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2025 DIGILAW 242 (HP)

Murari Lal v. State of Himachal Pradesh

2025-03-01

SANDEEP SHARMA

body2025
JUDGMENT : Sandeep Sharma, J. Precisely, the question which needs to be determined in the instant petition is that “whether a vacancy is to be filled up on the basis of rules in vogue on the date of creation thereof or whether same can only be filled under the rules existing at the time of consideration?”. 2. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. J.L. Bhardwaj, learned Senior Counsel, duly assisted by Mr. Sanjay Bhardwaj, learned counsel representing the petitioner is that though petitioner is officiating as Principal in respondent No.4-College since 2023, but yet he is being denied promotion against the post of Principal on regular basis on the ground that vacancy of Principal, which had actually fallen vacant on 31.05.2023 can only be filled up under the rules existing on the date of creation of vacancy, wherein retirement age was 58 years. 3. While making this Court peruse bye-laws and rules governing miscellaneous matters connected therewith (Annexure P- 22), promulgated by respondent-Trust, Mr. Bhardwaj, learned Senior Advocate, states that though there is a fallacy in the stand taken by the respondents with regard to application of old rules, so far filling-up of post of Principal is concerned, but even if same are to be made applicable, petitioner herein could not have been denied promotion for the reason that he being a Sanskrit Teacher, otherwise is required to superannuate at the age of 60 years. He states that since petitioner has yet to attain the age of 60 years, his claim for promotion to the post of Principal, which is lying vacant for considerable time, deserves to be considered. 4. Pursuant to notices issued in the instant proceedings, respondents No.3 and 4 have filed reply, wherein an attempt has been made to defeat the rightful claim of the petitioner on the ground that clarification sought for from Worthy Vice Chancellor, Himachal Pradesh University with regard to consideration of candidature of the petitioner against the post of Principal is still pending. It is averred in the reply that since petitioner is on extension, necessary permission is required to be taken from Himachal Pradesh University for offering appointment/promotion against the post of Principal. 5. It is averred in the reply that since petitioner is on extension, necessary permission is required to be taken from Himachal Pradesh University for offering appointment/promotion against the post of Principal. 5. Having heard learned counsel representing the parties and perused material available on record, this Court finds that petitioner herein was offered appointment against the post of Lecturer Sanskrit in the respondent-College (Annexure P-6), in terms of bye- laws and rules, which were amended on 12.03.2024 (Annexure P-22). If the afore amended bye-laws and rules are perused in their entirety, this Court finds force in the submission of Mr. J.L. Bhardwaj, learned Senior Counsel representing the petitioner that petitioner herein being Lecturer in Sanskrit is otherwise required to be superannuated at the age of 60 years and not 58 years, as is being claimed by the respondents. Though, it has been claimed in the reply filed on behalf of respondents No.3 and 4 that petitioner herein is on extension, but no document worth credence has been placed on record showing extension, if any, granted to the petitioner, after his having attained the age of 58 years. If the amended rules, as taken note hereinabove, are read in their entirety, it clearly reveals that same have been formulated to regulate promotion, recruitment, emoluments and other condition of service and miscellaneous matters, connected with the persons appointed by respondent-Trust. Since it is not in dispute that the petitioner was appointed with respondent-Trust, may be under old rules, which now stand amended, coupled with the fact that the petitioner after his having attained the age of 58 years has been permitted to continue in service, rightful claim of the petitioner for promotion against the post of Principal cannot permitted to be defeated on flimsy grounds. Though, Mr. Dhiraj Thakur, learned counsel representing the respondents No.3 and 4 attempted to argue that since appointment of the petitioner against the post of Lecturer Sanskrit was under old rules, his prayer for promotion can only be considered under those rules, but such submission being wholly untenable deserves outright rejection. 6. Though, Mr. Dhiraj Thakur, learned counsel representing the respondents No.3 and 4 attempted to argue that since appointment of the petitioner against the post of Lecturer Sanskrit was under old rules, his prayer for promotion can only be considered under those rules, but such submission being wholly untenable deserves outright rejection. 6. Once it is not in dispute that bye-laws and rules, under which petitioner was given appointment, stand amended in the year 2024 and therein specific provision has been made to retire the Sanskrit Teacher/Lecturer on their having attained the age of 60 years or till the end of semester or academic session, prayer made on behalf of the petitioner for promotion to the post of Principal cannot be ignored, rather, is required to be considered in light of bye-laws and rules as well as other factors relevant for promotion. 7. Though, on one hand, it has been claimed by respondents No.3 and 4 that the petitioner is on extension, but on the other hand, there is no denial to the fact that he has been officiating against the post of Principal for more than two years, as is evident from Annexure P-11. Careful perusal of Annexure P-11 clearly reveals that after retirement of Dr. Narottam Dutt Sharma, Principal on 31.05.2023, petitioner herein being senior-most Lecturer was given charge of post of Principal in the respondent-College, in addition to his own duties without any remuneration w.e.f. 31.05.2023. Needless to say, charge of post of Principal could have been only given to a person eligible for holding the post in question. Otherwise also, there is no dispute with regard to eligibility of the petitioner and his being senior-most. At this stage, it would be apt to take note of judgment dated 20.05.2022 passed by Hon’ble Apex Court in case titled as State of Himachal Pradesh and Others Vs. Raj Kumar and Others, (2023) 3 SCC 773 , wherein Hon’ble Apex Court while holding that employee has no vested right to be considered for promotion in accordance with repealed rules in view of policy decision of the Government, has categorically held that there is no obligation on Government to make appointments as per old rules in the event of restructuring of cadre intended for efficient working of the unit, rather, promotion, if any, is to be considered on the basis of existing rules. Relevant Paras of afore judgment read as under: “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. 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. The above-referred observations made in the fifteen decisions that have distinguished Rangaiah’s case demonstrate that the wide principle enunciated therein is substantially watered-down. Almost all the decisions that distinguished Rangaiah hold that there is no rule of universal application to the effect that vacancies must necessarily be filled on the basis of law that existed on the date when they arose. This only implies that decision in Rangaiah is confined to the facts of that case. Almost all the decisions that distinguished Rangaiah hold that there is no rule of universal application to the effect that vacancies must necessarily be filled on the basis of law that existed on the date when they arose. This only implies that decision in Rangaiah is confined to the facts of that case. 84. The decision in Deepak Agarwal (supra) is a complete departure from the principle in Rangaiah, in as much as the Court has held that a candidate has a right to be considered in the light of the existing rule. That is the rule in force on the date the consideration takes place. This enunciation is followed in many subsequent decisions including that of Union of India v. Krishna Kumar (supra). In fact, in Krishna Kumar Court held that there is only a "right to be considered for promotion in accordance with rules which prevail on the date on which consideration for promotion take place.” 85. The consistent findings in these fifteen decisions that Rangaiah’s case must be seen in the context of its own facts, coupled with the declarations therein that there is no rule of universal application to the effect that vacancies must necessarily be filled on the basis of rules which existed on the date which they arose, compels us to conclude that the decision in Rangaiah is impliedly overruled. However, as there is no declaration of law to this effect, it continues to be cited as a precedent and this Court has been distinguishing it on some ground or the other, as we have indicated hereinabove. For clarity and certainty, it is, therefore, necessary for us to hold; 85.1. The statement in Y.V. Rangaiah v. J. Sreenivasa Rao that, “the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules”, does not reflect the correct proposition of law governing services under the Union and the States under part XIV of the Constitution. It is hereby overruled.” 8. In the aforesaid judgment, Hon’ble Apex Court has overruled its earlier judgment in Y.V. Rangaiah Vs. J. Sreenivasa Rao, (1983) 3 SCC 284 , wherein it was held that vacancies, which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is hereby overruled.” 8. In the aforesaid judgment, Hon’ble Apex Court has overruled its earlier judgment in Y.V. Rangaiah Vs. J. Sreenivasa Rao, (1983) 3 SCC 284 , wherein it was held that vacancies, which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. Hon’ble Apex Court in the aforesaid judgment has categorically held that rights and obligations of persons serving the Union and the States are to be sourced from the rules governing the service. Since at present, service conditions of the petitioner as well as other similarly situates are governed by amended rules, wherein specific provision has been made to retire the teaching faculty at the age of sixty years, explanation given by respondents for not considering the case of the petitioner, deserves outright rejection. 9. Similarly, there appears to be no justification, if any, to call for any clarification from Worthy Vice Chancellor, Himachal Pradesh University, who otherwise has no administrative control, if any, rather, role of Himachal Pradesh University is limited to the extent of affiliation and conducting examinations. Since it is not in dispute, rather stands duly admitted on record that petitioner has been officiating against the post of Principal w.e.f. 01.06.2023, he is required to be given salary attached to the post of Principal. Though, Mr. Dhiraj Thakur, while referring to communication dated 08.06.2023 (Annexure P-11), attempted to argue that since petitioner was made fully aware at the time of handing over the charge that he will not be given any additional benefit, he is estopped from claiming such benefits in the instant petition, but such plea of him does not appear to be correct. 10. At this juncture, it would be apt to take note of judgment passed by Hon’ble Apex Court in case titled as Secretary-cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma and Others, (1998) 5 SCC 87 , wherein it came to be held that Government being a model employer, cannot be permitted to raise such an argument that undertaking was given by the employee to work without additional emoluments. Relevant Para of afore judgment reads as under: “8. Hari Om Sharma and Others, (1998) 5 SCC 87 , wherein it came to be held that Government being a model employer, cannot be permitted to raise such an argument that undertaking was given by the employee to work without additional emoluments. Relevant Para of afore judgment reads as under: “8. Learned counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer-I, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma holders available for promotion to the post of Junior Engineer-I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act.” 11. Reliance is also placed upon judgment, titled State of Punjab and Another Vs. Dharam Pal, (2017) 9 SCC 395 . “20. In Hari Om Sharma, the respondent was promoted as a Junior Engineer I in 1990 and had been continuing on that post without being paid salary for the said post and without being promoted on regular basis. It was in this situation, he approached the Central Administrative Tribunal which allowed the claim petition with the direction that the respondent shall be paid salary for the post of Junior Engineer I. That apart certain other directions were also issued. It was in this situation, he approached the Central Administrative Tribunal which allowed the claim petition with the direction that the respondent shall be paid salary for the post of Junior Engineer I. That apart certain other directions were also issued. The Court took note of the fact that the respondent was promoted on a stop- gap arrangement as Junior Engineer I and opined that this by itself would not deny his claim of salary for the said post. In that context, the Court held: (SCC p. 89, para 6) "6. If a person is put to officiate on a higher post with greater responsibilities, he is normally entitled to salary of that post. The Tribunal has noticed that the respondent has been working on the post of Junior Engineer I since 1990 and promotion for such a long period of time cannot be treated to be a stop-gap arrangement." 21. After so stating, the Court proceeded to opine thus: (Hari Om Sharma cases, SCC pp. 89-90, para 8) "8. The learned counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer I, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma holders available for promotion to the post of Junior Engineer I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872." (emphasis supplied) The principle postulated in the said case is of immense significance, for it refers to concept of public policy and the conception of unconscionability of contract. 22. In the instant case, the Rules do not prohibit grant of pay scale. The decision of the High Court granting the benefit gets support from the principles laid down in P. Grover and Hari Om Sharma. As far as the authority in A. Francis is concerned, we would like to observe that the said case has to rest on its own facts. We may clearly state that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating position. We are disposed to think that the controversy is covered by the ratio laid down in Hari Om Sharma and resultantly we hold that the view expressed by the High Court is absolutely impeccable.” 12. Now doubt, in the case at hand, perusal of Annexure P-4 suggests that charge of the post of Principal was given to the petitioner in addition to his own duties, without any remuneration, but once there is no dispute qua the fact that since on the date of creation of vacancy, petitioner had been rendering services as Principal, in addition to his own duties, coupled with the fact that he is otherwise entitled to be promoted against the post in question being senior-most in the cadre, prayer made on his behalf for release of salary attached to the post of Principal, deserves to be considered. 13. Division Bench of this Court in case titled as Ranbir Singh Vs. State of Himachal Pradesh and Another, CWPOA No.5840 of 2020, decided on 27.09.2023, had an occasion to deal with similar situation, wherein, after having taken note of FR49, it proceeded to hold as under: “4. 13. Division Bench of this Court in case titled as Ranbir Singh Vs. State of Himachal Pradesh and Another, CWPOA No.5840 of 2020, decided on 27.09.2023, had an occasion to deal with similar situation, wherein, after having taken note of FR49, it proceeded to hold as under: “4. FR 35 and 49 shall be relevant for adjudication of present matter, which read as under:- “35. The Central Government may fix the pay of an officiating Government servant at an amount less than the admissible under these rules. 49. The Central Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under the Government. 49. The Central Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under the Government. In such cases, his pay is regulated as follows: - (i) where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the Competent Authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post; (ii) where a Government servant is formally appointed to hold dual charges of two posts in the same cadre in the same office carrying identical scales of pay, no additional pay shall be admissible irrespective of the period of dual charge: Provided that, if the Government servant is appointed to an additional post which carries a special pay, he shall be allowed such special pay; (iii) where a Government servant is formally appointed to hold charge of another post or posts which is or are not in the same office, or which, though in the same office, is or are not in the same cadre/line of promotion, he shall be allowed the pay of the higher post, or of the highest post, if he holds chargé of more than two posts, in addition to ten per cent of the presumptive pay of the additional post or posts, if the additional charge is held for a period exceeding 45 days but not exceeding 3 months: Provided that if in any particular case, it is considered necessary that the Government servant should hold charge of another post or posts for a period exceeding 3 months, the concurrence of Department of Personnel and Training shall be obtained for the payment of the additional pay beyond the period of 3 months; (iv) where an officer is formally appointed to hold full additional charge of another post, the aggregate of pay and additional pay shall in no case exceed ,25,000; (v) no additional pay shall be admissible to a Government servant who is appointed to hold current charge of the routine duties of another post or posts irrespective of the duration of the additional charge; (vi) if compensatory or sumptuary allowances are attached to one or more of the posts, the Government servant shall draw such compensatory or sumptuary allowances as the Central Government may fix: Provided that such allowances shall not exceed the total of the compensatory and sumptuary allowances attached to all the posts.” 5. Guidelines issued by the Government of India, Department of Personnel and Training vide O.M. No. 4/2/89-Estt. (Pay-II), dated 11th August, 1989 with respect to additional charge of the current duties of another post under FR 49, are also relevant in this regard, which read as under:- “… … … 2. With a view to avoiding recurrence of such situations, the following guidelines may be followed while considering the question of entrusting additional charge of another post to an officer:- (i) When an officer is required to discharge all the duties of the other post including the statutory functions, e.g. exercise of power derived from Acts of Parliament such as Income Tax Act or the Rule, Regulations, By-Laws made under various Articles of Constitution such as FRs, CCS (CCA) Rules, CSRs., DFPRs., etc., then steps should be taken to process the case for getting the approval of the Competent Authority and formal orders appointing the officer to the additional post should be issued. On appointment the officer should be allowed the additional remuneration as indicated in RF 49. (ii) Where an officer is required only to attend to the usual routine day-to-day work of non-statutory nature attached to the post, an office order may be issued clearly stating that the officer will be performing only the routine day-to-day duties of non-statutory nature and that he would not be entitled to any additional remuneration. The office order should also specify what duties he would be discharging or what duties he would not be discharging.” 14. As per aforesaid judgment, FR49(i) provides that where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office, he shall be entitled for officiating pay, unless concerned authority reduces the same under Rule 35. 15. As per Annexure P-1, copy of certificate of passing Higher Secondary (Part I) Examination issued by Himachal Pradesh Board of School Education, the date of birth of the petitioner is 1.5.1965. As per unamended rules/bye-laws, the petitioner who is working as a Lecturer (Sanskrit) ought to have been superannuated by the respondent College on 31.5.2023, but perusal of Annexure P-11, copy of office order dated 8.6.2023 shows that after superannuation of Dr. As per unamended rules/bye-laws, the petitioner who is working as a Lecturer (Sanskrit) ought to have been superannuated by the respondent College on 31.5.2023, but perusal of Annexure P-11, copy of office order dated 8.6.2023 shows that after superannuation of Dr. Narottam Dutt Sharma, Principal on 31.5.2023, present petitioner was given charge of the post of Principal with effect from 31.5.2023, whereas, on 30.4.2023 (being born on first day of next month),petitioner had already attained the age of 58 years. 16. Now, if the stand taken by the respondent College, regarding the petitioner being on extension is dealt with keeping in view the fact that with effect from 31.5.2023, respondent College has given charge of post of Principal to the petitioner, the same seems to be self-destructing, inasmuch as if the petitioner had retired on 30.4.2023, on attaining the age of 58 years, where is order to this effect and how the respondents could have given charge of the post in question to the petitioner, had be retired on that date. It is thus clear that not only the petitioner had been continuing in the College against substantive post of Lecturer (Sanskrit) after 30.4.2023, but is officiating against the post of Principal respondent College after31.5.2023, pursuant to order dated 8.6.2023. 17. Now, there is yet another aspect of the matter, Annexure P-22 is the Temple Trust Shri Naina Devi Ji Employees Service Bye- laws, 2024. Bye-law 27, pertains to retirement age of the employees of the Trust, which is 58 years, except for teachers. Third proviso to bye-law 27 provides as under: “Provided further that the Teacher of the Sanskrit College being run by the Temple Trust shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years or till the end of semester or academic session, whichever is later as per UGC Norms.” 18. Respondents have nowhere shown or specifically stated that the petitioner has been superannuated, rather have claimed him to be on extension, but document in regard to either of the situations is missing and as such, this Court can safely presume that the petitioner is still continuing in job. Respondents have nowhere shown or specifically stated that the petitioner has been superannuated, rather have claimed him to be on extension, but document in regard to either of the situations is missing and as such, this Court can safely presume that the petitioner is still continuing in job. Once, the petitioner is in service and now as per amended Bye-laws, (supra), a teacher will superannuate either at the age of 60 years or at the end of academic session, respondent are estopped from taking the aforesaid stand i.e. petitioner being on extension. A passing reference can be made to the Recruitment and Promotion Rules for the post of Principal/Pracharya, which provide no age limit for appointment/promotion to said post, as such, as on date petitioner being in service; post of Principal being available; petitioner already manning said post on officiating basis and; petitioner holding the requisite qualification for the post, being senior most in the cadre, are the factors, which favour the case of the petitioner. 19. Consequently, in view of detailed discussion made hereinabove as well as law taken into consideration, this Court finds merit in the present petition and accordingly the same is allowed. Respondents are directed to consider the candidature of the petitioner for promotion to the post of Principal w.e.f. 01.06.2023 in terms of bye-laws and rules amended in the year 2024, wherein admittedly retirement age of Teacher has been provided as sixty years. Since petitioner has been fighting for his rightful claim for considerable time, coupled with the fact that he is officiating as Principal for the last one and a half year, this Court hopes and trusts that needful in terms of instant order shall be done by the respondents, expeditiously, preferably, within a period of four weeks. Necessary steps shall also be taken by the respondents to ensure release of salary attached to the post of Principal, to the petitioner for the period, he officiated against the post in question. With these observations, present petition stands disposed of, along with pending application(s), if any.