Smt. Chander Kanta vs State of Himachal Pradesh

Rajiv Sharma, J.—Since common questions of law and facts are involved in all the writ petitions, these were taken up together for hearing and are being disposed of by this common judgment. However, in order to maintain clarity, the facts of C.W.P. No. 4039 of 2011 have been taken into consideration.

C.W.P. No. 4039 of 2011.

Petitioner was appointed as J.B.T. teacher on contract basis in the year, 1998. Her services were regularized as J.B.T. teacher on 01.01.2007. Respondent-State has framed the rules under Article 309 of the Constitution of India called ''The Himachal Pradesh, Education Department Class-III (School and Inspection Cadre) Services Rules, 1973. These rules were notified on 28th December, 1973. According to these rules, the post of T.G.T. was to be filled up from the cadre of J.B.Ts., i.e., 75% by direct recruitment and 25 % by way of promotion. The essential educational qualification was graduation in the subjects concerned from a recognized University with Post-graduate degree/diploma in teaching education. The minimum two years regular service was required for being considered for the post of J.B.T. from the feeder cadre of J.B.T. Medical/Non-Medical. The respondent-State has framed the rules under Article 309 of the Constitution of India called "The Himachal Pradesh, Elementary Education Department, Trained Graduate Teacher (Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2009. These rules were duly notified on 22.10.2009. According to these rules, the post of T.G.T. is to be filled up 25% by promotion, 15% from J.B.Ts., 10% from C&Vs. and 75% by direct recruitment on regular basis or recruitment on contract basis, as the case may be in the following manners:

(a) 37.5% through HPSSSB, Hamirpur.

(b) 37.5.% by batch-wise basis.

15% posts of T.G.Ts. are to be filled up from amongst the in service J.B.Ts. possessing the educational qualification as prescribed in Col. No. 7 with at least five years regular service or regular combined with continuous ad hoc service rendered, if any in the grade.

C.W.P. No. 4544 of 2011-E

Petitioner No. 1 was appointed as Vidya Upasak on 06.06.2000. Petitioner No. 2 was appointed as Vidya Upasak on 04.08.2000 and petitioner No. 3 was appointed as Vidya Upasak on 01.09.2000. Their services have been regularized on 22.11.2007.

C.W.P. No. 4545 of 2011-E

Petitioner No. 1 was appointed as J.B.T. teacher on contract basis on 04.04.1998. He was regularized on 01.01.2007. Petitioner No. 2 was appointed as J.B.T. teacher on 07.04.1998. He was also regularized on 01.01.2007.

C.W.P. No. 6551 of 2011.

Petitioner No. 1 was appointed as J.B.T. teacher on contract basis on 27.03.1998. Petitioner No. 2 was appointed as J.B.T. teacher on contract basis on 01.04.1998 and petitioner No. 3 was appointed as J.B.T. teacher on contract basis on 29.04.1998. Their services have been regularized on 01.01.2007.

Case of the petitioners, in a nut-shell, is that old vacancies are required to be filled up according to the old rules and the new vacancies are required to be filled up as per the new rules.

Mr. S.C. Sharma, learned counsel for the petitioners has vehemently argued that the vacancies were available at the time when the new rules were framed on 22.10.2009 and his clients were fully eligible and qualified to be considered for promotion to the post of T.G.T. in Medical stream as well as in Non-Medical stream.

Mr. Vikas Rathore, learned Deputy Advocate General has strenuously argued that the posts are to be filled up on the basis of new rules dated 22.10.2009, whereby the teachers are required to put in 5 years� service.

I have heard the learned counsel for the parties and gone through the pleadings carefully.

Now, as far as the petitioners in C.W.Ps. No. 4039 of 2011-D, 4545 of 2011-E and 6551 of 2011-G are concerned, they were regularized in the year 2007 and have completed two years service before the promulgation of new rules on 22.10.2009. However, the petitioners in C.W.P. No. 4544 of 2011-E were regularized on 22.11.2007 and have not completed two years regular service on 22.10.2009. It is evident from the rules notified on 28th December, 1993 that the J.B.T. teacher with two years service fulfilling the essential qualification was eligible for promotion to the post of T.G.T. Medical/Non-Medical.

On 20.12.2011, the respondent-State was directed to file a supplementary clarifying therein how many posts of J.B.Ts. were lying vacant before 22.10.2009. The supplementary affidavit has been filed by the Director. According to the averments contained in the affidavit, 60 posts of T.G.T. (Non-Medical) stream were available before 22.10.2009 and 147 posts were lying vacant in T.G.T. (Medical) stream. These posts were required to be filled up as per the old rules from J.B.T. teachers who fulfill the essential educational qualification and two years regular service.

Mr. Vikas Rathore, learned Deputy Advocate General has also argued that the cut off date in the case of T.G.T. Non-Medical and T.G.T. Medical was 11.11.2006. The cut off date prescribed by the respondent-State will not be relevant for the simple reason that old vacancies were to be filled up as per the old rules from those incumbents, who had already completed two years regular service. In other words, all the candidates, who were eligible up to 22.10.2009 were to be considered as per old rules since the vacancies were available.

The question whether the vacancies occurring before the amendment to the Recruitment and Promotion Rules are to be filled up as per the old Recruitment and Promotion Rules or by way of new Recruitment and Promotion Rules is no more res integra in view of the law laid down by their Lordships of the Hon�ble Supreme Court in Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, . Their Lordships have held that the vacancies in the promotional posts occurring prior to the amendment have to be filled up in accordance with the un-amended rules. Their Lordships have held as under:

The Tribunal on consideration of the materials on record came to the conclusion that the vacancies that arose between the preparation of the panels in December, 1975 and April, 1977 were eight, and that there was no reason why panel for that period should not have been drawn up at all. It is true that after 18th of October, 1975 the zones came into existence and, therefore, promotions to the grade of Sub-Registrar were required to be made on zonal basis, but after the personnel had been allocated to various zones, the task of preparing the annual panel with reference to the vacancies arising during the period 1976-77 should have been taken up on the basis of the seniority list for Zone IV. Had such a list been prepared according to the Andhra Pradesh Registration and Subordinate Service Rules, the eligibility of the candidates would naturally have been considered without reference to the amendment issued in March, 1977. On these findings the Tribunal held that the action taken by the Inspector-General of Registration and Stamps to make appointments against vacancies arising during the period 1976-77 from amongst the ''leftovers'' of the panels drawn up in April, 1975 and to dispense with the preparation of panel for 1976-77 was in violation of the rules and thus liable to be set aside, and it directed the State of Andhra Pradesh and the Inspector-General of Registration and Stamps to draw up a fresh panel for the year 1976-77 with reference to the vacancies that arose during that period, strictly in accordance with the rules as they existed at the time and the vacancies pertaining to that period should be filled on the basis of such a panel. Since the amendment to the rules was made in March, 1977, it follows that for vacancies relating to the panel year 1977-78 and subsequent year the panels will have to be prepared in accordance with the rules as they were amended by G.O. Ms. No. 265-Revenue (UI) dated 22nd March, 1977.

Their Lordships of the Hon�ble Supreme Court in B.L. Gupta and Another Vs. M.C.D., have held that the vacancies which have arisen prior to 1995 should have been filled up according to old rules. Their Lordships have held as under:

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 court 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 the case of N.T. Devin Katti v. Karnataka public service commission. In that case after referring to the earlier decisions in the cases of Y.V. Rangaiah v. J. Sreenivasa Rao, P. Ganeshwar Rao v. State of A.P. and A.A. Calton v. Director of Education 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. Though the High court has referred to these judgments, but for the reasons which are not easily decipherable its applicability was only restricted to 79 and not 171 vacancies, which admittedly existed. This being the correct legal position, the High court ought to have directed the respondent to declare the results for 171 posts of Assistant Accountants and not 79 which it had done.

We are unable to agree with Shri Sanghi that by virtue of their length of service while holding current duty charge as Assistant Accountants, his clients should be regularised in the said posts. Merely because the same posts have been upgraded from Senior Clerks to Assistant Accountants, it would not mean that persons who were given the current duty charge could be regularised without any selection. The clients of Mr. Sanghi presumably hold lien in the posts of Senior Clerks. If they were to be regularised as Assistant Accountants, the effect would be that they would be promoted to the said posts. The Rules of 1978 prescribe the mode in which the promotions can be made. This mode has to be followed before the appointments could be made. If no statutory rules had existed, it may have been possible, though we express no opinion on it, that the existing incumbents may have been regularised. Where, however, statutory rules exist, the appointments and promotions have to be made in accordance with the statutory rules specially where it has not been shown to us that the Rules gave the power to the appointing authority of relaxing the said Rules. In the absence of any such power of relaxation, the appointment as Assistant Accountant could only be made by requiring the candidates to take the examination which was the method which was prescribed by the 1978 Rules.

We are informed at the Bar by Dr. Singhvi, on the basis of instructions received by him, that now there are about 323 posts of Assistant Accountants. Out of these about 80 have been filled on the basis of the December 1973 examination. The respondents are directed to fill 91 more vacancies on the basis of December 1993 examination which they have already conducted. This will leave a balance of 152 vacancies. The number of persons who are holding these posts on current duty charge appears to be less than the number of vacancies so available. Therefore, there will be no immediate danger of Mr. Sanghi''s clients being reverted to the post of Senior Clerks. The respondents will be at liberty to continue to retain them in the higher post, but it is made clear that the vacancies which had arisen prior to amendment of the Rules in 1995 can only be filled in accordance with the 1978 Rules, which means that if Mr. Sanghi''s clients want to be regularly appointed as Assistant Accountants, they will have to compete with and take the examination under the 1978 Rules. This is with regard to the vacancies which remain and are required to be filled under the 1978 Rules. Any vacancies which arise after 1995 will have to be filled as per the amended Rules. It is but obvious that the seniority in all these cases will have to be fixed according to the seniority rules which are applicable.

Similarly, their Lordships of the Hon�ble Supreme Court in Arjun Singh Rathore and Others Vs. B.N. Chaturvedi and Others, have held that vacancies occurring prior to promulgation of the Recruitment and Promotion Rules were to be filled up according to the old Rules even though interview was held in 2000 when the new rules had already been notified. Their Lordships have held as under:

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 and Others, 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 and Others Vs. J. Sreenivasa Rao and Others, it was opined as under:

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.

The above legal position has not been seriously disputed by the learned counsel for respondent Nos. 6 & 7. We are therefore of the opinion that the vacancies which had occurred prior to the enforcement of the Rules of 1998 had to be filled in under the Rules of 1988 and as per the procedure laid down therein. We are therefore of the opinion that the judgment of the learned Single Judge needs to be restored. We order accordingly.

As far as the petitioners in C.W.P. No. 4544 of 2011-E are concerned, their services were regularized on 22.11.2007 and they have not completed two years regular service before the promulgation of new rules on 22.10.2009. Thus, these candidates are not eligible and their petition is dismissed.

Accordingly, in view of the observations and discussions made hereinabove, the C.W.Ps. No. 4039 of 2011-D, 4545 of 2011-E and 6551 of 2011-G are allowed. The respondents are directed to fill up the posts of T.G.T. (Medical & Non-Medical) according to the old rules framed on 20th December, 1973 with all consequential benefits, within a period of 10 weeks from today.

The pending application(s), if any, also stands disposed of.