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Himachal Pradesh High Court · body

2012 DIGILAW 1038 (HP)

Het Ram Sharma v. State of Himachal Pradesh

2012-12-26

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, Judge (oral): Petitioner No.1 was appointed as Laboratory Assistant on 30.8.1979 and petitioner No.2 was appointed as Laboratory Assistant on 24.11.1979. Petitioner No. 1 was promoted to the post of Research Assistant on 3.9.1990 and petitioner No.2 was promoted to the post of Research Assistant on 16.3.1991. Petitioner No. 1 passed his prabhakar examination in the year 1975 and respondent No. 2 obtained his Bachelor Degree in Arts in 1982. The post of Research Assistant is in feeder category for promotion to the post of Research Officer. 2. The respondent-State has framed Recruitment and Promotion Rules in respect of post of Research Officer, Testing Laboratory, in Himachal Pradesh Public Works Department vide notification dated 3.12.1973. The post of Research Officer is a selection post. According to 1973 Rules, minimum educational qualification for filling-up the post of Research Officer was a bachelor’s degree with Physics and Chemistry of a recognized Institution or its equivalent and with at least ten years experience in soils and material testing and survey work in a recognized Institution or a Bachelor’s degree in Civil Engineering or a Post-Graduate Degree in Physics or Chemistry or its equivalent with at least 3 years’ experience of soils and material testing and survey work in a recognized Institution. In 1973 rules, the post of Research Officer was to be filled up 100% by direct recruitment, failing which by deputation/transfer. The 1973 Rules, were repealed by the respondent-State vide notification dated 3.6.1991. According to notification dated 3.6.1991, the post of Research Officer (Material Testing Laboratory) was to be filled up 100% by promotion from amongst the Research Assistants (Material Testing Laboratory) with at least 5 years regular service or regular combined with adhoc (rendered upto 31.3.1991, if any) service as such and possessing Degree in B.Sc. (Physics, Chemistry and Mathematics) or its equivalent from a recognized University. The Rules notified on 3.6.1991 were further repealed by the respondent-State on 13.11.1996. According to notification dated 13.11.1996, the post of Research Officer was again to be filled up 100% by promotion from amongst the Research Assistants (Material Testing Laboratory) possessing Degree in B.Sc. (Physics, Chemistry and Mathematics) or its equivalent from a recognized University with at least 5 years regular service or regular combined with continuous adhoc (rendered upto 31.3.1991), if any, service as such. (Physics, Chemistry and Mathematics) or its equivalent from a recognized University with at least 5 years regular service or regular combined with continuous adhoc (rendered upto 31.3.1991), if any, service as such. The petitioners do not possess the essential qualification prescribed under the Rules, notified on 3.12.1973, 3.6.1991 and 13.11.1996. The qualification obtained by the petitioners cannot be treated to be equivalent with B.Sc. (Physics, Chemistry and Mathematics). The post of Research Officer is a technical post and a candidate to be promoted/appointed to this post must possess essential qualification, prescribed under the Recruitment and Promotion Rules. Initially, as noticed hereinabove, the candidate for Research Officer was required to pass a Bachelor’s Degree with Physics and Chemistry of a recognized University or a Bachelor’s degree in Civil Engineering or a Post Graduate Degree in Physics or Chemistry or its equivalent. 3. According to amended Rules, a candidate must possess either Degree in B.Sc. (Physics, Chemistry and Mathematics) or its equivalent from a recognized Institution. The word ‘equivalent’ in the Rules would mean that the candidate should possess technical qualification like Bachelor Degree in engineering etc., and not in Arts stream. 4. Respondent No.2 has forwarded the case of the petitioners for relaxation to the State Government on 22.6.2012, however, the same has been rejected by the State Government. 5. Mr. Dushyant Dadwal, Advocate, has vehemently argued that the petitioners, who have been working as Research Assistant since 3.9.1991, are at the verge of retirement and no promotional avenues are available to them. It is settled law that there should be at least two or three promotional avenues for every employee to improve public service, to remove stagnation and avoid frustration amongst the services. Every employee aspires to be promoted to the higher post, after putting in a number of years in service. In the instant case, the petitioners have been working in the same post for about more than two decades and the respondent-State should have explored possibility of promoting them to the post of Research Officer by framing a scheme. 6. Their Lordships of the Hon’ble Supreme Court in Food Corporation of India and others versus Parashotam Das Bansal and others, (2008) 5 SCC 100 have held that promotion is a normal incidence of service and the courts can direct creation of avenues for promotion in their absence. Their Lordships have held as under: “12. 6. Their Lordships of the Hon’ble Supreme Court in Food Corporation of India and others versus Parashotam Das Bansal and others, (2008) 5 SCC 100 have held that promotion is a normal incidence of service and the courts can direct creation of avenues for promotion in their absence. Their Lordships have held as under: “12. When employees are denied an opportunity of promotion for long years (in this case 30 years) on the ground that he fell within a category of employees excluded from promotional prospect, the Superior Court will have the jurisdiction to issue necessary direction. 13. If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the Court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a Superior Court of the country.” 7. Similarly, their Lordships of the Hon’ble Supreme Court in A. Satyanarayana and others versus S. Purushotham and others, (2008) 5 SCC 416 have reiterated that the purpose of promotion is to remove stagnation and avoid frustration amongst employees. Their Lordships have held as under: “28. The Superior Courts, while exercising their power of judicial review, must determine the issue having regard to the effect of the subordinate legislation in question. There must exist a rational nexus between the impugned legislation and the object of promotion. Promotions are granted to a higher post to avoid stagnation as also frustration amongst the employees. This Court, in a large number of decisions, has emphasized the necessity of providing for promotional avenues. [See Food Corporation of India and Ors. v. Parashotam Das Bansal and Ors. [Civil Appeal No.991 of 2008 decided on 5.2.2008]. The State, keeping in view that object, having found itself unable to provide such promotional avenue, provided for the scheme of Accelerated Career Progress (ACP). The validity and effect of the impugned legislation must be judged keeping in view the object and purport thereof. This Court would apply such principle of interpretation of statute which would enable it to sub-serve the object in place of subverting the same. 30. The validity and effect of the impugned legislation must be judged keeping in view the object and purport thereof. This Court would apply such principle of interpretation of statute which would enable it to sub-serve the object in place of subverting the same. 30. Although mere chance of promotion is not a fundamental right, but right to be considered therefor is. In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all time to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India.” 8. In view of the observations made hereinabove, though the petitioners are declared not to be illegible for the post of Research Officer as per existing R&P Rules, but taking into consideration a number of years they have worked against same post, respondents are required to frame a scheme for providing at least one or two promotional avenues to the petitioners. 9. Accordingly, the writ petition is allowed partly and the respondents are directed to frame a scheme within a period of four weeks from today for providing at least one or two promotional avenues to the petitioners and after framing of scheme, the case of the petitioners shall be considered immediately in accordance with law since they have approached this Court before their retirement. The pending application(s), if any, also stands disposed of. No costs.