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2010 DIGILAW 696 (HP)

Yash Pal Singh v. State of Himachal Pradesh

2010-04-06

RAJIV SHARMA

body2010
Rajiv Sharma, Judge: Material facts necessary for the adjudication of this petition are that the petitioner was appointed as Surveyor on daily wage basis in the month of September, 1979. He was regularized w.e.f. 1st January, 1989. The post of Surveyor was in the feeder category for promotion to the post of Junior Engineer as per the Recruitment and Promotion Rules notified in the year, 1979. Petitioner sought permission for acquiring diploma in Civil Engineering from British Institute, Mumbai on 30th May, 2003. Copy of the diploma is placed on record. The seniority list of Surveyors was issued as it stood on 31.3.2003. The case of the petitioner, in a nut-shell, is that respondents have not considered his case for promotion to the post of Junior Engineer, though similarly situate persons, namely, Shri Kedar Nath, Shri Kushal Singh and Shri Raj Kumar were promoted as Junior Engineers (Civil) vide Annexure A-7, dated 15th March, 2003. The sum and substance of the reply filed by the respondent-State is that as per new Rectuitment and Promoition Rules published on 19th February, 2004, the candidates who have obtained diplomas from un-recognized Institutes cannot be considered for promotion to the posts of Junior Engineers. Mrs. Ranjana Parmar, learned counsel for the petitioner has vehemently argued that the case of her client was required to be considered as per old Recruitment and Promotion Rules to the post of Junior Engineer. She further contended that her client has been discriminated against by the respondents by not treating him at par with Shri Kedar Nath, Shri Kushal Singh and Shri Raj Kumar. Mr. Rajinder Dogra, learned Additional Advocate General has struneously argued that the petitioner is not qualified for being considered for promotion to the post of Junior Engineer as per new Recruitment and Promotion Rules notified on 19th February, 2004. I have heard the learned counsel for the parties and gone through the record carefully. Petitioner started working as Surveyor w.e.f. 1979. He was regularized w.e.f. 1st January, 1989. It is admitted by the respondent-State in its reply that in the Recruitment and Promotion Rules of 1979 existed a provision for promotion of the candidates, who have obtained diplomas in Civil Engineering from un-recognized institutions. Petitioner started working as Surveyor w.e.f. 1979. He was regularized w.e.f. 1st January, 1989. It is admitted by the respondent-State in its reply that in the Recruitment and Promotion Rules of 1979 existed a provision for promotion of the candidates, who have obtained diplomas in Civil Engineering from un-recognized institutions. It is further admitted by the respondent-State in its reply that seven incumbents from the category of Surveyors and one Work Inspector were promoted as Junior Engineers (Civil) on 15th March, 2003. However, fact of the matter is that the petitioner was also promoted to the post of Junior Engineer on 28th May, 2008, but on the basis of seniority alone. Petitioner was permitted to obtain diploma in Civil Engineering from British Institute, Mumbai on 30th May, 2003. Three incumbents, namely, Shri Kedar Nath, Shri Kushal Singh and Shri Raj Kumar, who were promoted to the posts of Junior Engineers (Civil) vide Annexure A-7 on 15th March, 2003, have also obtained their diplomas from British Institute, Mumbai. The copies of the same have been placed on record by the petitioner. It is true that as per new Recruitment and Promotion Rules, the Surveyors who have obtained diplomas from un-recognized Institutes, are not eligible to be considered for promotion to the post of Junior Engineer (Civil). However, the petitioner was to be considered as per the existing vacancies on the basis of Recruitment and Promotion Rules framed in the year, 1979. It is admitted position that in the 1979’s Rules existed a provision for promotion of the candidates who have obtained diplomas in Engineering from un-recognized Institutions. Three incumbents were promoted to the posts of Junior Engineers, who have obtained diplomas from British Institute, Mumbai. The case of petitioner was also required to be considered for promotion to the post of Junior Engineer as per old Recruitment and Promotion Rules, if vacancies existed before the publication of new Rules on 19th February, 2004. Petitioner has been discriminated against by the respondents by not considering his case for promotion to the post of Junior Engineer (Civil) alongwith similarly situtate persons. Petitioner has a fundamental right to be considered for promotion to the post of Junior Engineer as per old Recruitment and Promotion Rules published in the year, 1979. Accordingly, in view of the observations made hereinabove, the petition is allowed. Petitioner has a fundamental right to be considered for promotion to the post of Junior Engineer as per old Recruitment and Promotion Rules published in the year, 1979. Accordingly, in view of the observations made hereinabove, the petition is allowed. Respondents are directed to consider the case of petitioner for promotion to the post of Junior Engineer as per the Recruitment and Promotion Rules notified in the year, 1979 with all consequential benefits, if vacancies existed before the framing of new Recruitment and Promotion Rules on 19th February, 2004. Needful be done within a period of eight weeks from today. No costs.