Namita Saini Daughter of Shri Joginder Singh Saini v. State of H. P. Through Secretary (Animal Husbandry)
2022-05-23
AJAY MOHAN GOEL
body2022
DigiLaw.ai
JUDGMENT : By way of the present petition, the petitioners have prayed for the following reliefs : “(i) That the notification dated 08.09.2017 (Annexure A20), may kindly be quashed and set aside. (ii) That Rule 10 (ii) of the amended Recruitment & Promotion Rules qua the post of Veterinary Pharmacists (Annexure A13) may kindly be quashed and set aside, since the said amendment has deprived the applicants from getting appointment against the post of Veterinary Pharmacist, whereas similarly situated candidates have already been given appointment to the post of Veterinary Pharmacist as per the old Recruitment & Promotion Rules Annexure A5. (iii) That the respondents may kindly be directed to give appointment to the applicants as per old Recruitment & Promotion Rules dated 22.12.2011 (Annexure A5) in light of principle of parity, since number of the candidates belonging to their batch have already been given appointment to the post of Veterinary Pharmacist by the respondent department who were working as Gram Panchayat Veterinary Assistants on honorarium basis. (iv) That the appointments of private respondents and other similar candidates who do not fulfill the requisite criteria for the appointment, may kindly be quashed and set aside, since they were not fulfilling the eligibility criteria. (v) That the respondent department may kindly be directed to follow the roster points in the selection process of Veterinary Pharmacists for the year 2017-18 as per the ratio laid down by the Hon’ble Apex Court in R.K. Sabarwal v/s State of Punjab. (vi) That the respondent authorities may kindly be directed to pay salary equal to Veterinary Pharmacists (contractual) to the applicants in light of the principle of ‘equal pay for equal work’, since the applicants are doing the work of Veterinary Pharmacists in all respect, but they are not being paid equal salary.” 2. The case of the petitioners is that they are serving as Panchayat Veterinary Assistants with various Gram Panchayats as from the date of their engagement on contract basis. In terms of Annexure A-5, i.e. notification dated 22.12.2011, the Government of Himachal Pradesh, Department of Animal Husbandry, brought into force the Himachal Pradesh Animal Husbandry Department Veterinary Pharmacist Class-III (Non-Gazetted) Recruitment & Promotion Rules, 2011.
In terms of Annexure A-5, i.e. notification dated 22.12.2011, the Government of Himachal Pradesh, Department of Animal Husbandry, brought into force the Himachal Pradesh Animal Husbandry Department Veterinary Pharmacist Class-III (Non-Gazetted) Recruitment & Promotion Rules, 2011. Clause-10 of the said Rules, provided for method of recruitment by direct recruitment and by promotion and in terms thereof, 88% of the posts were to be filled in by way of direct recruitment on regular basis from amongst Panchayat Veterinary Sahayak or by recruitment on contract basis from amongst the said category as the case may be. Further, 12% of the posts were to be filled in by way of promotion, falling which by way of direct recruitment on regular basis or by recruitment on contract basis from amongst Panchayat Veterinary Sahayak as the case may be. 3. The grievance of the petitioners is with regard to Annexure A-13, i.e. notification dated 10.05.2016, vide which an amendment has been made in the 2011 Rules (supra), to the effect that now 44% of the posts of Veterinary Pharmacist are to be filled in by way of direct recruitment on regular basis from amongst Panchayat Veterinary Sahayak or by recruitment on contract basis from amongst the said class as the case may be and 44% by way of direct recruitment through concerned Recruiting Agency, i.e. Himachal Pradesh Staff Selection Commission, Hamirpur, H.P., on regular basis or by recruitment on contract basis as the case may be. 4. Mr. R.L. Chaudhary, learned counsel for the petitioners has argued that the impugned amendment is not sustainable in the eyes of law for the reason that result thereof is that the chances of promotion to the post in issue of the present petitioners have been arbitrarily reduced without any cogent reason. He has argued that when the petitioners underwent the course in issue, it were the old Rules which were in force and there was a legitimate expectation amongst the petitioners of being promoted to the post of Veterinary Pharmacist, once recruited against the post of Panchayat Veterinary Assistant and this legitimate expectation of theirs has been defeated by way of the impugned amendment. Learned counsel has also argued that the impugned amendment is also contrary to the judgment of Hon’ble Supreme Court of India as has been laid down in R.K. Sabharwal and others Versus State of Punjab and others, (1995)2 Supreme Court Cases 745.
Learned counsel has also argued that the impugned amendment is also contrary to the judgment of Hon’ble Supreme Court of India as has been laid down in R.K. Sabharwal and others Versus State of Punjab and others, (1995)2 Supreme Court Cases 745. Accordingly, learned counsel for the petitioners has prayed for quashing of Annexure A13, i.e. the amending Rules as well as Annexure A20, which is a notification issued subsequent to the issuance of the amendment in Rules. No other point was urged. 5. Mr. Dinesh Thakur, learned Additional Advocate General has defended the amendment which has been so incorporated, on the ground that the reason and the rational as to why the amendment was incorporated was to instill the element of competition. He submitted that the contention of the petitioners that their chances of recruitment to the post in issue have been diminished is totally without any basis because even now 88% of the posts are available for the category concerned, but the only distinction is that now there are two channels of recruitment which stand provided in the Rules and in case the petitioners fulfill the eligibility criteria then they can compete from either of two channels as stand incorporated by way of the amendment. He has further submitted that as far as the judgment of Hon’ble Supreme Court in R.K. Sabharwal’s case (supra) is concerned, reliance upon the same is completely misplaced, because it is not understood as to how the amendment incorporating the Rules in any manner violates the law laid down by Hon’ble Supreme Court in the said judgment. On these basis, the State has prayed for the rejection of the petition. 6. Mr. Raj Kumar Negi, learned counsel for the Staff Selection Commission, Hamirpur, H.P. has submitted that in terms of the amendment which has incorporated in the Rules, as and when requisitions are received by the Commission from the employer, the process is initiated for filling up the posts in issue and due representation is given to all the classes in terms of reservation policy of the Government. 7. I have heard learned counsel for the parties and have gone through the pleadings as well as documents appended with the petition. 8.
7. I have heard learned counsel for the parties and have gone through the pleadings as well as documents appended with the petition. 8. The grievance as has already been enumerated hereinabove of the petitioners is with regard to the amendment which has been carried out in the Recruitment & Promotion Rules to the post of Veterinary Pharmacist. In terms of the 2011 Rules, 88% of the said posts were to be filled in by way of direct recruitment on regular or contract basis from was amongst Panchayat Veterinary Sahayak, whereas in terms of the amended Rules, this quota has been reduced to 44% and the remaining 44% quota is now to be filled in by way of direct recruitment through the concerned Recruiting Agency. 9. As far as the recruitment to be made through the now carved out 44% second category is concerned, there is no alteration in the minimum educational qualifications required for being considered to be eligible to compete for the post in issue, meaning thereby that an incumbent who is eligible to participate in the process of recruitment under clause (a) of the amended Rules is also eligible for consideration for recruitment under the clause (b). The only distinction is that whereas earlier 88% of the posts were to be filled in either on regular basis or on contract basis from amongst Panchayat Veterinary Sahayak, now by reducing this category from 88% to 44%, the State has given an opportunity to those candidates also who though presently are not serving as Panchayat Veterinary Sahayak, but do possess the qualification for appointment against the post in issue to compete for the post. This step of the State by no stretch of imagination can be said to be arbitrary or discriminatory. 10. It is settled law that it is not for the Court to direct the State a particular method of recruitment or eligibility criteria or avenues of promotions or impose itself by substituting its view for that of the State.
This step of the State by no stretch of imagination can be said to be arbitrary or discriminatory. 10. It is settled law that it is not for the Court to direct the State a particular method of recruitment or eligibility criteria or avenues of promotions or impose itself by substituting its view for that of the State. It is well open and within the competence of the State to change the Rules relating to a service and alter or amend by additions/subtractions the qualifications, eligibility criteria and other conditions of service including avenues of promotions from time to time as the administrative exigencies may need or necessitate (see 2003 (2) Supreme Court Cases 632, titled as P.U. Joshi and others Versus Accountant General Ahmedabad and others). 11. This Court though is alive to the situation that such power cannot be exercised by the State arbitrarily and in case exercise of such power is found to be arbitrary, then the Courts do interfere. 12. In the present case, what has been done by the State cannot be said to be an arbitrary act. As already mentioned hereinabove, the State in fact has given an opportunity to a Class which was earlier excluded from competing for the post of Panchayat Pharmacist to now compete for the same. However, the petitioners have not been excluded in any manner nor their quota can be said to have been curtailed, because (a) on the strength of the petitioners being Panchayat Veterinary Sahayak, they can compete for direct recruitment on regular basis against 44% of the posts and (b) they can otherwise compete for the remaining of 44% seat by way of direct recruitment on the strength of their education qualification. In fact, this is exactly the stand of the State also as is evident from the averments which are contained in Paras 1 to 4 of the preliminary submissions. 13.
In fact, this is exactly the stand of the State also as is evident from the averments which are contained in Paras 1 to 4 of the preliminary submissions. 13. As far as the reliance placed upon by learned counsel for the petitioners upon the judgment of Hon’ble Supreme Court of India in R.K. Sabharwal’s case (supra) is concerned, this Court is also of the considered view that the law laid down by the Hon’ble Supreme Court in the above mentioned judgment is not attracted in the present case, because it is not the case of the petitioners that the vacancies which have become available on account of the same being vacated by an incumbent recruited against a particular reserved roster point has been given to the open category. 14. In this view of the matter, as this Court does not finds any merit in the present petition, the same is dismissed, so also the pending miscellaneous applications, if any.