Parkash Chand vs State of H.P. and Others

P.D. Desai, C.J.

(Only prtions approved for reporting have been reported.)

to 11. xx xx xx xx 12. Now, along with the Petitioner, services of many other employees of the MPPD were terminated and they too were absorbed in the HPSEB on the same terms and conditions. Respondent Nos. 3 to 7 and one M.L. Sharma (hereinafter to be called "Sharma"), all of whom were holding the posts of Assistant Engineer at the material time, were amongst those whose services were terminated and who were absorbed in the HPSEB. After the decision here in under appeal was rendered and while the present appeal was pending, another writ petition, Civil Writ Petition No. 100 of 1973, was filed by the Petitioner and his seven colleagues against the State of Himachal Pradesh, State of Punjab, HPSEB and Sharma, on March 10, 1973. Since the outcome of the said writ petition has a direct bearing on the issues raised herein, it would be convenient to refer to those material facts at this stage.

Sharma is an ex-employee of the State of Punjab. While in the service of the State of Punjab he was promoted as Assistant Engineer vide order dated June 16, 1966. He took over the charge of his new post on June 20, 1966. On the reorganisation of the State of Punjab, Sharma was allocated to the Himachal Pradesh Public Works Department, with effect from November 1, 1966. The services of Sharma were then placed at the disposal of the MPPD on and with effect from June 5, 1968. On the establishment of the HPSEB, the services of Sharma were placed at its disposal on and with effect from September 1, 1971. The HPSEB offered to take over the services of Sharma as Overseer in a substantive capacity and as Assistant Engineer in ad-hoc capacity. Sharma, however, conveyed his acceptance with modification and agreed to the appointment in the post of Overseer "permanent" and Assistant Engineer "officiating but regular". On October 21, 1971, an office order was issued under the signature of the Secretary to the Government, MPPD, the effect whereof was to regularise the appointment of Sharma as Assistant Engineer, Class II, on and with effect from June 20, 1966, and to assign him place at serial No. 21 in the final seniority list of Assistant Engineers (E) as it stood on May 2, 1967, circulated vide letter dated January 20/22, 1971. By virtue of the place accordingly assigned to Sharma, he was placed just below Pradeep Kumar, Respondent No. 7, in the seniority list of Assistant Engineers (E), Class II. Since Sharma''s services got regularised on and with effect from June 20,1966, that is, a date earlier than the one on and with effect from which the Petitioner''s services were regularised (July 12, 1966), Sharma ranked senior to the Petitioner in the cadre of Assistant Engineers (E), Class II.

The Petitioner and some of his colleagues apparently felt aggrieved by the order passed in favour of Sharma and they, therefore, instituted Civil Writ Petition No. 100 of 1973, referred to earlier (hereinafter referred to as "the previous writ petition") seeking the relief, inter alia, that the order issued in June, 1966, by the Punjab Government giving promotion to Sharma for a period of six months on a provisional basis and the order dated October 21, 1971, passed by the Secretary to the Himachal Pradesh Government, MPPD, regularising his services on and with effect from June 20, 1966, be quashed and that the State Government and the HPSEB be directed to consider the case of the Petitioners for the regularisation of their services in the post of Assistant Engineer (E), Class II, in accordance with rules. The main contention in the petition was that since Sharma was promoted only on a provisional basis for a period of six months, he should have been reverted after the expiry of that period and that the Secretary to the Government, MPPD had no power, authority and jurisdiction to regularise such promotion on and with effect from a date prior to his allocation to the State of Himachal Pradesh. The previous writ petition was finally heard and decided on May 15, 1981 by a learned single Judge of this Court (V.D. Misra, C.J.). The learned Chief Justice found that Sharma, who was a permanent employee of the State of Punjab was undoubtedly promoted as Assistant Engineer on a provisional basis for a period of six months under Rule 6 of the Punjab Service of Engineers, (Class II), P.W.D. (Buildings and Roads Branch) Rules, 1965 and that he was holding the said post in such capacity on November 1, 1966. However, u/s 83 of the Punjab Re-organisation Act, 1966, he was entitled to continue in the same post upon allocation to the successor State and the Secretary to the Government, MPPD was the competent authority under the proviso to the said Section to pass an order regularising his services on and with effect from June 20, 1966. The learned Chief Justice also recorded an additional finding. The relevant portion of the judgment containing the additional finding is in the following terms:

...The service of the Petitioners as well as the Respondent had been terminated by the Government of Himachal Pradesh. Thereafter fresh offers were made by the Board to the Petitioners as well as the Respondent. These offers were accepted by the parties. Therefore, the fresh terms of contracts will govern their conditions of service. The only assurance given by the Board was that the previous service shall be taken into consideration for the purpose of determining the pension, gratuity etc. and nothing more...It is, therefore, clear that this Respondent joined service of the Board not in the provisional capacity but as ''Assistant Engineer officiating but regular''. This was a new contract between the Board and Respondent No. 3 and the Respondent is entitled to that status...A right has accrued to the employee under the contract and that right could not be taken away because of something which might have taken place when the employee was in service with another employer.

The learned Chief Justice pointed out that Sharma had acquired the right of having been appointed as Assistant Engineer in the services of the HPSEB upon absorption and such right which had accrued under the contract could not be taken away on account of something which might have occured in the course of his earlier service career. On both the aforesaid grounds, the petition instituted by the Petitioner and his colleagues was rejected.

xx xx xx xx 16. The first question which arises against the aforesaid background is as to whether the Petitioner is entitled to maintain the present petition and to claim the reliefs herein sought in view of file dismissal of the previous writ petition. This contention was raised by way of preliminary objection by the learned Advocate-General on behalf of Respondent No. 1 (State of Himachal Pradesh) and Respondent No. 8 (HPSEB). The contention was elaborated as follows: The dispute as to the regularisation of the services of the Petitioner herein, amongst others, from a date earlier than that on and from which such regolarisation was, in fact, made, and also as to the relative seniority of the Petitioner, amongst others, and Sharma, was directly and substantially in issue in the previous writ petition, in which the order dated October 21, 1971, regularising the services of Sharma from June 20, 1966 and assigning to him a place immediately below Respondent No. 7 in the seniority list as it stood on May 2, 1967, circulated on January 20/22, 1971, was under challenge. The said dispute having been finally resolved against the Petitioner, by refusing his claim relating to the regularisation of his services from an earlier date, and in favour of Sharma, by upholding his regularisation on and with effect from a date earlier than that of the Petitioner and the consequential assignment of seniority to him above the Petitioner, the present writ petition in which the same issue of regularisation is sought to be directly and substantially raised again is not maintainable. Besides, one of the consequential reliefs herein claimed by the Petitioner, namely, the assignment of seniority to him over Respondent Nos. 3 to 7 is impossible of being granted, in view of the fact that in the decision rendered in the previous writ petition, Sharma is found to have been correctly assigned seniority immediately below Respondent No. 7. Since the question relating to the assignment of seniority to Sharma accordingly cannot now be reopened, it is impossible to comprehend how the Petitioner''s claim to be considered senior to Respondent Nos. 3 to 7, who were undisputedly senior to Sharma, could be entertained and upheld. The present writ petition is, therefore, barred by res-judicata or principles underlying the doctrine of res-judicata and the reliefs, or some of them, claimed herein are even otherwise not capable of being granted.

There is considerable force in the aforesaid preliminary objection. It is not capable of being disputed that the issue relating to the regularisation of the services of the Petitioner from a date anterior to that from which it was actually made was directly and substantially in issue in the previous writ petition. In terms, in the memo of the said writ petition, the Petitioners had claimed that they had better claim over the post to which Sharma was appointed by regularisation on and with effect from June 20, 1966, since some of them (including the Petitioner) were working as Assistant Engineers even before Sharma was first appointed to the said post in the State of Punjab and they were better qualified. The Petitioners had referred to the numerous representations made by them with regard to the regularisation of their services from an earlier date and complained that without deciding their claim Sharma''s services were regularised taking into consideration even the service rendered by him on a purely provisional basis in the post of Assistant Engineer in the State of Punjab. On these and other grounds, the regularisation of the services of Sharma and the assignment of seniority to him over the Petitioners (including the Petitioner herein) were specifically challenged and one of the prayers was that the State of Himachal Pradesh and the HPSEB should be directed to consider the case of the Petitioners (including the Petitioner herein) for regularisation in the posts of Sub-Divisional Officer (Assistant Engineer) in accordance with rules. The learned single Judge, as earlier pointed out, upheld the order dated October 21, 1971, regularising the service of Sharma on and with effect from June 20, 1966, and the consequential direction regarding assignment of seniority to him just below Respondent No. 7. True it is that the claim of the Petitioners (including the Petitioner herein) as regard the regularisation of their services from a date earlier than that from which it was actually made was not specifically dealt with and rejected. However, such relief having been specifically claimed and having been not expressly granted, must be deemed to have been refused. (See Section 11 and Explanation v. of the Code of Civil Procedure, 1908). The Petitioner cannot, therefore, be permitted to reagitate the same issue in the present writ petition, as between himself and Respondents Nos. 1 and 8, since it is barred by general principles of res-judicata, or, at any rate, on the basis of the principles underlying the doctrine of res-judicata (vide: Devilal Modi, Proprietor, M/s. Daluram Pannalal Modi Vs. Sales Tax Officer, Ratlam and Others, and The Workmen of Cochin Port Trust Vs. Board of Trustees of The Cochin Port Trust and Another, The Petitioner''s claim to seniority over Respondent Nos. 3 to 7 must consequently fail because he cannot claim such seniority if his services are to be regarded as having been correctly regularised on and with effect from July 12, 1966, since Respondent Nos. 3 to 7 are regularly appointed from earlier dates. That apart, on the question of seniority, the judgment rendered in the previous writ petition poses an insurmountable difficulty. The seniority assigned to Sharma at serial No. 21 below Respondent No. 7 in the seniority list of Assistant Engineers (E), Class II, as it stood on May 2, 1967, circulated on January 20/22, 1971, having been upheld, it is impossible to grant to the Petitioner the relief that he should be assigned seniority at serial No. 14 or thereabout in the said seniority list. If the Petitioner cannot claim to be senior to Sharma because of the decision rendered in the previous writ petition, his claim to be considered senior even to those who are senior to Sharma cannot possibly be upheld. Be it stated that it is not in dispute that in all subsequent seniority lists also, Respondent Nos. 3 to 7 stand senior to Sharma.

For the foregoing reasons, in our opinion, the present writ petition deserves to be rejected on the short ground that having regard to the decision rendered in the previous writ petition, which has since become final, the present writ petition is not maintainable and the reliefs, or some of them, claimed herein are even otherwise not capable of being granted.

We do not, however, propose to rest our decision solely on this conclusion. Even on merits, the Petitioner''s claim to the regularisation of his services on and with effect from September 12, 1964, is not capable of being upheld, for the reasons which follow.

At the point of time when the Petitioner was appointed on ad hoc basis as Assistant Engineer (E), Class II, under the order dated September 5, 1964, at Annexure ''A'', there were no statutory rules governing the appointment to the said post. At Annexure ''B'' to the affidavit-in-reply dated June 3, 1970, filed in the present writ petition is found a copy of the letter dated December 18, 1962, addressed by the Under Secretary to the Government of India, Ministry of Home Affairs, to the Chief Secretary, Himachal Pradesh, Manipur and Tripura Administrations in regard to the method of recruitment to Gazetted Engineering Posts in the Union Territories. Para 1 of the said letter recited that vacancies in the grade of Assistant Engineers and above should be filled in the Union Territories of Himachal Pradesh, Manipur and Tripura by promotion of officers borne on the cadres of the Public Works Department of the Territory concerned, that is, by promotion of officers other than those who are on deputation from the Central Public Works Department or the Central Water and Power Commission, on the recommendation of a duly constituted Departmental Promotion Committee, failing which by deputation. Paragraph 3 of the said letter clarified that promotions to be made accordingly should be subject to the conditions that: (1) criteria regarding educational qualifications and length of service would be the same as those prescribed in respect of promotions to corresponding grade in the Central Public Woks Department/Central Water and Power Commission and (2) the Union Public Service Commission would be consulted where necessary. Paragraph 6 of the letter stated that where the Administrator was satisfied that it was necessary in the public interest to make immediate arrangements for the performance of the duties of a vacant post, he may promote an officer borne on the cadre of the Public Works Department of the Administration to hold the vacant post until an officer who is regularly promoted or a deputationist becomes available to fill the vacancy. If necessary, the Administrator may at his discretion but with due regard to the requirements of efficiency relax the normal criteria required to be applied in ordering such promotions. Every such promotion should be reported to the Chairman, Central Water and Power Commission or the Chief Engineer, Central Public Works Department, as the case may be. The maximum duration of such promotion should be three months. If for any reason, however, the term needs to be extended beyond three months, the extension could be granted only with the prior approval of the Chairman of the Central Water and Power Commission or the Chief Engineer, Central Public Works Department, as the case may be. Paragraph 7 of the letter recited that if, in any case, it was proposed to depart from the procedure as indicated in the preceding paragraphs, the Union Public Service Commission should be duly consulted.

The criteria for promotion to the post of Assistant Engineer at the time when the Petitioner promotion to the corresponding post in the Central Public Works Department/Central was given ad-hoc promotion being the same as those prescribed in respect of Water and Power Commission, it is necessary to ascertain what the said criteria were at the relevant time. At Annexure ''C'' to the affidavit-in-reply dated June 3, 1970, is the letter dated August 13, 1963, addressed by the Administrative Officer of the Central Water and Power Commission to the Chief Engineer, Himachal Pradesh Public Works Department, furnishing information Rules, final concurrence regarding the provisions contained in the Draft Recruitment of which was awaited from the Union Public Service Commission. According to the Draft Recruitment Rules, promotion from the post of Graduate Engineer, Class III, to the post of Assistant Engineer, Class II, could be made provided the candidate had put in regular service of minimum three years in the lower cadre, that is, in the cadre of Graduate Engineer, Class III. It is not in dispute that the above said criteria was being applied at the relevant time although it found place in the Draft Recruitment Rules which had still not received the approval of the Union Public Service Commission.

Against the aforesaid background, it is apparent that the Petitioner could not have been considered for regular promotion before he had put in minimum there years of service in the cadre of Sectional Officer (subsequently designated as Junior Engineer) which is equivalent to the post of Graduate Engineer, Class III, in the Central Water and Power Commission. Since the Petitioner was appointed as Sectional Officer on July 12, 1963, and he was promoted as Assistant Engineer on September 5, 1964, that is, within a short period of about 14 months, the Petitioner''s initial appointment by promotion on ad-hoc basis could have been made and must be regarded as having been made under paragraph 6 of Annexure ''B''. A bare reading of the order of the Petitioner''s initial appointment by promotion, Annexure ''A'', fortifies the aforesaid conclusion. The promotion was given temporarily on ad-hoc basis and it was initially confined to a period of three months. It was clearly specified that such promotion will not confer any right to claim continuance, seniority or pay in the cadre of substantive Assistant Engineers. The subsequent extensions given to the Petitioner must also be regarded as having been given under the same paragraph. It is pertinent to note in this connection that the orders of extension produced at Annexure ''B'' and ''C'' show that the Union Public Service Commission was consulted. Such consultation was apparently necessary in view of paragraph 7 of Annexure ''B'', since the prior approval of the Chairman, Central Water and Power Commission was not taken for such extensions, as required by paragraph 6 of the said Annexure. Ultimately, the Petitioner''s services were regularised on January 21, 1971, under the notification Annexure ''K'' to the affidavit-in-rejoinder, in consultation with the Union Public Service Commission and such regularisation was made by making his appointment on probation on and with effect from July 12, 1966. The clear implication is that the Union Public Service Commission did not agree to relax the requirement of three years'' minimum service in the lower cadre and that, therefore, the date on and with effect from which the regularisation was made exactly coincided with the completion of three years'' service put in by the Petitioner in the lower cadre.

In view of the aforesaid backdrop the Petitioner''s claim that the service rendered by him prior to July 12, 1966, while he held the post of Assistant Engineer, Class II, on a purely ad-hoc basis and performed the duties of the post by way of an "immediate arrangement" although he did not satisfy the extant criteria for promotion, should be taken into consideration for the purposes of fixing his seniority, cannot possibly be accepted. The principle of continuous officiation for the purpose of fixing seniority would apply only if and when the appointment could be regarded as having been made regularly even though on ad-hoc basis. When the appointment is made in the public interest in relaxation of the extant eligibility qualifications to make immediate arrangements for the performance of duties of a vacant post on a purely ad-hoc basis till such time as recruitment according to rules is made and the appointment is expressly subject to the condition that it will not confer any right to claim continuance or seniority in the cadre, the claim for counting the service rendered in such capacity for seniority on the basis of the principle of continuous officiation cannot be entertained. For these reasons, in our opinion, the Petitioner''s plea to tag on the service rendered by him on ad-hoc basis prior to the date of the regularisation of his service cannot be entertained.

One more obstacle in the way of the Petitioner in granting him the relief on merits is that the regularisation of the service having been made in consultation with the Union Public Service Commission, the Commission would be a necessary party, if the Petitioner is to be granted an effective relief in the present proceedings. The Union Public Service Commission is, however, not impleaded a party. No relief, therefore, can possibly be granted to the Petitioner.

For the foregoing reasons, in our opinion, there being no substance in this appeal, it deserves to be dismissed and it is accordingly dismissed. No costs.