Puneet Sood vs State Of H.P & Ors.

Jiya Lal Bhardwaj, Judge(Oral)

The petitioner by way of present petition has prayed for the following substantive reliefs:-

Shorn of unnecessary details, the key facts of the case are that the petitioner had applied for the post of Lecturer (Computer Application) pursuant to Advertisement No.1 of 1997 issued by respondent No.3-Commission. The petitioner after being successful in the process undertaken by respondent No.3 was recommended for appointment as Lecturer (Computer Application), and respondent No.1, vide Notification dated 06.02.1998 had offered him appointment to the post of Lecturer (Computer Application) in the pay scale of Rs.2200-4000-200 (Annexure P-1). The petitioner, in sequel to the said appointment letter joined his duties on 16.02.1998. As per the Recruitment and Promotion Rules (for short ‘R&P Rules) dated 18.10.1997 for the post of Head of Department (Computer Engineering), Class-I Gazetted, in the Department of Technical Education, Vocational and Industrial Training, Himachal Pradesh, the post of Head of Department (Computer Engineering) is to be filled up by promotion from amongst the Lecturers of Computer Engineering/Computer Application having eight years regular service or regular combined with continuous adhoc service, if any, in the grade. For the purpose of promotion, a combined seniority list of Lecturers of Computer Engineering/Computer Application based on the length of service in the respective grade without disturbing their unit-wise inter-se-seniority shall be prepared.

Respondent No.3-Commission had also issued the Advertisement for filling up the posts of Lecturer (Computer Engineering) in respondent No.1-Department and respondent No.4 also participated in the selection process. Total six posts of Lecturers (Computer Engineering) were to be filled up as per the requisition sent by respondent No.1 and after conducting the screening test, respondent No.3-Commission had recommended the names of candidates for the posts of Lecturer (Computer Engineering) and name of respondent No.4 was not recommended. One candidate, namely, Raman Kumar Sharma, whose name appeared at Serial No.1 of the list recommended by respondent No.3-Commission did not join and respondent No.1 informed respondent No.3-Commission that the next candidate in the merit list may be recommended against the post of Lecturer (Computer Engineering). Accordingly, respondent No.4, who was in the waiting list, was recommended for appointment to the post of Lecturer (Computer Engineering). He was offered appointment vide letter dated 17.03.1998, who joined his duties on 26.03.1998.

As per the seniority list of Lecturer (Computer Engineering) as on 31.03.2003 (Annexure P-3), respondent No.4 was shown to have been appointed to the post of Lecturer (Computer Engineering) on 26.03.1998 and as per the final seniority list of Lecturer (Computer Application) as on 31.03.2003, the petitioner is shown to have been appointed on 16.02.1998.

As per the R&P Rules for the post of Head of Department, the Lecturers, both in the stream of Computer Application and Computer Engineering, who are having eight years of regular service or regular combined with continuous adhoc service are eligible for promotion and for the purpose of making promotion, a combined seniority list based on the length of service in the respective grade of Lecturers of Computer Engineering/Computer Application without disturbing their unit-wise inter-se seniority is to be prepared. In the combined seniority list dated 18.10.2008, respondent No.4 has been shown at Serial No.4, whereas the petitioner has been shown at Serial No.7. Since respondent No.4, as per the appointment order, had joined after the petitioner and he was not in the zone of consideration for promotion to the post of Head of the Department, the petitioner made representations to the respondent-State on 31.01.2009 and 01.02.2009, raising his grievance that since respondent No.4 has been appointed vide letter dated 17.03.1998, who had joined his duties on 26.03.1998, he is not in the zone of consideration for the post of Head of Department and as such, requested to re-consider the decision on the panel of the Departmental Promotion Committee (for short ‘DPC’). However, the respondent-State, vide Notification dated 13.02.2009, on the recommendation of the DPC, had promoted respondent No.4 as Head of Department (Computer Engineering) in the pay scale of Rs.12000-16350 with immediate effect.

The petitioner feeling aggrieved by the promotion of respondent No.4 to the post of Head of Department (Computer Engineering) has approached this Court, inter alia, on the grounds that the right of consideration for promotion is a fundamental right of an employee and this right cannot be infringed by the employer by making a candidate in the zone of consideration to compete in the DPC with a candidate who, though may be eligible for promotion, but does not fall in the zone of consideration. As per the procedure, the DPC was to consider three senior most Lecturers from the combined seniority list of Lecturers (Computer Engineering) and Lecturer (Computer Application) for promotion to the post of Head of Department (Computer Engineering). It is settled law that the direct recruit can claim seniority only from the date of his regular appointment and since respondent No.4 was appointed after the petitioner, he cannot be considered for promotion earlier to the petitioner. Further, only eligible Lecturers were to be considered for appointment to the post of Head of the Department and since respondent No.4 was not amongst three senior most Lecturers eligible to be considered for considered from the joint cadre of Lecturer (Computer Engineering) and Lecturer (Computer Application), the promotion of respondent No.4 made vide Notification dated 13.02.2009, is bad in law and liable to be quashed.

It has also been averred that though respondent No.4 was selected to the post of Lecturer (Computer Engineering) on the basis of selection process undertaken by respondent No.3-Commission, but the fact of the matter is that respondent No.4 was not amongst the candidates, who were recommended for appointment for the number of posts available and it is only because one of the selected candidates, who had not opted to join, respondent No.4 was offered appointment and, therefore, there was no occasion for respondent No.1 to offer him appointment after it had initially decided to fill up the post of Lecturer (Computer Engineering) on the basis of the recommendations of respondent No.3-Commission. As such, it has been prayed that promotion of respondent No.4 to the post of Head of Department as per Notification dated 13.02.2009, be quashed and set aside and the respondent-State be directed to hold review DPC for promotion to the post of Head of Department (Computer Engineering) and to consider only eligible candidates, who are in the zone of consideration from the common seniority list of Lecturer (Computer Engineering) and Lecturer (Computer Application), strictly on the basis of the inter-se-seniority to be determined from the date of appointment and to offer promotion to the petitioner. In case the DPC recommends the name of the petitioner for such promotion on merit basis, he may be granted all consequential benefits from the date when respondent No.4 has been promoted.

Respondents No.1 and 2 filed reply to the petition and in preliminary submissions averred that a requisition to fill up the six vacant posts of Lecturer (Computer Engineering) and five posts of Lecturer (Computer Application) was sent to respondent No.3-Commission on 21.09.2006 and 01.10.2006 respectively by respondent No.1. Respondent No.3-Commission had sent its recommendations for six posts of Lecturer (Computer Engineering) on 19.06.1997 and for six posts of Lecturer (Computer Application)(adding one previous post) on 12.12.1997 to respondent No.1. Respondent No.1 issued appointment letters to the recommended candidates for the post of Lecturer (Computer Engineering) on 17.07.1997 and for the post of Lecturer (Computer Application) on 06.02.1998. One Shri Raman Kumar Sharma, whose name was at Serial No.1 had not joined his duty in the Department and respondent No.1 had written to respondent No.3-Commission to send the name of another candidate in his place. Respondent No.3-Commission recommended the name of respondent No.4 as Lecturer (Computer Engineering) on 02.02.1998 and respondent No.1 issued appointment letter to him on 17.03.1998, who joined his duties on 26.03.1998.

It has also been averred that as per the recommendations received from respondent No.3-Commission, a separate seniority list of Lecturer (Computer Engineering) and Lecturer (Computer Application) showing the date of joining had been issued by respondent No.1. Respondent No.4, who is at Serial No.6 in the seniority list of Lecturer (Computer Engineering) and Pankaj Kishore, Lecturer (Computer Application) who is at Serial No.7 in the seniority list of Lecturer (Computer Application) had represented regarding their position in the combined seniority list of Lecturer (Computer Engineering) and Lecturer (Computer Application). According to the R&P Rules for the post of Head of Department (Computer Engineering), the promotion has to be made from amongst the Lecturer of Computer Engineering/Computer Application having eight years regular service or regular combined with continuous service, if any, in the grade. For the purpose of promotion, a combined seniority list based on the length of service in the respective grade without disturbing their unitwise inter-se seniority has to be prepared. Respondent No.4 and Pankaj Kishore represented against the combined seniority list and respondent No.1 referred the case to respondent No.3-Commission with a request that combined seniority list of Lecturer (Computer Engineering) and Lecturer (Computer Application) be given to respondent No.1. In response to request made by respondent No.1, respondent No.3-Commission had issued combined seniority list and placed respondent No.4 at Serial No.4 in the seniority list (Annexure R-4, page 94) dated 18.10.2008, who was at Serial No.6 according to the joining in the Department, but in the combined seniority list issued by respondent No.3-Commission, he was shown above Shri Jawahar (Serial No.5) who did not join and Vikas Kumar. After receiving the combined seniority list of Lecturer (Computer Engineering) and Lecturer (Computer Application) from respondent No.3-Commission, respondent No.1 convened the meeting of DPC to fill up one vacant post at Government Polytechnic, Sundernagar (due to new creation) of Head of Department (Computer Engineering). According to the combined seniority list, Smt. Illa Parmar had already been promoted Head of Department, Computer Engineering, Smt. Naina resigned from the post and Shri Sanjay Sharma was not eligible for promotion since he had not passed the departmental examination. Shri Jawahar had not joined the Department and, therefore, respondent No.4, Vikas Kumar and the petitioner were in the zone of consideration for promotion to the post of Head of Department (Computer Engineering), were considered. The post of Head of Department is a selection post and accordingly DPC considered these Lecturers for promotion to the post of Head of Department, (Computer Engineering) and recommended respondent No.4 for promotion to the post of Head of Department (Computer Engineering). On the recommendations of the DPC, respondent No.1 had issued the promotion order of respondent No.4 as Head of Department (Computer Engineering) on 13.02.2009.

On merits it has been averred that respondent No.3-Commission had issued the combined seniority list and had placed respondent No.4 at Serial No.4, who was earlier placed at Serial No.6 according to his joining in the Department. It has further been averred that respondent No.4 has been recommended for promotion to the post of Head of Department (Computer Engineering) on the basis of the recommendation made by the DPC, and since respondent No.4 was assigned his seniority position as per his merit list drawn by respondent 3-Commission, therefore, no illegality has been committed while making his promotion and as such, prayed for dismissal of the writ petition.

Respondent No.3-Commission filed separate reply and averred that after receipt of the requisition from respondent No.1 for filling up six posts of Lecturer (Computer Engineering), respondent No.3 had advertised these posts vide Advertisement No.V/96 dated 30.10.1996. After receiving the applications, 28 candidates were called for interview and 6 candidates were recommended to the Government in the Department of Technical Education. One candidate Shri Raman Kumar Sharma, whose name appeared at Serial No.1 did not join on the offer of appointment made by respondent No.1. In the meantime, another request for filling up the post of Lecturer (Computer Application) (Class-1, Gazetted) in the Department of Technical Education, was received and thereafter the posts were advertised vide Advertisement No.1/97 dated 01.05.1997. Again respondent No.1 had informed respondent No.3-Commission that next candidate in the merit list may be recommended against the post of Lecturer (Computer Engineering) as Shri Raman Kumar Sharma had not joined the post. Accordingly, a candidate namely, Shri Chander Shekhar (respondent No.4) was recommended to the post of Lecturer (Computer Engineering), Class-1, Gazetted against the post of Lecturer (Computer Engineering) as Raman Kumar Sharma did not join. Respondent No.1 had requested the Commission to supply the inter-se seniority of Lecturer in Computer Engineering and Lecturer in Computer Application and accordingly respondent No.3-Commission had prepared the inter-se seniority of Lecturer in Computer Engineering and Computer Application on the basis of merit of interview sheets and supplied the same to respondent No.1. Respondent No.4 was recommended by respondent No.3-Commission for appointment to the post of Lecturer in Computer Engineering in the Department in place of Shri Raman Kumar Sharma, Roll No.223 due to non-joining of earlier recommended candidate for appointment to the post. Since respondent No.4 was recommended in place of Shri Raman Kumar Sharma as replacement due to non-joining, he has been assigned the seniority in order of the merit.

Respondent No.4 filed his separate reply and in preliminary submissions averred that the petition in the present form is neither competent nor maintainable as the same suffers from vice of suppressio veri and suggestio falsi. The petitioner has concealed the material facts from the Court and, therefore, he is not entitled for any relief and as such the petition is liable to be dismissed.

On merits, it has been averred that respondent No.3 had advertised six posts of Lecturer (Computer Engineering) vide Advertisement No.V/96 dated 30.10.1996, out of which, four posts were reserved for General category and one each for Scheduled Caste and Scheduled Tribe category. Respondent No.4 being a candidate from General category applied for the post and attended the interview on 02.06.1997 and was offered appointment on the basis of interview, which was held on 02.06.1997, vide appointment letter dated 17.03.1998 and pursuant to the appointment letter, he joined his duties on 26.03.1998. It has also been averred that the petitioner was given appointment on 16.02.1998, but the same was in pursuance of the selection held in accordance with advertisement No.1 of 1997, whereas he has been appointed in pursuance of the selection process undertaken as per Advertisement No.V/96 dated 30.10.1996. It has further been averred that he joined in the month of March, 1998 on the basis of the merit list, which was prepared by respondent No.3-Commission, but the fact remains that he had been offered appointment in pursuance of selection process, which was held earlier in time.

The petitioner has placed on record the seniority list of Lecturers (Computer Engineering) as on 31.03.2003, in which, respondent No.4 has been shown at serial No.6, but as per the communication dated 18.10.2008 (Annexure R-4, page 94), the name of the petitioner is shown amongst inter-se seniority of the candidates recommended by respondent No.3-Commission at Serial No.4, whereas the name of petitioner figures at serial No.7. Since respondent No.4 was assigned the seniority at serial No.4, he has rightly been promoted to the post of Head of Department, Computer Engineering and as such, there is no merit in the petition and the same is liable to be dismissed.

The petitioner filed rejoinder to the replies filed by the respondents and controverted the averments therein.

I have heard the learned counsel for the parties and also perused the record carefully.

It is not in dispute that the petitioner has been appointed as Lecturer (Computer Application) on 06.02.1998, who joined his duties on 16.02.1998. It is also not in dispute that respondent No.4 was in the waiting list and he was offered appointment as Lecturer (Computer Engineering) only when Raman Kumar Sharma had not joined, who was at Serial No.1 as per the recommendation made by respondent No.3-Commission. Name of respondent No.4 was recommended for appointment only when respondent No.1 had sent communication to respondent No.3-Commission that next candidates in the merit list may be recommended against the post of Lecturer (Computer Engineering) as Raman Kumar Sharma did not join to the post of Lecturer (Computer Engineering) and respondent No.3-Commission had recommended the name of respondent No.4 for appointment against the post, for which, name of Raman Kumar Sharma was recommended. A receipt of recommendation from respondent No.3-Commission, respondent No.1 had issued the appointment letter to respondent No.4 on 17.03.1998, who joined his duties on 26.03.1998. As per the seniority list, which was circulated by respondent No.1 for the post of Lecturer (Computer Engineering) as on 31.03.2003, respondent No.4 was at Serial No.6 who had joined his duties on 26.03.1998 and in the final seniority list of Lecturer (Computer Application) as on 31.03.2003, the petitioner was at Serial No.5, who had joined his duties as Lecturer (Computer Application) on 16.02.1998.

As per the R&P Rules for the post of Head of Department, Computer Engineering, the post is to be filled up by promotion from amongst the Lecturers of Computer Engineering/Computer Application having eight years of regular service or regular combined with continuous service. For the purpose of promotion, a combined seniority list based on the length of service in the respective grade of the Lecturers of Computer Engineering/Computer Application without disturbing their unitwise inter-se seniority, shall be prepared. Rule 11 of the R&P Rules for the post of Head of Department (Computer Engineering), Class-I (Gazetted) in the Department of Technical Education, Vocational and Industrial Training, Himachal Pradesh, is reproduced hereunder:-

A perusal of the aforesaid Rule clearly reveals that the promotion has to be made from amongst the Lecturers of both categories i.e., Computer Engineering and Computer Application, but the length of service in the respective grade has to be determined without disturbing their unitwise inter-se seniority. The dispute with respect to seniority came to light only when the promotion was to be made for the post of Head of Department (Computer Engineering), which can be gathered from the communication dated 18.10.2008 (Annexure R-4, page 94) when respondent No.1 had asked respondent No.3-Commission vide letter dated 04.08.2008 to send the inter-se seniority of the candidates recommended by respondent No.3-Commission in the year 1997 for the post of Lecturer, Computer Engineering and Lecturer, Computer Application. As per this letter, respondent No.4 has been assigned seniority at Serial No.4 and the petitioner was assigned seniority at Serial No.7. It has been done only for the reason that respondent No.4 who was offered appointment against Serial No.1, is next to the candidate namely Raman Kumar Sharma, who did not join the post of Lecturer (Computer Engineering). Once respondent No.4 had admittedly joined after the petitioner irrespective of the merit in his cadre, he cannot be assigned seniority above the petitioner, who admittedly had joined the Department on 16.02.1998, whereas respondent No.4 joined the post on 26.03.1998 that too when Raman Kumar Sharma did not join from the waiting list.

Learned senior counsel representing the petitioner has placed reliance upon the judgment of the Hon'ble Supreme Court in Gujarat State Dy. Executive Engineers Association vs. State of Gujarat and others, 1994 Supp (2) SCC 591 to contend that the waiting list cannot be a source of recruitment and in case a person is offered the appointment from the waiting list, he cannot be assigned seniority earlier to the person, who has been offered the appointment and joined. He also placed reliance upon the judgment in Suraj Parkash Gupta and others vs. State of J&K and others, (2000) 7 SCC 561 to contend that a direct recruit can claim seniority only from the date of his regular appointment and he cannot claim seniority from a date when he was not born in service. He also placed reliance upon the judgment in Sri Kant Tripathi and others vs. State of U.P. and others, (2001) 10 SCC 237 to contend that a waitlisted candidate has no vested right to be appointed except when a selected candidate does not join and the waitlist is exhausted.

On the other hand, learned counsel representing respondent No.4 has placed reliance upon the judgment passed by the Hon’ble Supreme Court in P. Chitharanja Menon and others vs. A. Balakrishnan and others, (1977) 3 SCC 255, H.V. Pardasani and others vs. Union of India and others, (1985) 2 SCC468 and Amarjeet Singh and others vs. Devi Ratan and others, (2010) 1 SCC 417 and contended that since the petitioner has not challenged the seniority assigned by respondent No.3-Commission, he cannot be granted any relief.

I have gone through the judgments cited by the learned counsel representing the parties at the Bar and also given my thoughtful consideration to the same.

As already observed above, the petitioner was offered appointment as per office order dated 06.02.1998, who joined his duties on 16.02.1998, whereas respondent No.4 was offered appointment as per appointment letter dated 17.03.1998, who joined his duties on 26.03.1998. Respondent No.4 was not earlier recommended for appointment to the post of Lecturer (Computer Engineering) for the reason that he was not in the merit list drawn by respondent No.3-Commission and he was offered appointment only due to fortuitous circumstance for the reason that one of the recommendees namely, Shri Raman Kumar Sharma did not join to the post.

The petitioner is aggrieved by the promotion order, whereby respondent No.4 has been promoted to the post of Head of Department (Computer Engineering) that too, ignoring the candidature of the petitioner, who had joined prior to him. It is apt to take note of the fact that as per the minutes of the DPC convened on 18.01.2008 placed on record at page 146, the name of three candidates were considered for promotion to the post of Head of Department (Computer Engineering) in which the petitioner was assessed and graded as ‘Very Good’ and found fit for promotion, however, later on respondent No.4 has been recommended for promotion to the post of Head of Department(Computer Engineering) and offered appointment vide Notification dated 13.02.2009 (Annexure P-9, page 58). It is based on the merit list drawn by respondent No.3-Commission when respondent No.1 had asked for the combined seniority list of Lecturer (Computer Engineering) and Lecturer (Computer Application) from respondent No.3-Commission who had no authority to determine the inter-se seniority for the reason that after making the recommendations by respondent No.3-Commission, it is the Department who had to take the call in the matter.

Once admittedly, the petitioner had joined to the post of Lecturer (Computer Application) on 16.02.1998 on the basis of the recommendations made by respondent No.3-Commission, respondent No.4 could not have been assigned seniority above him simply on the plea that he has been offered appointment in place of Raman Kumar Sharma, which fact has also been mentioned in the communication dated 18.10.2008 (Annexure R-4).

It is settled by now in catena of judgments of the Hon'ble Supreme Court that the seniority of direct recruit cannot be before his appointment. Once admittedly, respondent No.4 has been offered the appointment after the petitioner, though in pursuance of the earlier advertisement issued by respondent No.3-Commission, he cannot be assigned seniority above the petitioner.

Learned counsel representing respondent No.4 has vehemently argued that since the petitioner has not challenged the inter-se seniority list as per (Annexure R-4) dated 18.10.2008, the petitioner is not entitled to any relief. However, the said contention cannot be accepted for the reason that respondent No.3-Commission had no business or authority to determine the inter-se seniority of two different posts or wings in the Department of the Government, for which, different Advertisements were issued by it on the receipt of requisition from respondent No.1. Respondent No.3-Commission can only assign the seniority or apprise the appointing authority that as per the merit, the recommendations have been made. Therefore, the plea taken by respondent No.4 deserves outright rejection and as such rejected.

Consequently, the present petition is allowed and Notification dated 13.02.2009 (Annexure P-9) issued by respondent No.1 is quashed and set aside and respondents No.1 to 3 are directed to hold review Departmental Promotion Committee for promotion to the post of Head of Department (Computer Engineering) and consider the candidature of the petitioner for promotion, and if found otherwise eligible, be promoted from the date when respondent No.4 was promoted i.e., with effect from 13.02.2009 with all consequential benefits. The needful shall be done by respondents No.1 to 3 within three months from today. No order as to costs. Pending applications, if any, also stand disposed of.