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.
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.
6. CWP No. 9342 of 2013-E Bhartendu
Sharma 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.
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.
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 and 2. Mr. Sanjeev Bhushan, Advocate, for respondent No.3.
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.
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 and 2. Mr. Sanjeev Bhushan, Advocate, for respondent No.3
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.
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 and 2. Mr. Sanjeev Bhushan, Advocate, for respondent No.3.
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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