Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1570 (HP)

Kushal Singh Rana v. State Of H. P.

2014-11-03

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. Petitioner was appointed as Computer on 6.3.1981. He was promoted as Junior Statistical Assistant in the month of December, 2008. Respondent-State has notified rules on 16.9.2000 called the "Himachal Pradesh Department of Health and Family Welfare Statistical Assistant Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2000". According to these rules, the post of Statistical Assistant is a non-selection post. The essential qualification and other eligibility criteria required for direct recruitment/promotion for the post of Statistical Assistant read as under: 2. The method of recruitment was 66-2/3% by direct recruitment and 33-1/3% by promotion failing which by direct recruitment. The Junior Statistical Assistant, who possessed five years regular service or regular combined with continuous ad hoc service was eligible for promotion to the post of Statistical Assistant. Respondent-State framed rules called "The Himachal Pradesh, Department of Personnel, Statistical Assistant, Class-III (Non-Gazetted) Common Direct Recruitment and Promotion Rules, 2011. These were notified on 20.8.2011. Minimum Educational and other eligibility criteria required for direct recruits/promotion for the post of Statistical Assistant read as under: 3. The qualifications prescribed for direct recruitment were also made applicable for promotion. The post of Junior Statistical Assistant was taken out from the feeder category for promotion to the post of Statistical Assistant. These rules were amended by the rules called "The Himachal Pradesh Department of Personnel, Statistical Assistant, Class-III (Non-Gazetted) Common Direct Recruitment and Promotion (First Amendment) Rules, 2013. The qualification of B.Sc. (Non-Medical) was also included in the essential qualification. The post of Junior Statistical Assistant was again put in feeder category for the post of Statistical Assistant. 4. Case of the petitioner precisely is that though he was eligible and qualified for promotion to the post of Statistical Assistant as per the Recruitment and Promotion Rules, 2001 but he was not considered and the persons junior to him were considered and promoted vide Annexure P-4. 5. Mr. Anup Rattan, learned Additional Advocate General, has vehemently argued that the petitioner was not eligible and qualified for the post of Statistical Assistant. He has also argued that petitioner has not put in five years qualifying service for being considered for promotion for the post of Statistical Assistant. 6. There was no minimum educational qualification prescribed for promotion to the post of Statistical Assistant as per rules notified on 16.9.2000. Petitioner was in feeder category. He has also argued that petitioner has not put in five years qualifying service for being considered for promotion for the post of Statistical Assistant. 6. There was no minimum educational qualification prescribed for promotion to the post of Statistical Assistant as per rules notified on 16.9.2000. Petitioner was in feeder category. Junior Statistical Assistants possessing five years regular service was eligible for promotion to the post of Statistical Assistant. The qualification for promotion was only prescribed vide notification 20.8.2011 and simultaneously the post of Junior Statistical Assistant was taken out from the feeder category for promotion to the post of Statistical Assistant, which was re-inducted with slight modification in educational qualification vide notification dated 11.2.2013. Case of the petitioner was required to be considered as per rules notified on 16.9.2000. Petitioner was promoted as Junior Statistical Assistant in the month of December, 2008. He has completed five years in the month of December, 2013. The Departmental Promotion Committee was convened in the month of January, 2014. It has come on record that old vacancies were existing when the Departmental Promotion Committee was convened in the month of February, 2014. Case of the petitioner ought to have been considered strictly in accordance with the rules notified on 16.9.2000. It is settled law old vacancies are required to be filled in as per old rules and the new vacancies which have occurred after 20.8.2011 were required to be filled in as per rules notified on 20.8.2011. 7. Their Lordships of the Hon'ble Supreme Court in Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, (1983) 3 SCC 284 have held that vacancies in the promotional posts occurring prior to the amendment have to be filled up in accordance with the un-amended rules. Their Lordships have held as under: "9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their rights of being considered for promotion. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their rights of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewide basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules." 8. We have also gone through the seniority list. Persons junior to petitioner have been promoted and the petitioner has not been considered. 9. Accordingly, in view of above analysis and discussion, the writ petition is allowed. Respondents are directed to consider the case of the petitioner as per rules notified on 16.9.2000 to the post of Statistical Assistant within a period of eight weeks from today by holding Departmental Promotion Committee. In order to balance equities, we have decided not to quash the promotions of the persons, who have been promoted, though junior to the petitioner since vacancies are available. In case petitioner is found suitable to the post of Statistical Assistant, he will be entitled to all the consequential benefits. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.