Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1247 (HP)

Dalip Thakur v. High Court Of H. p.

2017-11-10

AJAY MOHAN GOEL, SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. - The petitioner herein, is an aspirant to the post(s) of Superintendent, Grade-I existing upon the establishments of District and Sessions Judges, posted in Himachal Pradesh. In pursuance to a circular, issued on 5th July, 2016, for filling up post(s) of Superintendent, Grade-I, in the establishments of District and Sessions Judges, posted in Himachal Pradesh, the petitioner herein made an application, for his being considered for selection besides appointment thereto. However, in pursuance to his making an application, no call letter was served upon petitioner, for eliciting his participation in the apposite viva voce. Subsequent thereto, yet prior to his instituting the instant petition, the petitioner made a representation vis-a-vis the Registrar General, High Court of H.P., for his being considered for selection besides appointment to the post of Superintendent, Grade-I, occurring in the establishment(s) of District and Sessions Judges, posted in Himachal Pradesh. The aforesaid representation, stood, as borne by Annexure-II of 23/24.12.2016, hence rejected. Since, the grounds meted in the rejected representation of the petitioner are parameteria vis-a-vis the grounds meted in the extant writ petition, especially qua thereupon direction(s) being meted to the respondent, for his being considered for selection besides appointment to the post(s) of Superintendent, Grade-I, existing or as may occur in the establishments of District and Sessions Judges, posted in Himachal Pradesh, thereupon, dehors the petitioner not challenging the order rejecting his representation, this Court would yet proceed, to dwell upon the efficacy(ies) of the grounds meted in the writ petition, given theirs bearing congruity vis-a-vis the grounds meted in his rejected representation addressed to the respondent. Before dwelling upon the efficacy of the grounds meted in the writ petition, specifically the one appertaining, to validity besides application vis-a-vis him, of the apposite Rules, of 1996, it is apt to extract the hereinafter relief(s) prayed in the writ petition:- "(a) That the amendment of rules of 1996 are not applicable to the petitioner. Even otherwise note below Rule-iii of Himachal Pradesh Court Act, 1996, protects the petitioner as he is already working as Superintendent Grade-II, on regular basis at the time of the advertisement of the post of Superintendent in the office of District and Sessions Judge in the State of Himachal Pradesh by the respondent. Even otherwise note below Rule-iii of Himachal Pradesh Court Act, 1996, protects the petitioner as he is already working as Superintendent Grade-II, on regular basis at the time of the advertisement of the post of Superintendent in the office of District and Sessions Judge in the State of Himachal Pradesh by the respondent. b) That if this Hon''ble Court does not find favour with the submission of prayer (a), one time relaxation under rule -7 of Himachal Pradesh Court Act, 1976 may kindly be granted to the petitioner. c) That the respondent may kindly be directed to allow the petitioner to participate in the interview to be held from 26.12.2016 to 28.12.2016." The record bears out the factum of the relief occurring, at clause (c) standing granted vis-a-vis him, by this Court under an order rendered on 26.12.2016 in CMP No. 10654 of 2016, whereby, this Court permitted the petitioner, to participate in the relevant selection process, thereupon, any pronouncement thereon is unnecessary, it being rendered infructuous also a pronouncement vis-a-vis the reliefs occurring at clauses (a) & (b), is merely an academic exercise, for making an endeavour for settling a binding interpretation upon the apposite Rules of 1996. 2. As borne out on a reading of Annexure P-4, the relevant Rule 4, stood amended by a notification of 22nd August, 1983, comprised in substitution(s) thereto, in the hereinafter extracted manner, being effected, vis-a-vis the apposite Rule 4 of the apposite Rules :- "The existing rule 4 of the Rules shall be substituted as under:- (i) The High Court shall maintain a panel of candidates accepted for appointments as Superintendents. This list shall ordinarily contain such number of candidates as can be absorbed within two years. (ii) The post of Superintendent to the District and Sessions Judge shall be a selection post and shall form a State Cadre. (iii) The minimum educational qualification for the post of Superintendent will be graduate or 15 years experience in the feeder post. However, preference will be given to those candidates who are law-graduates. (iv) For the purpose of drawing panel of candidates referred to in sub-rule (I) above, the High Court will call for the recommendations of all the District and Sessions Judges in Himachal Pradesh. However, preference will be given to those candidates who are law-graduates. (iv) For the purpose of drawing panel of candidates referred to in sub-rule (I) above, the High Court will call for the recommendations of all the District and Sessions Judges in Himachal Pradesh. Each District & Sessions Judge will sponsor to the High Court the names of only two candidates working in his Sessions and Civil Division after selecting them on the basis of merit-cum-seniority from amongst the ministerial staff carrying a scale of 570-10180 or its revised scale. Where as District & Sessions Judge is not recommending the names of the Senior Most officials, he shall also send their full particulars along with detailed reasons for not recommending them. The Annual confidential Dossiers and service records of the sponsored candidates as well as those who are senior to them will also be sent to the High Court while making recommendations. (v) The High Court shall hold a qualifying test which the officials sponsored by the District & Sessions Judges shall be eligible to appear. The High Court may also allow an official who has not been sponsored but is senior to the sponsored candidates of the Division to appear in the test. The syllabus for the qualifying test shall be prescribed by the Hon''ble Chief Justice and his companion Judges. The confidential reports of those candidates who successfully qualify the test will be taken into consideration. The overall merit of the candidates being equal in any case due regard will be given to the seniority and for this purpose, the seniority would be taken into account in the grade of Rs. 570-1080 or its revised scale according to length of service in that scale." The aforesaid amendment, carried, in the year 1983 vis-a-vis Rule 4 of the apposite Rules, enjoined upon the aspirants concerned vis-a-vis the posts of Superintendent(s), existing in the establishments, of District and Sessions Judges, posted in Himachal Pradesh, to (i) at the relevant stage peremptorily hold a graduate degree or (ii) in alternative thereto, they were, enjoined to hold 15 years experience in the feeder category, carrying a pay scale of Rs. 570-1080 or its revised scale. Subsequent thereto, as borne by Annexure P-5, of 20th January, 1996, another amendment was effected visa-vis sub rules (iii) and (iv) to Rule 4 of the apposite Rules. 570-1080 or its revised scale. Subsequent thereto, as borne by Annexure P-5, of 20th January, 1996, another amendment was effected visa-vis sub rules (iii) and (iv) to Rule 4 of the apposite Rules. The hereinafter extracted sub rules (iii) and (v) in supplantation, of the hitherto sub rules (iii) and (v), of Rule 4 of the apposite Rules, were hence, brought in the statute book:- "(iii) The superintendent Grade-II in the courts subordinate to the High Court with a minimum educational qualification of graduates from a recognized university shall form a feeder category for the post of Superintendents. Note: - However, this sub rule shall not apply to those candidates who have already been appointed as such on regular basis. (iv) The selection to the post of Superintendents will be made either on the basis of service record or on the basis of oral and/or written examination as may be prescribed by the High Court." 3. Apparently the extantly prevailing sub rules (III) & (IV), of Rule 4 of the Apposite Rules, hence, abrogate the earlier therewith imperative conditions, (i) of the aspirants to the post of Superintendent, holding, a graduate degree or (ii) in alternative thereto, theirs holding 15 years experience in the feeder category, carrying a pay scale of 5701080 or its revised scale, (iii) rather nowat the aspirants are compulsorily required, to, at the time contemporaneous vis-a-vis the occurrence of vacancy, hence, hold a graduation degree from a recognized university also the aspirant concerned is obliged to hold thereat the apposite feeder post, of Superintendent Grade-II, in the courts subordinate to the High Court, (iv) also the aforesaid post of Superintendent Grade-II in the courts subordinate, to the High Court, is constituted to be the solitary feeder category, for enabling the aspirants concerned, to aspire for, for selection besides for appointment, to the post of Superintendent in the establishments of District and Sessions Judges, posted in Himachal Pradesh. Nonetheless, a proviso thereto, is comprised in a note appended there underneath, wherein, (v) it is ordained of the mandate of amended sub rule (iii) of Rule 4 of the apposite Rules of 1996 remaining inoperative vis-a-vis those candidate(s), who stand prior thereto appointed on a regular basis, in the feeder category concerned. 4. Nonetheless, a proviso thereto, is comprised in a note appended there underneath, wherein, (v) it is ordained of the mandate of amended sub rule (iii) of Rule 4 of the apposite Rules of 1996 remaining inoperative vis-a-vis those candidate(s), who stand prior thereto appointed on a regular basis, in the feeder category concerned. 4. The learned counsel appearing, for the writ petitioner, contends that the substituted sub rule (iii) of Rule 4 of the apposite Rules of 1996, rules whereof stand borne in Annexure P-5, working hardship vis-a-vis the petitioner given (I) its substituting the earlier therewith apposite sub rule(s) carried in the notification of 1983, wherein, the aspirants were required, to, at the time contemporaneous to the arising of the apposite vacancy(ies), besides were statutorily obliged to possess (a) graduation degree or (b) in the alternative thereto, were, enjoined to hold 15 years experience in the feeder category, holding a pay scale of 570-1080 or its revised scale, whereas, (c) abrogation of the condition alternative, to the primary condition appertaining to the aspirant concerned holding a graduation degree from, a recognized university, has encumbered upon petitioner, who evidently does not hold the peremptory educational qualification, ordained in the substituted sub rule (iii) of Rule 4, of the apposite Rules 1996, as borne in Annexure P-5, with hence an onerous hardship, of his further promotions in the hierarchy of service, being obviously frustrated, (II) he contends that the prescription in Annexure P-5, of the apt relevant cut off date, being recknonable on 20.01.1996, for thereupon the clout of the proviso to sub rule (iii) of Rule 4, of the apposite Rules of 1996, holding sway, whereunder, the primary obligation cast, in the amended sub rule (iii) to Rule 4, of the apposite Rules, upon the aspirant concerned, comprised in his imperatively possessing a graduation degree, is per se arbitrary also it creates an unreasonable classification, (III) besides its being not founded upon any intelligible defferentia nor its holding any nexus with the apposite feeder category of Superintendent (s) Grade-II, being necessarily thereafter being enjoined to hold a graduation degree visa-vis the ouster from its play qua the earlier therewith regularly appointed candidate(s) vis-a-vis the post of Superintendent Grade-II, in the courts subordinate to the High Court. 5. 5. The prescriptions, occurring, in the amended sub rule (iii) of Rule 4 of the germane besides apposite Rules, of, (a) the aspirant(s) concerned, subsequent to 1996, upon occurrence of vacancies, of, Superintendent in the establishments of District and Sessions Judges, posted in Himachal Pradesh, being primarily enjoined, to hold a graduation degree from a recognized university, (b) whereas, in the earlier therewith aforesaid apposite Rules, holding operation from 1983 upto 1996, not casting, any peremptory obligation upon the aspirant concerned, to necessarily hold a graduation degree, (c) rather with the aspirant concerned, holding, an alternative thereto statutory condition, comprised in his holding 15 years experience, in the feeder category, holding, a pay scale of 570-1080 or its revised pay scale, also hence rendering him eligible, for his being considered for selection besides appointment to the post of Superintendent in the establishment of District & Sessions Judges, posted in the Himachal Pradesh, cannot be, construed to be carrying (d) any visible trait(s) of arbitrariness, emphatically, when the mandated prescription(s), of the aspirant concerned, being enjoined (e) to primarily hold the aforesaid enhanced educational qualification, is founded besides is imminently rested upon the principle of necessity, of, holding thereof by him, being an indispensable norm, for enabling him, (f) to, upon his being appointed, to a responsible promotional post, of Superintendent in the establishments of District and Sessions Judges, posted in Himachal Pradesh, to hence efficiently discharge all the higher responsibilities of the promotional post. More so, when his primarily holding an enhanced educational qualification would also sharpen his requisite acumen, for his proficiently discharging the higher duties of a Superintendent, in the establishments of District and Sessions Judges, posted in Himachal Pradesh. 6. More so, when his primarily holding an enhanced educational qualification would also sharpen his requisite acumen, for his proficiently discharging the higher duties of a Superintendent, in the establishments of District and Sessions Judges, posted in Himachal Pradesh. 6. Be that as it may, the further contention addressed before this Court by the learned counsel, for the petitioner that (I) with the clout, of the note, appended underneath sub rule (iii) of Rule 4 of the apposite Rules of 1996, besides its operating as a proviso thereto, being singularly relaxed vis-a-vis, prior to 20.01.1996, regularly appointed Superintendent Grade-II, in the courts subordinate to the High Court, carrying an obvious concomitant effect, of thereupon, hardship working vis-a-vis Superintendent(s) Grade-II, appointed thereafter AND (II) of the prescription therein, of the cut off date being 20.01.1996, hence creating an unreasonable classification inter se prior thereto regularly appointed Superintendent(s) Grade-II in the courts subordinate to the High Court, vis-avis Superintendent(s) Grade-II, appointed subsequent thereto. (III) Also the classification being arbitrary and also its not being founded upon any intelligible defferentia, holding any nexus vis-a-vis the purpose, of, recruitment besides selection, to the post of Superintendent in the establishments of District and Sessions Judges, posted in Himachal Pradesh, thereupon, the proviso to sub rule (iii) of the apposite Rules of 1996, being permeated with a stain of discriminatoriness, rendering it to be also not applicable vis-avis the petitioner, rather his alike the relaxing benefit(s) thereof purveyed vis-a-vis Superintendent Grade-II, appointed on a regular basis prior to 20.01.1996, being entitled to likewise meteings thereof vis-a-vis him. However, the aforesaid submission is also not tenable, the reason for discounting it, is founded upon (a) the engraftment of the relevant aforesaid proviso, AND with its relaxing the rigor of apposite sub rule (iii) of Rule 4 of the apposite Rules of 1996, vis-a-vis candidates regularly, prior thereto, appointed as Superintendent(s) Grade-II, in the courts subordinate to the High Court, being engendered by grave thoughtfulness also by extreme circumspection besides with great wisdom backing it. The salient guiding wisdom behind the aforesaid classification, created, in the apposite afore extracted proviso, is embodied in the superintendent(s) Grade-II, appointed prior to 21.01.1996, against substantive posts also on a regular basis thereon, while, being hence constituted as a feeder category, in the earlier therewith Rule(s), for selection besides appointment, to the apposite post of Superintendent in the establishments, of District and Sessions Judges, posted in Himachal Pradesh, (b) importantly given the earlier therewith rules, prescribing upon the aspirant concerned to hold pay scale(s) alike the one(s) carried, by the aspirants manning the post of Superintendent Grade-II, existing in the courts subordinate to the High Court, (c) being not beset with any hardship, despite theirs being borne in the relevant stream or feeder category vis-a-vis the promotional post, (d) merely on account of theirs, not, holding the imperative peremptory minimal educational qualification of being graduates from a recognized university. With the aforesaid innate wisdom, whereon, the apposite afore extracted proviso to sub rule (iii) to the apposite Rules of 1996, is embedded, thereupon (e) benefits thereof cannot be construed to be extendable nor its amplitude can be made extendable vis-a-vis all subsequent thereto aspirants concerned, who though hold the apposite feeder post(s) in the courts subordinate to the High Court, theirs being alike, prior to 20.01.1996, regularly appointed Superintendents Grade-II, being also meted the relaxing fiat, of the apposite proviso. (f) With the aforesaid innate wisdom backing the incorporation of the proviso vis-a-vis sub rule (iii) of Rule 4 of the apposite Rule of 1996, (g) thereupon, the classification created therein inter se the Superintendent Grade-II, appointed prior thereto on a regular basis in courts subordinate to the High Court and those, AND vis-a-vis those, who stood appointed subsequent thereto, as Superintendent(s) Grade-II, in the courts subordinate to the High Court, obviously, (h) is founded upon an intelligible differentia also it holds a close nexus with the salutary purpose, for its statutory engraftment therein, purpose whereof as aforestated, is to ensure the aspirant possessing the enhanced educational qualification and acumen, for his proficiently performing, the higher responsibilities or working(s) appertaining to the promotional post of Superintendent, in the establishments of District and Sessions Judges, posted in Himachal Pradesh. (i) The further reason for making the aforesaid conclusion, is founded upon the factum of since 1996 thereafter upto the occurrence of the relevant vacancy(ies), the aspirant(s) concerned, though being enabled, to acquire the primary compulsory educational qualification, yet despite, the existence(s) of relevant Study Rules or despite prevalence, of correspondence courses, upon availments whereof, the aspirants concerned, may overcome the shortcomings in his/their educational qualification. (j) Nonetheless, the apposite failures of the aspirants concerned, cannot, empower them to claim benefits of the relaxing proviso of sub rule (iii) of the apposite Rules. (k) Conspicuously when the Superintendent(s) Grade-II, who stood appointed in the aforesaid capacity on a regular basis prior to 1996, given the immediacy of promulgation, of the amended, Rules of 1996, hence, not holding any opportunity, to enhance their educational qualification(s) also when hence any prompt implementation upon them of the amended rules, would work hardship vis-a-vis their promotional prospects, (L) whereas the subsequent thereto regularly appointed Superintendent(s) Grade-II, despite holding an opportunity to enhance their educational qualification, yet theirs failing, failure whereof is not amenable for any condonation. 7. The learned counsel appearing for the petitioner has further placed reliance upon a common judgment of this Court, rendered, in CWP Nos. 1712 of 1993, titled as Mohan Dass vs. District & Sessions Judge & Ors and in CWP No. 2053 of 1995, titled as Smt. Savita Sharma vs. District and Sessions Judge & Ors., to contend that the relaxation purportedly meted vis-a-vis the petitioners therein qua the enjoined statutory necessity, of theirs possessing the apposite qualification(s), thereupon, at par therewith, the petitioner be accorded an alike relaxation vis-a-vis the rigor of sub rule (iii) to Rule 4 of the apposite Rules of 1996, especially for want of his, not possessing the primarily enjoined educational qualification, of his holding a graduation degree from a recognized university. However, the aforesaid contention is also rudderless, as, in the verdict pronounced in the aforesaid writ petitions, this Court was not seized with the interpretation, of the aforesaid Rules nor was seized with the apposite herewith espoused relaxation(s) being meted vis-a-vis the petitioner in respect of the rigor of sub rule (3) of Rule 4 being relaxed, by meteing vis-a-vis him, the benefit of the proviso appended therewith. 8. 8. Lastly, the learned counsel appearing for the petitioner has contended that the direction(s) be rendered upon the respondent, to relax the rigor of sub rule (iii), to Rule 4 of the apposite Rules of 1996, yet the aforesaid direction, cannot, be also pronounced, as no relaxing discretion(s) stand engrafted in the relevant Rules, also when the sequitur whereof, would be of occurrence of conflict with the peremptory mandate of sub rule (iii) of Rule 4 of the apposite Rules of 1996, conflict therewith is obviously to be avoided. 9. For the foregoing reasons, there is no merit in the instant petition which is accordingly dismissed. All pending applications also stand disposed of.