Model Code cannot be used as pretence by government servants for “unofficial pen down strike, says high court

Observing that Model Code of Conduct cannot be used as a pretence by the government servants for indulging in any “un-official pen down strike”, the Himachal Pradesh high court on Monday directed the state chief secretary to issue clear instructions within a week on how the document does not impede the routine working of government and public undertakings.
A division bench of justices Tarlok Singh Chouhan and Sushil Kukreja said, “We are at pains to note that this court is flooded with litigation where promotions/appointments etc. have been denied solely on the ground of imposition of Model Code of Conduct.”
The bench further said, “The imposition of Model Code of Conduct can aptly be described as a “un-official pen down strike” in the government/public undertakings and all businesses including routine business are held up on account of misinterpretation and misconstruction of the provisions of the document described as Model Code of Conduct. It is high time that the State Government takes a call on this issue”.
The high court passed the order while deciding a plea of one Satinder Kumar seeking an appointment to the post of superintendent grade II (Ex Cadre) in Himachal Pradesh Krishi Vishav Vidayalaya.
Kumar has moved the court seeking to be promoted to the post of Superintendent Grade II with effect from November 1, 2017, by quashing the order dated January 30, 2018, passed by the University by terming it as illegal and arbitrary.
The university has refused to accede to the representation made by Kumar on the ground that as per the rules/regulations, no placements/promotions can be made after the retirement against any slot/post when the petitioner had not made any representation for his placement to the post in question while in service before the competent authority.
The varsity has also cited order of the chief electoral officer, Himachal Pradesh which intimated the election schedule for Vidhan Sabha Elections-2017 to deny the appointments and promotions during the currency of the Model Code of Conduct (MCC).
The bench noted that it was in view of the instructions that no appointments/ promotions/placements etc. were made in the University during the period of MCC nor any decision to refer such cases to the election department of Himachal Pradesh through administrative department was taken in the University.
The bench said, “Let a copy of this order be sent to the chief secretary to the Government of Himachal Pradesh to issue clear instructions regarding the purpose and object of issuing Model Code of Conduct and further to clarify how this document ie Model Code of Conduct does not impede the routine working of the government/public undertakings/boards/corporations etc. and further to issue clear instructions that the Model Code of Conduct cannot be used as a pretence by the government servants for indulging in any “un-official pen down strike” during the currency of the Model Code of Conduct within a period of one week.”
While allowing the petition of Kumar, the bench said, “accordingly, we have no option but to allow this petition and the order dated January 30, 2018, passed by the respondent- University is ordered to be quashed and set aside.”
Consequently, While listing the matter for compliance on May 6, the bench directed the university to promote Kumar to the post of Superintendent Grade-II (Ex Cadre) with effect from November 1, 2017.
The bench said this court has no hesitation to conclude that the respondent-University has illegally denied placement to the petitioner to the post of superintendent grade-II (Ex Cadre), more particularly, when the same does not involve any financial implications and, that too, on complete misinterpretation and lack of understanding of the document commonly known as Model Code of Conduct.
“Moreover, the respondent-University could not have relied upon this document (MCC) as a pretense to deny the petitioner his legitimate claim,” it said.
The bench wondered why the university would insist upon the petitioner approaching it seeking his legitimate claim of promotion.
“Whereas, it was the legal and institutional duty of the respondent- University to have made provisions well in advance for filling up the post in question,” it said, adding after-all, what was prescribed in the MCC document was only a prior clearance of the Election Commission.
“We really fail to understand how the stand taken by the respondent-university can be said to be tenable and that is why we had requested the registrar of the university to explain as to how and in what manner the Model Code of Conduct would in any manner affect the appointments and promotions made by the University during the currency of the Model Code of Conduct,” it said.
The bench added the mere fact that the petitioner did not approach the respondent-university along with his representation at the time of slot falling vacant is of no avail.
“Moreover, it is not something which the petitioner is seeking with “begging bowl” but he is rather seeking his legitimate claim against the legitimate expectation,” it observed.