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Himachal Pradesh High Court · body

2018 DIGILAW 1875 (HP)

Parma Nand v. State of Himachal Pradesh

2018-10-31

AJAY MOHAN GOEL, SURYA KANT

body2018
JUDGMENT : SURYA KANT, J. 1. The petitioner seeks quashing of Clause 6 of Schedule III of the Rules as incorporated in Baba Balak Nath Temple Trust Deotsidh Employees Service Rules 2000-2001, Clause 6 whereof provides that the post of Electrician shall be filled up by Direct Recruitment and minimum qualification required to be possessed is two years Diploma from H.P. Government recognized institution. 2. The petitioner had joined as an Assistant Electrician on daily wage basis under the Baba Balak Nath Temple Trust in the year 1989. The Management of the Trust was subsequently taken over by the State Government. It appears that services of some of the employees like the petitioner were sought to be terminated for want of requisite qualification but Rule 9.1 of the Baba Balak Nath Temple Trust Employees (Terms of Employment) and Working Condition Rules was amended vide Fifth Amendment Rules, 1995 (Annexure P3) and it was resolved that the employees who did not fulfill requisite qualification but have got sufficient experience in the field of their work and were found fit during screening to carry out the duties entrusted to them, may also be absorbed under those Rules. 3. The petitioner was one of such employees who was then absorbed as an Assistant Electrician by the Trust. 4. Thereafter arose a dispute as to whether or not the employees of the Trust were entitled to the grant of benefit of Assured Career Progression Scheme, regardless of the fact that they were not in possession of the requisite qualification prescribed under the Rules formulated by the Trust. This Court in CWP No. 3784 of 2010, decided on 14th July, 2011, accepted the claim of the employees and held that the prescription of qualification under the Rules for recruitment/promotional purposes was alien to the Scheme of ACP, hence, the employees of Trust were entitled to the benefit of increments under the Assured Career Progression Scheme. The said judgment has attained finality. There is no quarrel that the employees of the Trust like the petitioner have been granted the benefit of Assured Career Progression Scheme. 5. In the instant writ petition, the petitioner has now laid challenge to the provisions contained in the Rules regarding appointment to the post of Electrician which, according to him, ought to be filled by promoting an Assistant Electrician. 5. In the instant writ petition, the petitioner has now laid challenge to the provisions contained in the Rules regarding appointment to the post of Electrician which, according to him, ought to be filled by promoting an Assistant Electrician. The Rule, however, has caused two obstacles against promotion of the petitioner, namely, (i) that the source of appointment is Direct Recruitment, and (ii) the incumbent is required to possess two years Diploma from H.P. Government recognized institution. The petitioner, on the other hand, contends that once this Court in the matter of grant of ACP has held that the employees not possessing requisite qualification were entitled to be treated at par with those who were having the prescribed qualification for the purpose of grant of ACP, on the same analogy, he is entitled to be promoted as Electrician and the riders provided under the Rules are, thus, liable to be struck down. 6. We have heard learned counsel for the parties at a considerable length and gone through the record. 7. True it is that in some of the judgments, the Hon'ble Supreme Court has observed that the State Government or its agencies ought to provide promotional avenues to the employees who may not be stagnated throughout their service career. This exception, nevertheless is attracted and cannot pressed into aid in a case like this for the reason that the employees of the respondent-Trust have been admittedly provided the benefit of Assured Career Progression Scheme which is meant to remove stagnation in the career of such employee who does not get opportunity to be promoted. 8. Promotion cannot be claimed as a matter of right save where an employee fulfills the eligibility conditions and there is nothing to deprive him of the benefit of due promotion. In the instant case, there is only one post of Electrician and the Rule Making Authority has decided to fill up the same by Direct Recruitment. The Competent Authority has further provided that the incumbent must possess two years Diploma from a recognized institute to become eligible for recruitment. The petitioner is neither an aspirant for Direct Recruitment nor he possesses the requisite qualification. Merely because he is not entitled to be promoted as Electrician under the Rules, would not render Clause 6 in Schedule III of the Rules as violative of Articles 14 or 16 of the Constitution. 9. The petitioner is neither an aspirant for Direct Recruitment nor he possesses the requisite qualification. Merely because he is not entitled to be promoted as Electrician under the Rules, would not render Clause 6 in Schedule III of the Rules as violative of Articles 14 or 16 of the Constitution. 9. It is well settled that it is for the Rule Making Authority or the Competent Authority to prescribe the source of recruitment. It may invite Court's interference only if it does not meet with the test of reasonableness. In the instant case, if, on one hand, the Competent Authority has decided to fill up the post of Electrician by Direct Recruitment, it has, on the other hand, suitably compensated the feeder cadre, namely, the Assistant Electrician, by providing benefit of Assured Career Progression Scheme. 10. There is, thus, no stagnation in the service career of the petitioner which might prompt this Court to command the respondents to consider and make a provision for promotional avenues. No case to interfere in the Rules under challenge is thus made out. Hence, the writ petition is dismissed so also the pending miscellaneous applications, if any.