Himachal Pradesh High Court: An appeal was filed against the judgment whereby it was held that respondent was appointed on 08-05-2003 and was thus governed by Central Civil Services (Pension) Rules, 1972, (‘1972 Rules’) and not by the Himachal Pradesh Civil Services Contributory Pension Rules, 2006. The Division Bench of Tarlok Singh Chauhan* and Sushil Kukreja, JJ., in the absence of any statutory provision or rule made thereunder or under the proviso of Article 309 of the Constitution, once an incumbent was appointed to the post, his/her seniority had to be counted from the date of appointment.
Further, after perusal of the order of appointment, the Court opined that it clearly proved in no uncertain terms that the appointment order of the respondent was issued with the intention of the Appointing Authority to appoint the respondent with immediate effect. The only rider was that the appointee would be entitled to pay and allowances from the date of joining of the post. Thus, in the given facts and circumstances, the Court opined that they were not persuaded enough to take a view other than the one taken by the writ Court and dismissed the present appeal.
Background
In the present case, in pursuance of the order dated 08-05-2003, the respondent was appointed as a clerk on compassionate grounds and after undergoing medical examination, she joined her duties on 17-05-2003. However, State Government issued a notification dated 15-05-2003, whereby the appointments made in the State on or 15-05-2003, were excluded from the applicability of the 1972 Rules, with intention of the Government to notify Contributory Pension Scheme for such government servants whose appointments were made on or after 15-05-2003.
The respondent filed the writ petition stating that appellants were thrusting upon her to become a member under the Contributory Pension Scheme by considering her appointment date as 17-05-2003 as against her order of appointment dated 08-05-2003. The writ Court after taking note of these admitted facts concluded that respondent was appointed on 08-05-2003 and was thus governed by 1972 Rules and not by the Himachal Pradesh Civil Services Contributory Pension Rules, 2006.
Thus, appellant filed the present appeal. The question that arose for consideration before the present Court was whether the appointment of the respondent would be governed by the appointment letter dated 08-05-2003 or from the actual date of joining.
Analysis, Law, and Decision
The Court opined that appointment date was normally a starting point of competition of length of service. The principle of leaning in favour of initial date of appointment was fully justifiable based on rule of fairness and the anxiety to avoid any injustice. The Court further opined that in the absence of any statutory provision or rule made thereunder or under the proviso of Article 309 of the Constitution, once an incumbent was appointed to the post, his/her seniority had to be counted from the date of appointment.
The Court relied on T. Valsan v. K. Kanagaraj (2023) 7 SCC 614 and opined that no rules or statutory provisions had been brought to the notice of the writ Court regarding the determination of seniority. Therefore, the seniority of the respondent would ordinarily have been determined on or from the date of her appointment, that is 08-05-2003.
The Court further considering Dr. Amarjit Singh Ahluwalia v. State of Punjab (1975) 3 SCC 503, opined that the present appointment was of a kind, where the appointment was simpliciter without saying as to when the appointment should take effect. Further, after perusal of the order of appointment, the Court opined that it clearly proved in no uncertain terms that the appointment order of the respondent was issued with the intention of the Appointing Authority to appoint respondent with immediate effect. The only rider was that the appointee would be entitled to pay and allowances from the date of joining of the post.
The Court opined that if appellants wanted the seniority of the respondent to be counted from a subsequent date like the date of joining, then nothing prevented them from mentioning similar condition as was fixed regarding the pay and allowances with respect to seniority also, that the same would be reckoned from the date of joining of the post. Thus, in the given facts and circumstances, the Court opined that they were not persuaded enough to take a view other than the one taken by the writ Court and dismissed the present appeal.
[State of H.P. v. Reena Verma, 2024 SCC OnLine HP 917, decided on 05-03-2024]
*Judgment authored by- Justice Tarlok Singh Chauhan
Advocates who appeared in this case :
For the Appellants: Ramakant Sharma, Navlesh Verma and Sharmila Patial, Additional Advocate Generals.
For the Respondent: P.P. Chauhan, Advocate
Buy Constitution of India HERE
