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2018 DIGILAW 1941 (HP)

State Of Himachal Pradesh v. Amar Singh

2018-11-05

AJAY MOHAN GOEL, SANJAY KAROL

body2018
JUDGMENT Ajay Mohan Goel, J. - As similar issues of law and facts are involved in all these appeals, therefore, the same are being disposed of by a common judgment. 2. Respondents before us were recruited as Forest Guards in the Forest Department of the State. They were sent for training as per the provisions of H.P. Forest Training Rules, 1992. Rule 3.5 of the said Rules provided that in case a trainee was successful in completing the training with 75% or above marks, then he would be treated to have qualified the training with honors and would be entitled for accelerated promotion to the next rank on completion of 05 years of service after amendment in the Recruitment and Promotion Rules (R&P Rules). Respondents are those trainees, who qualified the said training with more than 75% marks. Vide notification dated 5.5.2001, the provision providing for accelerated promotion was deleted from the Rules supra. 3. Feeling aggrieved, respondents filed writ petitions praying for direction to the authorities to make appropriate provision for granting accelerated promotion to Forest Guards, who had passed the training with honors along with all consequential benefits and for further grant of promotion to the respondents/petitioners against the post of Deputy Rangers from the date promotions were made to the said post by the Government i.e., w.e.f. 29.4.1996 with all consequential benefits. 4. Learned Single Judge allowed the petitions by holding that as petitioners therein had qualified the requisite training with honors before issuance of notification dated 5.5.2001, the change in service conditions could not have been made applicable retrospectively to the detriment of the petitioners. It further held that the stand of the department that accelerated promotion was not given to the petitioners for the reasons that R &P Rules were never amended had no force in view of the judgment passed in CWP No. 586 of 1999, titled as Ramesh Chand Dhiman and others Vs. State of Himachal Pradesh and another decided on 15.6.2007. Learned Single Judge accordingly allowed the petitions and directed the State to consider the cases of the petitioners for accelerated promotion to the post of Deputy Ranger as per the then existing H.P. Forest Training Rules, 1992 with all consequential benefits. 5. Feeling aggrieved, the State has filed these appeals. 6. We have heard learned counsel for the parties and have also perused the judgment under challenge as also the record. 5. Feeling aggrieved, the State has filed these appeals. 6. We have heard learned counsel for the parties and have also perused the judgment under challenge as also the record. 7. Before proceeding further, it is relevant to mention at this stage that the judgment of this Court passed in CWP No. 586 of 1999, titled as Ramesh Chand Dhiman and others Vs. State of Himachal Pradesh and another, which was relied upon by learned Single Judge while deciding the petitions, stood assailed before the Hon''ble Supreme Court of India. The judgment passed by the Hon''ble Supreme Court in Civil Appeal Nos 6097-6100 of 2009, titled as Anil Joshi and others Versus State of Himachal Pradesh and others decided on 9.3.2015 has been placed on record. The relevant portion of the judgment, so passed by the Hon''ble Supreme Court is quoted hereinbelow:- ".........16. As mentioned above, the High Court allowed the respondents'' writ petitions essentially on the ground that a case of promissory estoppel was made out against the State and hence the State is bound by the promise made to the respondents for grant of reliefs in question. 17. We cannot concur with the view taken by the High Court, as in our considered opinion, it is not sustainable both on facts and in law. 18. it is a settled principle of law that the service conditions of a State employee are governed by the Statutory Rules framed by the State from time to time. An employee is, therefore, entitled to enforce his statutory right recognized in the Rules in relation to his service condition if it is breached due to any action on the part of the State. A plea of promissory estoppel can be set up by a person against the State only when he is able to prove with adequate evidence that the State has promised him in writing in express terms to grant specific benefit and acting upon such promise he has altered his position. In such situation, the State cannot be allowed to go back to the promise made to such person and he can enforce the promise made to him......." 8. Coming back to the facts of these appeals, it is a matter of record that the condition of accelerated promotion as envisaged in Rule 3.5 of 1992 Rules was conditional and dependent on necessary amendment being incorporated in the R&P Rules. Coming back to the facts of these appeals, it is a matter of record that the condition of accelerated promotion as envisaged in Rule 3.5 of 1992 Rules was conditional and dependent on necessary amendment being incorporated in the R&P Rules. It is a matter of record that before said Rule was deleted vide notification dated 5.5.2001, no amendment providing accelerated promotion on the strength of the provisions of Rule 3.5 was carried out in the R&P Rules. In our considered view, promotion to the post for which Forest Guard was the feeder category were to be governed by the R&P Rules and not the Forest Training Rules, 1992. This very important aspect of the matter has not been appreciated by learned Single Judge while allowing the writ petitions. 9. Not only this, having carefully gone through the record, in our considered view, the factual matrix involved in CWP No. 586 of 1999 was not akin to the facts of the cases filed by the present respondents. Be that as it may, even otherwise, Hon''ble Supreme Court while deciding the issue as to whether this Court was right in holding that if State has failed to amend the Rules, no blame could be attributed to the employees for such lapse on the part of the State held in favour of the State. Relevant portion of which judgment has already been quoted by us hereinabove. 10. Therefore, in the absence of any provision in the R&P Rules giving benefit of accelerated promotion to a trainee, who had undergone the training as envisaged in Himachal Pradesh Forest Rules, 1992 with 75% marks or above, no relief could have been granted in favour of the petitioners. The direction to the contrary issued by learned Single Judge, in our considered view, is not therefore sustainable in the eyes of law. R&P Rules framed in exercise of powers conferred under the proviso to Article 309 of the Constitution of India determine the eligibility criteria for promotion to the next higher post. What is not expressly provided in the R&P Rules cannot be borrowed by relying upon same training Rules. In this view of the matter, these appeals are allowed and the judgment passed by learned Single Judge in CWP(T) Nos. 10590, 5478, 4935, 4438 and 4931 of 2008 dated 14.12.2010 is ordered to be set aside. What is not expressly provided in the R&P Rules cannot be borrowed by relying upon same training Rules. In this view of the matter, these appeals are allowed and the judgment passed by learned Single Judge in CWP(T) Nos. 10590, 5478, 4935, 4438 and 4931 of 2008 dated 14.12.2010 is ordered to be set aside. CWP No. 3297 of 2012 is also disposed of in above terms. No order as to costs.