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2024 Supreme(HP) 37
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Manohar Lal and Others – Petitioners
Versus
State of H.P. and Others – Respondents
CWPOA No. 2604 of 2020
Decided On : 06-05-2024
Advocate Appeared:
For the Petitioners: Dilip Sharma, Manish Sharma.
For the Respondents: Dalip K. Sharma, A.K. Sharma.
IMPORTANT POINT
Contractual employment made in accordance with R&P Rules is liable to be considered for the purposes of seniority, and the initial appointment, even if temporary, if made in terms of prevalent recruitment rules and after holding the due process of selection, the service rendered thereafter continuously till regularisation is liable for consideration for the purposes of seniority.
Headnote:
Seniority - Contractual Services - Himachal Pradesh Department of Excise and Taxation - 1996 Recruitment and Promotion Rules - [Column 15-A, R&P Rules, 1996] - [CWP No. 2004 of 2017, CWP No. 963 of 2023, CWP No. 1877 of 2020] - The court held that the contractual employment under the State Government, if made in accordance with R&P Rules, is liable to be considered for the purposes of seniority. The initial appointment, even though made on temporary or ad-hoc basis, if made in terms of prevalent recruitment rules and after holding the due process of selection, the service rendered thereafter continuously till regularisation is liable for consideration for the purposes of seniority. The private-respondents, who were born in Class-III grade as Clerks on subsequent dates cannot be placed higher in seniority than the petitioners. Merely because some of the private respondents were appointed as Clerks through limited direct recruitment process, they cannot supersede the petitioners, who were appointees of earlier date.
Fact of the Case:
The petitioners sought seniority and other consequential benefits in the cadre of Clerks in the Department of Excise and Taxation, Government of Himachal Pradesh by seeking relief of addition of their contract services for aforesaid purposes.
Finding of the Court:
The court held that the petitioners' contractual services should be counted for the purpose of seniority, pay scale revision, annual increments, proficiency-step-up, and promotion against the post of Junior Assistant. The seniority list was quashed and set-aside to the extent it placed the private respondents above the petitioners with a direction to re-frame the seniority list of the Clerks in the Department of Excise and Taxation, Himachal Pradesh.
Issues: The main issue was the entitlement of the petitioners to seniority and other consequential benefits based on their contractual services in the cadre of Clerks in the Department of Excise and Taxation, Government of Himachal Pradesh.
Ratio Decidendi: The court's decision was based on the interpretation of the Himachal Pradesh Department of Excise and Taxation, Clerk, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 1996, and previous judgments that established the principle that contractual employment made in accordance with R&P Rules is liable to be considered for the purposes of seniority. The court also emphasized that the initial appointment, even if temporary, if made in terms of prevalent recruitment rules and after holding the due process of selection, the service rendered thereafter continuously till regularisation is liable for consideration for the purposes of seniority.
Final Decision: The petition was allowed, and respondents No. 1 and 2 were directed to count the contractual services of the petitioners with effect from the date of their initial appointment on a contract basis for the purpose of seniority, pay scale revision, annual increments, proficiency-step-up, and promotion against the post of Junior Assistant. The seniority list was quashed and set-aside to the extent it placed the private respondents above the petitioners with a direction to re-frame the seniority list of the Clerks in the Department of Excise and Taxation, Himachal Pradesh.
1. The instant petition has been filed for the grant of following substantive reliefs:
“(i) That the directions may kindly be issued to the respondents to count the contractual service of the applicants with effect from the date of their appointment on contractual basis for all intents and purposes i.e. seniority (as per merit list issued by the HPSSSC, Hamirpur), pay scale revised time to time, annual increment, proficiency step-up and promotion against the post of Junior Assistant etc. as per the judgment passed by the Hon’ble Tribunal in O.A. No. 3337 of 2016, titled as Lekh Ram and Others vs. State of H.P. and Others, decided on 25.05.2017 (Annexure A-5).
(ii) That Annexure A-4 may kindly be quashed and set-aside with the directions to re-draw the seniority list whereby inducting the names of the applicants at a proper place over and above the private respondents striatum wise, whereby giving the benefit to each applicant of his contractual service from the date of his initial appointment in the Department.
(iii) That the respondent department may kindly be directed to pay all consequential benefits to the applicants from the due dates with interest @ 12% per annum till the date of realization.”
2. The petitioners are claiming seniority and other consequential benefits in the cadre of Clerks in the Department of Excise and Taxation, Government of Himachal Pradesh by seeking relief of addition of their contract services for aforesaid purposes.
3. The petitioners were appointed as Clerks on contract basis in Excise and Taxation Department in the years 2010, 2012 and 2014, respectively in the pay scale of Rs. 5910 - 20200 + 1900 Grade Pay with initial start of salary of Rs. 7810/- per month. The petitioners were selected after due process of recruitment held by the Himachal Pradesh Subordinate Services Selection Board (for short, “HPSSSB”) in accordance with the Recruitment and Promotion Rules (for short “R&P Rules”) for the posts of Clerks in the Respondent-Department.
4. The services of petitioners were regularized in the years 2016-2017 in terms of the regularization policy of the State Government.
5. Respondents No. 3 to 39 were appointed as Clerks in Respondent-Department either by way of promotion or limited direct recruitment. Indisputably, respondents No. 3 to 39 prior to their induction in Class-III cadre of Clerks had served the Respondent-Department as Class-IV employees for requisite period of service. Their appointments as Clerks by way of promotion or limited direct recruitment was after the initial appointment of petitioners as Clerks on contract basis.
6. Respondents No. 1 and 2 prepared seniority list of Clerks as was circulated vide office order dated 18.7.2017 in which respondents No. 3 to 39 were placed above the petitioners. In this background, petitioners have filed the instant petition for the reliefs as noticed above.
7. Respondents No. 1 and 2 have filed their reply and the factual position as stated by the petitioners has not been denied. As per official-respondents, 34 vacant posts of Clerks on contract basis by direct recruitment were required to be filled in the Excise and Taxation Department and for such purpose requisition was sent to HPSSSB on 14.6.2008. The HPSSSB after undertaking the selection process recommended the names of 34 selected persons to the Respondent-Department on 31.5.2010. Accordingly, the appointments of some of the petitioners were made in June, 2010.
8. Respondents No. 1 and 2 have further submitted that the services of petitioners were regularized in 2016-2017 in terms of the regularization policy.
9. As regards the private respondents No. 3 to 39, it has been submitted that as per R&P Rules for the post of Clerks in Respondent-Department, 70% posts are to be filled by direct recruitment and remaining 30% by promotion, out of which 20% are to be filled from amongst Class-IV officials by way of limited direct competition to be conducted by the HPSSSB. It has not been denied that the
