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2013 DIGILAW 903 (HP)

STATE OF HP v. UJJAGAR SINGH

2013-10-22

A.M.KHANWILKAR, KULDIP SINGH

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JUDGEMENT A.M.KHANWILKAR, J. 1. HEARD counsel for the parties. As short question is involved, the appeal is taken up for final disposal forthwith, by consent. 2. THIS appeal takes exception of the decision of the learned Single Judge dated 12th November, 2010 passed in CWP (T) No. 5412 of 2008. The respondent/writ petitioner filed writ petition claiming similar benefit as given to his juniors, respondents No. 3 and 4 in the writ petition w.e.f. 1997. No doubt, the learned Single Judge has accepted the claim of the respondent/writ petitioner and issued direction to the appellants to consider the case of the respondent/writ petitioner for promotion as Horticulture Development Officer w.e.f. August, 1997, the date on which he had admittedly acquired the requisite minimum qualification of B.Sc Agriculture with Horticulture as one of the subjects, which was the requirement even under the amendment contemplated in the R&P Rules. According to the appellants, the case of the respondent/writ petitioner was considered in the DPC held on 4th January, 1997. He was found ineligible at the relevant time as per the proposed amended Rules. According to the appellants, therefore, the question of giving promotion to the respondent/writ petitioner w.e.f. August, 1997 would not arise and that the Department has justly promoted the respondent/writ petitioner only after he was found to be suitable in the next DPC convened on 19th April, 1999. 3. THE respondent/writ petitioner on the other hand would contend that the Department was obliged to consider the case of the petitioner on the basis of unamended Rules for the simple reason that the proposed amendment came into force only after publication of notification on 4th January, 1997. In that case, the writ petitioner would be eligible for being considered for promotion even in the DPC held on 4th January, 1997 itself. 4. ON perusing the impugned judgment, however, we find that there is no clear finding on this contentious issues. If the writ petitioner is right in contending that the proposed amended Rules had not come into force till 4th January, 1997, it is obvious that the DPC could not have taken the said Rules into account to declare the writ petitioner as ineligible and deny him promotion on that basis. If the writ petitioner is right in contending that the proposed amended Rules had not come into force till 4th January, 1997, it is obvious that the DPC could not have taken the said Rules into account to declare the writ petitioner as ineligible and deny him promotion on that basis. On the other hand, the stand of the Department is that the old Rules were kept in abeyance and under suspension vide notification dated 24th April, 1993 and for which reason, the same could not have been taken into account while considering the claim of the writ petitioner on 4th January, 1997, whereas DPC considered the extant Rules, which were applied in view of suspension of old Rules and as per those Rules, the qualification prescribed was not fulfilled by the writ petitioner. These are matters, which will have to be reconsidered by the learned Single Judge afresh, as we find that the judgment under appeal does not pointedly deal with all these issues raised by the respective parties. In the circumstances, we are of the considered opinion that the impugned decision be set aside and instead the writ petition be restored to the file to its original number to be heard de novo. All questions available to the parties are left open to be answered by the learned Single Judge afresh. 5. THE writ petition be included in the consolidated list for the month of December, 2013 under caption "High Court Expedited Cases". 6. ACCORDINGLY, the appeal is disposed of.