Anurag Sen vs State of Himachal Pradesh

V.K. Sharma, Judge

The petition has been filed on the following substantive prayers vide para 16 (A), (B) and (C):-

A). this Hon''ble Court may kindly be pleased to issue writ of Mandamus directing the respondent State to fill up the vacant posts of Junior Engineer Electrical in H P Public Works Department by way of promotion as per the Recruitment and Promotion Rules that were in force on the date when the posts in question fell vacant i.e Recruitment and Promotion Rules of the year 1979 and not as per the 2009 Recruitment and Promotion Rules and in case the respondent State during the pendency of the petition makes any promotion to the post of Junior Engineer Electrical as per 2009 Rules, then the said promotions may kindly be quashed by way of issuance of writ of Certiorari.

B) This Hon''ble court may kindly direct the respondent State by way of issuance of a writ of Mandamus to consider the petitioner for promotion to the post of Junior Engineer Electrical against the vacant posts as per Recruitment and Promotion Rules of the year 1979 and promote him to the said post as per Recruitment and Promotion Rules of the year 1979 and in case any relaxation of Rules is required to be done in this regard, the State may kindly be directed to relax the same keeping in view the fact the cadre of Foreman is dying care and the petitioner is only Foreman working on regular basis with respondent Department.

C). This Hon''ble Court may be pleased to hold the non inclusion of the post of Foreman Electrical Grade I as feeder post for promotion to the post of Junior Engineer Electrical in Recruitment and Promotion Rules 2009 as arbitrary and discriminatory and direct the respondent State to include post of Foreman Electrical Grade I as feeder post for promotion to the post of Junior Engineer Electrical in Recruitment and Promotion Rules 2009.

In reply the respondent has taken the following Stand vide paras 1 to 3 of the preliminary submissions:-

That it is submitted that the petitioner was engaged as Foreman Gr-II (Elect.) on daily wage basis w.e.f 17th May, 1994 in the respondent Department under Sub Division Electrical at IGMC Shimla. Upon completion of criteria of regularization he was regularized in the pay scale of 4400-7000 as Foreman Gr.I (Elect.) on 18.12.2006 being a diploma holder in Electrical Trade, when the respondent State conveyed sanction for creation of 2 posts of Foremen. In this behalf it is further submitted that at the time of regularization of services of the petitioner, R & P Rules framed as on 18.1.79 Annexure P-7 to the petition were applicable. As per the provisions of Rule 4(b)(1)(a) the petitioner after having completed 2 years service in the grade and 5 years service in the department was liable to be considered for promotion as JE (Electrical). In normal circumstances, unless clarified, service in department means regular service in the Department. Beside this the petitioner was a daily wager and not even ad hoc or temporary employee of the department. The period of daily wage service is not and cannot be considered toward calculating length of service of the petitioner for promotion. There is no provision for the same. In these facts and circumstances the petitioner, under old rules, was liable to be promoted on or after 17.12.2011 in view of specific condition of 5 years service in the Deptt.

That now the respondent department had framed another R & P Rules Annexure P-10 dated 29.5.09. As per provisions of these Rules the Diploma Holder, Tech. Gr. I is liable to be promoted after completion of 3 years regular service or regular combined with continuous ad hoc service rendered in the grade which earlier to Foreman now Technician (Gr.I) was five years. In these R & P Rules common cadre of Junior Technician (Electrical) including Technician Grade-II and Technician Grade-I are the feeder category for promotion as JE (Elect.). The petitioner by virtue of being Foreman is now redesignated as Technician Grade-I. Copies of Govt. Notifications No. PBW-2B(2) 30/86 dated 6.4.95 and No. Fin (C)B(7)6/88-VI dated 30.8.97 are enclosed as Annexure R-1 & R-2 respectively. This view is further supplemented for the reason that in the R & P Rules for placement in the analogous pay scale ratio of 20:30:50 is provided. In the 20% quota Technician Grade-I falls who are given placement in the pay scale of Rs. 4550-7220. In the 30% quota Technician Grade-II with placement in the pay scale of Rs. 4020-6200 and in 50% quota Jr. Technician falls placement in entry scale of Rs. 31205160. The petitioner being Forman stands granted pay scale of Rs. 4400-7000 whereas now by virtue of placement as Technician Grade-I he is placed in the higher placement scale of Rs. 45507220. The copy of the order dated 10.9.2009 is annexed as Annexure R-3.

That for the aforesaid reason, as and when posts of the category of JE (Electrical) falls vacant, after completion of 3 yeas of regular service regular combined with ad hoc service by the petitioner i.e as on 17.12.2009, the petitioner shall be considered for promotion as JE (Electrical) subject to the condition that posts falls vacant to the category of Foreman Gr.I now Technician (Gr.I). Therefore, no harm or prejudice has been caused to him which implementing earlier rules of 79 or when now rules have been framed. The post of Foreman is re-designated as Technician Grade (I). Hence, the present petition at this stage being premature is liable to be dismissed in the interest of justice."

There is no dispute between the parties with regard to the settled legal position as enunciated by the Hon''ble Apex Court in a catena of decisions, one of which is Arjun Singh Rathore and Others Vs. B.N. Chaturvedi and Others, , wherein it has been held vide para 5 of the report, which is extracted herein below that the existing posts are liable to be filled in on the basis of the Recruitment and Promotion Rules ( in short ''R & P Rules'') existing at the time of availability of such vacancy(s) and in case the R & P Rules are amended in the meantime, the same shall have only prospective effect and would not apply to the existing promotional vacancy(s):-

Mr. Calla, the learned senior counsel for appellants has argued that the matter was fully covered by the judgment of this Court in State of Rajasthan vs. R.Dayal wherein it had been held that the vacancies to be filled by promotion were to be filed under the rules which were in operation on the date when the vacancies had occurred. Relying on and referring to an earlier judgment in the case of Y.V.Rangaiah vs. J.Sreenivasa Rao it was opined as under: (SCC p.422, para 8)

This Court has specifically laid (sic) that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in accordance with the law existing as on the date when the vacancies arose.

However, even as per the old R & P Rules though the petitioner was possessing the requisite educational qualifications, yet was not having the requisite qualifying ''five years service in the department.'' The requirement of five years service in the department would mean that the incumbent ought to have put in five years regular service in the department and not temporary service followed by regular service. In the present case, the relevant date on which the petitioner was required to have five years service in the department was 19.05.2009, when the new R & P Rules came into force. Since he was regularized on 18.12.2006, he was having less than 2 1/2 years regular service on the appointed day, i.e 19.5.2009. The daily wage service rendered by the petitioner in the department prior to that cannot be clubbed with regular service for the purpose of aforesaid requirement of the R & P Rules, whereby he was required to have five years service in the department to be eligible for promotion to the post of Junior Engineer. In view of the above, the petitioner is not entitled for any relief and the petition is accordingly dismissed.