LegalPoint: Jai Singh Vs State of HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No. 1436 of 2014-D with CWP Nos. 6615, 6650, 9040, 9041, 9342, 9434, 9739 of 2013, CWP Nos. 397, 660, 944, 1460, 1919, 1920 and 3327 of 2014.

Judgement reserved on: 29.5.2014. Date of decision: 16.6.2014.

Coram : The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

1. CWP No. 1436 of 2014-D. Jai Singh Vs. State of H.P.

For the petitioner(s): Mr. S.C. Sharma, Advocate.

For the Respondent(s) : Mr. Shrawan Dogra, Advocate General with Mr. V.K. Verma, Ms. Meenakshi Sharma, Additional Advocate Generals and Ms. Parul Negi, Deputy Advocate General.

2. CWP No. 6615 of 2013-B Rakesh Vs. State of H.P.

For the petitioner(s): Mr. S.C. Sharma, Advocate.

For the Respondent(s) : Mr. Shrawan Dogra, Advocate General with Mr. V.K. Verma, Ms. Meenakshi Sharma, Additional Advocate Generals and Ms. Parul Negi, Deputy Advocate General.

3. CWP No. 6650 of 2013-E Ishwar Chand Vs. State of H.P.

For the petitioner(s): Mr. S.C. Sharma, Advocate.

For the Respondent(s) : Mr. Shrawan Dogra, Advocate General with Mr. V.K. Verma, Ms. Meenakshi Sharma, Additional Advocate Generals and Ms. Parul Negi, Deputy Advocate General.

4. CWP No. 9040 of 2013-D Shiv Kumar Vs. State of H.P.

For the petitioner(s): Mr. Avneesh Bhardwaj, Advocate.

For the Respondent(s) : Mr. Shrawan Dogra, Advocate General with Mr. V.K. Verma, Ms. Meenakshi Sharma, Additional Advocate Generals and Ms. Parul Negi, Deputy Advocate General, for respondents No. 1 to 3. Mr. Lovneesh Kanwar, Adevocate, for respondent No.4. Mr. Sanjeev Bhushan, Advocate, for respondent No.5. Mr. Pankaj Negi, Advocate vice Mr. Sandeep Sharma, ASGI, for respondent No.6. Mr. Dilip Sharma, Senior Advocate with Mr. Manish Sharma, Advocate, for respondents No. 7 to 42.

5. CWP No. 9041 of 2013-E Arun Kumar Vs. State of H.P.

For the petitioner(s): Mr. Avneesh Bhardwaj, Advocate.

6. CWP No. 9342 of 2013-E Bhartendu Sharma Vs. State of H.P.

For the petitioner(s): Mr. Avneesh Bhardwaj, Advocate.

7. CWP No. 9434 of 2013-D Tarun Bala Vs. State of H.P.

For the petitioner(s): Mr. S.C. Sharma, Advocate.

For the Respondent(s) : Mr. Shrawan Dogra, Advocate General with Mr. V.K. Verma, Ms. Meenakshi Sharma, Additional Advocate Generals and Ms. Parul Negi, Deputy Advocate General.

8. CWP No. 9739 of 2013-D Gopal Singh Vs. State of H.P.

For the petitioner(s): Mr. Rajender Thakur and Mr. Rajesh Kumar, Advocates.

For the Respondent(s) : Mr. Shrawan Dogra, Advocate General with Mr. V.K. Verma, Ms. Meenakshi Sharma, Additional Advocate Generals and Ms. Parul Negi, Deputy Advocate General.

9. CWP No. 397 of 2014. Parma Nand Vs. State of H.P.

For the petitioner(s): Mr. Avneesh Bhardwaj, Advocate.

10. CWP No. 660 of 2014-F Karuna Kaushal Vs. State of H.P.

For the petitioner(s): Mr. S.C. Sharma, Advocate.

For the Respondent(s) : Mr. Shrawan Dogra, Advocate General with Mr. V.K. Verma, Ms. Meenakshi Sharma, Additional Advocate Generals and Ms. Parul Negi, Deputy Advocate General.

11. CWP No. 944 of 2014-E Amar Dev Sharma Vs. State of H.P.

For the petitioner(s): Mr. Avneesh Bhardwaj, Advocate.

12. CWP No. 1460 of 2014-F Rekha Kumari Vs. State of H.P.

For the petitioner(s): Mr. S.C. Sharma, Advocate.

For the Respondent(s) : Mr. Shrawan Dogra, Advocate General with Mr. V.K. Verma, Ms. Meenakshi Sharma, Additional Advocate Generals and Ms. Parul Negi, Deputy Advocate General.

13. CWP No. 1919 of 2014-B. Dila Ram Vs. State of H.P.

For the petitioner(s): Mr. S.C. Sharma, Advocate.

For the Respondent(s) : Mr. Shrawan Dogra, Advocate General with Mr. V.K. Verma, Ms. Meenakshi Sharma, Additional Advocate Generals and Ms. Parul Negi, Deputy Advocate General.

14. CWP No. 1920 of 2014-B Sachin Thakur Vs. State of H.P.

For the petitioner(s): Mr. Avneesh Bhardwaj, Advocate.

15. CWP No. 3327 of 2014-C Sunder Lal Vs. State of H.P.

For the petitioner(s): Mr. S.C. Sharma, Advocate.

For the Respondent(s) : Mr. Shrawan Dogra, Advocate General with Mr. V.K. Verma, Ms. Meenakshi Sharma, Additional Advocate Generals and Ms. Parul Negi, Deputy Advocate General.

Tarlok Singh Chauhan, Judge.

In this batch of petitions common question of fact and law arises and therefore, the same are taken up together for disposal.

2. The facts, in brief, may be noticed. The petitioners have claimed that on 28.12.1973, the Himachal Pradesh Education Department Service Rules, 1973 came into existence and dealt with the recruitment and promotion rules for Trained Graduate Teachers (TGT). The petitioners were appointed as Vidya Upasak and regularized as JBT Teachers. It has not been disputed that all the petitioners were regularised as JBT Teachers and fulfilled the criteria of two years regular service for being considered as TGT as on 21.10.2009. It is claimed that that respondents conducted a D.P.C. in July 2009 on the basis of two years criteria of regular service as JBT Teacher for promotion as TGT teacher and accordingly made promotions of those JBT (Medical) teachers who were regularized in 2007 and JBT (non‐medical) teachers, who regularized in January 2006. It is the specific case of the petitioners that they were regularized in 2007 and were eligible for the post of TGT, yet the respondents did not consider the names of the petitioners in spite of the fact that posts were available with them.

3. On 22.10.2009, the Himachal Pradesh Education Service Rules, 1973 were amended and the condition for promoting the JBT Teachers as TGT was extended from two years to five years. On 16.7.2011, the rules were further amended and a condition of minimum 50% marks in graduation was inserted. Yet again, on 31.5.2012, the rules were amended, wherein the condition of Teacher Eligibility Test (TET) has been made compulsory for promotion as TGT (Medical).

4. The respondents‐ State to counter the claim of the petitioners have made the following averments:

“That firstly, claims of the petitioners that while conducting DPC during the year 2009 they have not been promoted as TGT whereas they were eligible as per Old Recruitment and Promotion Rules. Secondly, promotion on backlog posts be made as per Old Recruitment and Promotion Rules and they be considered in the DPC. It is submitted that the services of the petitioners have been regularized w.e.f. 01.10.2007 as JBT teacher and on 20.07.2009 promotion from JBT to TGT were made on routine basis, however, as per Old Recruitment and Promotion Rules, two years minimum regular service condition is applied for being considered for the post of TGT from the feeder cadre of JBT in that event the petitioners are not eligible for promotion as they had not completed two years regular services at the time of DPC i.e. on 20.07.2009. It is submitted that this Hon’ble Court while deciding similar situated cases i.e. the CWP No. 4039/2011 alongwith connected matters on 03.01.2012 has pleased to decide the same that all the candidates, who were eligible up to 22.10.2009 (i.e. formulation of New Recruitment and Promotion Rules) were to be considered as per old rules since the vacancies were available.

It is further submitted that at present no DPC is being convened as there is ban on promotions. However, DPC will be convened strictly as per amended Recruitment and Promotion Rules i.e. eligibility criteria of 50% marks in B.A./B.Sc., having five years regular services and qualification of Teacher Eligibility Test (TET) in accordance with the guidelines framed by the NCTE which is mandatory. Moreover, as and when process of promotion is started, the candidatures of the petitioners will be provisionally considered subject to the final outcome of the present writ petition as per interim order 22.08.2013 passed by this Hon’ble Court. Hence, the present writ petition filed by the petitioners deserves to be dismissed.”

5. It is not disputed that there is backlog of 359 posts of teachers lying vacant with the respondent‐ department, therefore, the only question required to be determined in this background is as to what would be the criteria of filling up these vacant posts between July 2009 till 22.10.2009 i.e. the vacancies which have accrued after the last D.P.C. and before the amendment in the rules. The legal issue thus involved in the present cases is as to whether a vacancy which arose prior to the amendment of the rules is to be filled up “as per the rules existing at that time” or “as per the rules existing at the time of the consideration for promotion. “

6. It is by now settled proposition of law that ordinarily a candidate has a right to be considered for promotion in light of the existing rules when the vacancy arose. It is further a settled principle of service jurisprudence “old vacancy ‐old rules” and this principle has been consistently reiterated and reaffirmed by the Hon’ble Supreme Court .

7. It is not disputed (rather admitted) by the respondent‐ State that a coordinate Bench of this court (Justice Rajiv Sharma,J.) while deciding CWP No. 4039 of 2011 alongwith connected matter on 3.1.2012 has decided that all the candidates who were eligible up to 22.10.2009 are to be considered as per old rules since the vacancies were available. The law on the subject has been succinctly dealt with in the aforesaid judgement in the following terms:

“14. 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 versus J. Sreenivasa Rao and others , (1983) 3 SCC 284. 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:

“6. 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 'left‐ overs' 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.”

15. Their Lordships of the Hon’ble Supreme Court in B.L. Gupta and another versus M.C.D. , (1998) 9 SCC 223 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:

`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 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.

10. 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.

11. 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.”

16. Similarly, their Lordships of the Hon’ble Supreme Court in Arjun Singh Rathore and others versus B.N. Chaturvedi and others , (2007) 11 SCC 605 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:

`5. 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 1997(10)SCC 419 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 vs. J.Sreenivasa Rao (1983) 3 SCC 284 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."

6 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.”

8. Ordinarily in view of exposition of law by a coordinate Bench of this court, no further discussion in the matter would have been required. However, respondents No. 7 to 42 in CWP No. 9040 of 2013 have opposed the claim of the petitioners on the ground that “old vacancies old rule is not rule of universal or absolute application” and that the right to be considered in the light of existing rules would mean the rule in force on the date on which consideration takes place. The requirement of filling up old vacancies under old rule is interlinked with the candidate having acquired a right to be considered for promotion. It is further contended that the right to be considered for promotion accrues on the date of consideration of eligible candidates. He further contends that until and unless the applicable rule, as in Y.V.Rangaiah case (supra) lays down any particular time frame within which the selection process is to be completed the rules in operation at the time of consideration would prevail. According to him, the consideration for promotion is yet to take place and vacancies now shall have to be essentially made in accordance with the rules in operation.

9. In support of his contention, Sh. Dilip Sharma, learned Senior counsel for the respondents has relied upon Dr. K. Ramulu and another vs. Dr. S. Suryaprakash Rao and others (1997) 3 SCC 59, wherein the ratio in Y.V.Rangaiah case was distinguished by the Hon’ble Supreme Court in the following manner:‐

“12. The same ratio was reiterated in Union of India vs. K.V. Vijeesh [(1996) 3 SCC 139, paras 5 and 7]. Thus, it could be seen 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. Shri H. S. Guraraja Rao, contends that this Court in Y.V. Rangaiah & Ors. v. J. Sreenivasa Rao & Ors. [(1983) 3 SCC 284] had held that the existing vacancies were required to be filled up as per law prior to the date of the amended Rules. The mere fact that Rules came to be amended subsequently does not empower the Government not to consider the persons who are eligible prior to the date of appointment. It is sen that the case related to the amendment of the Rules prior to the amendment of the Rules. Two sources were available for appointment as sub‐Registrar, namely, UDCs and LDCs. Subsequently, Rules came to be amended taking away the right of the LDCs for appointment as sub‐Registrar. When the vacancies were not being filled up in accordance with the existing Rules, this court had pointed out that prior to the amendment of the Rules, the vacancies were existing and that the eligible candidates were required to be considered in accordance with the prevailing Rules. Therefore, the mere fact of subsequent amendment does not take away the right to be considered in accordance with the existing Rules. As proposition of law, there is no dispute and cannot be disputed. But the question is: whether the ratio in Rangaiah's case would apply to the facts of this case? The Government therein merely amended the Rules, applied amended Rules without taking any conscious decision not to fill up the existing vacancies pending amendment of the Rules on the date the new Rules came into force. It is true, as contended by Mr. H.S. Gururaja Rao, that this Court has followed the ratio therein in many a decision and those cited by him are P. Ganeshwar Rao & Ors. v. State of A.P. & Ors. [(1988) Supp. SCC 740], P. Mahendranath v. State of Karnataka [(1990) 1 SCC 411], A.A. Caljon v. Director of Education [(1983) 3 SCC 33], N.T. Dev v. Karnataka Public Service Commission [(1990) 3 SCC 157, Ramesh Kumar Choudha & Ors. v. State of M.P. & Ors. [(1996) 11 SCC 242]. In none of these decisions, situation which has arisen in the present case had come up for consideration. Even Rule 3 of the General Rules is not of any help to the respondent for the reason that Rule 3 contemplates making of an appointment in accordance with the existing Rules.

13. It is seen that since the Government have taken a conscious decision not to make any appointment till the amendment of the rules, Rule 3 of the General Rules is not of any help to the appellant. The ratio in the case of Ramesh Kumar Choudha & Ors. v. State of M.P. & Ors. [(1996) 11 SCC 242] is also not of any help to the respondent. Therein, this Court had pointed out that the panel requires to be made in accordance with the existing Rules and operated upon. There cannot be any dispute on that proposition or direction issued by this Court. As stated earlier, the Government was right in taking a decision not to operate Rule 4 of the General Rules due to their policy decision to amend the Rules. He then relies on paragraph 14 of the unreported judgment of this Court made in Union of India V/s. S.S. Uppal & Anr. [ (1996) 2 SCC 168]. Even that decision is not of any help to him. He then relies upon the judgment of this Court in Gajraj Singh etc. v. STAT [(1997) 1 SCC 650] wherein it was held that the existing rights saved by the repealed Act would be considered in accordance with the Rules. The ratio therein is not applicable because the existing Rules do not save any of the rights acquired or accruing under the Rules. On the other hand, this court had pointed out in paragraph 23 thus: (SCC pp. 664‐65, para‐22)

"Whenever an Act is repealed it must be considered, except as to transactions past and closed, as if it had never existed. The effect thereof is to obliterate the Act completely from the record of the Parliament as if it had never been passed it, (sic) it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was existing law. Legal fiction is one which is not an actual reality and which the law recognises and the court accepts as a reality. Therefore, in case of legal fiction the court believes something to exist which in reality does not exist. It is nothing but a presumption of the existence of the state of affairs which in actuality is non‐existent. The effect of such a legal fiction is that a position which otherwise could not obtain is deemed to obtain under the circumstances. Therefore, when Section 217(1) of the Act repealed Act 4 of 1939 w.e.f July 1, 1989, the law in Act 4 of 1939 in effect came to be non‐existent except as regards the transactions, past and closed or saved."

10. The learned Senior counsel has further sought support of and relied upon the judgement in Deepak Agarwal and another vs. State of Uttar Pradesh and others (2011) 6 SCC 725 wherein the judgement in Y.V. Rangaiah’s case (supra) has again been distinguished, while the judgement in Dr. K. Ramulu’s case (supra) has been relied upon in the following manner:‐

“26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the `rule in force' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah's case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it can not be accepted that any accrued or vested right of the appellants

have been taken away by the amendment.

27 The judgments cited by learned counsel for the appellants namely B.L. Gupta Vs. MCD (supra), P. Ganeshwar Rao Vs. State of Andhra Pradesh (supra) and N.T. Devin Katti & Ors. Vs. Karnataka Public Service Commission & Ors (supra) are reiterations of a principle laid down in Y.V. Rangaiah's case (supra). All these judgments have been considered by this Court in the case of Rajasthan Public Service Commission Vs. 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 26 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.

28 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.”

11. There is no quarrel with the legal proposition as expounded in the cases of Dr. K. Ramulu and Deepak Agarwal (supra) but the moot question is regarding its applicability to the fact situation obtaining in these cases. It is neither desirable nor permissible to pick out a word or a sentence from the judgement, divorced from the context of the question under consideration and treat it to be the complete `law’ declared by the Court. The judgement must be read as a whole and the observations from the judgement have to be considered in the light of the questions which were before the Court. A decision of the Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of the Court and not to pick out words or sentences from the judgement, divorced from the context of the questions under consideration by the Court, to support their reasoning. (See: Commissioner of Income Tax vs. Sun Engineering Works (P) Ltd. (1992) 4 SCC 363. Likewise, it is also to be borne in mind that the observations in the judgement cannot be read like a text of a statute or out of context. (See: Hindustan Steel Works Construction Ltd. Vs. Tarapore & Co. and another (1996) 5 SCC 34.) .

12. In Dr. K. Ramulu’s case (supra), the specific stand of the State Government was that it did not intend to fill up the posts as per the existing rules and contemplated to fill up all the posts in terms of its revised policy of appointment. However, the Tribunal still gave directions contrary to the policy decision taken by the government necessitating the exposition of law by the Hon’ble Supreme Court in this factual backdrop of the case. This is not the fact situation obtaining in the present case, as it is nowhere the case of the State‐ respondent that it proposes to fill up the posts between July 2009 to 22.10.2009 on the basis of the amended rules or does not propose to fill up the same at all. Moreover, as would be clear from a bare reading of paragraph‐12 of the judgement in Dr. K. Ramulu’s case (supra), the legal position laid down in Y.V. Rangaiah's case has not been doubted and the only reason for its non‐applicability has been given in later part of paragraph‐12 in the following terms:‐

“……… In none of these decisions, a situation which has arisen in the present case had come up for consideration. Even Rule 3 of the General Rules is not of any help to the respondent for the reason that Rule 3 contemplates making of an appointment in accordance with the existing Rules.” It is also clear from paragraph‐ 13 of the judgement in Dr. K. Ramulu’s case that government therein had taken a conscious decision not to make any appointment till the amendment of the Rules. 13. Now, in so far as the judgement in Deepak Agarwal’s case (supra), is concerned the ratio laid down in Y.V. Rangaiah’s case was distinguished only on the ground that there was no statutory duty cast upon the respondent therein to prepare year‐wise panel of the eligible candidates or of the selected candidates for promotion and therefore, it was concluded that in no event had, any accrued or vested right of the appellants therein, been taken away by the amendment.

14. In none of the judgements relied upon by Sh. Dilip Sharma, learned Senior Counsel, was ever the ratio of Y.V. Rangaiah’s judgement doubted and the judgements have been rendered in the peculiar facts of those cases. While, in the present case the respondent‐ State has not taken any decision either not to fill up the posts in accordance with the old rules or taken a positive decision to fill up the posts on the basis of the amended rules. Rather tone and tenor of reply suggests that the State has chosen to abide by the directions passed in CWP No.4039 of 2011 (supra). Therefore, present cases are fully covered by the ratio of Y.V. Rangaiah's case (supra) and the decisions relied upon by Sh. Dilip Sharma, learned Senior Counsel have no application to the fact situation obtaining in the present case.

15. It would be fruitful here to notice the instructions issued by the State‐ respondent, whereby a D.P.C. is required to be held every year as would be clear from paragraph 16.7 of Hand Book on Personnel Matters, Volume-1 (Second Edition), which reads as under:‐

“16.7 Time schedule for holding meetings of D.P.C. The instructions contained in H.P. Govt. Deptt. of Personnel letter No.1- 13/73- DP(A- II) dated 27- 4-1983 (Annexure 6.18)provide that the time schedule for holding of regular Departmental Promotion Committee will be during the month of April -May. The subsequent instructions issued vide letter No.1 - 13/75-DP (AP-II) dated14-2-1984(Annexure 16.22) provided that meeting of the Departmental Promotion Committee may be held once a year in the month of April every year as far as possible. The latest instructions contained in letter No.1-13/75-DP (A-II) dated 6-9-1984 and letter No. Per(AP-II) B(3)-1/94dated 16-11-1994 (Annexures 16.25 and 16.55) provide that meetings of the Departmental Promotion Committees for making promotions should be held during the first quarter of the financial year as far as possible for all the existing and anticipated vacancies. For unanticipated vacancies , fresh meetings of the Departmental Promotion Committees for making promotions should be held during the course of the year within three months from the date of creation of the posts.”

Once the instructions clearly provide for holding of the D.P.C. every year, which essentially will consider filling up of clear as also anticipated vacancies therefore, it is obligatory upon the government to fill up the vacancies in terms of the rules prevailing at the time when the vacancies arose, unless and until a conscious decision to the contrary is taken by the government.

16. Above all, as per doctrine of precedence, this court is bound by the judgement passed by a coordinate Bench of this court in CWP No. 4039 of 2011 titled Smt. Chander Kanta vs. State of H.P. & ors. decided on 3.1.2012 and even otherwise I have not been persuaded or convinced to take a contrary view.

17. In view of above discussion and for the reasons stated above, all the petitions are allowed and it is directed that in the event of filling up the backlog vacancies, particularly the vacancies which have arisen between July 2009 to October 2009 shall be filled up on the basis of rules prevalent at that time. i.e. the Himachal Pradesh Education Department Service Rules, 1973 Rules and it is specifically made clear that the rules as amended on 22.10.2009 and thereafter on 16.7.2011 or any other subsequent rules shall not be taken into consideration while making the appointments to the post of TGT’s (Medical/ Non‐medical).

No costs.

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Sunday, August 24, 2014

Jai Singh Vs State of HP

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