notice on 11.12.1972 as to why his services be not dispensed with. The applicant filed reply to the said notice and thereafter the Departmental Examination Rules were framed by the respondent/State vide notification dated 27.6.1978, which were applicable to the Excise and Taxation Inspectors with immediate effect and it was provided therein that the confirmation could only be made after the applicant had passed the departmental examination which he was required to pass within a period of 3 years and he passed the departmental examination on 7.8.1992 and was accordingly confirmed. In the tentative seniority list, the persons, who had passed the examination, were shown senior to him and as such his name was shown in the provisional seniority list at Sl.No.178 due to non-passing of departmental examination. Thus, it was pleaded that since the applicant had not passed the departmental examination within the stipulated period of 3 years, he was not entitled to be confirmed prior to the passing of the departmental examination and the persons, who had passed the departmental examination, were rightly confirmed and were placed senior to the applicant. Thus, it was pleaded that there was no merit in the application filed by the applicant and the same be dismissed. We have heard Mr.Rajesh Mandhotra, learned Deputy Advocate General, for the petitioner/State and Mr.P.P. Chauhan, learned counsel for the respondent, and have gone through the record of the case. Some of the facts may be summarized again alongwith relevant dates. The applicant joined as Excise and Taxation Inspector on 4.1.1971. Rule 14 of the Himachal Pradesh Excise & Taxation Department (Inspectorate Class-III Service) (Recruitment, Promotion and certain condition of Service) Rules, 1963, which were prevalent at that time, provides as under: “No person appointed to the service shall be retained therein, unless he has passed the Departmental Examination within a period of 3 years, nor shall such person be appointed substantively to any post in the Service, provided that the Commissioner may, for special reason to be recorded in writing, relax these conditions.” It has not been disputed that the applicant, when he was appointed, was bound by these Rules which were prevalent at that time. It has also not been disputed by the applicant that when he was appointed, according to the Rules, he was required to pass the departmental examination being held in the neighbouring States i.e. Punjab/Haryana for being confirmed, within a period of 3 years. He did not make these allegations in the Original Application filed before the learned Tribunal, as is clear from the perusal of the Original Application copy of which has been placed on the record. A perusal of the record also shows that a show cause notice was issued to the applicant on 11th December, 1972 that he was required to pass the departmental examination for the post within a period of two years and since he has failed to pass the same within this period, why his services be not dispensed with under Rule 14 of the aforesaid Rules. The reply was filed by the applicant citing reasons. The other such Excise Inspectors also pleaded that the department should frame its own Rules. However, it is clear that he did not either appear in the departmental examination or qualified the same prior to the year 1992. According to the tentative seniority list issued in the year 1991, it is clear that the other persons serving as Excise and Taxation Inspectors had passed the departmental examination from Punjab/Haryana and were accordingly confirmed and placed senior to the applicant. Once the Rules were in existence for passing the departmental examination from the adjoining States and other persons, similarly situated, had passed the departmental examination, which was not passed by the applicant prior to 1992, the applicant had no case to claim that he is entitled to be confirmed before passing the departmental examination. It is not the case of the applicant that no departmental examinations were being held or he had no opportunity to appear in the departmental examination in the adjoining States, which opportunity was availed of by other similarly situated persons, who were placed senior to the applicant in the provisional seniority list. These facts have been clearly alleged by the respondent/State that there was a procedure for passing the departmental examination from the adjoining State which was not specifically alleged by the applicant, but the fact remains that these departmental examinations were being held in the neighbouring States and other persons similarly placed had qualified the same. The applicant has taken the plea in the Original Application that since he was not confirmed after 3 years, he should be deemed to have been confirmed even without passing of the departmental examination. This plea is not available to the applicant for the reasons given below and the fact that once the Rules provide that the confirmation was to be made subject to passing of the departmental examination, the applicant has no right to be confirmed prior to the passing of the departmental examination, though the Department has the right to dispense with the passing of the departmental examination in certain cases, which provision was not applied in the case of the applicant. Coming to the question as to from which date the applicant was entitled to be confirmed, the learned Tribunal had referred to the fact in para 21 of its judgment relying upon a judgment of the Apex Court in U.T. Chandigarh versus Avtar Singh and others, 2002(10) SCC 432, wherein it was observed as under: “Stagnation in service for unduly longer period without avenues of promotion, held is not in the interest of administration.” The above decision does not lay down the law that once a person does not pass the departmental examination, which is necessary as per the Rules, he is still entitled to be confirmed or that the persons, who passed the departmental examination prior to him, cannot be placed senior to him. The learned Tribunal had also observed that since there were no Departmental Examination Rules for Excise and Taxation Inspectors prior to June, 1978 and no Rules were framed and no departmental examinations were held/conducted within a period of 3 years from the date of appointment of the applicant, he cannot be penalized by denying the confirmation and seniority w.e.f. 4.1.1974. The above observations have been made by the learned Tribunal ignoring the reply of the respondent/State, which was not disputed by the applicant by filing any rejoinder, that there was a provision for passing of departmental examination from the adjoining States of Punjab/Haryana, which opportunity was availed of by the other similarly situated Excise and Taxation Inspectors, who were accordingly confirmed after they passed the departmental examination. In case there were no separate Rules framed by the State of Himachal Pradesh and the Rules prevalent in the adjoining States for departmental examination were being followed, the applicant was bound to appear in the departmental examination. It is no where the case of the applicant that he did not get any opportunity to appear in the departmental examination within a period of 3 years from the date of his appointment. Our attention has been drawn by the learned Deputy Advocate General to a decision, also relied upon by the State in its reply filed to the Original Application, in Mohan Lal and others versus State of H.P. and others, (1997) 4 Supreme Court Cases 416, wherein also the question was in regard to Excise and Taxation Inspectors of the State of Himachal Pradesh. In that case, a reference was made to Rule 4 in regard to conducting of examination as well as to Rule 11 of the Rules prevalent in the year 1963, which provide for passing of the departmental examination. The observations made in para 4 are relevant and the same are being reproduced below: “………… that such of the candidates who passed the examinations within two years and were confirmed after passing the departmental tests, would get seniority from the respective dates of their joining the post and the date of passing the departmental test relates back to the date of the appointment. But those who passed the examination after the said two years would get seniority from the date of passing and would rank junior to those who passed the examination within two years. In this appeal, the third set of litigation, the question arises whether the period of passing the test within two years by taking four chances is mandatory or not.” A reference was also made in the aforesaid decision to an earlier decision of the Apex Court passed in Civil Appeal No.4258 of 1992, decided on 24.3.1994, titled Ishwari Kumar versus State of H.P. It is clear from the observations made that the seniority has to be reckoned from the date of passing of the departmental examination and the persons who passed the departmental examination earlier within the prescribed period would rank senior to the persons who passed the examination at a later date. We may again reiterate that it is not the case of the applicant that no departmental examinations were held in the neighbouring States or he had no opportunity within 3 years to appear in the departmental examination and as such he is not entitled to get the seniority prior to the date of passing of the examination. Therefore, the findings recorded by the learned Tribunal are not correct that the applicant will be entitled to the confirmation after 3 years of his appointment, which findings are incorrect. Moreover, the Original Application suffers from delay and laches since the applicant was claiming seniority w.e.f. 4.1.1974 and he had approached the Tribunal by filing the Original Application in the year 2005. No reasons have been assigned as to why the application was not filed earlier claiming the relief from the year 1974 and he filed the application after 21 years and the relief was granted by the learned Tribunal. Moreover, the persons who were likely to be affected by the order since the seniority was claimed from 1974, were not made party to the application filed before the learned Tribunal and both these grounds weigh heavily as against the applicant to hold that he was not entitled to the relief from an earlier date prior to the passing of the departmental examination. In view of the above discussion, we accordingly hold that the applicant was not entitled to be confirmed before the date of passing of the departmental examination and as he has been confirmed after he passed the departmental examination in the year 1992, he was not entitled to the relief claimed by him and, therefore, the order passed by the learned Tribunal is set aside. However, there is no order as costs. (Deepak Gupta), Judge. (V.K. Ahuja), November 23, 2009. Judge. (TILAK)