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High Court of Himachal Pradesh v/s Prateek Gupta & Another


Company & Directors' Information:- GUPTA CORPORATION PRIVATE LIMITED [Active] CIN = U40100MH2005PTC154038

Company & Directors' Information:- M R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1992PTC051324

Company & Directors' Information:- GUPTA INDIA PRIVATE LIMITED [Active] CIN = U51311DL1996PTC077255

Company & Directors' Information:- GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U52110DL1974PTC007339

Company & Directors' Information:- GUPTA AND GUPTA PRIVATE LIMITED [Active] CIN = U55204DL1954PTC002390

Company & Directors' Information:- S K GUPTA PRIVATE LIMITED [Active] CIN = U26900MH1973PTC016294

Company & Directors' Information:- R. K. GUPTA AND COMPANY INDIA PRIVATE LIMITED [Active] CIN = U74899DL1993PTC052138

Company & Directors' Information:- B R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U63013DL2000PTC107343

Company & Directors' Information:- T N GUPTA PVT LTD [Active] CIN = U02005WB1951PTC020141

Company & Directors' Information:- A V GUPTA AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U24239DL1999PTC102248

Company & Directors' Information:- Y P GUPTA AND COMPANY PVT LTD [Under Process of Striking Off] CIN = U74899DL1983PTC016661

Company & Directors' Information:- J S GUPTA AND CO PVT LTD [Strike Off] CIN = U20211UP1975PTC004078

Company & Directors' Information:- M K GUPTA AND CO PRIVATE LTD [Strike Off] CIN = U74999DL1979PTC009517

Company & Directors' Information:- A J GUPTA AND CO PRIVATE LIMITED [Strike Off] CIN = U74210UP1980PTC004986

Company & Directors' Information:- D. R. GUPTA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1944PTC000794

Company & Directors' Information:- S P GUPTA AND CO PVT LTD [Strike Off] CIN = U26932RJ1972PTC001459

    LPA No. 60 of 2020

    Decided On, 25 February 2021

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE SURESHWAR THAKUR & THE HONOURABLE MR. JUSTICE CHANDER BHUSAN BAROWALIA

    For the Appellant: Ramakant Sharma, Sr. Advocate, J.L. Bhardwaj, Advocate. For the Respondents: R1, Ranjana Parmar, Sr. Advocate, Karan Singh Parmar, R2, Hemant Vaid, Narender Guleria, Ashwani Sharma, Additional Advocate Generals with Vikrant Chandel, Dy.A.G.



Judgment Text

Sureshwar Thakur, J.1. Through Annexure P-1, appended with CWP No.2464 of 2019, respondent No.1 was appointed, as, a Civil Judge (Junior Division), in the Himachal Pradesh Judicial Services. It is also not controverted amongst the contesting litigants that subsequent thereto, through Annexure P-3, he became confirmed against the afore post. However, during the currency of his service, as, Civil Judge (Junior Division), in the Himachal Pradesh Judicial Services, he sought leave to participate in the apposite recruitment process, as became initiated, for the advertised post of Assistant District Attorney, under the Government of Haryana. In pursuance to the afore leave being asked for by respondent No.1, the High Court of Himachal Pradesh granted, through, Annexure P-2, the afore sought for permission to him. A perusal of Annexure P-4 underscores that respondent No.1 was selected against the advertised post of Assistant District Attorney, in the prosecution department of the Government of Haryana, and, the offer of appointment made to him, became accepted by respondent No.1, leading the latter to tender through Annexure P-5, a technical resignation from the post of Civil Judge (Junior Division), in the Himachal Pradesh Judicial Services. His technical resignation was accepted through Annexure P-6. However, subsequent thereto, through Annexure P-8, the respondent endeavoured to rejoin, his previous service, as, Civil Judge (Junior Division), in the Himachal Pradesh Judicial Services, and, wherefrom he had tendered his technical resignation, technical resignation whereof, became accepted by the Government of Himachal Pradesh. The afore endeavour of the respondent, became recommended to be accepted by a Special Committee, comprising of Judges of the High Court of H.P., and, whereafter it also became accepted through a resolution made by the Full Court. However, deterimental to the respondent, rather condition as embodied therein, and, comprised in the factum of his proposal, for rejoining, his previous services, as, Civil Judge (Junior Division), in the Himachal Pradesh Judicial Services, being acceptable, subject to his not getting any benefit of his past service, inclusive of seniority, does obviously, bring grievance, to the respondent, (i) whereupon, he became constrained to institute CWP No.2464 of 2019, (ii) canvassing therein, relief(s) for setting aside the afore alluded unreasonable condition imposed, upon him, as, a pre requisite, for his endeavour for rejoining service(s) as Civil Judge (Junior Division), in the Himachal Pradesh Judicial Services, hence being accepted.2. The learned Single Judge of this Court, through a verdict made on 29th September, 2020, accepted the afore prayer, and, set aside, Annexure P-9, as well as, letter dated 22.08.2019, Annexure P- 10, and, thereafter directed the appellant herein to consider, in consonance, with the Master Circular, borne in Annexure P-13, the claim and request of respondent No.1 herein, (a) qua the previous services rendered by him, as, Civil Judge (Junior Division), in the Himachal Pradesh Judicial Services, hence in a substantive capacity being not scored off in its entirety, for the purpose of seniority.3. The High Court of Himachal Pradesh is aggrieved, by the afore verdict made upon CWP No.2464 of 2019, by the learned Single Judge of this Court and it, for seeking annulment thereof, has proceeded to institute the extant LPA, before this Court.4. Tritely put, the entire lis is hinged upon, the connotation(s) acquired by the Fundamental Rules 13 and 14, Rules whereof become extracted hereinafter:-“(13) Lien means the title of a Government servant to hold on regular basis, either immediately or on the termination of a period or periods of absence, a post, including a tenure post, to which he has been appointed on regular basis and on which he is not on probation;Provided that the title to hold a regular post shall be subject to condition that the junior most person in the grade will be liable to be reverted to the lower grade if the number of persons so entitled is more that the posts available in that grade.14 (a) revenue administered by bodies which by law or rule having the force of law come under the control of Government, whether in regard to proceedings generally or to specific matters, such as the sanctioning of their budget, sanction to the creation or filling up of particular posts or the enactment of leave, pension or similar rules.”A reading thereof makes candid underlinings, that any government servant, immediately or on the termination of a period or periods, of absence, does not forfeit, a right to hold on a regular basis, a substantive post, excepting when he is not on probation, exception whereof is inapplicable qua him, given his being confirmed, as, Civil Judge (Jr. Division), in the H.P. Judicial Services. Furthermore, the afore rule carries a proviso, inasmuch, as its sequelling the consequence of the junior most person, in, the cadre being amenable for his being reverted to the lower grade. The contesting litigants, do not controvert, that the endeavour of respondent No.1 herein, to aspire for his rejoining services, as, Civil Judge (Junior Division), in the Himachal Pradesh Judicial Services, was within the spell, tenure or of time rather prescribed for the afore purpose. However, the learned counsel appearing for the appellant, has, for assailing the verdict rendered by the learned Single Judge, hence, has made a strong dependence, upon, clause-8 of Annexure P-13, clause whereof stands extracted hereinafter:-“8. Seniority.On technical resignation seniority in the post held by the Government servant on substantive basis continues to be protected. However, in case of a Government servant deciding to rejoin his substantive post, the period spent in the another Department which he had joined after submitting his technical resignation will not count for minimum qualifying service for promotion in the higher post.”and has made, a, further submission, that the protection of seniority as becomes nowat endowed, upon, respondent No.1 herein, despite it, being earlier denied to the latter, after his proposal for rejoining service(s) as Civil Judge (Junior Division), in the Himachal Pradesh Judicial Services, becoming accepted, is, in dire conflict with clause-8, of, Annexure P-13, inasmuch, as (a) the periods spent by the respondent, as, Assistant District Attorney in the prosecution department of the Government of Haryana, becomes an untenable eligible tenure of service, vis-a-vis, the respondent for his promotion to the higher post, (b) and, reiteratedly, thereupon, he contends that the afore infringement caused to clause-8, hence, in the operative part of the verdict, does necessitates, an interference being made therewith, (c) conspicuously rather for harmonizing clause 8 with the afore extracted fundamental rules, and, also with clauses 14, and, 15, as, become embodied in Annexure -13, clauses whereof stand extracted hereinafter:-“Lien14. Lien is defined in FR-9(13). It represents the right of a Government employee to hold a regular post, whether permanent or temporary, either immediately or on the termination of the period of absence. The benefit of having a lien in a post/service/cadre is enjoyed by all employees who are confirmed in the post/service/cadre of entry or who have been promoted to a higher post, declared as having completed the probation where it is prescribed. It is also available to those who have been promoted on regular basis to a higher post where no probation is prescribed under the rules, as the case may be.15. The above right will, however, be subject to the condition that the junior most person in the cadre will be liable to be reverted to lower post/service/cadre if at any time the number of persons so entitled is more than the posts available in that cadre/service.”5. Though, at first glance, the afore argument does appear impressive. However, going deeply, and, incisively into the subsequent thereto clauses 14 and 16, besides, upon reading in conjunction therewith, the proviso to FR 13, whereupon, rather the sheen, and, shine, of the afore argument, does become completely faded. Since, as aforestated, the respondent herein became confirmed, as, Civil Judge (Junior Division), in the Himachal Pradesh Judicial Services, thereupon, he came entitled to become endowed with the benefits, of, the apposite portion, of, FR-13, as become extracted hereinabove. Further consequence thereof, as, become vested in the respondent herein, conspicuously, upon, making a combined reading of clause-15, of, Annexure P-13 rather along with the proviso to FR-13, (i) is that the respondent, was vested with a right to not earn any forfeiture of his earlier confirmed service, rendered against the substantive post of Civil Judge (Junior Division), in the Himachal Pradesh Judicial Services. The afore inference, as aforestated, does become sparked, from a conjoint reading being made of Rules 14 and 15, and, of the proviso to FR-13, and, further from the apposite facilitations contemplated therein, vis-a-vis, the apposite confirmed lien holder, rather at the relevant phase, holding a substantive post, becoming leveraged to ensure that the completest compliance(s) becomes meted to both, (ii) inasmuch, as, the junior most person in the cadre being amenable for reversion in the lower cadre. If the afore facilitations are contemplated, in the proviso to FR-13, and, in clause 15 of Annexure P-13, the inevitable sequent thereof, is, that the imposition of exacting, and, cumbersome condition(s) rather upon respondent No.1 herein, through impugned annexures, in CWP No. 2464 of 2019, for his endeavour, for rejoining services, becoming acceptable, necessarily making a stark conflict with, and, being in the completest disharmony, with the afore reverable contemplations, and, obviously, thereupon, the afore become amenable for being quashed and set aside, as aptly done, by the learned Single Judge of this Court.6. Be that as it may, the argument addressed by the learned counsel for the appellant, that it becomes also incumbent, upon this Court, to, make harmony with clause 14 and 15 of Annexure P-13, and, with the proviso to FR-13, and, when the second sentence, of, clause 8, makes an interdiction against the periods hence spent by a Government servant, in department(s), other than the parent department or in department(s) whereon, he holds a legitimate lien, for theirs being considered, as, a minimum qualifying service, for promotion(s) to the higher post, (a) thereupon, the mandate thereof has to be revered, and, that it has to be also harmonised, with the subsequent thereto clauses 14 and 15 of Annexure P-13, as, otherwise, it would become untenably redundant. However, the afore argument also does not appear to be legally sound, as, the first sentence of clause-8, protects upon, the accepted technical resignation of a lien holder, rather his seniority, against the apposite substantive post, as, earlier held by him, and, likewise clause-15, and, the proviso to FR-13, are, in the completest tandem therewith. Necessarily, the proviso to FR-13, is the paramount governing principle, for settling the legal worthiness of the afore made address by the learned counsel appearing for the appellant, and, if the second sentence of clause-8, in, Annexure P-13, annexure(s) whereof, is/are instructions issued by the Ministry of Personnel, does carry, any purported conflict therewith, thereupon, the proviso to FR-13, and, the tandem therewith contemplations held in clause -15 of Annexure P-13, prevail thereons rather completely, whereupon, the merit of the afore argument becomes undone. Even otherwise, there is no occasion for any redundancy being cast, upon, the apposite second sentence,, of, clause 8, of, Annexure P-13, upon, the operative part of the impugned verdict maintaining, and, protecting the seniority, of, the respondent herein, upon, his rejoining service(s) as Civil Judge (Junior Division), in the Himachal Pradesh Judicial Services, (a) as, therethrough, rei

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teratedly clause 14 and 15 of Annexure P-13, and, the proviso to FR 13 become meted, the, completest tenable deference, (b) and, the import, if any, of the second sentence of clause-8, is to be adjudged along therewith, and, besides along, with the opening sentence thereof, which also is in the completest alignment with clauses 14 and 15 of Annexure P-13, and, with the proviso to FR-13, (c) whereupon, obviously the second sentence, does not undo, the legal consequence, of, the afore clause(s) wheretowhich becomes meted apt tenable deference by the learned Single Judge. In addition, the second sentence, does only bar, the rendition of service(s) by the respondent, as, ADA in the prosecution department, in, the Government of Haryana, for, its constituting the apposite minimum qualifying service, for promotion, to the next higher post, and, does not, entitle the appellant to strip him off seniority, after his rejoining the post of Civil Judge (Junior Division), in the Himachal Pradesh Judicial Services, subsequent to his serving, as, an ADA in the prosecution department, of, the government of Haryana.7. For the foregoing reasons, there is no merit in the instant appeal, and, it is dismissed accordingly. Consequently, the verdict impugned before this Court is maintained and affirmed. All pending applications also stand disposed of.
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