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2001 DIGILAW 259 (HP)

D. R. VERMA v. HONBLE HIGH COURT OF H. P.

2001-09-28

A.K.GOEL, C.K.THAKKER

body2001
JUDGMENT C.K. Thakker, C J. :- This petition is filed by the petitioner for an appropriate writ, direction or order directing respondent No. 1 - High Court of Himachal Pradesh, Shimla to promote the petitioner to the post of Superintendent with effect from September 28,1994 by treating him eligible and qualified and by fixing his seniority over and above respondents No.2 to 7 and by granting other benefits. 2. The case of the petitioner is that he was appointed initially as a Clerk with the first respondent on January 7, 1974. He was promoted to the post of Senior Assistant on August 14, 1986. The next promotion was to the post of Superintendent. In accordance with the provisions of High Court of Himachal Pradesh (Recruitment, Conditions of Service and Conduct) Rules, 1992, which came into force from March 28, 1992, the petitioner was promoted as Superintendent on December 3, 1992. It appears that against the action of promoting the petitioner, one Shakuntla Sharma (Mrs.) filed a writ petition in this Court being CWP No. 1055 of 1993. The said petition was dismissed by this Court on January 4, 1993. The aggrieved petitioner approached the Supreme Court against t he decision of this Court and in Shakuntla Sharma (Mrs.) v. High Court of Himachal Pradesh, Shimla & Anr., 1994(2) SCC 411, the appeal was allowed by the Supreme Court and the judgment and order passed by this Court was set aside. Consequently, the petitioner was reverted from the post of Superintendent to his original post of Senior Assistant by an order dated February 22, 1994. 3. In Shakuntla Sharma (Mrs.), the Honble Supreme Court also observed that there was basic weakness in Rule 10 of 1992 Rules, inasmuch as, the said provision placed two unequal sets of posts on par with each other and also prescribed qualifying service for the higher post as well. The Rule was, therefore, violative of Article 14 of the Constitution as it conferred unwarranted benefit to the incumbents of the lower posts over the incumbents of the higher posts. Rule 10 was accordingly struck down by the Supreme Court and the High Court was directed to frame equitable Rule for promotion to the post of Superintendent. 4. The Rule was thereafter amended vide a notification dated September 28, 1994, keeping in view the direction issued by the Apex Court in Shakuntla Sharma (Mrs.). 5. Rule 10 was accordingly struck down by the Supreme Court and the High Court was directed to frame equitable Rule for promotion to the post of Superintendent. 4. The Rule was thereafter amended vide a notification dated September 28, 1994, keeping in view the direction issued by the Apex Court in Shakuntla Sharma (Mrs.). 5. Respondents No.2 to 5 being aggrieved by the amendment of the Rule preferred CWP No.884 of 1994, which was dismissed by this Court, inter alia, observing that the amendment had been carried out in the Rule pursuant to the direction issued by the Supreme Court in Shakuntla Sharma (Mrs.). It was, therefore, not open to challenge. The petition was, thus dismissed. Respondents No.2 to 5 also filed SLP (Civil) No.9579 of 1995 in the Supreme Court, which was "Disposed of" on May 5, 1995 (Annexure P-5). On February 21, 1995, the petitioner was promoted as Reader but the promotion was revoked on March 28, 1995. Again, he was promote^ on May 6, 1995 as Deputy Superintendent (Superintendent Grade-II). 6. By an order dated July 6, 1995 (Annexure P-8), the petitioner was promoted to the post of Superintendent along with respondents No.2 to 7 on temporary basis with immediate effect by a Notification dated July 26, 1995. It may be stated that respondents No.2 to 7 were not eligible for promotion but they were promoted in relaxation of the Rules. In the said Notification, respondents No.2 to 7 were shown senior to the petitioner. The grievance of the petitioner is that he ought to have been promoted in 1994, when he became eligible. In the alternative, when the petitioner was promoted along with respondents No.2 to 7, considering the fact that he was the only eligible and qualified person and respondent No.2 to 7 were not eligible but promoted in relaxation of Rules, the petitioner ought to have been placed at Serial No. 1 and shown senior to respondents No. 2 to 7. The petitioner made various representations to Honble Chief Justice of this court but, by a communication dated October 29, 1996, the petitioner was informed that his representations were rejected. He, therefore, approached this Court by filing the present writ petition. 7. The petition was admitted. Affidavits and further affidavits were filed. We have heard the learned counsel for the parties. 8. Mr. Sandeep Kaushik, learned counsel for the petitioner raised numerous contentions. He, therefore, approached this Court by filing the present writ petition. 7. The petition was admitted. Affidavits and further affidavits were filed. We have heard the learned counsel for the parties. 8. Mr. Sandeep Kaushik, learned counsel for the petitioner raised numerous contentions. He submitted that the petitioner was eligible to be promoted as Superintendent in accordance with statutory Rules of 1992 then in force. He was accordingly promoted to the said post in that year. It was only because of filing of writ petition by Shakuntla Sharma, which though was dismissed by this Court, came to be allowed by the Supreme Court, that the petitioner was reverted to his substantive post of Senior Assistant. It was also contended by the learned counsel that after the amendment in the Rules in 1994, he should have been promoted as Superintendent, as he was eligible. Moreover, a post of Superintendent was also vacant. Further, the petitioner had already worked during 1992 to 1994 before the decision of the Supreme Court in Shakuntla Sharma (Mrs.). He, therefore, ought to have been promoted as Superintendent. In that case, his seniority would have been counted from the date of promotion but the respondent No. I did not adopt that course. It was further submitted that under the amended Rules of 1994, respondents No. 2 to 7 were not eligible and qualified. Being aggrieved by the amendments in Rules, respondents No. 2 to 5 filed a petition challenging the validity of the Rules but the writ was dismissed and SLP also met with the same fate. Thereafter, it was not open to respondents No. 1 to ignore eligibility of the petitioner and to grant relaxation in the Rules and to promote respondents No. 2 to 7 by giving them seniority over the petitioner. That action was in any case illegal, arbitrary and uncalled for. 9. It was also stated that in similar circumstances, when Inder Dass was promoted from the post of Restorer to the post of Clerk by an order dated August 9, 1995, in the Office Order itself, it was mentioned that since he had been promoted by invoking Rule 24 of the Rules (by giving relaxation), his seniority qua other officials would be determined separately. The grievance of the learned counsel for the petitioner is that though the case of respondents No.2 to 7 was similar to Inder Dass, no such condition was mentioned in orders of promotion of respondents No. 2 to 7, which has caused serious prejudice to the petitioner. 10. A grievance was also made that though representations were made by the petitioner to Honble the Chief Justice, they have not been considered in their proper perspective and were rejected by the cryptic order. 11. On all these grounds, it was submitted that the petition deserves to be allowed by granting the benefits to which the petitioner is legally entitled. 12. Affidavit-in-reply is filed by the Deputy Registrar (Establishment) of respondent No. 1. In the counter, it was denied that ineligible persons were placed over the petitioner in the seniority of Superintendents. It was also refuted that the petitioner was denied promotion to the post of Superintendent from September 28, 1994. According to the deponent, the case of the petitioner for promotion to the post of Superintendent was considered along with other eligible candidates and he was also promoted on July 26, 1995 along with others. It was stated that since respondents No. 2 to 7 were senior to the petitioner in their cadre, they were shown senior to the petitioner and the petitioner cannot make grievance. It was mentioned that the petitioner was promoted in 1992 to the post of Superintendent but pursuant to the judgment of the Honble Supreme Court in Shakuntla Sharma (Mrs.), he was reverted. The first respondent also asserted that the petitioner as well as respondents No.2 to 7 were promoted "strictly in conformity with the Rules" as amended from time to time. Regarding relaxation of the Rules, the stand of the first respondent is that Rule 24 had been rightly invoked for effecting promotion to respondents No. 2 to 7. They were senior to the petitioner in their feeder cadre. The position of Inder Dass, who was "non-matric" restorer vis-a-vis matriculate promotees, cannot be cited as a precedent. It was stated: "It is humbly submitted that there was no occasion for putting in rider in the promotion order of the Petitioner and Respondents No, 2 to 7 with regard to seniority since the promotions have been made strictly in conformity with the Recruitment and Promotion Rules. It was stated: "It is humbly submitted that there was no occasion for putting in rider in the promotion order of the Petitioner and Respondents No, 2 to 7 with regard to seniority since the promotions have been made strictly in conformity with the Recruitment and Promotion Rules. There is no provision in the Rules which requires putting in rider while relaxing the rigors of the Rules. The Seniority of the Respondents No. 2 to 7 has been correctly determined as per Annexure - P-8" 13. The first respondent argued that the petitioner had no right to be promoted from a particular date. He had merely a right "to be considered" and he cannot claim seniority over respondents No. 2 to 7, who were otherwise senior to him. There was no discrimination and his seniority was not ignored. It was, therefore, prayed that the petition may be dismissed. 14. Respondents No.2 to 7 in their affidavit-in-reply have also stated that they were promoted in accordance with the provisions of the Rules. Since they were senior to the petitioner and in exercise of the powers of relaxation, they were promoted as Superintendents along with the petitioner, they were rightly shown above the petitioner and the petitioner had no occasion to raise objection. 15. In the affidavit-in-rejoinder, the petitioner has contested the submissions made by respondents and reiterated the points raised in the petition. 16. Having heard the learned counsel for the parties, in our opinion, the petition deserves to be partly allowed. So far as promotion of the petitioner from Senior Assistant to Superintendent in 1992 is concerned, obviously, the petitioner cannot make grievance inasmuch as he was reverted to his original post of Senior Assistant in the light of the judgment of the Supreme Court in Shakuntla Sharma (Mrs.). Recruitment Rules of 1992 were thereafter amended pursuant to the direction of the Apex Court. But it is the case of the petitioner that even under the amended Rules, he was eligible to be promoted as Superintendent and the post was also vacant. He, therefore, ought to have been promoted at that time. The fact, however, remains that the petitioner was not promoted. It is also undisputed fact that the petitioner was the only person, who was eligible under the Rules of 1992 as amended in 1994. He, therefore, ought to have been promoted at that time. The fact, however, remains that the petitioner was not promoted. It is also undisputed fact that the petitioner was the only person, who was eligible under the Rules of 1992 as amended in 1994. The original Rule 10 of 1992 Rules read as under: "By promotion from amongst graduate Deputy Superintendents/Revisers with-minimum 3 years of service as such in the ratio of 4:1, failing which by promotion from amongst Sr. Assistants/Translators with minimum 6 years service as such in the same ratio. Explanation After promoting 4 Deputy Superintendents/Senior Assistants as Superintendents from general category one Re visor/Translator shall be promoted as Superintendent from amongst Revisors/Translators category. 17. After decision in Shakuntla Sharma (Mrs.), the Rule was amended in 1994 and the said Rule now reads thus: "By promotion from amongst graduate Deputy Superintendents/Re-visors, in the ratio of 4:1, failing which by promotion from amongst graduate Sr. Assistants/Translators with minimum 6 years service as such in the same ratio. Explanation:- After promoting 4 Deputy Superintendents/Sr. Assistants as Superintendents from category one Revisor/Translator shall be promoted as Superintendent from amongst Revisors/Translators category." 18. The fact that the petitioner was the only person who was eligible and could be promoted to the post of Superintendent under the Rules is not disputed by any of the respondents. Respondent No. 1 relied upon Rule 24, which provides relaxation. It reads: "24. Relaxation. - Where the Chief Justice is satisfied that the operation of any Rule causes undue hardship in any particular case, he may by order dispense with or relax the requirements of that Rule to such extent and subject to such condition(s) as he may consider necessary for dealing with the case in a just and equitable manner." 19. The contention of the petitioner is that when vires of Rule was challenged by respondents No. 2 to 7 and (he petition was dismissed, relaxation ought not to have been granted to respondents No. 2 to 7 and they ought not have been promoted. We may, however, observe at this stage that the learned counsel for the petitioner made an unequivocal statement at the bar that since respondents NO. 2 to 7, Who Were not eligible to be promoted as Superintendent under the Rules and promoted by invoking Rule 24 of the Rules, the petitioner does not claim relief against their promotion. We may, however, observe at this stage that the learned counsel for the petitioner made an unequivocal statement at the bar that since respondents NO. 2 to 7, Who Were not eligible to be promoted as Superintendent under the Rules and promoted by invoking Rule 24 of the Rules, the petitioner does not claim relief against their promotion. He, however, made a limited grievance that in that case, the petitioner ought to have been shown senior to respondents No. 2 to 7- 20. We find considerable force in the argument of the learned counsel for the petitioner. In this connection, our attention was invited by the learned counsel for the parties to the following decisions: 1. State of Maharashtra v. Jagannath Achyut Karandikar, 1989 Supp 1 SCC 303. 2. M. Venkateswarlu & Ors v. Govt. of A.P. & ors., 1996(5) SCC 167. 3. Ashok Kumar Uppal & Ors. v. State of J & K & Ors., 1998 (4) SCC 179. 4. Haridas Parsedia v. Urmila Shakya & Ors. 2000 (1) SCC 81. 5. Sandeep Kumar Sharma v. State of Punjab & ors. 1997(10)SCC298. 21. Reading the above decisions, it is clear that ordinarily, where a person, who is otherwise eligible under the relevant rules is available, he ought to be appointed/promoted first. The provisions regarding relaxation is usually made in the relevant Rules so as to deal with a situation where the authority is satisfied that the operation of the Rules caused undue hardship in an individual and/or particular case. In such a situation, requirement of Rules may be relaxed or dispensed with as the authority considers necessary to deal with the case on hand "in a just and equitable manner." 22. In our opinion, when the petitioner, who was otherwise eligible under Rule 10 was available, and when he was the only person qualified for promotion, he ought to have been promoted. But it was not done and his case came to be considered by the first respondent only in 1995 along with respondents No. 2 to 7. Now if considering the length of service of respondents No.2 to 7 who were not eligible under the Rules, and the first respondent was satisfied that with a view to act in a "Just and equitable manner,: relaxation in their favour was necessary, it was open to respondent No. 1 to grant relaxation and promote them. Now if considering the length of service of respondents No.2 to 7 who were not eligible under the Rules, and the first respondent was satisfied that with a view to act in a "Just and equitable manner,: relaxation in their favour was necessary, it was open to respondent No. 1 to grant relaxation and promote them. But while doing so, the main provision i.e. Rule 10 ought to have been kept in mind by the first respondent and ought to have been applied keeping in view the object underlying it. It was, in our view, obligatory on the first respondent to promote the petitioner first as his was the only promotion in consonance with the Rules and promotion of respondents No. 2 to 7 was in relaxation of the Rules. It was also necessary, in our considered opinion, in the light of the fact that 1992 Rules were amended pursuant to the direction by the Honble Supreme Court in Shakuntla Sharma (Mrs.) and amended Rules were held inter vires, constitutional and the challenge by some of the respondents was unsuccessful even before the Supreme Court. 23. To us, the learned counsel for the petitioner is also right in contending that in case of Inder Dass, who was promoted in relaxation of Rules, a condition was imposed that since he was promoted under Rule 24 of the Rules by relaxing the eligibility criteria, his seniority would be decided later on but ho such condition was laid down in orders of respondents No. 2 to 7. The first respondent had tried to differentiate the case of Inder Dass on the ground that he was "non matriculate" whereas other officials were matriculates. The fact, however, remains that Inder Dass was ineligible under the Rules and was promoted by invoking relaxation Clause (Rule 24). Respondents No.2 to 7 were also ineligible and were promoted by relaxing eligibility Clause. We, therefore, see no difference in principle and feel that the same yardstick ought to have been applied in the present case as well. Since the petitioner was the only person who was graduate falling under the eligibility criteria of Rule 10 and respondents No. 2 to 7 were under-graduates and were not promoted strictly in conformity with the Rules but were promoted by invoking the provision of relaxation under Rule 24 of the Rules, the petitioner ought to have been placed at Sr. No. 1. No. 1. In our considered opinion, therefore, the limited grievance of the petitioner as regards seniority is well founded and must be upheld. 24. For the reasons aforesaid, the petition is partly allowed. It is directed that the petitioner will be treated as promoted along with respondents No. 2 to 7 on July 26, 1995 but since he was the only person who was eligible under the Recruitment Rules and was promoted in conformity with the Rules, whereas respondents No. 2 to 7 were promoted in exercise of power under Rule 24 by relaxing the Rules, the petitioner will be shown as senior to respondents No. 2 to 7 in the cadre of Superintendents. Respondent No.l is directed to relaxation seniority in cadre of Superintendents accordingly. The petition is allowed to the above extent. In the facts and circumstances of the case, however, there shall be no order as to costs.