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Himachal Pradesh High Court · body

2014 DIGILAW 1668 (HP)

Raj Kumar-II v. State of H. P.

2014-11-18

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : Mansoor Ahmad Mir, J. In all these four writ petitions, the petitioner(s) have called in question Rule 11 (a) of the Recruitment and Promotion Rules, dated 6.4.2012, Annexure P4, so far the same relates to promotion to the post of Block Development Officer, on the grounds taken in the memo of writ petitions. Thus, we deem it proper to determine all these writ petitions by this common judgment. 2. Precisely, the case of the petitioner(s) is that they were appointed in terms of the Recruitment and Promotion Rules, as clerks having requisite qualification of matriculate vide different orders of the different dates and were also designated as Senior Clerks and thereafter as Junior Assistants in the respondents department. 3. The Recruitment and Promotion Rules, hereafter referred to as “the Rules” for short, went through a sea change for the post of Superintendent Grade-II on 18.7.1996 vide Annexure P1 and promotion to the post(s) of Superintendent Grade-II was to be made by promotion from amongst Senior Assistants having 8 years regular service. The petitioner(s) came to be promoted against the said post on regular basis and that post is ladder cadre to the post of Block Development Officer Class-I Gazetted- by promotion. 4. On 7.10.2003, the Government issued Annexure P2, which contained that in terms of Rule 10, the post(s) of Block Development officer were to be filled up 50% by direct recruitment and 50% by promotion and in terms of the mandate of Rule 11 of the Rules, out of 50% promotion quota, 10% posts were to be filled up from amongst the Superintendents Grade-II, who were matriculate and who were possessed of 5 years of regular service or regular combined with continuous ad hoc service in the Grade. The petitioner(s) were expecting promotion against the 10% quota against the post of Block Development Officer and Seniority List was issued on 19th September, 2011, vide Annexure P3 and the petitioner(s) are figuring in the said list. The petitioners have completed the requisite service/experience but unfortunately, a notification was issued on 6.4.2012, Annexure P4 whereby the amendment to the Rules was made for the post of Block Development Officer. The petitioners have completed the requisite service/experience but unfortunately, a notification was issued on 6.4.2012, Annexure P4 whereby the amendment to the Rules was made for the post of Block Development Officer. In terms of the said notification though, the quota of Superintendents Grade-II was increased from 10% to 15% but eligibility for promotion was restricted only for Superintendents Grade-II, who were Graduates, thereby taking away the right of the petitioner(s)-Superintendents Grade-II matriculate which is stated to be arbitrary, malafide, unjust, unfair and discriminatory. The Superintendents Grade-II Matriculate and Superintendents Grade-II Graduates are holding the same post(s) and are having the same experience but without any rationale, they have been made ineligible by providing that only Superintendents Grade-II Graduates can be promoted to the post(s) of Block Development Officer. It is also the case of the petitioner(s) that as on today, they are holding the posts of Block Development Officer(s) despite of Annexure P4, i.e., the notification dated 6.4.2012 whereby the Rules were amended. 5. The respondents have filed the reply and resisted the petitions on the ground that it is the discretion of the Government to prescribe the qualification for promotion quota and they are within their rights to make amendments in order to have better experienced, qualified and expert officers. The respondents have given details why the amendment was made, in the preliminary objections of the reply filed by them. 6. We have gone through the documents produced by the writ petitioners and also by the respondents-State which do disclose that the writ petitioner(s) were not heard before making the amendment and it appears to have been made on the basis of notings and other things made by the interested persons, i.e., the Superintendents Grade-II Graduates. However, the amendment is made by the Government and the question is whether it can be called in question? 7. It is beaten law of the land that the amendment can be questioned provided it is shown that the same is ultra vires or is discriminatory. 8. While going through the record, it appears that petitioner(s) have failed to carve out a case for declaring the said amendment ultra vires but at the same time, they have been able to carve out a case that the amendment is discriminatory for the following reasons. 9. 8. While going through the record, it appears that petitioner(s) have failed to carve out a case for declaring the said amendment ultra vires but at the same time, they have been able to carve out a case that the amendment is discriminatory for the following reasons. 9. The petitioner(s) have given details how many officers are holding the post(s) of Superintendents Grade-II and are matriculate and how many officers are Graduates. Virtually, the amendment has deprived them from their right of promotion and it has taken their right of consideration for promotion for the post(s) of Block Development Officer. The fact that as on date, some of the Superintendents Grade-II Matriculates are holding the post(s) of Block Development Officer on ad hoc basis, has not been denied by the respondents-State. The petitioner(s) have placed on record Annexure P7/1 to Annexure P7/4 in CWP No. 402 of 2014, showing that despite the amendment, some of the Superintendents Grade-II who are matriculates, are holding the post(s) of Block Development Officer and there is specific averment to this effect contained in para 12 (n) of the said petition which is also not denied by the respondents. It is apt to reproduce para 12 (n) of the said petition herein: “That once even after the issuance of the amended rules of 2012 the Respondents have made the Matriculate Supdt Gr-II-alike the petitioner to perform the work of the promotional post of BDO vide Annexures P-7/1 to Annexure P-7/4 then, the impugned amendment ousting Matriculate Supdt Gr-II-petitioner from being given an equal opportunity to be considered for formal promotion as BDO is based on no classification, no rationale, is arbitrary, malafide, discriminatory and is violative of Articles 14, 16 and 21 of the Constitution of India.” 10. The learned counsel for the petitioner(s) have also argued that some of the Matriculates Superintendents Grade-II have improved their qualifications and otherwise, they can do it till the time they enters into the consideration room but the petitioners have been left high and dry for the reasons that they have no time to improve their qualifications because of pressure on their head. The learned counsel for the petitioner(s) have also cited judgment in support of their case in case titled T.R. Kapur and others vs. State of Haryana and others 1986 (suppl.) SCC 584. The learned counsel for the petitioner(s) have also cited judgment in support of their case in case titled T.R. Kapur and others vs. State of Haryana and others 1986 (suppl.) SCC 584. It is apt to reproduce paras 5 and 15 of the said judgment herein. “5. Shri Shanti Bhushan, learned counsel for the petitioners has put forward a three-fold contention. First of these submissions is that the impugned notification which purported to amend Rule 6(b) of the Class I Rules with retrospective effect from July 10, 1964 making a degree in Engineering essential for promotion to the post of Executive Engineer in Class I service constitutes a variation in the conditions of service applicable to officers belonging to Class II service who are diploma holders like the petitioners prior to the appointed day i.e. November 1, 1966 to their disadvantage as it renders them ineligible for promotion to the post of Executive Engineer in Class I service and was ultra vires the State Government having been made without the previous approval of the Central Government as enjoined by the proviso to Section 82(6),of the Punjab Reorganisation Act, 1966. It is urged that any rule which affects the promotion of a person relates to his conditions of service, although mere chances of promotion may not be. The contention, in our opinion, must prevail. The second is that it was not permissible for the State Government to amend Rule 6(b) of the Class I Rules with retrospective effect under the proviso to Art. 309 of the Constitution so as to render ineligible for promotion to the post of Executive Engineer in Class I service, the members of Class II service who are diploma-holders although they satisfy the condition of eligibility of eight years' experience in that class of service. It is said that the unamended Rule 6(b) conferred a vested right on persons like the petitioners which could not be taken away by retrospective amendment of Rule 6(b). The third and the last submission is that the action of the State Government in issuing the impugned notification making retrospective amendment of Rule 6(b) of the Class I Rules was wholly arbitrary, irrational and mala fide and thus violative of Arts.14 and 16(1) of the Constitution. The third and the last submission is that the action of the State Government in issuing the impugned notification making retrospective amendment of Rule 6(b) of the Class I Rules was wholly arbitrary, irrational and mala fide and thus violative of Arts.14 and 16(1) of the Constitution. It is submitted that the impugned notification was calculated to circumvent the direction given by this Court in its order dated February 24, 1984 on the basis of the undertaking given by the learned Additional Solicitor General that the State Government would consider the cases of all eligible officers belonging to Class II service for promotion to the Class- I service. 6-14………. 15. More fundamental is the contention that the impugned notification issued by the State Government purporting to amend Rule 6(b) with retrospective effect from July 10, 1964 which rendered members of Class II Service who are diploma holders like the petitioners ineligible for promotion to the post of Executive Engineer although they satisfied the condition of eligibility of 8 years' experience in that class of service was unreasonable, arbitrary and irrational and thus offended against Arts. 14 and 16(1) of the Constitution. It is urged that they were eligible for promotion under the unamended Rule 6(b) of the Class I Rules and had a right to be considered for promotion to the post of Executive Engineer, and a retrospective amendment of Rule 6(b) seeking to render them ineligible was constitutionally impermissible. It is said that the reason for this was obvious inasmuch as immediately prior to the reorganization of the State of Punjab i.e. prior to November 1, 1966 even a member of the Overseers Engineering Service, a Class III Service, having only a diploma was eligible for being promoted as Executive Engineer in Class I Service in due course since in the matter of promotion under the unamended Rule 6(b) it was not necessary to possess a degree in Engineering as held by this Court in A.S. Parmar's case. It follows therefore that every member of the Overseers Engineering Service was eligible for promotion first as Assistant Engineer or Sub-Divisional Officer in Class II Service and thereafter, in due course, to the post of Executive Engineer in Class I Service even without the educational qualification of a degree in Engineering. It follows therefore that every member of the Overseers Engineering Service was eligible for promotion first as Assistant Engineer or Sub-Divisional Officer in Class II Service and thereafter, in due course, to the post of Executive Engineer in Class I Service even without the educational qualification of a degree in Engineering. In substance, the submission is that a retrospective amendment of Rule 6(b) by the impugned notification which seeks to take away the eligibility of members of Class II Service who are diploma-holders for purposes of promotion to the posts of Executive Engineers in Class I Service from a back date ranging over 20 years and thereby renders invalid the promotions already made is constitutionally impermissible. 11. It is apt to reproduce para 2 of the judgment in T.N. Document Writers’ Association vs. State of T.N. and another, 1995 (Suppl.) 4 SCC 415, herein: “2. It appears to us, however, that having regard to the sudden change in qualification prescribed by the Government, it is necessary and it will also be equitable on the part of the Government to give to the members of the Association, having their licences in earlier years, an adequate opportunity to qualify themselves as required by the amended rules. We, therefore, consider it reasonable to hold that the new rules should not be implemented in respect of persons who had been having licenses prior to August 4, 1989, unless they fail to qualify in the higher writing examination within such reasonable period not less than three years from today as the government may prescribe. We hope the Government will implement this by issuing orders to this effect immediate. The appeal is disposed of accordingly.” 12. The learned counsel for the petitioner(s) have also placed reliance on the judgment reported in A. Satyanarayana & ors. versus S.S. Purshotham & ors., reported in (2008) 5 SCC 416 . It is apt to reproduce paras 23, 28, 30 and 34 of the said judgment herein: “23. We, however, are of the opinion that the validity or otherwise of a quota rule cannot be determined on surmises and conjectures. Whereas the power of the State to fix the quota keeping in view the fact situation obtaining in a given case must be conceded, the same, however, cannot be violative of the constitutional scheme of equality as contemplated under Articles 14 and 16 of the Constitution of India. Whereas the power of the State to fix the quota keeping in view the fact situation obtaining in a given case must be conceded, the same, however, cannot be violative of the constitutional scheme of equality as contemplated under Articles 14 and 16 of the Constitution of India. There cannot be any doubt whatsoever that a policy decision and, in particular, legislative policy should not ordinarily be interfered with and the Superior Courts, while exercising their power of judicial review, shall not consider as to whether such policy decision has been taken mala fide or not. But where a policy decision as reflected in a statutory rule pertains to the field of subordinate legislation, indisputably, the same would be amenable to judicial review, inter alia, on the ground of being violative of Article 14 of the Constitution of India. {See Vasu Dev Singh & Ors. v. Union of India & Ors. [2006 (1) SCALE 108] and State of Kerala & Ors. v. Unni & Anr. [ (2007) 2 SCC 365 ]. 24 to 27………….. 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 subserve the object in place of subverting the same. 29………. 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. 31 to 33…….. 34. 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. 31 to 33…….. 34. A statutory rule, it is trite law, must be made in consonance with constitutional scheme. A rule must not be arbitrary. It must be reasonable, be it substantive or a subordinate legislation. The Legislature, it is presumed, would be a reasonable one. Indisputably, the subordinate legislation may reflect the experience of the Rule maker, but the same must be capable of being taken to a logical conclusion.” 13. It appears that the Superintendents Grade-II Matriculates and Superintendents Grade-II Graduates are having the same experience and both are having sufficient experience and that is why the Superintendents Grade-II Matriculates are manning the post(s) of Block Development Officers despite the amendment, but this aspect has not been looked into while making the amendment, which is an important factor which leads in favour of the petitioner(s). 14. The apex Court in case titled B. N. Saxena versus New Delhi Municipal Committee and others reported in (1990) 4 SCC 205 held that experience gained for a considerable length of time is itself a qualification. It is apt to reproduce paras 6 and 7 of the said judgment herein: “6. The question is whether the petitioner possesses the prescribed qualification. The revised rules provide alternate qualifications for the post of Head Draftsman. The first part of the rule prescribes a diploma with a minimum of three years service as Senior Draftsman in the scale of Rs.250-400. The second limb of the revised rule refers to the service rendered by the candidate. It provides for six years of service as Senior and Junior Draftsman. The first part of the rule is almost similar to the qualification prescribed prior to the amended rules. The old rule provided: "Matric with Diploma/certificate in Draftsmanship from a recognized institution with 3 years experience in preparation of Engineering Drawings in an Electric supply undertaking or an engineering manufacturing organization." 7. The second limb of the rule was evidently, to benefit all those persons who have gained sufficient experience as Senior and Junior Draftsmen without possessing any qualification. The old rule provided: "Matric with Diploma/certificate in Draftsmanship from a recognized institution with 3 years experience in preparation of Engineering Drawings in an Electric supply undertaking or an engineering manufacturing organization." 7. The second limb of the rule was evidently, to benefit all those persons who have gained sufficient experience as Senior and Junior Draftsmen without possessing any qualification. Experience gained for a considerable length of time is itself a qualification (See the observation in State of U.P. v. J. P. Chaurasia, 1989 (1) SCC 121 : ( AIR 1989 SC 19 ). It would be unreasonable to hold that in addition to this considerable experience, one must also have the diploma qualification prescribed under the first part. It could not have been the intention of the rule making authority that persons who were designated as Senior Draftsmen, without any Diploma qualification should acquire such diploma qualification for further promotion. Such, a view would not be consistent and coherent with the revised rule and its object. We have no doubt that the second limb of the revised rule is independent of the first. The High Court seems to have erred in this aspect of the matter.” 15. Further reliance was placed on Deepak Agarwal and anr. Versus State of Uttar Pradesh and ors. (2011) 6 SCC 725 and it is apposite to reproduce paras 6 and 33 of the said judgment herein. “6. In spite of the representation made by the appellants, the 1983 Rules were amended on 17th May, 1999. By the aforesaid amendment, the posts of Technical Officers and Statistical Officers have been excluded from the feeder cadre for promotion to the post of Deputy Excise Commissioner. This amendment came just two days before the DPC was scheduled to meet on 19th May, 1999. As a consequence of the amendment, the DPC did not consider the appellants for promotion. The justification given for the aforesaid amendment is that the State Government had taken a "conscious decision" to exclude the Technical Officers and Statistical Officers as they were not fit for the post of Deputy Excise Commissioner because of their peculiar qualifications, duties, responsibilities and work experience. However, to compensate for loss of promotion, the pay scale of these two posts has been upgraded to the level of Deputy Excise Commissioner. 7. to 32…………. 33. However, to compensate for loss of promotion, the pay scale of these two posts has been upgraded to the level of Deputy Excise Commissioner. 7. to 32…………. 33. It may be that the removal of the two posts from the feeder cadre would lead to some stagnation for the officers working on the two aforesaid posts. In fact, the Government seems to recognize such a situation. It is perhaps for this reason that the posts have been upgraded to the post of Deputy Excise Commissioner. However, mere upgradation of the post may not be sufficient compensation for the officers working on the two posts for loss of opportunity to be promoted on the post of Deputy Excise Commissioner. In such circumstances, the Government may be well advised to have a re-look at the promotion policy to provide some opportunity of further promotion to the officers working on these posts. With these observations, the impugned judgment is affirmed and the appeal is accordingly dismissed with no order as to costs.” 16. The same principles have been laid in case titled Rajni Sharma versus State of H.P. and another, reported in 2010 (2) Shim.L.C. 155 , that the experience gained for a considerable length of time is itself a qualification. 17. The reliance is placed on the judgment reported in case titled B. Manmad Reddy & ors versus Chandra Prakash Reddy & ors. (2010) 3 SCC 314 . It is apt to reproduce paras 15, 18 and 19 of the said judgment herein. “15. This Court in Triloki Nath case held that a classification must be truly founded on substantial differences that distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved. Having said so, this Court observed: 33. Judged from this point of view, it seems to us impossible to accept the respondents' submission that the classification of Assistant Engineers into degree-holders and diploma- holders rests on any unreal or unreasonable basis. The classification, according to the appellants, was made with a view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly co-related to it, for higher educational qualifications are at least presumptive evidence of a higher mental equipment. The classification, according to the appellants, was made with a view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly co-related to it, for higher educational qualifications are at least presumptive evidence of a higher mental equipment. This is not to suggest that administrative efficiency can be achieved only through the medium of those possessing comparatively higher educational qualifications but that is beside the point. What is relevant is that the object to be achieved here is not a mere pretence for an indiscriminate imposition of inequalities and the classification cannot be characterized as arbitrary or absurd. That is the farthest that judicial scrutiny can extend." The Court also observed that the classification made on the basis of educational qualifications with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstance and one has always to bear ion mind the facts and circumstances of the case in order to judge the validity of a classification.” 16-17……… 18. That leaves us with the question whether any imbalance among those eligible for appointment against class II category 1 posts coming from different sources and categories would itself justify a classification like the one made in Note 6. Our answer is in the negative. There is no gainsaying that classification must rest on a reasonable and intelligible basis and the same must bear a nexus to the object sought to be achieved by the statute. By its very nature classification can and is often fraught with the danger of resulting in artificial inequalities which make it necessary to subject the power to classify to restraints lest the guarantee of equality becomes illusory on account of classifications being fanciful instead of fair, intelligible or reasonable. 19. We may gainfully extract the note of caution sounded by Krishna Iyer J. in his Lordship's separate but concurring judgment in Triloki Nath's case (supra): "56........The dilemma of democracy is as to how to avoid validating the abolition of the difference between the good and the bad in the name of equality and putting to sleep the constitutional command for expanding the areas of equal treatment for the weaker ones with the dope of "special qualifications" measured by expensive and exotic degrees. These are perhaps meta-judicial matters left to the other branches of Government, but the Court must hold the Executive within the leading strings of egalitarian constitutionalism and correct, by judicial review, episodes of subtle and shady classification grossly violative of equal justice. That is the heart of the matter. That is the note that rings through the first three fundamental rights the people have given to themselves." 18. It is moot question whether the State has made the amendment on the foundation of substantial differences and it is also moot question whether the State has made this amendment and carved out substantial differences and has been able to distinguish persons grouped together from those left out of the group. Whether the State has taken into consideration that the classification made within the class is legally permissible. 19. The learned counsel for the petitioner(s) have also placed reliance on the judgments reported in Re The Special Courts Bill, 1978 (1979) 1 SCC 380 (Para 72), A.S. Parmar and others vs. State of Haryana and others and connected matters 1984 (Suppl.) 1 SCC 1 (paras 9-10) Dr. (Mrs) Sushma Sharma and others vs. State of Rajasthan and others 1985 (Supl.) SCC 45 (para 32) M.P. Singh, Deputy Superintendent of Police, C.B.I. and others vs. Union of India and others (1987) 1 SCC 592 (Paras 5, 11 and 12), Inder Singh and others vs. State of U.P. and others 1987 (Suppl.) SCC 257 (Para 9), Punjab Higher Qualified Teachers, Union vs. State of Punjab and others (1988) 2 SCC 407 ( Paras 11-12) and Union of India and others vs. Anil Kumar and others (1999) 5 SCC 743 (Para 26), wherein same and similar principles of law have been laid down. 20. Keeping in view the aforesaid discussion, one comes to an inescapable conclusion that the writ petitioner(s) have experience and are under legal and legitimate expectation to get promotion to the post(s) of Block Development Officer read with the fact that there are some persons, who are still manning the post(s) of Block Development Officers, we deem it proper to direct the respondents-State to consider the case of the petitioner(s) for relaxation, including all those who are not in a position to seek reliefs for grant of promotion or for relaxation, so that, they may not meet with discrimination. It is also important factor which weigh with us that there is no time to improve qualification, but at the same time, by the amendment, they cannot be shown door at the whims of the State without any reasonable cause. 21. Accordingly the writ petition(s) are disposed of by directing the respondents to consider the case of the petitioner(s) for relaxation or making a provision for them, so that, they can be considered for promotion against the said post(s). The entire exercise be made within three months from today. 22. The pending application(s), if any, are also disposed of.