Dalip Kumar vs State of Haryana

Tejinder Singh Dhindsa, J.—The present writ petition has been filed under Articles 226/ 227 of the Constitution of India for the issuance of a writ in the nature of mandamus for directing the respondents to consider the petitioners for promotion to the post of DPE in terms of the Punjab Educational Service, Class-III School Cadre Rules, 1955 (for short ''1955 Rules''). Facts of the case are in a very narrow compass. All the petitioners are stated to have joined on the post of JBT in the respondent-Department of various Departments between the year 1994 to 1998. Under the 1955 Rules, there was a provision for promotion from the post of JBT to DPE. However, the respondent- State framed the Haryana State Education School Cadre (Group ''C'') Service Rules, 1998 and notified the same w.e.f. 12.5.1998 (for short ''1998 Rules''). Under the 1998 Rules, the JBT teachers were rendered ineligible for promotion to the post of DPE.

The short and precise issue raised in the present petition is as to whether the petitioners are entitled to be promoted to the post of DPE against such vacancies which existed during the operation of the 1955 Rules and prior to the promulgation of 1998 Rules.

Argument raised by the learned counsel for the petitioners is that the qualification/eligibility in relation to a post is to be determined in the light of the Rules holding the field at the time when the vacancy arose. Learned counsel further places reliance upon judgment dated 5.4.2002 rendered by this Court in Civil Writ Petition No. 8287 of 2000 and which, as per counsel, upheld the claim of certain other employees who were similarly situated.

Learned counsel for the petitioners has been heard at length.

A similar issue came up for consideration before a Division Bench of this court recently in Darshan Singh and another v. State of Punjab and others, 2013 LIC 236. In Darshan Singh''s case (supra), the petitioners had been appointed as Beldars and next promotion was to the post of Mukaddam/Agriculture Sub Inspector and which post was governed by the Punjab Subordinate Agriculture Service Rules, 1933. The Rules of 1933 came to be repealed and in its place the Punjab Agriculture Department (Field Office) Group-''C'' Service Rules, 2010 were promulgated. Case of the petitioners was that they were eligible for consideration for promotion to the post of Agriculture Sub Inspector under the old Rules of 1933 and the vacancies pertaining to the higher post were also available, but under the 2010 Service Rules, they had been rendered ineligible. Darshan Singh and others, as such, claimed promotion to the higher post of Agriculture Sub Inspector in relation to vacancies available prior to promulgation of 2010 Rules as per their eligibility under the 1933 Rules. While negating the prayer raised by the petitioners, the Division Bench held as follows:

"Coming to the second aspect, namely, as far as petitioner is concerned his case for promotion is to be considered under the Rules of 1933, complete answer to this argument is provided by the recent judgment of the Supreme court in Deepak Agarwal and Another Vs. State of Uttar Pradesh and Others, . In that case the Supreme Court has revisited the entire case law on the subject and concluded that there is no absolute or universal preposition of law that the vacancies arising on a particular date are to be filled invariably by the law existing on that day. The position is explained and summed up by the apex Court in the following manner:--

"23. All these judgments have been considered by this Court in the case of Rajasthan Public Service Commission v. Chanan Ram & Anr. (supra). In our opinion, the observations made by this Court in paragraphs 14 and 15 of the judgment are a complete answer to the submissions made by Dr. Rajiv Dhawan. In that case, this Court was considering the abolition of the post of Assistant Director (Junior) which was substituted by the post of Marketing Officer. Thus the post of Assistant Director (Junior) was no longer eligible for promotion, as the post of Assistant Director had to be filled by 100% promotion from the post of Marketing Officer. It was, therefore, held that the post had to be filled under the prevailing rules and not the old rules.

In our opinion, the matter is squarely covered by the ratio of the judgment of this Court in the case of Dr. K. Ramulu (supra). In the aforesaid case, this Court considered all the judgments cited by the learned senior counsel for the appellant and held that Y.V. Rangaiah''s case (supra) would not be applicable in the facts and circumstances of that case. It was observed that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. It was also held that when the Government takes a conscious decision and amends the Rules, the promotions have to be made in accordance with the rules prevalent at the time when the consideration takes place."

Following the dictum laid down by the Division Bench in Darshan Singh''s case (supra), I find no basis to accept the claim raised by the present petitioners. In the facts of the present case, it would be construed that the Government had taken a decision not to fill up the vacancies of DPE from amongst the category of JBT at the relevant point of time when the 1955 Rules were in operation. As such, any promotions that have now to be made to the post of DPE would necessarily have to be governed with the Rules prevalent at the current point of time, i.e. 1998 Rules, and under which the petitioners are, admittedly, not eligible. For the reasons recorded above, I find no merit in the petition and the same is dismissed.