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2018 DIGILAW 255 (HP)

Shishu Pal v. State Of Himachal Pradesh

2018-03-06

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

body2018
JUDGMENT Dharam Chand Chaudhary, J —The grouse of the petitioner as brought to this Court, in a nut shell, is that despite of having sufficient experience to work as electrician on the establishment of respondent-Trust, his candidature has not been considered for being promoted as such and to the contrary the process to fill up the post of electrician by way of direct recruitment has been initiated. Therefore, by way of relief, the impugned communication, Annexure P-10, to the extent of filling up post of electrician by way of direct recruitment has been sought to be quashed and a direction sought to be issued to the respondent-Trust to consider and promote the petitioner as electrician. 2. Though on behalf of respondents No.2 to 4 reply has been filed to this petition, however, learned counsel representing them has failed to put in appearance on the previous date and also the date prior to that. It is for this reason it was noticed in the order passed on the previous date that in case there is no appearance on behalf of the respondents even today also, this Court will proceed further in the matter and disposed of the same on merits. Again, today there is no appearance on behalf of respondents No.2 to 4. We, therefore, proceeded to dispose of this petition finally. 3. Admittedly, the petitioner was appointed as Assistant Electrician on daily waged basis in the year 1989. Lateron, his services were regularized on and with effect from 01.01.1993 as Assistant Electrician. The respondentTrust has framed rules relating to the terms of employment and other working conditions of the employees on its establishment on 16th November, 1991. Lateron, consequent upon the compromise, Annexure P-2, arrived at between the respondent-Trust and employees union, Rule 9.1 came to be amended vide AnnexureP-3 and a provision was made to give relaxation in the matter of educational qualifications and experience etc. in the case of the employees, like petitioner, who were already working on the establishment of respondent-Trust well before coming in force the Rules, Annexure P-3. The petitioner, therefore, is seeking the above relaxation in the Rules and consequently, his promotion against the post of electrician lying vacant. in the case of the employees, like petitioner, who were already working on the establishment of respondent-Trust well before coming in force the Rules, Annexure P-3. The petitioner, therefore, is seeking the above relaxation in the Rules and consequently, his promotion against the post of electrician lying vacant. The benefit of Annexure P-3, is not available to the petitioner for the reason that the Rules, Annexure P-5, framed subsequently during the year 2000-2001, prescribes the mode of recruitment for the post of electrician direct recruitment, whereas the educational qualifications two years diploma from H.P. Government recognized institution. The petitioner has not undergone diploma of electrician from any Government recognized institution. He is holding the post of helper electrician and for this post also as per the rules prevalent the prescribed educational qualification is two years diploma from H.P. recognized institution. Though he has not undergone diploma in Electrical field from any institution, however, irrespective of it the respondent-Trust has regularized his services as Assistant (Helper) Electrician on and with effect from 01.01.1993 by way of granting one time relaxation in educational qualification. 4. Above all, when the Rules provides for filling up the post of electrician by way of direct recruitment, there was no occasion to the respondent-Trust to have considered him for promotion as electrician against the post lying vacant merely that he was deputed to look after the work of electrician in Baba Balak Nath Temple in the absence of regularly appointed electrician on account of being on leave as a stop gap arrangement, temporary deployment does not extend any right in favour of the petitioner to consider him against vacant post of electrician. The compromise, Annexure P-2, if any, arrived at between the respondentTrust and employees union consequent upon the Rules, Annexure P-1, notified in the year 1991, can not be taken to believe that a post required to be filled in by way of direct recruitment, can be filled in by way of promotion dehors the rules. The compromise, Annexure P-2, if any, arrived at between the respondentTrust and employees union consequent upon the Rules, Annexure P-1, notified in the year 1991, can not be taken to believe that a post required to be filled in by way of direct recruitment, can be filled in by way of promotion dehors the rules. The amended provisions in the rules, Annexure P-3, incorporated after the compromise, Annexure P-2, only extends a protection in favour of those employees who were working well before coming in force the Rules (Annexure P1) because as per Rule 9.1, on scrutiny of the record of the employees already on the establishment of the respondentTrust by a Committee, those who were not having the requisite qualification nor suitable, were to be discharged from the employment after giving them an adhoc lump-sum assistance @ Rs.1, 000/- for each completed year. Therefore, the employees, like the petitioner, had availed the protection of the amended provision, Annexure P-3, as in their case the conditions of educational qualifications etc., have been relaxed. It is for this reason the services of the petitioner were regularized as Assistant Electrician. The representation he made for his promotion has rightly been ignored as he has no vested right to seek his promotion against the post of electrician which has to be filled in by way of direct recruitment and from amongst the candidates having undergone two years diploma course in electrical from a Government recognized institution. The respondent-Trust, as such, has rightly initiated the process to fill up various posts lying vacant on its establishment, including the post of electrician, vide impugned Annexure P-10. 5. It is worth mentioning that in the order passed on the very first day of hearing in this petition, i.e. 18.09.2017, it was observed that there exists no cause of action in favour of the petitioner. Similarly, while declining the interim relief, this Court has passed the following order on 19.09.2017 in CMP No.7868 of 2017, filed for the purpose:- "CMP No.7868 of 2017. Learned counsel representing the respondentTrust has placed on record the written instructions, which reveal that the petitioner has been working as helper electrician and so far as the post of electrician is concerned, as per service Rules, the same has to be filled-up by way of direct recruitment having requisite qualification prescribed under the Rules. Learned counsel representing the respondentTrust has placed on record the written instructions, which reveal that the petitioner has been working as helper electrician and so far as the post of electrician is concerned, as per service Rules, the same has to be filled-up by way of direct recruitment having requisite qualification prescribed under the Rules. Being so, no case for interim relief is made out. The respondent-Trust may proceed further to make selection against the post of electrician, however, the result shall not be declared without permission of this Court. The application stands disposed of." 6. The judgment (Annexure P-4) of this Court passed by learned Single Judge, in previously instituted writ petition, i.e. CWP No.3784 of 2010, dated 14.07.2011, is also of no help to the case of the petitioner for the reason that the same pertains to grant of benefit under Assured Career Progression Scheme and not applicable to the present controversy. 7. Therefore, in view what has said hereinabove, this petition being devoid of any merit, is dismissed. Pending application(s) , if any, shall also stand disposed of.