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2020 Supreme(HP) 549
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sandeep Sharma, J.
Prateek Gupta - Appellant
Versus
State of Himachal Pradesh - Respondent
Civil Writ Petition No. 2464 of 2019
Decided On : 29-09-2020
Ranjana Parmar, Advocate, Karan Singh Parmar, Advocate, Arvind Sharma, Advocate, Kunal Thakur, Advocate, Ramakant Sharma, Advocate, J.L. Bhardwaj, Advocate
The main legal point established in the judgment is that a government servant's seniority should be protected on technical resignation, and the conditions imposed on the petitioner were contrary to the rules governing the field.
Headnote:
Lien - Judicial Services - Himachal Pradesh Judicial Officers (Pay and Conditions of Service) Act, 2003, Fundamental Rules, Supplementary Rules, Master Circular on Lien/Technical resignation in Central Government services - The court considered the petitioner's request to join Himachal Pradesh Judicial Services against his lien to the post of Civil Judge and the condition imposed on him to forego his seniority. The court found that the petitioner's lien over the post of Civil Judge continued until he was appointed on a substantive basis to another post. The court relied on the Himachal Pradesh Judicial Officers (Pay and Conditions of Service) Act, 2003, Fundamental Rules, Supplementary Rules, and the Master Circular on Lien/Technical resignation in Central Government services to conclude that the petitioner's seniority should be protected and that the condition imposed on him was contrary to the rules governing the field.
Fact of the Case:
The petitioner, a Civil Judge, sought permission to join Himachal Pradesh Judicial Services against his lien to the post of Civil Judge. The court found that the petitioner's lien over the post of Civil Judge continued until he was appointed on a substantive basis to another post. The court also noted that the Judicial Service in the State of Himachal Pradesh is governed by the Himachal Pradesh Judicial Officers (Pay and Conditions of Service) Act, 2003.
Finding of the Court:
The court found that the condition imposed on the petitioner to forego his seniority and past service benefits was contrary to the rules governing the field. The court held that the petitioner's seniority should be protected in accordance with the Himachal Pradesh Judicial Officers (Pay and Conditions of Service) Act, 2003, Fundamental Rules, Supplementary Rules, and the Master Circular on Lien/Technical resignation in Central Government services.
Issues: The issues involved the petitioner's request to join Himachal Pradesh Judicial Services against his lien to the post of Civil Judge and the condition imposed on him to forego his seniority and past service benefits.
Ratio Decidendi: The court's decision was based on the interpretation of the Himachal Pradesh Judicial Officers (Pay and Conditions of Service) Act, 2003, Fundamental Rules, Supplementary Rules, and the Master Circular on Lien/Technical resignation in Central Government services, which led to the conclusion that the petitioner's seniority should be protected.
Final Decision: The court allowed the petition, quashed and set aside the impugned order, and directed respondent No.2 to consider the petitioner's request afresh in accordance with the relevant provisions and the court's observations.
JUDGMENT
Sandeep Sharma, J. - Being aggrieved with the order dated 22.08.2019 (Annexure P-10) issued/passed by respondent No.2, High Court of Himachal Pradesh, whereby it came to be conveyed to the petitioner that his request for permission to join the Himachal Pradesh Judicial Services against his lien to the post of Civil Judge (Junior Division)-cum-Judicial Magistrate Ist Class, shall not be accepted till the time he agrees to forego his seniority, petitioner has approached this Court in instant proceedings filed under Article 226 of the Constitution of India praying therein to quash and set aside the aforesaid communication being contrary to the provisions of law.
2. Precisely, the question which arises for consideration of this Court in the instant proceedings is "Whether on technical resignation seniority in the post held by government servant on substantive basis continues to be protected?"
3. Before exploring answer to aforesaid question certain undisputed facts, which may be relevant for adjudication of the case at hand are as under:-
4. Vide Notification dated 25.11.2014 issued by respondent No.1, petitioner, amongst others, was appointed as Civil Judge (Junior Division)-cum-Judicial Magistrate in the State of Himachal Pradesh. Pursuant to his selection in terms of Notification, as referred to above, petitioner vide Notification dated 16.12.2014, issued by respondent No.2, was detailed to undergo induction training in the Himachal Pradesh Judicial Academy, Shimla. After completion of training period, powers of Judicial Magistrate Second Class came to be conferred upon the petitioner amongst others vide Notification dated 2.6.2015 and he was posted as Civil Judge (Junior Division)-cum-Judicial Magistrate(II), Dehra, District Kangra, as is evident from Annexures R-2/E and R-2/F.
5. Vide letter dated 21.12.2016, District & Sessions Judge, Kangra at Dharamshala forwarded the letter dated 17.12.2016 written by the petitioner requesting therein for grant of permission to appear in the interview/test for the post of Assistant District Attorney conducted by the Haryana Public Service Commission. The aforesaid request of the petitioner was processed and vide letter dated 30/31.12.2016 (Annexure P-2) respondent No.2 granted the permission to the petitioner to appear in the said screening test for the post of Assistant District Attorney. Vide Notification dated 11.08.2017 (Annexure P-3) issued by respondent No.2, service of the petitioner in the cadre of Civil Judge (Junior Division) (now Civil Judge) was confirmed. However, petitioner, after being selected as Assistant District Attorney in the State of Haryana tendered his technical resignation from the post of Civil Judge (Junior Division)-cum-Judicial Magistrate Ist Class, Dehra, District Kangra, Himachal Pradesh which was forwarded by the District & Sessions Judge, Kangra at Dharamshala vide letter dated 16.08.2017 (Annexure R-2/J). The resignation tendered by the petitioner was processed and considered by respondent No.2 and vide letter dated 19/20.09.2017 (Annexure R-2/K), the same was recommended to respondent No.1 for being accepted unconditionally. Respondent No.1 being appointing Authority in the cadre of Civil Judge (Junior Division) vide notification dated 22.09.2017 (Annexure R-2/L) accepted the said resignation and accordingly respondent No.2 vide letter dated 23.09.2017 (Annexure R-2/M) requested the District & Sessions Judge, Kangra at Dharamshala to relieve the petitioner from the present assignment with immediate effect. Petitioner vide his charge relinquishment report dated 22.09.2017 (Annexure R-2/N) relinquished the charge of the post of Civil Judge (Junior Division)-cum-Judicial Magistrate Ist Class, Dehra, District Kangra, Himachal Pradesh
6. After almost 11/2 years petitioner vide his application dated 23.4.2019 (Annexure P-8) sent through Director Prosecution, Haryana, Panchkula, requested for permission to join Himachal Pradesh Judicial Services agains
