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2002 Supreme(HP) 191
High Court Of Himachal Pradesh
NARINDER THAKUR,V.K.BHATNAGAR
ARVIND KUMAR - Appellant
Versus
STATE OF HP - Respondent
O.A. No. 809/2002
Decided On : 07/11/2002
Shri Dilip Sharma, Advocate for the applicant Shri R.K. Sharma Addl. A.G. for the Respondent No.1 State of HP Shri B.N. Gupta, Advocate for Respondent No.2 Regional Engineering college.
The main legal point established in the judgment is that the repatriation of a civil servant without proper inquiry and in violation of established legal principles, such as F.R. 13 and Article 311 of the Constitution, is legally unsustainable.
Headnote:
Administrative Tribunals Act - Absorption of Applicant - F.R. 13, Swamis Complete Manual on Establishment and Administration - Violation of Article 311 - Repatriation of Applicant - Legal Unsustainability
Fact of the Case:
The applicant sought relief against an order repatriating him from the post of Superintendent, Model Central Jail, Nahan, alleging that he had been permanently absorbed in the respondent department and could not have been repatriated. The respondent department contended that the applicant's work and conduct were not satisfactory, justifying his repatriation.
Finding of the Court:
The court found that the applicant's permanent absorption and subsequent repatriation were in violation of F.R. 13 and the principles outlined in Swamis Complete Manual on Establishment and Administration. The court also held that the repatriation amounted to removal from service without proper inquiry, violating Article 311 of the Constitution.
Issues: The issues revolved around the legality of the applicant's repatriation, the sufficiency of his work and conduct, and the violation of constitutional provisions and established legal principles.
Ratio Decidendi: The court's decision was based on the interpretation of F.R. 13, Swamis Complete Manual on Establishment and Administration, and the constitutional protection provided to civil servants under Article 311. The court emphasized that the repatriation was in substance a termination from the civil post held by the applicant, and the impugned order was legally unsustainable.
Final Decision: The court quashed and set aside the impugned notification and office order, ruling in favor of the applicant with all consequential benefits.
NARINDER THAKUR, MEMBER (JUDICIAL) - In this application under section 19 of the Administrative Tribunals Act, the applicant seeks, inter-alia, the following relief (s): (i) That the impugned order/notification dated 19.3.2002, at Annexure A-11 may be quashed and set aside and applicant may be held entitled to continue on the post of Superintendent, Model Central Jail, Nahan, with all consequential benefits. (ii) That if during the pendency of Original application, the applicant is not allowed to continue on the post in question pursuant to the impugned order, in that event he may be directed to be re-instated on the said post with continuity of service and all consequential benefit. (iii) That if during the pendency of original application, any further promotion is made to the post of Superintendent or DIG, or any appointment by absorption is made to the post of Superintendent or DIG, or any appointment by absorption is made to the post of DIG, in such event the said appointment/Promotion may also be quashed and set aside and applicant may be held entitled to consideration for further promotion from the date of such promotion/appointment, with all consequential benefits.
2. The facts giving rise to this litigation may be narrated at this state. The applicant was working as Store Purchase Officer in REC Hamirpur since February 1987. In June, 1998, interview was held for} the post of Superintendent District Jail Dharamsala Central Jail Nahan and Shimla As a result of selection in the interview, vide notification dated 2.12.1998, Annexure A-1 with the O.A., the services of the applicant were placed at the disposal of Prisons Department for his appointment as Superintendent District Jail, Dharamsala on deputation basis for a period of two years from the date of his joining. Vide another notification dated 21.5.1999, Annexure A-2 with the O.A., the earlier notification was modified and the services of the applicant were placed at the disposal of Prisons Department for his posting as Superintendent (Gazetted Class-1) Central Jail, Nahan on deputation basis with immediate effect for a period of two years from the date of his joining. Consequently, he joined at Nahan on 14.6.1999.
3. It appears that sometime in September, 2000 the applicant applied for his permanent absorption in Prisons Department. Vide letter issued in September, 2000 Annexure A-3, by the Additional Director General of Prisons to FC-cum-Secretary (Home to the Government of Himachal Pradesh, with reference to application dated 7.9.2000 of the applicant, it was stated that the work and conduct of the applicant against the post of Superintendent Model Central Jail, Nahan had been very good. It was further stated that fresh initiatives had been taken by him in re-habilitation of the prisoners in Nahan Jail and that he was taking keen interest in controlling total jail activities as well as jail administration. The absorption of the applicant permanently against the post of Superintendent, in the Prisons Department was, therefore recommended. Vide another letter dated 27.1.2001, Annexure A-4 with the O.A. from the Additional Director General of Prisons, Himachal Pradesh to FC-Cum-Secretary (Home) to the Government of Himachal Pradesh, similar recommendation was again made.
4. The Recruitment and Promotion Rules for the post of Superintendent, Model Central Jail, Nahan/Superintendent District Jail, Dharamsala were notified on 4.5.1970, which are Annexure A-5 with the O.A. Under these rules, method of recruitment is by promotion failing which by transfer on-deputation and failing both by direct recruitment. The respondent department adopted the method of appointment by transfer on deputation because no departmental candidate was eligible for promotion at that time.
5. It is the case of the applicant that keeping in view the work and conduct of the applicant during his deputation of nearly two years, vide notification dated 27.4.2001, Annexure A-6 with the O.A, the appli
