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Himachal Pradesh High Court · body

2013 DIGILAW 166 (HP)

Kuldeep Singh v. State of Himachal Pradesh

2013-03-06

RAJIV SHARMA

body2013
JUDGMENT Per Justice Rajiv Sharma, Judge. Petitioner was appointed as Laboratory Assistant (Chemistry) on 9.4.1979 in the Industries Department in Geological Wing in the pay scale of 160-400. He was confirmed on 2.9.1992 with effect from 23.4.1982. Petitioner was promoted as Technical Assistant (Chemistry) on ad hoc basis on 19.8.1987 in the pay scale of ` 700-1200. The pay scale of ` 700-1200 was revised to ` 1640-2925. Petitioner was selected for the post of Assistant Sub Inspector on 28.7.1990. He was relieved by the Industries Department on 18.9.1990. He joined his duties as Assistant Sub Inspector on 18.9.1990 in the pay scale of `1350-2400 with basic pay of ` 1530/-. At the time of leaving the Industries Department, pay of the petitioner in the pay scale of ` 1640-2925 was at ` 1760/-. Petitioner made several representations for the protection of his pay. The representation was rejected by the respondent on 31.5.2011. 2. Ms. Jyotsna Rewal Dua has vehemently argued that the petitioner should be deemed to have been promoted to the post of Technical Assistant (Chemistry) on regular basis. She also contended that the pay, which petitioner was drawing as on 1.8.1990 in the Industries Department, should have been protected on his joining as Assistant Sub Inspector on 18.9.1990. 3. Mr. Pramod Thakur, learned Additional Advocate General has strenuously argued that since the petitioner was promoted on ad hoc basis as Technical Assistant (Chemistry), the pay of the petitioner cannot be protected. He further contended that the petition is barred by delay and laches. 4. I have heard the learned counsel for the parties and have perused the record carefully. 5. According to the record produced by the respondent-State, decision was taken to amend the Himachal Pradesh, Industries Department Class-III Technical (Geological Wing) Service (Recruitment, Promotion and certain conditions of service) Rules, 1974. According to the proposal dated 1.4.1986, there were two posts of Technical Assistant (Chemistry) and two posts of Laboratory Assistants. However, there was no further channel of promotion for Laboratory Assistants in the Recruitment and Promotion Rules. The essential qualification in the Recruitment and Promotion Rules for the post of Laboratory Assistant was B.Sc. and equivalent qualification with Chemistry as such. In view of this, the promotion of Laboratory Assistant to the post of Technical Assistant (Chemistry) was justified. However, there was no further channel of promotion for Laboratory Assistants in the Recruitment and Promotion Rules. The essential qualification in the Recruitment and Promotion Rules for the post of Laboratory Assistant was B.Sc. and equivalent qualification with Chemistry as such. In view of this, the promotion of Laboratory Assistant to the post of Technical Assistant (Chemistry) was justified. Initially, as per the Recruitment and Promotion Rules promulgated in the year 1974, the post of Technical Assistant was to be filled up 100% by way of direct recruitment. By way of draft Recruitment and Promotion Rules, the same was to be filled up 50% by direct recruitment and 50% from Laboratory Assistant with Chemistry with five years service in the cadre, failing which by way of direct recruitment. Petitioner was promoted by the duly constituted Departmental Promotion Committee to the post of Technical Assistant in the pay scale of ` 700-1200 on ad hoc basis in its meeting held on 12.8.1987. The promotion was extended on 12.5.1988 and 21.3.1989. New Recruitment and Promotion Rules framed under Article 309 of the Constitution of India were notified on 19.12.1997. The draft rules submitted on 1.4.1986 were approved and the post of Technical Assistant (Chemistry) is to be filled up 50% by promotion from amongst the Laboratory Assistants, who are possessing B.Sc. (Chemistry) with seven years regular service or regular combined with continuous ad hoc and 50% by direct recruitment. However, the fact of the matter is that the petitioner by the time the Recruitment and Promotion Rules were notified had joined as Assistant Sub Inspector on 18.9.1990 in the pay scale of ` 1350-2400 with basic pay of ` 1530/-. The petitioner was drawing the pay of ` 1760/- in the Industries Department while working as Technical Assistant (Chemistry). Case of the petitioner has been rejected on 13.5.2011 as per Annexure P-11 primarily on the ground that the petitioner cannot be considered for promotion on regular basis in the year 1987 on the basis of the Recruitment and Promotion Rules notified in the year 1997, which provides for filling up 50% posts of Technical Assistant by promotion. 6. Case of the petitioner was considered for promotion on the basis of the draft Recruitment and Promotion Rules. 6. Case of the petitioner was considered for promotion on the basis of the draft Recruitment and Promotion Rules. According to the draft Recruitment and Promotion Rules, the posts of Technical Assistant (Chemistry) were to be filled up 50% by promotion and 50% by direct recruitment. 7. There was no further channel for promotion available to the Laboratory Assistants. The minimum educational qualification for the posts of Laboratory Assistant and Technical Assistant was B.Sc. This aspect has been taken into consideration by the Industries Department while framing the draft Recruitment and Promotion Rules. These rules have been approved on 19.12.1997. Petitioner had put in more than eight years service at the time of his consideration for promotion on ad hoc basis by the Departmental Promotion Committee. In the draft Recruitment and Promotion Rules, five years length of service was required in the grade and in the final rules notified on 19.12.1997, seven years regular service or regular combined with continuous ad hoc service in the grade is required. 8. Their Lordships of the Hon’ble Supreme Court in Vimal Kumari versus State of Haryana and others, (1998)4 SCC 114 have held as under: “6. The Draft Rules were prepared in 1983 and since then they have not been enforced. It is, no doubt, open to the government to regulate the service conditions of the employees for whom the Rules are made by those Rules even in their "draft stage" provided there is clear intention on the part of the government to enforce those Rules in the near future. Recourse to such Draft Rules is permissible only for the interregnum to meet any emergent situation. But if the intention was not to enforce or notify the Rules at all, as is evident in the instant case, recourse to "Draft Rules" cannot be taken. Such Draft Rules cannot be treated to be Rules made under Article 309 of the Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subjects covered by the Draft Rules nor can such Draft Rules exclude the jurisdiction of the government, or for that matter, any other authority, including the appointing authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them. 7. In the instant case, as pointed out above, the Draft Rules were prepared in 1983. 7. In the instant case, as pointed out above, the Draft Rules were prepared in 1983. They have been lying in a nascent state since then. In the meantime, many promotions, including that of the appellant were made on the basis of. "seniority" which, in the absence of any Rule made under Article 309, could be legally adopted as the reasonable basis for promotion. Seniority having thus been adopted as the criteria for making promotion on the post of Superintendent could not have been displaced by the Draft Rules and the High court could not have invoked any provision of those Draft Rules which have been lying frozen at their embryonic stage for more than ten years. 8. In the absence of any decision of the State government that so long as the Draft Rules were not notified, the service conditions of the appellant or the respondent and their other colleagues would be regulated by the "Draft Rules" prepared in 1983, it was not open either to the government or to any other authority, nor was it open to the High court, while disposing of the writ petition, to invoke any of the provisions of those Rules particularly as the government has not come out with any explanation why the Rules, though prepared in 1983, have not been notified for the long period of more " than a decade. The delay, or rather inaction, is startling.” 9. In view of this, petitioner’s promotion to the post of Technical Assistant (Chemistry) will be deemed to be on regular basis instead of ad hoc basis, more particularly, when the draft rules have been approved on 19.12.1997. The basic pay of the petitioner, i.e. ` 1760/- ought to have been protected at the time when the petitioner joined his duties as Assistant Sub Inspector on 18.9.1990 in the pay scale of ` 1350-2400. 10. There is no merit in the contention of Mr. Pramod Thakur, learned Additional Advocate General that there is delay and laches. Petitioner has made several representations and the last representation of the petitioner has been rejected only on 31.5.2011 and the present petition was filed on 19.11.2011. There is continuous cause of action since the petitioner was getting less pay every month. 11. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. Annexure P-11 dated 31.5.2011 is quashed and set aside. There is continuous cause of action since the petitioner was getting less pay every month. 11. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. Annexure P-11 dated 31.5.2011 is quashed and set aside. The petitioner will be deemed to have been promoted on regular basis as Technical Assistant (Chemistry) with effect from 19.8.1987. Respondents are directed to protect the pay of the petitioner at ` 1760/-drawn by him on 1.8.1990 in the Industries Department on his appointment as Assistant Sub Inspector with all the consequential benefits, within a period of eight weeks from today. Pending application (s), if any, also stands disposed of. There shall, however, be no order as to costs.