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Himachal Pradesh High Court · body

2012 DIGILAW 1042 (HP)

Surender Kumar Sood v. State of H. P.

2012-12-27

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, Judge: Petitioner was regularized as Water Works Clerk vide order, dated 30.09.1988 in the pay scale of Rs.400-600/-. Case of the petitioner, in a nut-shell, is that there are no promotional avenues available to the category of Water Works Clerk in the respondent-Department. The appointment to the post of Water Works Clerk is regulated under the rules called the Himachal Pradesh Department of Irrigation and Public Health Work (Class III Non Gazetted) Recruitment and Promotion Rules, 1996. The minimum essential qualification for appointment to the post of Water Works Clerk is matriculation with second division or 10+2 examination or its equivalent from a recognized Board/University with a minimum speed of 30 words per minute in English type writing or 25 words per minute in Hindi Type writing. The respondent-State has also framed the Rules called the Himachal Pradesh Department of Irrigation and Public Health Clerk Class-III (Non Gazetted) Recruitment and Promotion Rules, 1996. The minimum essential qualification for filling up the post of Clerk is also matriculation with second division or 10+2 examination or equivalent from a recognized Board/University with a minimum speed of 30 words per minutes in English typewriting or 25 words per minute in Hindi Typewriting. 2. Mr. A.K. Gupta, learned counsel for the petitioner has vehemently argued that as per the settled law, at least two to three promotions should be available to every employee to improve public service and to remove stagnation and avoid frustration amongst the employees. He then contended that the petitioner has no promotional avenues available throughout his entire service career. He also argued that order, dated 16.08.2011, is contrary to facts and law. 3. Mr. Vikas Rathore, learned Deputy Advocate General has supported the order, dated 16.08.2011. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner has also approached this Court by filing CWP No. 3872 of 2010. The same was disposed of by this Court on 08.07.2010. Thereafter, case of the petitioner has been rejected on 16.08.2011. 6. According to the reply filed by the respondent-State, taking into consideration the nature of duties performed by Water Works Clerk, no promotional avenues are required. The petitioner has already been granted the proficiency step up in the year 1996 and thereafter the category of petitioner was granted three tire pay scale in 1997. 6. According to the reply filed by the respondent-State, taking into consideration the nature of duties performed by Water Works Clerk, no promotional avenues are required. The petitioner has already been granted the proficiency step up in the year 1996 and thereafter the category of petitioner was granted three tire pay scale in 1997. He was granted higher pay scale of Technician Grade-II in 2002. The petitioner has also been granted the 2nd proficiency step up after completion of 16 years of service w.e.f. 01.10.2004. 7. The Assured Career Progression Scheme is not a substitute for regular promotion. There should be at least two or three promotional avenues available for promotion to every employee to improve public service and to remove stagnation and avoid frustration amongst the employees. Petitioner’s counter parts working as Clerks in the respondent-Department have promotional avenues available to them, though the mode of recruitment and qualification for filling up the post of Clerk and Water Works Clerk are the same. Petitioner cannot be denied promotional avenues vis-à-vis Clerks, only on the ground that the cadre of the Clerks is a State cadre and the cadre of the Water Works Clerks is Circle Cadre. The petitioner is performing the duties of preparation, distribution of water bills and collection of water tax and maintaining a corresponding ledger. The respondent-State has not spelt out in what manner the duties of the petitioner are less arduous vis-à-vis Clerks, except mentioning that the Clerks in the ministerial cadre have to perform multifarious official tasks of varying nature and responsibilities. The respondent-State has designated the Water Works Clerks as Junior Technicians as per notification, dated 26.09.2000, and has released three tire pay scale to the Junior Technicians as under: “1. Senior most 20% Technicians Grade-II to be designated. Technicians Grade-I in the pay scale of Rs.4550-7200. 2. Next 30% Technicians Grade-III to be designated as Technicians Grade-II in the pay scale of Rs. 4020-6200. 3. The remaining 50% Junior Technicians to be granted the pay scale of Rs. 3120-5160. 8. Their Lordships of the Hon’ble Supreme Court in Food Corporation of India and others Vs. Parashotam Das Bansal and others (2008) 5 Supreme Court Cases 100 have held that superior courts have jurisdiction to issue directions for framing an appropriate scheme though modalities may be left to be decided by the authority concerned. Their Lordships have held as under: “9. Their Lordships of the Hon’ble Supreme Court in Food Corporation of India and others Vs. Parashotam Das Bansal and others (2008) 5 Supreme Court Cases 100 have held that superior courts have jurisdiction to issue directions for framing an appropriate scheme though modalities may be left to be decided by the authority concerned. Their Lordships have held as under: “9. Appellant is ‘'State” within the meaning of Article 12 of the Constitution of India. An employee of a State although has no fundamental right of promotion, it has a right to be considered therefor. What is necessary is to provide an opportunity of advancement; promotion being a normal incidence of service. 10. This Court in Dr. Ms. O.Z. Hussain v. Union of India [JT 1989 (9) SC 407; 1990 Supp. SCC 688], opined : "This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A' category scientists in the non-medical wing of the Directorate." 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. 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.” 9. Their Lordships of the Hon’ble Supreme Court in A. Satyanarayana and others Vs. S. Purushotham and others (2008) 5 Supreme Court Cases 416 have held that the purpose of promotion is to remove stagnation and avoid frustration amongst the 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 V. Parashotam Das Bansal). 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. 29. Whereas, on the one hand, it has been contended before us that all future promotions that is promotion from the post of Assistant Secretary upwards are given on merit, on the other hand, a cap of 10 posts has been made for all the four categories of posts. 29. Whereas, on the one hand, it has been contended before us that all future promotions that is promotion from the post of Assistant Secretary upwards are given on merit, on the other hand, a cap of 10 posts has been made for all the four categories of posts. It is one thing to say that the State evolves a policy of prescribing a reasonable quota at all levels of the promotion but it would be another thing to say that while totally ignoring the question of birthmark, a few posts shall be identified only on the basis of the original posts held by the employee concerned. To the said extent, the rule maintains a birthmark which runs counter to the decision of this Court in Dwarka Prasad V. Union of India. 30. Although mere chance of promotion is not a fundamental right, but right to be considered therefore 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 times to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India.” 10. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. The respondents are directed to frame a Scheme for providing at least two or three promotional avenues to the petitioner, within a period of eight weeks from today. The pending application(s), if any, also stands disposed of. No costs.