Hema Karki vs State Of Uttarakhand & Others

Manoj K. Tiwari, J

Heard learned counsel for the parties and perused the record.

Petitioner is serving as Inspector in the Home Guard. As per applicable Rules, which were framed in the year 1982, as amended in the year 1988, a confirmed Inspector is eligible for promotion against the post of District Commandant The Rules further provide that 50% post of District Commandant are required to be filled by promotion. According to the petitioner, 5 posts of District Commandant, as referred to in Rule 5(2) of the U.P. Home Guard Service Rules, 1982, had fallen vacant during recruitment year 2015-2016 and requisition was also sent by the Commandant General, Home Guard to the State Government vide letter dated 25.07.2015 in which it was mentioned that petitioner is confirmed on the feeder post and she is eligible for promotion to the post of District Commandant. However, due to some unavoidable reason, promotion exercise could not be held pursuant to the said requisition, consequently, petitioner's claim for promotion could not be considered.

It transpires that subsequently in the year 2016, new Service Rules were framed, which were notified on 2.06.2016. In the new Rules, a new condition of eligibility was added, namely, requirement of qualifying service of eight years on the feeder post of Inspector, for promotion to the post of District Commandant.

Since petitioner was promoted to the post of Inspector only on 06.05.2013 and she was confirmed on the said post in the year 2015, therefore, she has not completed eight years of qualifying service on the feeder post, consequently, her claim for promotion to the post of District Commandant is not being considered. Hence, petitioner has approached this Court.

Learned counsel for the petitioner submits that petitioner would complete 60 years of age in the month of March, 2020, therefore, if the stand taken by the respondents is accepted then petitioner would be rendered ineligible for promotion for all times to come.

It is the contention of learned counsel for the petitioner that since as many as five vacancies were available on promotion quota post for District Commandant in the year 2015, which are still available in the absence of any promotion, therefore, petitioner's claim has to be considered, as per the rules, which were prevailing in the year 2015. He submits that new Rules came into force w.e.f. 02.06.2016, therefore, these Rules have no application in respect of old vacancies.

Hon'ble Supreme Court in the case of State of Punjab and others Vs. Arun Kumar Aggarwal and others, reported in (2007) 10 SCC 402, has held that vacancies prior to enforcement of new Rules would be governed by the Old Rules. Paragraph no. 30 of the said judgment is extracted below:

"30. There is no quarrel over the proposition of law that normal Rule is that the vacancy prior to new Rules would be governed by the old Rules and not by the new Rules. However, in the present case, we have already held that the Government has taken conscious decision not to fill the vacancy under the old Rules and that such decision has been validly taken keeping in view the facts and circumstances of the case."

Similarly, in the case of Y.V. Rangaiah and others Vs. J. Sreenivasa Rao and others, reported in (1983) 3 SCC 284, Hon'ble Supreme Court has held that a Government employee cannot be deprived of his right to be considered for promotion on account of delay in preparing panel for promotion. Paragraph no. 9 of the said judgment is extracted below:

"9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Register Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."

Similarly, in the case of Richa Mishra Vs. State of Chhattisgarh and others, reported in (2016) 4 SCC 179, Hon'ble Supreme Court has summarized the legal position on the point in paragraph no. 18 of the judgment, which is extracted below:

"18. The High Court held that the first and second requisitions to commence recruitment process against the vacant seats to the post of DSP were made when the 2000 Rules were in force. Therefore, recruitment was rightly undertaken under the 2000 Rules. The admitted facts are that the process of selection started before the 2005 Rules were promulgated with the requisitions dated 27-9-2004 and 26-3-2005 sent by the State Government to CPSC.

At that time, the 2000 Rules were in vogue. For this reason, even in the requisition it was mentioned that appointments are to be made under the 2000 Rules. Further, it is also an admitted fact that the vacancies in question which were to be filled were for the period prior to 2005. Such vacancies needed to be filled in as per those Rules i.e. the 2000 Rules. This is patent legal position which can be discerned from Y.V. Rangaiah v. J. Sreenivasa Rao4. As per the facts of that case a panel had to be prepared every year of list of approved candidates for making appointments to the grade of Sub-Registrar Grade II by transfer according to the old Rules. However, the panel was not prepared in the year 1976 and the petitioners were deprived of their right of being considered for promotion. In the meanwhile, new Rules came into force. In this factual background, it was held that the vacancies which occurred prior to the amended rules would be governed by the old Rules and not by the amended rules. The judgment in B.L. Gupta v. MCD5 also summarises the legal position in this behalf. The judgment in P. Ganeshwar Rao v. State of A.P.6 is also to the same effect. Para 9 of the judgment laying down the aforesaid proposition of law, is reproduced below: (B.L. Gupta case5, SCC p. 226)

"9. When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been held to be prospective by the High Court7 and in our opinion this was the correct conclusion. This being so, the question which arises is whether the vacancies which had arisen earlier than 1995 can be filled as per the 1995 Rules. Our attention has been drawn by Mr Mehta to a decision of this Court in N.T. Devin Katti v. Karnataka Public Service Commission8. In that case after referring to the earlier decisions in Y.V. Rangaiah4, P. Ganeshwar Rao6 and A.A. Calton v. Director of Education9 it was held by this Court that the vacancies which had occurred prior to the amendment of the Rules would be governed by the old Rules and not by the amended Rules."

Now, coming to the facts of the present case, this Court finds that petitioner was eligible for promotion in the year 2015 when requisition was sent to Commandant General, Home Guards vide letter dated 25.07.2015. The said letter indicates that there were as many as 5 vacancies on promotion quota post of District Commandant. New, Rules were enforced only on 02.06.2016.

Separate counter affidavits have been filed; one by respondent nos. 1 & 3 and another by respondent no. 2. In both the counter affidavits, it is stated in paragraph no. 12 that Commandant General, Home Guards was nominated as member of the Promotion Committee, which was to hold meeting on 04.11.2015 and thereafter on 03.12.2015, but, due to engagement of Commandant General, Home Guards elsewhere, the meeting of Promotion Committee could not be held on the dates fixed for the purpose.

It is, thus, apparent that petitioner's right to be considered for promotion could not be considered in 2015 due to unavailability of Commandant General, Home Guards on the dates fixed for meeting of Promotion Committee. Undisputedly, petitioner was eligible for promotion to the post of District Commandant in 2015. In such view of the matter, her claim for promotion deserves to be considered under the Old Rules and her eligibility for promotion cannot be taken away under, under the New Rules.

Consequently, the writ petition is allowed. Respondent no. 1 is directed to consider petitioner's claim for promotion to the post of District Commandant, in accordance with law, within a period of eight weeks from the date of production of certified copy of this order.