Ran
Singh Malik Vs. State of Haryana & Ors [2002] Insc 73 (13 February 2002)
G.B.
Pattanaik & R.P. Sethi
With Civil
Appeal No. 1177/2002. (@SLP(C) No.5117 of 1999)
PATTANAIK,
J.
Leave
granted in SLP[C] No. 5117 of 1999.
This
appeal is directed against the judgment of the learned Single judge of High
Court of Punjab and Haryana in Civil Writ Petition No. 7893 of 1993 which stood
affirmed by the Division Bench in Letters Patent Appeal No. 739 of 1995 in
dismissing the LPA in limini. The question for consideration is whether the
appellant can be said to have been appointed to a post in Haryana Veterinary
Service Class I, when he was appointed as Deputy Director (Feed and Fodder), on
being selected by the Haryana Public Service Commission by order dated 27th April,
1987. The appellants case in brief before the High Court was that on 15.7.83 he
was appointed as Deputy Director (Feed and Fodder) on ad hoc basis in his own
pay scale. While he was so continuing an advertisement was issued on 18.8.1986
for recruitment to a temporary post of Deputy Director (Feed and Fodder) in Haryana
Veterinary Service Class I in Animal Husbandry Department and the appellant
applied for the said post.
Ultimately
he was selected by the Public Service Commission and the recommendation of the
Public Service Commission having been accepted by the Governor he was appointed
by direct recruitment to the post of Deputy Director (Feed and Fodder) in Haryana
Veterinary Service Class I in the scale of pay of Rs.1200-50-1500-60-1860 by
order dated 27th April,
1987. The appointment
letter unequivocally indicated that he will be governed by Haryana Veterinary
Service Class I Rules 1930 and will be on probation for a period of 2 years. On
2.6.1987 the scale of pay of post in Class I Haryana Veterinary Service was
revised to Rs.1400 to 2100 with effect from 1.2.1981 but that revised scale was
not given to the appellant for which he had made representation. On 16.5.1988
there had been a further revision of the pay scale in the scale of Rs.3000 to
4500, but instead of granting the revised pay scale the appellant was given the
pay scale of Rs.1400 to 2100. The appellant made yet another representation but
his grievances not having been redressed he filed the Writ Petition which was
registered as Civil Writ Petition No. 2728 of 1989. Respondents Nos. 2 and 3
were appointed on different posts in Class I Haryana Veterinary Service under
different schemes on 6.2.1989.
When
the tentative seniority list was published in the year 1992 of the officers in
Class I appellants name was not shown whereas names of respondents nos. 2 and 3
had been shown even though they were junior to the appellant.
Appellant
again submitted a representation for inclusion of his name in the gradation
list and ascribing him his position in the gradation list. The appellant was
given a personal hearing but no order having been passed he filed a Writ
Petition No. 7893 of 1993, which stood dismissed by judgment dated 31.8.1995,
which is the subject matter of challenge. As already stated, the appellant
moved the Division Bench in Letters Patent Appeal but the Division Bench
dismissed the same in limini.
Before
the learned Single Judge the State of Haryana took the stand that the post of Deputy Director (Feed and Fodder) is a
non-veterinary ex-cadre post in the Animal Husbandry department, and the
appellant, who is a graduate in Agricultural Science cannot claim parity with
graduates holding Class I post in Haryana Veterinary Service. It was further
stated that the post of Deputy Director (Feed and Fodder) carried a pay scale
lower than that of other posts in the Class I Haryana Veterinary Service and
even the appointment letter of the appellant stated so unequivocally and,
therefore, the appellant cannot claim the same scale of pay as that of other
posts in the Class I Haryana Veterinary Service. So far as the seniority is
concerned, it was stated that the post of Feed and Fodder being an ex-cadre
post the appellant was not shown in the gradation list and so also cannot claim
seniority over respondent nos. 2 and 3 who from the date of their appointment
in February 1989 had been getting a higher scale of pay. While the Writ
Petition was pending before the High Court the Governor of Haryana in exercise
of powers conferred under Proviso to Article 309 of the Constitution of India
made Rules regulating the recruitment and conditions of service of persons
appointed to the Haryana Veterinary (Group A) Service called, The Haryana
Veterinary Service Group A Rules, 1995. Rule 3 thereof indicates that the service
would comprise of the post shown in Appendix A to the Rules. Appendix A did not
include the post of Deputy Director (Feed and Fodder) and on the other hand,
the said post of Deputy Director (Feed and Fodder) was shown to be a post in
non-veterinary cadre carrying a pay scale of Rs.2200 to 4000. The impact of the
aforesaid Rule on the point that arises for consideration will be considered at
the appropriate stage.
The
learned Single Judge in the impugned judgment came to the conclusion that the
post of Deputy Director (Feed and Fodder) was an ex-cadre isolated post, and
therefore, has to be treated as an ex-cadre post. In the absence of the
relevant document dealing with the creation of the post, the aforesaid
conclusion was based upon the letter that had been written by the Director,
Animal Husbandry to the Secretary to the Government on 11.6.1985. The learned
Judge also took into consideration the fact that the appellant himself was
given a lower scale of pay in the letter of appointment and all along he has
been given a lower scale of pay than the pay scale attached to the regular post
in the Haryana Veterinary Service and since the post in question was not a
cadre post in the Haryana Veterinary Service Class I the incumbent cannot claim
the higher scale of pay meant for the cadre post. On the question of inter se
seniority between the appellant and respondent nos. 2 and 3 the learned Single
judge came to the conclusion that since respondent nos. 2 and 3 were recruited
to a cadre post in the Class I service in the higher scale of pay, they would
be held to be senior to the appellant. The Writ Petition, thus having been
dismissed and the Division Bench not having entertained the Letters Patent
Appeal against the same the present appeal has been preferred on grant of
Special Leave.
It is
strenuously contended before us in this appeal by the learned counsel appearing
for the appellant, that the advertisement that was issued by the Haryana Public
Service Commission unequivocally indicated that the post of Deputy Director
(Feed and Fodder) is a post in Haryana Veterinary Service Class I in Animal
Husbandry Department, the said advertisement never indicated the scale of pay
of the post in question. It is no doubt true, that in the appointment letter
that was issued in favour of the appellant a lower pay scale had been indicated
but the pay scale in the Haryana Veterinary Service Class I having been revised
to Rs.1400 to 2100 with effect from 1st February, 1981, the appellant would be
entitled to get that scale from the date of his appointment in April 1987. It
was further contended that the further revision that was carried out on
16.5.1988 should have also been given to the appellant and there is no rhyme or
reason to deny the same and the High Court was in error in not granting
appropriate relief to the appellant. The learned counsel further urged that the
government having failed to produce the relevant file and/or document
indicating that the post of Feed and Fodder is an ex-cadre post and had been
created with a lesser scale of pay the High Court committed error in relying
upon the correspondence between the Director and the Secretary to the
Government and such conclusion cannot be sustained in law. Lastly it was
contended that once the appellant is held to have been recruited to a post in Haryana
Veterinary Service Class I and is entitled to the scale of pay attached to that
post, his name was required to be indicated in the gradation list of the
officers in Class I service and on the basis of continuous length of service in
Class I, he would be held senior to respondent nos. 2 and 3 who joined the
service only on 6th February, 1989, whereas the appellant has been in the
service after being duly selected by the Public Service Commission since 27th
April, 1987.
The
learned counsel appearing for the State vehemently resisted the aforesaid
contentions and urged that the creation of a post as well the constitution of
the post in a cadre are all policy decisions of the Government and the
Government would be free to take its own decision depending upon several
factors. There is no fetter on the power of the State Government to create
ex-cadre post to be filled up by personnel with expertise for the very post in
question and the post of Feed and Fodder is one such post. The counsel urged
that once it is held to be an ex-cadre, and was created in the lower scale of
pay, and appellant on being selected, duly accepted the offer in that lower
scale of pay that was conveyed to him cannot make grievance either with regard
to the pay scale or with regard to the seniority which is dependent upon the
question as to whether the post itself was a cadre post or an ex-cadre post.
According to the learned counsel for the State on the materials on record the
High Court rightly came to the conclusion that the post was an ex- cadre post,
and therefore, the decision of the High Court cannot be interfered with.
In
view of the rival submissions two questions really arise for our consideration
:-
1. Can
it be said that the post of Feed and Fodder was an ex-cadre post carrying lower
scale of pay than the regular post in the Haryana Veterinary Service Class I?
2. If
the answer is in affirmative then can the appellant claim either higher scale
of pay or seniority in the cadre on the ground that the advertisement issued by
the Public Service Commission did not indicate the scale of pay attached to the
post and merely stated that the post is one borne in the Haryana Veterinary
Service Class I? So far as the first question is concerned, the expression
'cadre' has not been defined in the Statutory Rules for Recruitment, which was
in force the date on which the advertisement had been issued on 18.8.86 or the
date on which the letter of appointment was issued to the appellant, the
Governor having accepted the recommendation of the Haryana Public Service
Commission. The relevant Rule at that point of time was the Rule of 1930 which
was in force under a Notiification of the Punjab Government and that Rule
continued to be in force until the State of Haryana framed the Rule in the year 1995. Under 1930 Rules the Veterinary
Services were divided into two classes, namely, Punjab Veterinary Service Class
I and Punjab Veterinary Service Class II. So far as the class I services are
concerned, the same could be filled up either by promotion of selected officers
from Class II or by direct appointment or by transfer from other services in
England by direct appointment through the High Commissioner for India. The said
Rule had been promulgated during the British regime and continued to be in
force even after independence. The aforesaid Rule nowhere defined the cadre or
indicated as to which post would be borne in the cadre. In the absence of such
definition of cadre in the Rule, the normal connotation would apply, and therefore,
a cadre would ordinarily mean the strength of a service or a part of the
service so determined by the Government constituting the post therein. Usually
if the employer decides to create any ex-cadre post which may be necessary for
any specialised scheme in keeping with the qualification of the personnel
required to man that post, it is so indicated in the order of creation of the
post. But unfortunately in the case in hand the relevant document creating the
post of Feed and Fodder is not forthcoming. All the same the contemporaneous
document which is a letter from the Director to the Secretary to the Government
can also be looked into for the purpose of coming to the conclusion whether the
post of Feed and Fodder is in the regular Cadre in Haryana Veterinary Service
Class I or is an ex-cadre post. The High Court relied upon the aforesaid letter
and came to the conclusion that it was an ex-cadre post.
Apart
from the aforesaid letter the fact that the appointment letter issued in favour
of the appellant indicated a lower scale of pay is an internal evidence to
suggest that the post was not created in the cadre but was an ex-cadre post and
the appellant did accept the said offer and joined the post.
In the
aforesaid premises, we do not see any infirmity with the ultimate conclusion of
the learned Single Judge of the High Court in holding that the post of Feed and
Fodder was an ex-cadre post and we affirm the said conclusion. Our aforesaid
conclusion is reinforced by the Statutory Rule which has come into existence
since 1995, inasmuch as under the aforesaid Haryana Veterinary (Group A)
Service Rules, 1995, the post borne in the regular Veterinary Cadre Class I
have been indicated in Appendix A and the post of Feed and Fodder has not been
included therein. That apart, even in non-veterinary cadre the posts of Deputy
Director (Feed and Fodder) has been indicated but in a lower scale of pay than
other post borne in the regular Class I post. The validity of the aforesaid
Rule has not been assailed before us. The very inclusion of the post of Deputy
Director (Feed and Fodder) which the appellant was holding on the basis of his
selection, pursuant to the advertisement issued in the non-veterinary and in a
lesser scale of pay under the Statutory Rules re- affirms our earlier
conclusion that the post of Deputy Director (Feed and Fodder) was an ex-cadre
post. Even otherwise with effect from the coming into force of the Statutory
Rules of 1995 the said post of Deputy Director (Feed and Fodder) has
unequivocally been shown to be a post in the non-veterinary cadre and at a
lesser scale of pay.
In the
aforesaid premises, we are persuaded to agree with the conclusion of the High
Court that notwithstanding the advertisement issued by the Haryana Public
Service Commission indicating that the post of Deputy Director (Feed and
Fodder) in Haryana Class I Veterinary Service, the appellant would not be
entitled to the pay scale attached to a regular post in Haryana Veterinary
Service Class I, as the post that was advertised was an ex-cadre post and had
been created with a lesser scale of pay. So far as the question of seniority
inter se is concerned, respondents nos. 2 and 3 though appointed later but had
been appointed to the post carrying higher scale of pay in Haryana Veterinary Class
I and, therefore, they would be treated to be senior to the appellant. That
apart, under the Statutory Rule of the year 1995, the veterinary and
non-veterinary services having been bifurcated, the question of inter se
seniority of respondents nos. 2 and 3, who are in the veterinary service and
the appellant who is in the non-veterinary service would not arise. We,
therefore, do not see any infirmity with the impugned judgment of the High
Court requiring our interference under Article 136 of the Constitution. These
appeals fail and are dismissed.
..........................................J.
(G.B.
PATTANAIK) ..........................................J.
(R.P.
SETHI) February 13, 2002.
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