Shri Balkrishan Sharma vs The State of Himachal Pradesh and Another

R.S. Pathak, C.J.—By this writ petition the Petitioner, who is a Superintendent in this Court, prays for a direction requiring the Registrar of this Court to send up his name for consideration for promotion to the Himachal Pradesh Administrative Service.

The Petitioner was appointed a Junior Grade Clerk in the Court of the Judicial Commissioner on March 12, 1949. In October, 1956 he was promoted to the post of Senior Grade Clerk. When the jurisdiction of the Delhi High Court was extended to the Union territory of Himachal Pradesh on May 1, 1967, the Court of the Judicial Commissioner was abolished and the Petitioner was posted as a Reader in the Delhi High Court. On January 25, 1971 the State of Himachal Pradesh was constituted, and this Court came into existence. On May 11, 1971 the Petitioner was appointed Superintendent in this Court. He was confirmed in that post by an order dated September 7, 1973 with effect from October 31, 1971.

Originally, when Himachal Pradesh was still a Union territory, promotion to the Delhi and Himachal Pradesh Civil Service was governed by the Delhi and Himachal Pradesh Civil Service Rules which came into force on March 15, 1961. They provided for recruitment from the cadre of Superintendents. That is clear from Rule 5(b)(ii), read with Schedule II, Part B, Item 4. It is not disputed that Superintendents in the High Court were eligible for promotion. These rules were subsequently replaced by the Delhi, Himachal Pradesh and Andaman and Nicobar Island Civil Service Rules, 1965, which came into effect from December 1, 1965. As in the previous rules, Superintendents in the High Court were also eligible for promotion to the Delhi, Himachal Pradesh and Andaman and Nicobar Island Civil Service. The position continued so until the enactment of the Himachal Pradesh Administrative Service Rules which constituted the Himachal Pradesh Administrative Service. Rule 7(1) defined the sources of recruitment for appointment to the service. It provided:

7(1) Appointment to the service against the vacancies in the service shall be made in the following manner:

(a) 50 per cent by direct recruitment;

(b) 22 per cent from the Tehsildars who are substantively borne on the cadre of Tehsildars and have two years continuous service in the grade both officiating and substantive; and (c) 28 per cent from the substantive holders of the following categories of posts who have two years continuous service in the grade both officiating and substantive:

(1) Block Development Officer.

(2) District Panchayat Officer.

(3) District Industries Officer.

(4) Section Officer of the Himachal Pradesh Secretariat.

(5) District Welfare Officer/District

Probation Officer.

(6) District Co-operative and Supplies Officer of the departmental cadre.

(7) Excise and Taxation Officer of the departmental cadre.

(8) Regional Manager (Transport) of the departmental cadre.

Provided that the incumbents of the posts of Assistant District Industries Officer, Superintendent of the Subordinate Offices, Superintendents of the High Court and the Courts subordinate thereto, Assistant Director of Welfare and Assistant Development Commissioner, holding such posts substantively immediately before the commencement of these rules and have two years continuous service in the grade, both officiating and substantive, shall also be eligible for appointment to the service.

(2) For purposes of calculating vacancies according to the percentages as prescribed in Sub-rule (1), the duty posts held either substantively or on probation in a regular manner before the commencement of these rules by the Himachal Pradesh Administrative Service Officers, shall be excluded;

Provided that the posts available against direct quota on the commencement of these rules, shall be filled over a period of four years.

Learned Counsel for the Petitioner raises two contentions before us. It is urged that upon the language of the proviso to Rule 7(1)(c), the Petitioner is eligible for promotion to the service in as much as upon a proper reading of the proviso he satisfies the qualifying conditions specified therein. The alternative contention is that the rule is ultra vires because it creates an invidious discrimination between Section Officers of the Himachal Pradesh Secretariat mentioned in Rule 7(1)(c) and Superintendents of the High Court. Having heard learned Counsel for the Petitioner and the learned Advocate-General for the Respondent No. 1, it seems to us that the Petitioner must succeed on the basis of his first contention. We, therefore, express no opinion on the second contention.

The question before us concerns the exact meaning of the words contained in the proviso to Rule 7(1)(c) "holding such posts substantively immediately before the commencement of these rules and have two years continuous service in the grade, both officiating and substantive....". The case of the Petitioner is that he qualifies for recruitment to the Himaachal Pradesh Administrative Service because immediately before March 15, 1973, which date is the date of commencement of the rules, he must be taken by virtue of the order of confirmation to have held the post substantively, and he must also be taken to have satisfied the further qualification that on the date of the proposed appointment he would have completed two years continuous service in the grade, both officiating and substantive. On the other hand, the learned Advocate-General contends that both conditions, that is to say, holding the post substantively and completing two years continuous service must relate to the date of commencement of the rules. At this stage, we may record that the learned Advocate-General has specifically stated that he does not question the order dated September 7, 1973 confirming the Petitioner in the post of Superintendent.

After giving our earnest consideration to the matter, it seems to us that the contention urged on behalf of the Petitioner must; prevail. The language employed in the proviso to Rule 7(1)(c) is quite clear. Two conditions are laid down: (1) the incumbent must hold the post of Superintendent substantively immediately before the commencement of these rules, and (2) the incumbent should have completed two years continuous service in the grade, both officiating and substantive. Now both conditions must be satisfied in relation to some date of reference. So far as the first condition is concerned, the date of reference is given in the condition itself, namely the date of commencement of the rules. As regards the second condition, there is no specific mention of any date of reference. That date, in our opinion, is the date of appointment to the Himachal Pradesh Administrative Service. The conclusion is necessarily implied from the frame of the language in which the proviso to Rule 7(1)(c) has been set out, and also upon comparing it with the language employed in the other provisions of Rule 7(1). The crucial date in all matters of employment is the date of appointment. On that date, in respect of a Superintendent in the High Court, the appointing authority must ask itself the question: Does the official under consideration satisfy the conditions making him eligible for promotion to the Himachal Pradesh Administrative Service? (1) Can it be said that the official held the post substantively immediately before the commencement of the rules, and (2) can he be said to have completed two years continuous service in the grade, both officiating and substantive? It is apparent that the adverbial expression "immediately before the commencement of these rules" has been associated with the holding of the post substantively. It is significantly absent so far as the second condition is concerned. If the intention of the framers of the rules, as borne out by the language there of, had been that the date of commencement of the rules should qualify the second condition also, there was no difficulty in providing accordingly.

The second condition reads: "have two years continuous service in the grade, both officiating and substantive". That precise expression will be found in Rule 7(1)(b), which is concerned with Tehsildars, and Rule 7(1)(c) which is concerned with eight categories of officers from Block Development Officer to the Regional Manager (Transport) of the departmental cadre. It cannot be disputed that when considering the promotion of Tehsildars and those eight categories of officers, the relevant date for examining whether that condition is satisfied is the date of appointment. A priori, that should also be the construction applicable to the second condition in the proviso to Rule 7(1)(c). The learned Advocate-General has vehemently contended that the proviso should be read so as to require the completion of two years continuous service with reference to the date immediately before the commencement of the rules. To accept that contention would be to legislate by re-writing the rule, and that this Court cannot do.

We hold that the proviso to Rule 7(1) requires that in order to qualify for appointment to the Himachal Pradesh Administrative Service a Superintendent in the High Court must hold that post substantively immediately before the commencement of the rules and that he should, on the date of appointment to the service, have two years continuous service in the grade, both officiating and substantive. It is not disputed that upon that understanding of the proviso the Petitioner is eligible for appointment to the service. The Petitioner held the post of Superintendent substantively immediately before the commencement of the rules on March 15, 1973, and he has already completed two years continuous service in the grade, both officiating and substantive.

The petition is allowed. The Registrar of this Court is directed to forward the name of the Petitioner to the appropriate authority for consideration for promotion to the Himachal Pradesh Administrative Service. There is not order as to costs.

D.B. Lal, J.

I agree.