Ujjagar Singh vs The State of H.P. and Others

V.K. Sharma, J.—The petition has been filed for grant of the following substantive reliefs vide para 7(i) to (iii):

7(i) To direct the respondents no. 1 and 2 to promote the applicant on ad hoc basis as the Horticulture Development Officer with effect from 24.6.1998 with all consequential reliefs or in the alternative to direct the respondents No. 1 and 2 to promote the applicant as Horticulture Development Officer against the post lying vacant;

7(ii) To direct the respondents No. 1 and 2 to approve and notify the draft R and P Rules which have already been approved by the respondent no. 5 without any further delay;

7(iii) To direct the respondents No. 1 and 2 to declare the applicant senior to the respondents No. 3 and 4 as the Horticulture Development Officer.

In the reply, following stand has been taken by the official respondents No. 1 and 2 vide preliminary submission and para 6(i), (ii) and (ii-a):

The applicant has no locus standi to claim the promotion at this stage as the Recruitment and Promotion Rules to the post of Horticulture Development Officer stand suspended, on 24.4.93 and thereafter these rules have not yet been finalized and notified by the Government. In this way the original application is premature and without proper cause of action at this stage. For the sack of clarity, it is made clear that even if, the promotion becomes due to any official/officer at any stage, the same has to be given to the incumbent after completing a set procedure prescribed under recruitment and promotion Rules and in the instant case the Recruitment and promotion Rules to this category of officers is under due process for finalization and has not yet been finalized and the promotion to the applicant cannot be given for certain unavoidable administrative reasons till the recruitment and promotion Rules are notified. In this way the Original Application filed by the applicant is premature and without any proper cause of action and the same deserves to be dismissed straightway in the interest of justice.

6(i) First part this para is admitted. However, it is made clear that the recruitment and promotion Rules were suspended vide notification No. Udyan Kha(7) 8/92dated 24.4.93, consequent upon the formation of common cadre and were not superseded by the Himachal Pradesh Govt. as alleged by the applicant. Thereafter a process to draft a fresh recruitment and promotion Rules for the category of Horticulture Development Officer were started which is still under process. The Recruitment and Promotion Rules to the category of officers is still under due process for finalization and has not yet been finalized. And as such no promotion can be given unless the recruitment and promotion Rules are notified. 6(ii) In reply to this para as earlier made clear the recruitment and promotion Rules were suspended not superseded as alleged by the applicant. This is correct that the applicant completed his B.Sc. in the year, 1997 and the applicant is eligible for promotion for the post of Horticulture Development Officer but the same can not be given to the applicant for certain unavoidable administrative reasons till the recruitment and promotion Rules are notified and as such the applicant has no right to challenge the present original application on the following grounds:

6(ii-a) As earlier stated the Recruitment and Promotion Rules for the post of Horticulture Development Officers has been suspended not superseded as alleged by the applicant. The said rules have not yet been notified and the applicant can not be promoted to the post of Horticulture Development Officer for certain administrative reasons as made clear in the foregoing paras. The respondents No. 3 and 4 had to be promoted on the instance of order passed in O.A. No. 621 of 97 dated 21.5.98 by the Hon''ble Administrative Tribunal, H.P.

Neither private respondents No. 3 and 4 nor respondent No. 5, H.P. Public Service Commission, has filed any reply.

Admittedly, the petitioner as also private respondents No. 3 and 4 were working as Horticulture Sub Inspectors on the establishment of respondent No. 2. As per seniority list (Annexure A2), as on 31.12.1997, whereas the petitioner was figuring at serial No. 71 and was thus senior to the private respondents No. 3 and 4, Shri Baldev Chand and Shri Pritam Singh Thakur, who figured at serial No. 86 and 103, respectively, of the said list. One fact which is apparent on the face of the record is that even as per seniority list (Annexure A2), as per entry in column No. 6, the petitioner as also the private respondents No. 3 and 4 are shown to have possessing B.Sc. Agriculture Degree. The controversy between the parties is that as per earlier rules, Horticulture Sub Inspectors were entitled for promotion as Horticulture Development Officer purely on the basis of seniority. However, in the meantime, there was a proposal for amending the Recruitment and Promotion Rules (in short ''R and P Rules'') to include B.Sc. Agriculture Degree with horticulture as one of the subjects as minimum qualification for promotion as Horticulture Development Officer. Admittedly, this proposal was not carried to the logical conclusion and was in the meantime kept in suspended animation. At the same time, whereas the private respondents No. 3 and 4 were promoted as Horticulture Development Officers vide Notification dated 24th June, 1995 (Annexure A1), w.e.f. 4th January, 1997 and the petitioner was leftout on the ground that he was not possessing the requisite B.Sc. Agriculture Degree as on 4th January, 1997. However, the fact remains that thereafter the petitioner was also promoted as Horticulture Development Officer in April, 1999. It is admitted on behalf of the official respondents that the petitioner had also acquired the requisite minimum qualification of B.Sc. in the year 1997. Even according to the petitioner, this qualification was acquired by him in the month of August, 1997. Thus apparently, he was not having the requisite qualification as on 04.01.1997 when the private respondents No. 3 and 4 were promoted. Even if it is so, in any case, the petitioner was entitled to be promoted from the date he acquired the requisite minimum qualification of B.Sc, i.e., August, 1997. Even otherwise, it is not shown that the exercise to amend the R and P Rules to include such qualification had been finalized by August, 1997. It is also not shown as to when the DPC was held pursuant to which private respondents No. 3 and 4 were promoted.

In view of the above, the petitioner is entitled for grant of relief prayed for. Consequently, there will be a direction to respondents No. 1 and 2 to consider his case for promotion as Horticulture Development Officer w.e.f. August, 1997, the date on which he had admittedly acquired the requisite minimum qualification of B.Sc. Agriculture with Horticulture as one of the subjects, which was the requirement even under the amendment contemplated in the R and P Rules. 6. Needless to say that such promotion, if granted, shall be followed by all consequential service benefits.

In view of the above, the petition stands disposed of