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Himachal Pradesh High Court · body

2022 DIGILAW 803 (HP)

Mohan Singh Thakur v. State of H. P.

2022-12-09

JYOTSNA REWAL DUA

body2022
JUDGMENT : The petitioner seeks writ of mandamus for promoting him to the post of Assistant Director (Archives). He has also prayed for direction to the respondents not to promote private respondents No.3 and 4 as Assistant Director (Archives). Another relief prayed for is that Clause 7(a)(ii) of the Recruitment & Promotion Rules, 2012 for the post of Assistant Director (Archives) be declared null and void. 2. Admitted factual position is that:- 2(i). The petitioner was appointed as Junior Technical Assistant in the year 1998. He was promoted to the post of Technical Assistant (Archives) in the year 2015. Further promotion from the post of Technical Assistant (Archives) is to the post of Assistant Director (Archives). 2(ii). Recruitment & Promotion Rules for the post of Assistant Director (Archives), Class-I (Gazetted) (in short ‘2007 R&P Rules’) in the Department of Language, Art & Culture, Himachal Pradesh were framed vide notification dated 15.01.2007 (Annexure P-1). As per Clause 10 of these rules, the single cadre post of Assistant Director (Archives) was to be filled-up 100% by promotion, failing which by direct recruitment or on contract basis. In terms of Clause 7 of these R&P Rules, essential educational qualifications for direct recruits were (i) M.A. Second division in Modern History from recognized University; and (ii) Diploma in Archives. In terms of Clause 8 of these rules, the educational qualifications required for direct recruits were not applicable in case of promotees. Clause 11 of the Rules mandated that promotion to the post of Assistant Director (Archives) could be made from amongst the Technical Assistant (Archives) having nine years’ regular service or regular combined with continuous ad hoc service rendered, if any, in the grade, failing which by promotion from amongst the Technical Assistant (Archives) with 12 years regular service or regular combined with continuous ad hoc service combined as Technical Assistant (Archives) and Junior Technical Assistant (Archives). 2(iii). 2007 R&P Rules were repealed in the year 2012. Vide notification dated 24.08.2012, new R&P Rules for the post of Assistant Director (Archives) came into force. In terms of these 2012 R&P Rules, the single cadre post of Assistant Director (Archives) was to be filled up 100% by promotion, failing which by direct recruitment on regular basis or by direct recruitment on contract basis, failing both on secondment basis. Vide notification dated 24.08.2012, new R&P Rules for the post of Assistant Director (Archives) came into force. In terms of these 2012 R&P Rules, the single cadre post of Assistant Director (Archives) was to be filled up 100% by promotion, failing which by direct recruitment on regular basis or by direct recruitment on contract basis, failing both on secondment basis. The minimum essential qualifications required for direct recruits remained the same as were under the 2007 R&P Rules, i.e. M.A. Second Division in Modern History and Diploma in Archives. As per Clause 8 of these rules, the educational qualifications prescribed for the direct recruits were also applicable in the case of promotees. 2(iv). 2012 R&P Rules for the post of Assistant Director (Archives) were repealed vide notification dated 07.04.2017 and new rules were promulgated. In terms of the 2017 R&P Rules, the single cadre post of Assistant Director (Archives) was to be filled-up 100% by promotion, failing which by direct recruitment on regular basis or by recruitment on contract basis. In terms of Clauses 7 and 8 of these rules, the educational qualifications prescribed for direct recruitment were to apply in case of promotees also. 2(v). The petitioner has Degree of M.A. in Modern History with second division. While working as Junior Technical Assistant, the petitioner attended one and a half month training course (w.e.f. 16.02.2009 to 31.03.2009) in Archives Management from School of Archival Studies, National Archives of India, New Delhi. The training certificate dated 11.06.2009 has been placed on record as Annexure P-5. 3. The grievance of the petitioner is that even though he had completed requisite number of years of service as Technical Assistant (Archives), yet his case had not been considered for promotion to the post of Assistant Director (Archives) by the respondents. That short term training in the field of Archives Management undertaken by the petitioner was in order to meet out the requirement as per Clause 7 of the R&P Rules for promotion to the post of Assistant Director (Archives). On the basis of above factual position, the petitioner has preferred this writ petition, in essence, seeking his promotion to the post of Assistant Director (Archives) and for declaring Clause 7(a)(ii) of the R&P Rules, 2012 for the post of Assistant Director (Archives) as null and void. On the basis of above factual position, the petitioner has preferred this writ petition, in essence, seeking his promotion to the post of Assistant Director (Archives) and for declaring Clause 7(a)(ii) of the R&P Rules, 2012 for the post of Assistant Director (Archives) as null and void. The relief clause of the petition runs as under:- “a) That Writ of Mandamus may kindly be issued directing the respondents to promote the petitioners to the post of Assistant Director. b) That the respondent may further be restrained from promoting the respondent No.3 and 4 as Assistant Director (Archives) from the category of research assistant in case any person have been appointed during the pendency of writ petition prior to promotion of petitioner their appointment may kindly be declared as null and void. c) That the eligibility criteria as mentioned in the Recruitment and Promotion Rules Annexure P-2 as mentioned clause (7)a(ii) may be declared as null and void and the certificate obtained by the petitioner be considered for all intents and purposes for the promotion.” During hearing of the case, learned counsel for the petitioner submitted that private respondents No.3 and 4 stand promoted to the post of Assistant Director (Language) and Assistant Director (Publication) on 01.09.2020 and 21.08.2020, respectively. Learned counsel for the petitioner also stated that he is under instructions not to press the case against promotions of private respondents No.3 and 4 and that he would confine his submissions only concerning petitioner’s promotion to the post of Assistant Director (Archives). 4. Contentions :- 4(i). Learned counsel for the petitioner contended that the petitioner is Postgraduate and has a training certificate in Archives Management. In 2007 R&P Rules, there was no requirement of any diploma(Archives) for promotion to the post of Assistant Director (Archives). By inserting this requirement in 2012 and 2017 R&P Rules, the petitioner has been deprived from getting promotion, causing him irreparable loss and injury. Learned counsel for the petitioner also submitted that the training certificate obtained by the petitioner should be considered akin to the diploma required under the R&P Rules for promotion to the post of Assistant Director (Archives), more particularly, when no duration of the diploma has been prescribed in the R&P Rules. 4(ii). Learned counsel for the petitioner also submitted that the training certificate obtained by the petitioner should be considered akin to the diploma required under the R&P Rules for promotion to the post of Assistant Director (Archives), more particularly, when no duration of the diploma has been prescribed in the R&P Rules. 4(ii). Learned Additional Advocate General submitted that under the R&P Rules, the post of Assistant Director (Archives) is to be filled-up by way of promotion of eligible persons from the feeder category. Possession of Diploma in Archives is one of the eligibility conditions. The petitioner does not satisfy this condition, hence, he does not fulfil the requisite criteria for promotion to the post in question. 5. Observations:- 5(i). In the writ petition, challenge is only to Clause 7(a)(ii) of the 2012 R&P Rules for promotion to the post of Assistant Director (Archives). The events have overtaken themselves. 2012 R&P Rules are no longer in force. They were repealed on 07.04.2017. New R&P Rules for the post of Assistant Director (Archives) came into force w.e.f. 07.04.2017. There is no challenge in the petition to 2017 R&P Rules, which otherwise have been placed on record as Annexure P-4. 5(ii). Under the 2012 R&P Rules as well as 2017 R&P Rules, the post of Assistant Director (Archives) is to be filled-up 100% by way of promotion from the persons belonging to feeder category. Petitioner though belongs to the feeder category mentioned in Rule 11 of these rules, however, he does not fulfil the educational qualifications required for promotion. The educational qualification required for direct recruits under Clause 7 of the Rules has been made applicable in case of promotions in terms of Clause 8. One of the educational qualifications required is possession of Diploma in Archives from a recognized University/Institute. The petition though lays challenge to incorporation of this condition under the rules, however, no legal grounds for challenging the same have forth come. The only point put forth by learned counsel for the petitioner is that incorporation of educational qualifications in case of promotions has jeopardized the petitioner’s chances for further promotion. I am afraid such contention will not advance the case of the petitioner. In (2021) 11 SCALE 80 , Chandan Banerjee & Ors. VS Krishna Prosad Ghosh & Ors., Hon'ble Apex Court considered plethora of judicial precedents and summarized the law as under :- “26. I am afraid such contention will not advance the case of the petitioner. In (2021) 11 SCALE 80 , Chandan Banerjee & Ors. VS Krishna Prosad Ghosh & Ors., Hon'ble Apex Court considered plethora of judicial precedents and summarized the law as under :- “26. The principles which emerge from the above line of precedents can be summarized as follows: (i) Classification between persons must not produce artificial inequalities. The classification must be founded on a reasonable basis and must bear nexus to the object and purpose sought to be achieved to pass the muster of Articles 14 and 16; (ii) Judicial review in matters of classification is limited to a determination of whether the classification is reasonable and bears a nexus to the object sought to be achieved. Courts cannot indulge in a mathematical evaluation of the basis of classification or replace the wisdom of the legislature or its delegate with their own; (iii) Generally speaking, educational qualification is a valid ground for classification between persons of the same class in matters of promotion and is not violative of Articles 14 and 16 of the Constitution; (iv) Persons drawn from different sources and integrated into a common class can be differentiated on grounds of educational qualification for the purpose of promotion, where this bears a nexus with the efficiency required in the promotional post; (v) Educational qualification may be used for introducing quotas for promotion for a certain class of persons; or may even be used to restrict promotion entirely to one class, to the exclusion of others; (vi) Educational qualification may be used as a criterion for classification for promotion to increase administrative efficiency at the higher posts; and (vii) However, a classification made on grounds of educational qualification should bear nexus to the purpose of the classification or the extent of differences in qualifications.” Educational qualification has been recognized as a valid criterion for classification for promotion to increase administrative efficiency at the higher posts. It will also be appropriate to refer to a Division Bench judgment of this Court dated 12.11.2020 rendered in a bunch of writ petitions with lead case CWP No.1515 of 2019, titled Parkash Chand Versus State of H.P. and others, wherein Recruitment & Promotion Rules for the post of Forest Guard had undergone amendment. It will also be appropriate to refer to a Division Bench judgment of this Court dated 12.11.2020 rendered in a bunch of writ petitions with lead case CWP No.1515 of 2019, titled Parkash Chand Versus State of H.P. and others, wherein Recruitment & Promotion Rules for the post of Forest Guard had undergone amendment. The petitioner therein raised the grievance that he was illegally not being considered for promotion to the post of Forest Guard because he was a matriculate and that the respondents cannot deny him promotion on the basis of amended rules. The Division Bench held as under:- “9. The grievance of the petitioner Parkash Chand is that he has illegally not been considered for promotion to the post of Forest Guard only because he is matriculate, whereas, as per the Rules, he can acquire the qualification within three years and moreover, the respondents cannot deny the petitioner’s promotion on the basis of amended Rules. 10. This petitioner further claimed that he was fully eligible for promotion in the year 2012 when there was no amendment in the Recruitment and Promotion Rules and only matriculates were eligible for promotion. Now, therefore the impugned action of the respondents ignoring the candidature of the petitioner is wrong and illegal and the petitioner deserves to be promoted as Forest Guard, as he is senior to one Dinesh Kumar. 11. We have heard learned counsel for the parties and have gone through the material available on records. 12. At the outset, it needs to be observed that in P.U. Joshi and others vs. Accountant General, Ahmadabad and others (2003) 2 SCC 632), the Hon’ble Supreme Court held as under: “10…...Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.” 13. In Official Liquidator vs. Dayanand and others (2008) 10 SCC 1 ), the Hon’ble Supreme Court held as under: “59. The creation and abolition of posts, formation and structuring/restricting of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection, etc. are matters which fall within the exclusive domain of the employer. Although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and laying down the qualification, etc. is not immune from judicial review, the Court will always be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by malafides.” 14. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by malafides.” 14. In Chandigarh Administration through the Director Public Instructions (Colleges) Chandigarh vs. Usha Kheterpal Wale and others (2011) 9 SCC 645 ), the Hon’ble Supreme Court held as under: “22. It is now well settled that it is for the rulemaking authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. The courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the authority concerned so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of the Constitution, statute and rules. (See J. Ranga Swamy v. Govt. of A.P. and P.U. Joshi v. Accountant General). In the absence of any rules, under Article 309 or statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable. Therefore, it cannot be said that the prescription of Phd is unreasonable.” 15. In State of Gujarat and others vs. Arvindkumar T. Tiwari and another (2012) 9 SCC 545 ), the Hon’ble Supreme Court held as under: “10. The appointing authority is competent to fix a higher score for selection, than the one required to be attained for mere eligibility, but by way of its natural corollary, it cannot be taken to mean that eligibility/norms fixed by the statute or rules can be relaxed for this purpose to the extent that, the same may be lower than the ones fixed by the statute. In a particular case, where it is so required, relaxation of even educational qualification(s) may be permissible, provided that the rules empower the authority to relax such eligibility in general, or with regard to an individual case or class of cases of undue hardship. However, the said power should be exercised for justifiable reasons and it must not be exercised arbitrarily, only to favour an individual. However, the said power should be exercised for justifiable reasons and it must not be exercised arbitrarily, only to favour an individual. The power to relax the recruitment rules or any other rule made by the State Government/Authority is conferred upon the Government/Authority to meet any emergent situation where injustice might have been caused or, is likely to be caused to any person or class of persons or, where the working of the said rules might have become impossible. (Vide: State of Haryana v. Subhash Chandra Marwaha, J.C. Yadav v. State of Haryana, and Ashok Kumar Uppal v. State of J & K.) 11. The courts and tribunal do not have the power to issue direction to make appointment by way of granting relaxation of eligibility or in contravention thereof. In State of M.P. & Anr. v. Dharam Bir, this Court while dealing with a similar issue rejected the plea of humanitarian grounds and held as under: (SCC p. 175, para 31) “31....... The courts as also the tribunal have no power to override the mandatory provisions of the Rules on sympathetic consideration that a person, though not possessing the essential educational qualifications, should be allowed to continue on the post merely on the basis of his experience. Such an order would amount to altering or amending the statutory provisions made by the Government under Article 309 of the Constitution.” 12. Fixing eligibility for a particular post or even for admission to a course falls within the exclusive domain of the legislature/executive and cannot be the subject matter of judicial review, unless found to be arbitrary, unreasonable or has been fixed without keeping in mind the nature of service, for which appointments are to be made, or has no rational nexus with the object(s) sought to be achieved by the statute. Such eligibility can be changed even for the purpose of promotion, unilaterally and the person seeking such promotion cannot raise the grievance that he should be governed only by the rules existing, when he joined service. In the matter of appointments, the authority concerned has unfettered powers so far as the procedural aspects are concerned, but it must meet the requirement of eligibility etc. The court should therefore, refrain from interfering, unless the appointments so made, or the rejection of a candidature is found to have been done at the cost of ‘fair play’, ‘good conscious’ and ‘equity’. The court should therefore, refrain from interfering, unless the appointments so made, or the rejection of a candidature is found to have been done at the cost of ‘fair play’, ‘good conscious’ and ‘equity’. (Vide: State of J & K v. Shiv Ram Sharma and Praveen Singh v. State of Punjab.) 14. A person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules is, and would therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegibility and not mere irregularity. Such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. (See: Prit Singh v. S.K. Mangal and Pramod Kumar v. U.P. Secondary Education Services Commission.)” 18. It is the case of petitioner Parkash Chand himself that he is simply matriculate and has not acquired 10+2 qualification within three years or upto the cut of date i.e. 31.12.2017 and is therefore not entitled to be considered much less promoted to the post of Forest Guard. 19. In view of the aforesaid discussions and for the reasons stated hereinabove, we find no merit in the petitions filed by the petitioner Parkash Chand being CWP No. 1515 of 2019 and CWPOA No. 6741 of 2020 and the same are dismissed.” In view of the settled legal position that questions relating to constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy within the exclusive discretion and jurisdiction of the State, subject, of course to the limitations or restrictions envisaged in the Constitution, it is not for the Court to substitute its views for that of State in that regard. 5(iii). It is again to be noticed that the petitioner even otherwise has not laid any challenge to the 2017 R&P Rules. 2012 R&P Rules challenged by the petitioner in the instant case though stand repealed, yet they were in force till 2017, whereas the instant petition challenging the same was filed by the petitioner on 27.08.2020, i.e. 8 years after their coming into force. 2012 R&P Rules challenged by the petitioner in the instant case though stand repealed, yet they were in force till 2017, whereas the instant petition challenging the same was filed by the petitioner on 27.08.2020, i.e. 8 years after their coming into force. Insofar as the contention of the petitioner for considering his short-term training certificate akin to the diploma required under the R&P Rules for promotion to the post of Assistant Director (Archives) is concerned, the same is also without any substance. The R&P Rules require Diploma in Archives from any recognized University/Institute. The petitioner had undergone a training course of one and a half month, i.e. w.e.f. 16.02.2009 to 31.03.2009, from the School of Archival Studies, National Archives of India, New Delhi. His training course cannot be equated to that of diploma. The petitioner has not put forth any material to demonstrate that the training course undertaken by him for a period of one and a half month can be treated as similar to the Diploma in Archives. For all the aforesaid reasons, I find no merit in the instant petition and the same is accordingly dismissed alongwith pending miscellaneous application(s), if any. At this stage, learned counsel for the petitioner states that the petitioner also intends to avail Clause 18 of the Recruitment & Promotion Rules, 2017 pertaining to Power of the State Government for relaxation of Rules in his case to seek promotion to the post of Assistant Director (Archives). It goes without saying that it is for the petitioner to move appropriate authority in that regard and for the authority to take decision on such matter.