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Shri Balak Ram v. State Of Himachal Pradesh & Others S
Judgment Summary — Letters Patent Appeal (Mansoor Ahmad Mir, Chief Justice)
Factual and Procedural Background
This Letters Patent Appeal challenges a judgment and order dated 27 August 2011 of a Single Judge in CWP No. 8200 of 2010 (titled Balak Ram v. State of Himachal Pradesh). The Single Judge allowed the writ petition of the appellant-writ petitioner and directed that his seniority be reckoned with effect from 28 October 2006, the date on which he joined after success in earlier proceedings (this is the "impugned judgment").
The appellant's grievance is that he was entitled to seniority and consequential benefits from an earlier date: 20 August 1997. The appellant contends that he was denied appointment as a water carrier on 20 August 1997 because a post was illegally given to Smt. Kala Devi. The appellant had challenged that appointment before the erstwhile H.P. State Administrative Tribunal by OA (M) No. 371 of 1997 (Balak Ram v. State of H.P.), and the Tribunal's judgment dated 12 October 2006 quashed the appointment of Smt. Kala Devi and allowed the appellant to be appointed; that Tribunal judgment has attained finality. Despite that, in the writ petition the Single Judge granted seniority only from 28 October 2006 rather than from 20 August 1997.
Legal Issues Presented
- Whether, where an appointment to which a candidate was entitled was illegally given to another person, the candidate is entitled to have his seniority reckoned from the original date on which he should have been appointed (here, 20 August 1997).
- Whether any seniority so granted should be notionally (without monetary benefits) or whether monetary benefits for the earlier period must be awarded.
Arguments of the Parties
Appellant's Arguments
- The appellant asserted he was denied appointment as a water carrier by favoritism shown to Smt. Kala Devi, who was appointed illegally on 20 August 1997.
- He relied on the Tribunal's judgment (OA (M) No. 371 of 1997) which quashed Smt. Kala Devi's appointment and allowed him to be appointed, arguing that he should therefore be entitled to seniority and consequential service benefits from 20 August 1997 (the date he was wrongly denied appointment).
The opinion does not contain a detailed account of any specific counter-arguments advanced by the respondents in this appeal.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sanjay Dhar v. J & K Public Service Commission, (2000) 8 SCC 182 | When a candidate is deprived of appointment illegally, he may be deemed to have been appointed from the same date; courts have assigned notional seniority consistent with merit and, in some cases, limited monetary relief as per statements made. | The court relied on the principle in Sanjay Dhar to support the proposition that the appellant should be deemed to have been appointed from the earlier date (20 August 1997) and thus entitled to notional seniority from that date. |
| Hem Chand v. State of H.P., 2014 (3) Him L.R. 1962 | Affirms that where appointment is delayed for no fault of the candidate, the candidate is entitled to seniority from the due date (notional seniority), with actual monetary benefits confined to the date of joining; cites authorities to the same effect. | The court treated Hem Chand as a supporting State precedent and applied its reasoning to hold that the appellant is entitled to notional seniority from the earlier date while monetary benefits are not awarded for the intervening period. |
| Pilla Sitaram Patrudu v. Union of India, (1996) 8 SCC 637 | Referenced as authority consistent with the proposition that a wrongly denied candidate cannot be denied appointment from the due date and consequential seniority. | Used through the Hem Chand discussion as part of the body of authority endorsing notional seniority where appointments were delayed or improperly denied. |
| Hawa Singh Sangwan v. Union of India (reported in Services Law Reporter) | Referenced as part of the consistent line of authority on entitlement to seniority where appointment is wrongly denied. | Cited (via Hem Chand) to reinforce the settled view that notional seniority follows wrongful denial of appointment. |
| Hawa Singh v. The Haryana State Electricity Board (reported in Services Law Reporter) | Referenced as additional authority in the same line of cases dealing with seniority/consequential benefits following wrongful denial of appointment. | Used as corroborative precedent in the court's reliance on State and Supreme Court authorities supporting notional seniority. |
| Chatter Singh v. State of H.P., CWP No. 188 of 2012-I (Division Bench) | Held that a petitioner shall be deemed to be appointed from the date of an order directing appointment; benefits between the deemed date and actual joining may be only notional, with monetary benefits from actual joining. | Cited in Hem Chand and relied upon as analogous authority supporting the approach of granting notional seniority while restricting monetary benefits to the date of actual joining. |
| Balak Ram v. State of H.P., OA (M) No. 371 of 1997 (Tribunal judgment dated 12 October 2006) | The Tribunal quashed the appointment of Smt. Kala Devi and directed that the appellant be appointed; the Tribunal's findings included factual conclusions about improper marking and concealment. | The Tribunal's judgment (which has attained finality) established that the appointment of Smt. Kala Devi was illegal and formed the factual basis for the appellant's claim to seniority from the earlier date. |
| Balak Ram v. State of Himachal Pradesh, CWP No. 8200 of 2010 (Single Judge judgment dated 27 August 2011) | The Single Judge directed that seniority of the appellant be reckoned with effect from 28 October 2006 (date of joining) but did not grant seniority from 20 August 1997. | This is the impugned judgment which the Letters Patent Appeal challenged; the appellate court modified this judgment to grant notional seniority from 20 August 1997. |
Court's Reasoning and Analysis
The court proceeded on the following analytical path, based solely on the materials and reasoning contained in the opinion:
- It accepted as established fact that the appellant had been denied appointment on 20 August 1997 by reason of an illegal appointment of Smt. Kala Devi, and that the Tribunal had quashed Smt. Kala Devi's appointment and allowed the appellant to be appointed; the Tribunal judgment has attained finality.
- The court observed that the Single Judge, in the impugned judgment, awarded seniority only from 28 October 2006 (the date on which the appellant joined after the Tribunal's order) and did not award seniority from 20 August 1997.
- The court identified settled legal principles from higher and coordinating authorities (notably Sanjay Dhar and Hem Chand) which hold that where a candidate is wrongly deprived of appointment, the candidate may be deemed to have been appointed from the date he should have been appointed, with seniority being reckoned accordingly; however, such authorities also recognise that monetary benefits for the intervening period may be limited or excluded (i.e., seniority may be notionally accorded while monetary benefits are confined to the date of actual joining or as the court directing relief specifies).
- Relying on those precedents, the court concluded that the impugned judgment should be modified to declare that the appellant is entitled to seniority notionally from 20 August 1997 (the date Smt. Kala Devi was appointed illegally), but without awarding monetary benefits for the intervening period.
- The court therefore modified the Single Judge's order in the limited manner described and disposed of the appeal accordingly.
Holding and Implications
Holding: The appeal is allowed and the impugned judgment is modified to grant the appellant notional seniority from 20 August 1997 (the date Smt. Kala Devi was appointed), while not awarding monetary benefits for that intervening period.
Implications:
- Direct effect on the parties: The appellant's seniority is to be reckoned notionally from 20 August 1997. The opinion explicitly limits relief for that earlier period to notional seniority and does not grant monetary benefits for the period prior to his actual joining (as indicated in the opinion).
- No broader or novel precedent was announced beyond applying established authorities (e.g., Sanjay Dhar and Hem Chand) to the facts: the decision aligns with the settled principle that wrongful denial of appointment can attract notional seniority while monetary benefits may be restricted.
Pending applications, if any, were also disposed of by the court.
Mansoor Ahmad Mir, Chief Justice
Subject matter of this Letters Patent Appeal is judgment and order, dated 27 August, 2011, passed by the learned Single Judge in CWP No. 8200 of 2010, titled as Balak Ram v. State of Himachal Pradesh, whereby the writ petition filed by the appellant-writ petitioner was allowed and seniority of the appellant-writ petitioner was to be reckoned with effect from 28 October, 2006, as part time water carrier with all consequential benefits (hereinafter referred to as “the impugned judgment”).
2. The grievance projected by the appellant-writ petitioner in this Letters Patent Appeal is that the appellant-writ petitioner was entitled to seniority and other consequential benefits right from the date he was denied the appointment with effect from 20 August, 1997.
3. Precisely, the case of the appellant-writ petitioner was that he was denied appointment as water carrier by showing favours upon one Smt. Kala Devi, who was appointed illegally, to which the appellant-writ petitioner was entitled to.
4. The appellant-writ petitioner challenged her appointment before the erstwhile H.P State Administrative Tribunal, Camp at Mandi (hereinafter referred to as “the erstwhile Tribunal”) by the medium of Original Application, being OA (M) No. 371 of 1997, titled as Balak Ram v. State Of H.P., which was allowed vide judgment and order, dated 12 October, 2006, whereby the appointment of Smt. Kala Devi was quashed and the appellant-writ petitioner was allowed to be appointed. It is apt to reproduce para 12 and 13 of the judgment herein:
“12. This conclusion is further strengthened by the contents of letter No. SNR/STN/W/G/97-8514 from S.D.O (Civil) Sunder Nagar addressed to the Deputy Commissioner Mandi found at leaf No. 35 of the record produced by respondents No. 1 to 3 (a photo copy whereof has been ordered to be placed on the file of the original application) which clearly and unambiguously states that 15 marks ought to have been awarded to the applicant under the head ‘IRDP/handicapped’ and that there were a lot of cuttings in the preliminary list prepared by Distt. Primary Education Officer and BDO, Sundernagar which appeared to have been done by some one with mala fide intention as the requisite certificates of the applicant were found enclosed with the documents of the applicant. Therefore concludes the SDM that the applicant should be selected and respondent No. 4 be removed from service immediately and after the needful reply might be filed in the Tribunal accordingly.
13. It is unfortunate that superior authorities did nothing in the matter despite the truthful, lawful, honest and fair submissions of the SDM and on the contrary the respondents filed a reply justifying the selection and appointment of respondent No. 4 by concealing the true facts despite the fact that the record justifying the submissions made by the SDO (C) was available with their department. What is more unfortunate, distressing and shocking is that by such concealment respondents apparently deprived the applicant a poor handicapped person of the job he deserved for a period of about 9 years. Certainly it is a case where exemplary costs must be awarded against respondents for dragging the applicant to an avoidable litigation and by concealment of facts gave life of about 9 years to such litigation.”
5. The said judgment has attained finality. The appellant-writ petitioner was allowed to join, but was not granted the seniority and other service benefits with effect from 20 August, 1997, constraining the appellant-writ petitioner to file CWP No. 8200 of 2010, with a prayer that the appellant-writ petitioner be granted seniority and also wages, on the grounds taken in the writ petition.
6. Learned Single Judge has passed one-page judgment without discussing the matrix of the case and directed the respondents to grant seniority to the appellant-writ petitioner with effect from 28 October, 2006, i.e from the date on which he joined after making success in the Original Application before the erstwhile Tribunal and has not granted the relief, i.e seniority right from the date Smt. Kala Devi was appointed.
7. It is admitted that the appellant-writ petitioner was denied his rights and Smt. Kala Devi was appointed illegally. Had the respondents not appointed Smt. Kala Devi illegally at the particular point of time, i.e on 20 August, 1997, the appellant-writ petitioner would have been appointed and would have been in the employment right from that date, but he was deprived of his legitimate rights by making illegal appointment order.
8. The Apex Court in a case titled as Sanjay Dhar v. J & K Public Service Commission, reported in (2000) 8 SCC 182, has dealt with the issue and held that when a candidate is deprived of appointment illegally, he is deemed to have been appointed right from the same date. It is apt to reproduce paras 14 to 16 of the judgment herein:
“14. … ……… As the appellant participated in the
process of selection protected by the interim orders of the High Court and was also successful having secured third position in the select list, he could not have been denied appointment. The appellant is, therefore, fully entitled to the relief of his appointment being calculated w.e.f the same date from which the candidates finding their place in the order of appointments issued pursuant to the select list prepared by the J&K PSC for 1992-93 were appointed and deserves to be assigned notionally a place in seniority consistently with the order of merit assigned by the J&K PSC.
15. We have already noticed the learned Single Judge having directed the appellant to be appointed on the post of Munsif in the event of his name finding place in the select list subject to the outcome of the writ petition which order was modified by the Division Bench in LPA staying the order of the learned Single Judge but at the same time directing one vacancy to be kept reserved. The High Court and the Government of J&K (Law Department) were not justified in bypassing the judicial order of the High Court and making appointments exhausting all available vacancies. The right of the appellant, if otherwise sustainable, cannot be allowed to be lost merely because of an appointment having been made wittingly or unwittingly in defiance of the judicial order of the High Court.
16. For the foregoing reasons the appeal is allowed. The judgment under appeal is set aside. It is directed that the appellant shall be deemed to have been appointed along with other appointees under the appointment order dated 6-3-1995 and assigned a place of seniority consistently with his placement in the order of the merit in the select list prepared by J&K PSC and later forwarded to the Law Department. During the course of hearing the learned senior counsel for the appellant made a statement at the Bar that the appellant was interested only in having his seniority reckoned notionally in terms of this order and was not claiming any monetary benefit by way of emoluments for the period for which he would have served in case he would have been appointed by order dated 6-3-1995. We record that statement and direct that the appellant shall be entitled only to the benefit of notional seniority (and not monetary benefits) being given to him by implementing this order. The appeal is disposed of accordingly. The contesting respondents shall pay the appellant costs quantified at Rs. 5,000/-.”
9. A learned Single Judge of this Court in a case titled as Hem Chand v. State of H.P, reported in 2014 (3) Him L.R 1962, has taken the same view. It is apt to reproduce paras 3 and 4 of the judgment herein:
“3. Admittedly, the appointment of the petitioner was delayed for no fault of his and came to be appointed only in the year 2009, that too after the intervention of this Court. The result of delayed appointment of the petitioner is that he has been paid less salary and denied the seniority over a long period of time. It has been consistently opined that in case a candidate is wrongly denied appointment for no fault on his part, he cannot be denied appointment from due date and consequential seniority. Reference in this regard can conveniently be made to (1996) 8 SCC 637, Pilla sitaram Patrudu v. Union of India, (2000) 8 SCC 182 Sanjay Dhar v. J&K Public Service Commission, 1991 (6) Vol. 76, Services Law Reporter 753, Hawa Singh Sangwan v. Union of India and 1996 (6) vol. 116, Services Law Reporter, 335, Hawa Singh v. The Haryana State Electricity Board. Moreover, it is not the case of the respondents that the petitioner was not recommended to be appointed on 26.6.2004 but the only ground taken is that it was the Pradhan, Gram Panchayat Sawindhar, Tehsil Karsog, who delayed the appointment of the petitioner. This is the precise reason that the petitioner is entitled for the seniority from the date of offer of appointment, as held by the Division Bench of this Court in similar circumstances, in case titled as Chatter Singh v. State of H.P, CWP No. 188 of 2012-I:-
“3. No doubt, the petitioner joined duty only on 13.5.2003 But in his favour admittedly there is an order by the Appointing Authority on 8.8.2002 to give appointment, as has been noted by the Tribunal in Annexure P-1, order. It is that order, which has been upheld by the Tribunal and the direction issued by the Tribunal is for implementing the said order. Therefore, for all purposes, the petitioner shall be deemed to be appointed on 8.8.2002, on the date admittedly the petitioner was directed to be appointed by the Sub Divisional Magistrate. However, taking note of the fact that the petitioner has joined duly on 13.5.2003 after the order was issued to him, the entitlement of the petitioner for actual monetary benefit shall be only from 13.5.2003 In order to avoid any ambiguity, it is made clear that the petitioner shall be deemed to be appointed in the post of Gramin Vidya Upasak on 8.8.2002 for all purposes; but from 8.8.2002 to 13.5.2003, the benefits shall only be notional and from 13.5.2003, the petitioner shall be entitled to all monetary benefits.”
4. In view of the exposition of the law referred to above, the petitioner is entitled to be treated as having been appointed as a Part Time Water Carrier at Government Primary School Alyas, Gram Panchayat, Sawindhar, Karsog-II, District Mandi from 30.6.2004, pursuant to the recommendation of the Government of H.P, as per order dated 26.6.2004 for the purpose of seniority. However, the entitlement of the petitioner for actual monetary benefits shall be only from 9.6.2009 In order to avoid any ambiguity, it is made clear that the petitioner shall be deemed to be appointed as Part Time Water Carrier from 30.6.2004 for all purposes, but from 30.6.2004 to 9.6.2009, the benefits shall only be notional and w.e.f 9.6.2009, the petitioner shall be entitled to all monetary benefits.”
10. Having said so, we are of the considered view that the impugned judgment needs to be modified by providing that the appellant-writ petitioner is entitled to seniority notionally (not monetary benefits) right from the date Smt. Kala Devi was appointed, i.e 20 August, 1997.
11. Accordingly, the appeal is allowed and the impugned judgment is modified, as indicated hereinabove. Pending applications, if any, are also disposed of.
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