ISHWARI KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Civil Appeal No. 4258 of 1992 by special leave is against the order dated 1st August, 1991 passed by the Himachal Pradesh Administrative Tribunal allowing the application of respondent No. 5, Prem Nath Sud and directing his confirmation as Excise and Taxation Inspector from the due date with corresponding seniority and other consequential benefits. Similar relief has been granted to Mohan Lal and others who also were applicants before the Tribunal, in the connected appeal. Both appeals are disposed of by this judgment.

(2.) Prem Nath Sud, a permanent Clerk in the Excise and Taxation Department was officiating as Assistant on the recommendation of the Departmental Promotion Committee having opted for the post of Excise and Taxation Inspector. Sud was promoted along with three others as Excise and Taxation Inspector vide order dated 4th July, 1979 made by the Excise and Taxation Commissioner, Himachal Pradesh and he joined as Inspector on July 9, 1919. The appointment of Sud as Inspector was on probation for a period of two years subject to passing of the departmental examination failing which he was liable to be reverted. Sud passed the departmental examination within the period of probation in April, 1981 and his work was also found to be satisfactory. Accordingly, Sud was continued as Excise and Taxation Inspector. On 19th April, 1983, 19 Inspectors were confirmed but Sud's name was not included therein. On 28th June, 1984, the Excise and Taxation Commissioner granted selection grade to another 41 officiating Excise and Taxation Officers holding the substantive post of Inspector even though most of them had not passed the prescribed departmental examination but Sud's name was not included therein. The department directly recruited 64 Excise and Taxation Inspectors in 1970 whose appointment was challenged in the High Court. The writ petition challenging their appointment was allowed by the single Judge and the Letters Patent Appeal which was filed was later withdrawn. These direct recruits, however, continued in service and were given seniority over Sud. The claim of seniority made by Sud in his application before the Tribunal has been upheld. The material facts in the connected appeal are similar.

(3.) The Tribunal has held that the appointment of Sud was against an existing substantive vacancy inasmuch as there were only 38 confirmed Inspectors against the available 139 permanent posts; and Sud had satisfactorily completed his probation as also satisfied the condition of passing the prescribed departmental examination within the period of probation. The Tribunal has held that the work and conduct of Sud also having been found satisfactory, he had to be confirmed as an Excise and Taxation Inspector from the due date and given the consequential benefits. It is this relief which has ultimately been granted by the Tribunal. The Tribunal has further held that the continuance in service of persons who did not pass the prescribed departmental examination within the specified period was in violation of the rules since there was no order granting exemption to any of them from passing the examination as contemplated by the rules. The Tribunal has come to the conclusion that the rules which applied had been violated in several ways as indicated in its order. Similar order has been passed by the Tribunal on the application of Mohan Lal and others in the connected matter.