Dharam Pal Saroch Vs State of HP
CWP No. 2642 of 2009 with CWP
Nos. 6258 of 2010, 7381 of 2010, 4948 of 2011, 4976 of 2011, 2431 of 2012 &
LPA No. 77 of 2011.
Reserved On: 03.09.2012. Decided
on: September 11, 2012.
Coram The Hon’ble Mr. Justice
Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Dharam Chand Chaudhary,
Judge.
For the petitioners/appellants: M/S
Adarsh K. Vashista, Haminder Chandel & Suneet Goel, Advocates for
respective petitioners/appellant(s).
For the respondents: Mr.
R.K.Bawa, AG, with Mr. Ankush Dass Sood, Addl. AG and Mr. J.K.Verma, Dy. AG,
for respondent-State. M/S Sanjeev Bhushan, J.L.Bhardwaj, Shrawan Dogra, Ajay Chandel
and T.S.Chauhan, Advocates, for respective respondents.
Justice Kurian Joseph, C.J.
All these writ petitions along
with LPA pertain to the same question of law and hence they are being taken up
together for disposal.
2. Two questions mainly arise for
consideration in these cases:
i) the impact of regularization
of Lecturers (school cadre) appointed on tenure basis, on seniority;
ii) the consequence of delay in
challenging the seniority list.
3. Lecturers (school cadre), were
being appointed on tenure basis, in addition to their regular recruitment
through the H.P. Public Service Commission, during 1980s. Such tenure
appointments were being made by the Principal concerned of the school. It is
significant to note that such tenure appointees were not put on regular pay
scale: they were to be satisfied with the fixed salary of the minimum of the
grade during the tenure period whereas the Lecturers appointed through the H.P.
Public Service Commission were put on regular scale. Hence the tenure
appointees also used to participate in the selection conducted by the H.P.
Public Service Commission.
4. On 23.8.1994, the Government
took a policy decision for regularizing the services of College/School cadre
lecturers, Trained Graduate Teachers, C& V Teachers, JBT teachers and
Assistant Librarians, who had been appointed otherwise than through the regular
mode of recruitment prescribed under the relevant R & P Rules, in the case
of those who completed 3 years of continuous service on or before 31.3.1994.
Subsequently, it was also decided that those who had not completed 3 years of
continuous service as on 31.3.1994 were also to be considered for
regularization on completion of 3 years. In terms of the Government policy
referred to above, the Government conveyed the approval with regard to the
seniority and pay fixation of the adhoc/tenure lecturers on regularization. As
far as the seniority is concerned, to the extent relevant, the order reads as
follows:
“No. EDN-A-Chha (15)-4/94 Government of
Himachal Pradesh “Education Department” … From The Commissioner-cum-Secretary
(Edu.) to the Government of Himachal Pradesh.
To The Director of Education, Himachal
Pradesh, Shimla-171001.
Dated Shimla-171002, the 2nd November, 1995.
Subject:-Regularisation of
services of adhoc/tenure lecturers.
Sir,
With reference to your letter No.
EDN-H(19) B(1)-27/87- Vol- I, dated the 1st November, 1995 on the subject cited
above, I am directed to convey the approval of the Government in the following
points as under:-
1. SENIORITY The seniority of the
lecturers will be fixed from the date of their regularization as under:-
(a) These lecturers will be
enblock junior to those appointed on regular basis upto 31.3.94.
(b) Inter-se seniority will be
determined as per the date of appointment in the school.
(c ) Time of initial appointment
F.N. or A.N.
(d) If the date of appointment is
same, senior in age will be considered senior.
(e) If in some cases, date of
joining and date of birth are same, then merit in M.A. qualification will be considered.
2. PAY FIXATION The pay of the
lecturers proposed to be regularized will be fixed as under:-
(a) Adhoc lecturers who are
appointed on running grade and getting increments will be fixed in accordance
with the instructions issued by the Govt. from time to time & their period
of adhoc/tenure service will be counted for pension purpose.
(b) Lecturers appointed on tenure
basis are working on fixed salary of minimum of the grade. They will,
therefore, be given minimum of the grade and increments will be allowed after completion
of one year service from the date of regularization i.e. 1.4.95. However, the
service rendered by them as adhoc/tenure will be counted towards pension etc. ………………………………………………………………….”
5. Thereafter, the Director of
Education, the appointing authority issued the actual order of regularization
on 25.11.1995 (Annexure P-5 in CWP No. 4948 of 2011). It was made clear in the
order of regularization that “….The seniority of the lecturers will be fixed
from the date of regularization as under:-
(a) These lecturers will be
enblock junior to those appointed on regular basis upto 31.3.94.
(b) Inter-se seniority will be
determined as per the date of appointment in the school.
(c ) Time of initial appointment
F.N. or A.N.
(d) If the date of appointment is
same, senior in age will be considered senior.
(e) If in some cases, date of joining and date
of birth are same, then merit in M.A. qualification will be considered.
2. PAY FIXATION The pay of the
lecturers will be fixed as under:-
(a) Adhoc lecturers who are
appointed on running grade and getting increments will be fixed in accordance
with the instructions issued by the Govt. from time to time & their period
of adhoc/tenure service will be counted for pension purpose.
(b) Lecturers appointed on tenure
basis are working on fixed salary of minimum of the grade. They will,
therefore, be given minimum of the grade and increment will be allowed after
the completion of one year service from the date of regularization i.e. 1.4.95.
However, the service rendered by them as adhoc/tenure will be counted towards
pension.”
6. Between 1.4.1995, the date of
effect of regularization and 25.11.1995 when the actual order of regularization
was issued, quite a few lecturers were appointed on regular basis through the
H.P. Public Service Commission and they had joined duty on various dates
between 1.4.1995 and 25.11.1995. When the first seniority list was published on
7.8.1997 (Annexure P9 in CWP No. 4948 of 2011) all the tenure appointees
regularized on 25.11.1995 were shown below the regular appointees appointed and
joined duty up to March, 1995. The regular appointees who joined service between
March, 1995 to November, 1995 were shown below the tenure appointees
regularized as per the order dated 25.11.1995.
7. Neither the tenure appointees
regularized as per the order dated 25.11.1995 nor the regular appointees
appointed between March, 1995 and November, 1995 had any grievance with regard
to their seniority position. That seniority list operated for about 6 years. On
20.6.2003, another seniority list was published (Annexure P-10 in CWP No. 4948
of 2011), wherein the same principle was followed. Till 2010, when some of the
Writ Petitions were filed, there was no challenge to both the seniority lists
duly published either on 7.8.1997 or on 20.6.2003. It is significant in this
context to note that in the State of Himachal Pradesh, the H.P. State
Administrative Tribunal was functioning during the period up to 8.7.2008 and
under Section 21 of the Administrative Tribunals Act, 1985, limitation was one
year. No doubt, there was also a provision enabling the Tribunal to entertain
an application filed beyond the period in case the delay was satisfactorily
explained. In the instant case, the admitted position is that no such application
was ever filed by any lecturer aggrieved, challenging the seniority list published
either in 1997 or in 2003, for getting the relief of seniority w.e.f. 1.4.1995.
For the first time, writ petition was filed before this Court in the year 2011
claiming seniority w.e.f. 1.4.1995, in CWP No. 4948 of 2011, by the tenure lecturers
who have been regularized in service. The directly recruited lecturers who have
not been positioned above the tenure lecturers regularized in service w.e.f.
1.4.1995, filed writ petition for the first time only in the year 2010 by way of
CWP No. 6258 of 2010. In other words, those two set of lecturers, as per the records
had not raised any objection or given any representation when the tentative
seniority list was published either in 1997 or in 2003. Admittedly, they have
not challenged the final seniority list published either in 1997 or in 2003.
8. The Hon’ble Supreme Court in
Malcom Lawrence Cecil D’Souza versus Union of India and others, reported in AIR
1975 SC 1269, with regard to delay in pursuing the grievance of seniority, has
held at paragraph 8 as follows:
“8.………………..Satisfactory service
conditions postulate that there should be no sense of uncertainty amongst
public servants because of stale claims made after lapse of 14 or 15 years. It
is essential that any one who feels aggrieved with an administrative decision
affecting one’s seniority should act with due diligence and promptitude and not
sleep over the matter. No satisfactory explanation has been furnished by the
petitioner before us for the inordinate delay in approaching the Court. It is
no doubt true that he made a representation against the seniority list issued
in 1956 and 1958 but that representation was rejected n 1961. No cogent ground
has been shown as to why the petitioner became quiescent and took no diligent
steps to obtain redress.”
9. In State of Uttar Pradesh
versus Bahadur Singh and others, reported in (1983) 3 SCC 73, the Apex Court
considered the question as to whether there is any period of limitation for
filing a writ petition. It was held as follows:
“2. …………Frankly speaking we know
of no such period of limitation prescribed by any statute nor any such
provision was brought to our notice. The only known principle is that the court
may not examine stale causes as the court helps the vigilant and not the
indolent……………………..”
10. In R.M. Ramual versus State
of Himachal Pradesh and others, reported in AIR 1989 SC 357, the Apex Court
clarified the position when the seniority list is prepared ignoring all just
principles and also the rules framed or directions given by appropriate
authority, seriously affecting any officer, it is always liable to be ignored
and set aside by the Court. It is a case where the Court considered the
contention as to whether a seniority list which has been approved by the
government can be open to challenge. To quote:
“17. …………….It is true that the
final seniority list was sent to the Central Government and presumably it was
approved, but because a seniority list has been approved by the Central Government,
it cannot be laid down as a rule of law that even through it has been illegally
prepared in violation of the directions of the Central Government itself to the
prejudice of the officer or officers concerned, it cannot be challenged.
Normally, when a seniority list has been made final, it should not be allowed
to be challenged. But when a seniority list is prepared ignoring all just principles
and also the rules framed or directions given by appropriate authority,
seriously affecting any officer, it is always liable to be examined and set
aside by the Court. We are, therefore, unable to accept the contention of the
learned Counsel for the respondent No. 4 that the seniority list having been
made final after the approval of the Central Government cannot be challenged by
the appellant.”
11. In a recent judgment in Shiba
Shankar Mohapatra and others versus State of Orissa and others, reported in AIR
2010 SC 706, after examining the case law from 1964 on the issue of delay and
laches in filing the writ petition challenging the seniority, it has been held
at paragraph 29 that 3 to 4 years would be a reasonable period in challenging
the seniority. To quote paragraph 29:
“29. Thus, in view of the above,
the settled legal proposition that emerges is that once the seniority had been
fixed and it remains in existence for a reasonable period, any challenge to the
same should not be entertained. In K.R. Mudgal, (AIR 1986 SC 2086) (supra), this
Court has laid down, in crystal clear words that a seniority list which remains
in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4
years is a reasonable period for challenging the seniority and in case someone
agitates the issue of seniority beyond this period, he has to explain the delay
and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation.”
To quote the headnote in K.R.Mudgal & ors. vrs. R.P. Singh & ors.,
reported in AIR 1986 SC 2086:
“ Satisfactory service conditions
postulate that there shall be no sense of uncertainity amongst the Government
servants created by writ petitions filed after several years. It is essential
that any one who feels aggrieved by the seniority assigned to him, should approach
the Court as early as possible otherwise in addition to creation of sense of
insecurity in the mind of Government servants there would also be
administrative complications and difficulties.
A Govt. servant who is appointed
to any post ordinarily should at least after a period of 3 or 4 years of his
appointment be allowed to attend to the duties attached to his post peacefully
and without any sense of insecutiry.”
12. Thus, it is a well settled
position in service jurisprudence that there shall be no sense of uncertainty
among the incumbents created by writ petitions filed after several years with
regard to their position and seniority. It would otherwise also lead to
administrative complication and difficulties. Promotion is always ordered based
on the position in the seniority list. If the same is repeatedly unsettled, it
would lead to a sense of insecurity among the employees apart from resulting in
administrative complications and difficulties. In the instant cases, neither
the tenure lecturers who have been regularized in service w.e.f. 1.4.1995 nor
the direct recruit lecturers appointed between March, 1995 to November, 1995
have taken any steps to challenge the final seniority list published either in
1997 or in 2003 for a long time. Therefore, they are all liable to be
non-suited on the ground of gross delay in challenging the seniority.
13. What is the effect of
regularization on seniority is the other question to be decided. In State of
Haryana and ors. etc. etc. versus Piara Singh & ors. etc. etc., reported in
AIR 1992 SC 2130, the Supreme Court considered the case of regularization of
adhoc employees. At paragraph 25, a direction was issued to the governments to
prepare a scheme. To quote:
“25. ………………..The proper course
would be that each State prepares a scheme, if one is not already in vogue, for
regularization of such employees consistent with its reservation policy and if
a scheme is already framed, the same may be made consistent with our
observations herein so as to reduce avoidable litigation in this behalf. If and
when such person is regularized he should be placed immediately below the last
regularly appointed employee in that category, class or service, as the case
may be………………”
14. It is significant to note
that the Apex Court had clearly held, with regard to seniority, that a person
when regularized should be placed immediately below the last regularly
appointed employee in that category. The date of effect of regularization and
date of passing the order of regularization are two different concepts. In the
instant cases, the tenure lecturers have been granted regularization w.e.f.
1.4.1995. A policy decision in that regard was taken on 23.8.1994. But, after
working out the modalities, the government order regarding seniority and pay
fixation was issued only on 2/3.11.1995. The actual order regularizing the
incumbents in service was passed only on 25.11.1995. Between 1.4.1994 and
25.11.1995, quite a few direct recruit lecturers had joined duty.
Those orders of regularization
dated 2/3.11.1995 and 25.11.1995 contained a stipulation that the tenure
lecturers thus regularized w.e.f. 1.4.1994 would be enblock juniors to those
appointed on regular basis up to 31.3.1994. In other words, they were to be
placed above those who have been appointed after 31.3.1994. But, several
teachers had been recruited directly through the Commisson during the said
period. While preparing the seniority list in 1997 and publishing the final
seniority list of lecturers (school cadre) in the year 1997, the tenure
lecturers regularized as per order dated 25.11.1995 were placed below the direct
recruit lecturers recruited up to March, 1995. The direct recruit lecturers appointed
between March, 1995 and November 1995 were, however, placed only below the
tenure lecturers regularized as per order dated 25.11.1995.
15. It is the contention of the
tenure lecturers that having been regularized in service w.e.f. 1.4.1995, they
should be given the benefit of seniority also w.e.f. 1.4.1995. It is also
pointed out that in the case of Trained Graduate Teachers regularized in
service, they have been granted the benefit of seniority w.e.f. the date of
effect of regularization in service. We are afraid, the contentions cannot be
appreciated. There are no records with regard to the date when the TGT (Trained
Graduate Teachers) were ordered to be regularized in service. It is also not clear
as to whether those teachers had pursued the matter of seniority at the
relevant time. Be that as it may, as already noted above, the direction by the
Apex Court in Piara Singh’s case (supra) is also to give seniority only w.e.f.
the date of passing the order of regularization.
16. The Supreme Court in R.K.
Mobisana Singh versus KH. Temba Singh ad others, reported in (2008) 1 SCC 747,
had considered the question of seniority qua retrospective regularization. At
paragraph 42 of the judgment, it has been held as follows:
“42. It was obligatory on the
part of the official respondents to take into consideration that the
retrospective regularization could be granted only when there exists such a
rule. If the Rules were not followed at the time of grant of promotion,
question of grant of regularization with retrospective effect would not arise.
Retrospective regularization,
whether in terms of the directions of the High Court or otherwise, thus,
although could confer other service benefits on the officer concerned, but the
same cannot be held to be of any assistance for reckoning seniority with retrospective
effect.” 17. Thus, the date of effective regularization and date of passing the
order of regularization are two different service concepts. The seniority of
the tenure/adhoc employees regularized in service will be counted only w.e.f
the date of passing the order of regularization. The effective date of
regularization will be taken into consideration only for other service benefits
like increment, pension etc.
18. LPA No. 77 of 2011 & CWP
No. 2642 of 2009.
LPA No. 77 of 2011 is filed by the petitioners
who were tenure lecturers aggrieved by the judgment dated 18.10.2010 in CWP No.
1505 of 2009.
They had filed the Writ Petition
with the grievance regarding promotion to the post of Principal. Same is the
prayer in CWP No. 2642 of 2009. It was contended that lecturers who have been
appointed after 1.4.1994 have been granted promotion whereas the petitioners
who had been regularized in service w.e.f. 1.4.1994 were ignored. Learned
Single Judge has dismissed the writ petition holding that such contentions
cannot be appreciated in the absence of a challenge to the seniority list. In
view of what has been held by us above, the LPA is only to be dismissed and the
writ petition No. 2642 of 2009 as well alongwith pending application(s), if
any. Ordered accordingly.
19. CWP No. 2431 of 2012.
The petitioners in CWP No. 2431 of 2012 have
infact asked for the benefit of counting of their adhoc service for the purpose
of increments, promotion and other service benefits. As far as promotion is
concerned, we have already held that it would depend on their position in the
seniority list. But the tenure service followed by regular service will count
for all other purposes as qualifying service. Subject to the above, this writ
petition is dismissed, so also the pending application(s), if any.
20. CWP Nos. 6258 of 2010, 7381
of 2010, 4948 of 2011 and 4976 of 2011 shall also stand dismissed, so also the
pending application(s), if any.
