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2023 DIGILAW 368 (HP)

Ajay Anand @ Dole Ram v. State of HP

2023-06-26

JYOTSNA REWAL DUA

body2023
JUDGMENT : JYOTSNA REWAL DUA, J. CMP No. 4386 of 2023 1. This application under Order 1 Rule 10 of Code of Civil Procedure has been moved on behalf of one Sh. Tarsem Kumar Prashar for being impleaded as party respondent to the writ petition. Reply to the application has been filed only by respondent Nos. 1 to 3. 2. Looking into the pleadings of the writ petition, wherein reference to an earlier litigation instituted by Sh. Tarsem Kumar Prashar has been made and taking into consideration the factual averments made in the writ petition as well as grounds taken therein for seeking relief, I am of the consider view that interest of justice would be served in case the applicant is permitted to intervene in the matter. Ordered accordingly. The application to stand disposed of. CWP No. 3894 of 2020 3. With the consent of learned counsel for the parties, the matter is taken up for disposal at this stage. 4. The petitioner seeks a direction to the respondents to fill up the post of Assistant Controller (Printing Offset) in accordance with old Recruitment & Promotion Rules (R&P Rules in short) of the year 2002 and in terms of advertisement dated 06.04.2017. 5. Facts of the case are as under: (i) Respondent No. 3 i.e. Himachal Pradesh Public Service Commission vide advertisement dated 06.04.2017, invited applications from the desirous and eligible candidates for recruitment to various posts in different departments. One such post (UR) of Assistant Controller (Printing Offset) Class-1 Gazetted, on contract basis, was advertised in the Department of Printing and Stationery. The advertisement was issued in terms of R&P Rules of the post notified on 12.08.2002. The petitioner applied for the post. One Sh. Tarsem Kumar Prashar felt aggrieved against the recruitment process and challenged the same by filing Original Application No. 1711 of 2017 before the learned erstwhile H.P. Administrative Tribunal. Vide order dated 27.04.2017, passed in the Original Application No. 1711 of 2017, further process for direct recruitment to the post in question was stayed. (ii) After abolition of the H.P. Administrative Tribunal, the aforesaid original application was transferred to this Court and re-registered as CWPOA No. 1954 of 2020. (iii) During pendency of the aforesaid original application, respondents set-out to frame new R&P Rules for the post in question. In this view of the matter, Sh. (ii) After abolition of the H.P. Administrative Tribunal, the aforesaid original application was transferred to this Court and re-registered as CWPOA No. 1954 of 2020. (iii) During pendency of the aforesaid original application, respondents set-out to frame new R&P Rules for the post in question. In this view of the matter, Sh. Tarsem Kumar Prashar sought permission to withdraw the CWPOA No. 1954 of 2020. This permission was accorded to him vide order dated 07.09.2020 passed in the aforesaid writ petition. The CWPOA No. 1954 of 2020 was accordingly dismissed as withdrawn on 07.09.2020. The respondents on 08.09.2020, repealed the R&P Rules notified on 12.08.2002 and brought in force the new R&P Rules, vide notification dated 08.09.2020. (iv) The grievance of the petitioner in the instant writ petition is that he had responded to the advertisement dated 06.04.2017; he had applied for the post in question under this advertisement in the year 2017; he was within the age limit set-out in the advertisement; now the petitioner has crossed the age of 45 years. The petitioner does not fulfill the criteria laid down in the new R&P Rules, 2020. In terms of new R&P Rules, the post in question is required to be filled up 100% by way of promotion, failing which, by direct recruitment. According to the petitioner, filling up the post under the new R&P Rules would adversely affect his right. With the prayer that the post in question is required to be filled in accordance with old R&P Rules, the petitioner has instituted the present petition seeking following relief: “(i) That in view of the above mentioned facts and circumstances mentioned hereinabove, a writ in the nature of mandamus may very kindly be issued thereby directing the respondents to fill the post of Assistant Controller (Offset) in accordance with old Recruitment and Promotion Rules and as per advertisement dated 06.04.2017.” 6. Learned counsel for the petitioner contended that the petitioner has suffered immensely on account of inaction of the official respondents in not taking the selection process initiated under the advertisement dated 06.04.2017 to its logical conclusion. It is not the fault of the petitioner that the respondents have not been able to fill up the post advertised by them under advertisement dated 06.04.2017. The petitioner was eligible under the advertisement dated 06.04.2017. It is not the fault of the petitioner that the respondents have not been able to fill up the post advertised by them under advertisement dated 06.04.2017. The petitioner was eligible under the advertisement dated 06.04.2017. Due to promulgation of new R&P Rules, chances of the petitioner for appointment to the post in question, have been adversely affected. Learned Additional Advocate General as well as learned Senior Counsel for the intervener submitted that the R&P Rules, 2002 for the post in question stand repealed. The new R&P Rules for the post in question were notified on 08.09.2020, therefore, it is not feasible now to fill up the post as per old R&P Rules. The respondents have also taken up the ground that the petitioner has already crossed the age of 45 years and is not eligible for appointment in the State of Himachal Pradesh. 7. Observations Heard learned counsel for the parties: (i) Looking into the nature of controversy involved in the case, it will be appropriate to refer to a recent judgment of Hon’ble Apex Court in State of Himachal Pradesh and Others vs. Raj Kumar and Others, (2023) 3 SCC 773 . In the said case, R&P Rules of 1966 governing the post of Labour Officer were amended on 25.11.2006, whereunder, recruitment to the post of Labour Officer was to be made by promotion as well as direct recruitment in the ratio of 75% and 25% respectively. The proposed action of the State Government in filling up 25% posts of Labour Officers by direct recruitment was assailed. A contention was raised that since the vacancies arose in July 2006, before promulgation of the new Rules, all the vacancies must be filled only by promotion. Learned Tribunal directed the State Government to consider the grievance projected by the respondents therein. The State rejected the case of the respondents. While the matter was pending before the learned Tribunal, the State Government issued advertisement calling for application for filing up three posts of Labour Officers by direct recruitment. Private respondents No. 4 to 6 (therein) were selected pursuant to this advertisement and were appointed as such. The State rejected the case of the respondents. While the matter was pending before the learned Tribunal, the State Government issued advertisement calling for application for filing up three posts of Labour Officers by direct recruitment. Private respondents No. 4 to 6 (therein) were selected pursuant to this advertisement and were appointed as such. Questioning the legality and validity of the said appointments, writ petitions were preferred before this Court, which were allowed holding that vacancies which arose prior to promulgation of the new Rules were to be filled as per the 1966 Rules and not the new Rules, relying on Y.V. Rangaiah vs. J. Sreenivasa Rao, (1983) 3 SCC 284 . The Hon’ble Apex Court overruled the decision in Y.P. Rangaiah’s case and held that there is no rule of universal application that vacancies must be necessarily filled up on the basis of the law which existed on the date when they arose. That it is now settled proposition of law that a candidate has a right to be considered in the light of the existing rules, which implies the “rule in force” as on the date consideration takes place. The law was summed up by the Hon’ble Apex Court as under: “59. As is evident from the above, after referring to the decisions in Rangaiah, P. Ganeshwar and other decisions, the Court adopted the principle that the State has a right to stop a recruitment process at any time before the appointment takes place. This is to say that there is no vested right to get the process completed. This is important for the reason that while it holds that there is no right of an employee, it recognises the obligation of a State to justify its action on the touchstone of the Article 14 of the Constitution. 60 to 81...................... 82. A review of the fifteen cases that have distinguished Rangaiah would demonstrate that this Court has been consistently carving out exceptions to the broad proposition formulated in Rangaiah. The findings in these judgments, that have a direct bearing on the proposition formulated by Rangaiah are as under: 82.1. There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah’s case must be understood in the context of the rules involved therein. 82.2. There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah’s case must be understood in the context of the rules involved therein. 82.2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existed rules, which implies the “rule in force” as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates. 82.3. The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government. There is no obligation for the Government to make appointments as per the old rules in the event of restructuring of the cadre is intended for efficient working of the unit. The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article 14. 82.4. The principle in Rangaiah need not be applied merely because posts were created, as it is not obligatory for the appointing authority to fill up the posts immediately. 82.5. When there is no statutory duty cast upon the State to consider appointments to vacancies that existed prior to the amendment, the State cannot be directed to consider the cases. 83 to 85...................... 86. Returning to the facts of the present case, we have noticed that the High Court has proceeded on the premise that the vacancies occurring before the amendment of the Rules on 25.11.2006 must be governed by the 1966 Rules. The decision of the High Court took within its sweep even the 7 new posts of Labour Officers that were sanctioned by an inter-departmental letter dated 20.07.2006, which included even the 3 posts allocated for direct recruitment. The direction of the High Court to encompass even the 3 posts allocated for direct recruitment was on the ground that the posts were sanctioned on 20.07.2006, which is prior to the amendment of the Rules on 25.11.2006. 87. The direction of the High Court to encompass even the 3 posts allocated for direct recruitment was on the ground that the posts were sanctioned on 20.07.2006, which is prior to the amendment of the Rules on 25.11.2006. 87. We have already held that there is no right for an employee outside the rules governing the services. We have also followed and applied the Constitution Bench decisions in Union of India v. Tulsiram Patel and more particularly the decision in Roshan Lal Tandon v. Union of India that the services under the State are in the nature of a status, a hallmark of which is the need of the State to unilaterally alter the rules to subserve the public interest. The 2006 rules, governing the services of the Respondents came into force immediately after they were notified. There is no provision in the said rules to enable the Respondents to be considered as per the 1966 Rules. The matter must end here. There is no other right that Respondents no. 1 to 3 can claim for such consideration.” (ii) The ratio of the law declared by the Hon’ble Apex Court in the aforesaid judgment squarely applies to the facts of the present case. The advertisement dated 06.04.2017 was issued under the old R&P Rules notified in the year 2002. The advertisement was not taken to its logical conclusion. The post of Assistant Controller (Printing Offset) remained unfilled. In the interregnum R&P Rules underwent change. Rather the old R&P Rules notified on 12.08.2002 were repealed. New R&P Rules were notified on 08.09.2020. In the changed picture, contention of the petitioner that the post in question is required to be filled up under the old R&P Rules (2002) cannot be accepted. There is no challenge to the new R&P Rules. Learned counsel for the petitioner has not been able to point out any vested right of the petitioner to get the recruitment process completed in terms of advertisement dated 06.04.2017. When the R&P Rules, on the basis of which, said advertisement was issued, stand repealed and substituted by new R&P Rules, there arises no question of filling up the post in question either under the repealed Rules or under the advertisement issued under the old rules. 8. In view of the above, there is no merit in the present petitioner. When the R&P Rules, on the basis of which, said advertisement was issued, stand repealed and substituted by new R&P Rules, there arises no question of filling up the post in question either under the repealed Rules or under the advertisement issued under the old rules. 8. In view of the above, there is no merit in the present petitioner. The same is accordingly dismissed, so also the pending miscellaneous applications, if any.