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2017 DIGILAW 175 (UTT)

Rajesh Chauhan v. State of Uttarakhand

2017-03-10

K.M.JOSEPH, V.K.BIST

body2017
JUDGMENT : K.M. Joseph, J. Petitioner has approached this Court seeking the following relief:- “(i) To issue a writ, order or direction in the nature of mandamus commanding the Respondents to hold Departmental Promotion committee forthwith and consider claim of the Petitioner for promotion on the post of Assistant Registrar, Co-operative Societies strictly in accordance with the provisions of the Uttar Pradesh Co-operative Service rules, 1979.” 2. The case of the petitioner, in brief, is as follows:- Petitioner is presently Additional District Co-operative Officer, Dehradun and is also holding the post of Assistant Registrar Cooperative Societies, Uttarakhand Dehradun on officiating basis. The services of the employees of the cooperative societies are governed by the Uttar Pradesh Co-operative Service rules, 1979 (hereinafter referred to as the Rules of 1979). In regard to the post of Assistant Registrar, Rule 5(5) reads as follows: Assistant Registrar:-(i) By promotion, on the basis of merit, from amongst the members of the Subordinate Co-operative Service, Group I, who have put in minimum of 5 years’ service as such on the first day of the year of recruitment. (ii) By direct recruitment through the commission: Provided that the recruitment to the posts of Assistant Registrars shall be so arranged that, as far as possible, 50 per cent of the posts are held by promotee and 50 per cent by direct recruitment. 3. In other words, in regard to supply the vacancies by way of promotion, it is to be done on the basis of merit from amongst the members of the Subordinate Co-Operative Societies, who have put in minimum of 5 years’ service as such on the first day of the year of recruitment. 4. The requisition was sent by the State Government to the Uttarakhand Public Service Commission on 20.12.2016 indicating that the vacancies occurred in the recruitment year 2015-16 are to be filled up in view of the 1979 Rules. In the meantime, new Rules have been framed as Uttarakhand Cooperative Service Rules, 2016. The post of Assistant Registrar, in short, under the new Rules is to be filled up on different criteria, namely, seniority subject to the rejection of unfit. 5. The case of the petitioner is that the vacancy in question, which arose prior to the new Rules, must be filled up in terms of the earlier Rules. 6. Counter affidavit has been filed. 7. We heard Mr. 5. The case of the petitioner is that the vacancy in question, which arose prior to the new Rules, must be filled up in terms of the earlier Rules. 6. Counter affidavit has been filed. 7. We heard Mr. Rakesh Thapliyal, learned counsel for the petitioner, Mr. Paresh Tripathi, Chief Standing Counsel for the State of Uttarakhand and Mr. Kaushal Sah Jagati, Advocate, holding brief of Mr. Ashish Joshi, Advocate for respondent no. 3. 8. The question to be considered is, whether the vacancy, which apparently arose prior to the promulgation of the Rules of 2016 is to be filled up applying the criteria of merit under the Rules of 1979 or on the basis of seniority subject to the rejection of unfit in view of the Rules of 2016. This question is no longer res integra and is subject-matter of a catena of decisions. The earliest on this point is the decision of the Hon’ble Apex Court in the case of Y.V. Rangaiah and others Vs. J. Sreenivasa Rao and others reported in (1983)3 SCC 284 , from which the principle emerges that in respect of the vacancy arising under the old Rules before change in the rules, it must be filled up in terms of the Rules as they existed at the time when the vacancy occurred. In the case of State of Punjab and others Vs. Arun Kumar Aggarwal and others reported in (2007) 10 SCC 402, the Court held as follows:- “There is no quarrel over the proposition of law that normal rule is that the vacancy prior to the new Rules would be governed by the old Rules and not by the new Rules. However, in the present case Government took conscious decision not to fill up the vacancies under the old Rules and that such decision has been validly taken keeping in view the facts and circumstances of the case because old Rules did not have provision for promotion of diploma-holder Junior Engineers whereas new Rules specifically provided quota for them.” 9. Then question again arose in the recent decision of the Hon’ble Apex Court in the case of Richa Mishra Vs. State of Chhattisgarh and others reported in AIR 2016 SC 753 . Therein, the Court referred to the decision in AIR 1983 SC 852 and has held as follows:- “19. Then question again arose in the recent decision of the Hon’ble Apex Court in the case of Richa Mishra Vs. State of Chhattisgarh and others reported in AIR 2016 SC 753 . Therein, the Court referred to the decision in AIR 1983 SC 852 and has held as follows:- “19. Question No. 1 The High Court held that first and second requisitions to commence recruitment process against the vacant seats to the post of Dy. S.P. was made when Rules, 2000 were in force. Therefore, recruitment was rightly under taken under Rules, 2000. The admitted facts are that the process of selection started before Rules, 2005 were promulgated with the requisitions dated September 27, 2004 and March 26, 2005 sent by the State Government to the CPSE. At that time, Rules, 2000 were in vogue. For this reason, even in the requisition it was mentioned that appointments are to be made under Rules, 2000. Further, it is also an admitted fact that the vacancies in question which were to be filled were for the period prior to 2005. Such vacancies needed to be filled in as per those Rules, i.e. Rules, 2000. This is patent legal position which can be discerned from Y.V. Rangaiah and Others v. J. Shreenivasa Rao. As per the facts of that case a panel had to be prepared every year of list of approved candidates for making appointments to the grade of sub-Registrar Grade II by transfer according to the old rules. However, the panel was not prepared in the year1976 and the petitioners were deprived of their right of being considered for promotion. In the meanwhile, new rules came into force. In this factual background, it was held that the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. The judgment in the case of B.L. Gupta and Another V. M.C.D. also summarises the legal position in this behalf. The judgment in P. Ganeshwar Rao and Others V. State of Andhra Pradesh and Others is also to the same effect. Para 9 of the judgment laying down the aforesaid proposition of law, is reproduced below:- 9. When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The judgment in P. Ganeshwar Rao and Others V. State of Andhra Pradesh and Others is also to the same effect. Para 9 of the judgment laying down the aforesaid proposition of law, is reproduced below:- 9. When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been held to be prospective by the High Court and in our opinion this was the correct conclusion. This being so, the question which arises is whether the vacancies which had arisen earlier than 1995 can be filled as per the 1995 Rules. Our attention has been drawn by Mr. Mehta to a decision of this Court in the case of N.T. Devin Katti v. Karnataka Public Service Commission [ (1990) 3 SCC 157 ] : ( AIR 1990 SC 1233 ). In that case after referring to the earlier decisions in the cases of Y.V. Rangaiah ( AIR 1983 SC 852 ), P. Ganeshwar Rao ( AIR 1988 SC 2068 ), and A.A. Calton Vs. Director of Education [ (1983) 3 SCC 33 ] : (AIR 1983 SC1143) it was held by this Court that the vacancies which had occurred prior to the amendment of the Rules would be governed by the old Rules and not by the amended Rules.” 20. No doubt, under certain exceptional circumstances, Government can take a conscience decisions not to fill the vacancies under the old Rules and, thus, there can be departure of the aforesaid general rule in exceptional cases. This legal precept was recognised in the case of Rajasthan Public Service Commission Vs. Keilla Kumar Palliwal and another in the following words:- “There is no quarrel over the proposition of law that normal rule is that the vacancy prior to the new Rules would be governed by the old rules and not by the new Rules. However, in the present case, we have already held that the Government has taken conscious decision not to fill the vacancy under the old Rules and that such decision has been validly taken keeping in view the facts and circumstances of the cases.” 10. Therefore, the principle would appear to be that the ordinary rule is that the vacancies prior to the new rules would be governed by the old rules and not by the new rules. Therefore, the principle would appear to be that the ordinary rule is that the vacancies prior to the new rules would be governed by the old rules and not by the new rules. In certain exceptional circumstances, the Government may take a conscious decision to not to fill the vacancies under the old rules and there can be a deviation in exceptional cases. 11. Therefore, we have to examine, whether there is any scope for applying the exceptional rule or the general rule. 12. In this case, it appears that a requisition was sent on 20.12.2016, according to the petitioner, to the Public Service Commission, but, according to the Government, the requisition was sent on 19.12.2016. The new rules came into force on 20.12.2016. Even though, the new rules have come, there is no case set up before us that the Government has taken a conscious stand to fill up the vacancies in terms of the new rules. 13. Even before us, there is no case set up that the exceptional rule must prevail in this case. If that is so, the general rule, which has been followed in a number of decisions must prevail. Resultantly, we hold that in regard to the vacancies which arose prior to the promulgation of the new rules on 20.12.2016, they must be filled up in terms of the rules of 1979 by employing the criteria mentioned in the rules of 1979. Having made this clear, we direct that the needful will be done in terms of the observations, which we have made in this judgment. 14. The writ petition is, accordingly, disposed of.