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Himachal Pradesh High Court · body

2009 DIGILAW 456 (HP)

BIDHI CHAND SHARMA v. STATE OF H. P.

2009-05-14

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, Judge:-The petitioner was appointed Camp Clerk on 17.8.1976. He was promoted to the post of Junior Scale Stenographer on 20.8.1979. He was promoted as ad hoc Assistant/Junior Auditor on 25.2.1982. The State has framed the Rules called the “Himachal Pradesh Excise and Taxation Department Class-III (Ministerial-Other than Superintendents and Head Assistants) Services (Recruitment & Service Conditions) Rules, 1974. The post of Assistant Class-III (Ministerial) was to be filled-up by way of promotion from Clerks and Camp Clerks with at least five years service in the grade. However, vide Notification (Annexure A-3), dated 17.10.1983, the post of Camp Clerk was deleted from the feeder category for promotion to the post of Assistant. There were two avenues of promotions available to the Camp Clerk. He could be considered in case he has five years experience to the post of Assistant and in case he had only two years experience, he was eligible for being promoted as Junior Scale Stenographer. The name of the petitioner was deleted from the final seniority list of Junior Scale Stenographers after the amendment of the Rules in the year 1983. He made representation against this action of the respondents/State. In the year 1986 his representation was accepted to the extent that his name was shown as confirmed Junior Scale Stenographer with effect from 1.10.1981. 2. Mr. Raman Sethi has strenuously argued that the petitioner has acquired vested right to be considered for promotion to the post of Assistant as per the Rules framed in 1974, i.e. Annexure A-2. He further contended that it was necessary for the respondents to consult the H.P. Public Service Commission before amending the Rules in the year 1983. The learned Senior Additional Advocate General has submitted that the petitioner and similarly situate persons had two avenues of promotion which were not available to the Clerks. In other words, his submission is that it was necessary to protect the interest of Clerks. 3. I have heard the learned counsel for the parties and perused the record carefully. 4. It is not in dispute that the Recruitment and Promotion Rules were notified on 20th March, 1974. The petitioner was eligible to be considered for promotion to the post of Assistant after putting in five years of service as Camp Clerk. However, the category of Camp Clerks from the feeder category has been deleted vide Annexure A-3, dated 17.10.1983. 4. It is not in dispute that the Recruitment and Promotion Rules were notified on 20th March, 1974. The petitioner was eligible to be considered for promotion to the post of Assistant after putting in five years of service as Camp Clerk. However, the category of Camp Clerks from the feeder category has been deleted vide Annexure A-3, dated 17.10.1983. A detailed procedure has been provided under para 3.5 of the Hand Book on Personnel Matters, Vol. 1, (Second Edition) qua the manner in which the amendment to the existing Recruitment and Promotion Rules has to be carried out. A bare perusal of para 3.5 reveals that the Administrative Department is required to consult the H.P. Public Service Commission for the proposed draft Recruitment and Promotion Rules/amendments to the existing Rules, unless such consultation is exempted under the H.P. Public Service Commission (Exemption from consultation) Regulations, 1974. 5. Mr. Khanna was directed to seek instructions whether there was prior consultation with the H.P. Public Service Commission before the amendment was carried out in the Rules on 17.10.1983. Ms. Urmil Khanna appearing vice counsel for respondent No.3 has placed on record the copy of letter dated 27.4.2009 issued by the Secretary, H.P. Public Service Commission. The text of the same reads thus:- “I am directed to refer to your letter dated 24.04.2009 on the subject cited above and to say that the Commission was not consulted by the Govt. (in the Department of Excise and Taxation) in the matter and the Recruitment and Promotion Rules for the post of Assistant (now Senior Assistant) were amended/notified by the Govt./Department at their own level vide Notification No.19-37/71-E&T.Sectt. dated 17.10.1983.” 7. In view of this letter dated 27.4.2009, it is apparent that the H.P. Public Service Commission was not consulted before the amendment was carried out. It was mandatory to hold consultation with the H.P. Public Service Commission before the Rules could be amended whereby the category of Camp Clerks has been deleted for promotion to the posts of Assistants. It is settled law by now that if something is required to be done, it has to be done in the same manner. In the present case para 3.5 of the Instructions has not been followed by the respondents/State while making amendments to the Rules. 8. Accordingly, the petition is allowed. It is settled law by now that if something is required to be done, it has to be done in the same manner. In the present case para 3.5 of the Instructions has not been followed by the respondents/State while making amendments to the Rules. 8. Accordingly, the petition is allowed. Annexure A-3, dated 17.10.1983 whereby the category of Camp Clerks has been deleted from the feeder category to the post of Assistants is struck down. The petitioner is held entitled to be considered for promotion to the post of Assistant on the basis of Rules notified on 20th March, 1974. The respondents are directed to consider the case of the petitioner for promotion after seeking his option as per Rules notified on 20th March, 1974 read with letter dated 24.12.1981 (Annexure A-8) from due date, within a period of eight weeks from today. He is also held entitled to all the consequential benefits. There shall, however, be no order as to costs.