IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.: 2697/2008 and CWP (T) No. 2698/2008 Decided on:29.4.2009 CWP (T) No. 2697/2008: Dhani Ram. …Petitioner. Versus Himachal Road Transport Corporation. …Respondent. CWP (T) No. 2698/2008: Om Parkash. …Petitioner. Versus Himachal Road Transport Corporation. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioners : Mr. Onkar Jairath, Advocate. (in both the petitions) For the Respondents : Mr. Adarsh Sharma, Advocate. Rajiv Sharma, J. Since common questions of law and facts are involved in both the petitions, the same are being disposed of by a common judgment. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 Brief facts necessary for the adjudication of these petitions are that the petitioners were appointed as Electricians on 5.5.1966 and 19.11.1965 respectively on regular basis. Mr. Onkar Jairath, Advocate has strenuously argued that the petitioners though were appointed in the years 1965 and 1966 as Electricians, but there are no promotional avenues available to them. He then contended that initially the petitioners were eligible as per the Recruitment and Promotion Regulations framed by the respondent- corporation on 23.9.1983 but their chances of promotion have been foreclosed by the respondent-corporation after the issuance of amendment in the existing Regulations on 21.11.1984. By way of this amendment, the qualification of possessing “valid certificate of competency” issued by the competent authority under the Indian Electricity Act and Rules framed thereunder has been prescribed as an essential qualification. He further contended that as per the law laid down by their Lordships of the Hon’ble Supreme Court, it is necessary for the employer to provide at least two to three promotional avenues to remove the stagnation and to improve the efficiency in public service. He lastly contended that the insertion of new qualification by way of amendment vide order dated 21.11.1984 is arbitrary, thus, liable to be struck down. Mr. Adarsh Sharma, Advocate has strenuously argued that it is the prerogative of the employee to frame the Regulations. He then contended that it is not a case where the petitioners have not been provided with promotional avenues but since they do not possess essential qualification as prescribed by way of amendment carried out in the Regulations on 21.11.1984 they could not be promoted. He further contended that the qualification has been prescribed taking into consideration the duties to be discharged by the Licenced Electrician/Electrical Mechanic. 3 I have heard the learned counsel for the parties and perused the record carefully. The petitioners were appointed as Electricians in the year 1965 and 1966. The petitioners were eligible for promotion to the post of Licenced Electrician/Electrical Mechanic as per the Recruitment and Promotion Regulations dated 23.9.1983. They were in possession of the essential qualification prescribed in these Regulations. However, on the basis of amendment carried out in the Regulations on 21.11.1984 a new qualification has been inserted in the existing Regulations whereby the candidates in the feeder category are required to posses a “valid certificate of competency” issued by the competent authority under the Indian Electricity Act. The petitioners made several representations to the respondent to consider them for promotion. The petitioners had also served a legal notice on the respondent-corporation. They had approached the learned Himachal Pradesh Administrative Tribunal for the redressal of their grievance. The learned Tribunal directed the original application to be treated as a representation to the Managing Director vide order dated 7.10.1994. The same was rejected by the Managing Director on 3.2.1995. The petitioners have filed fresh petition assailing this order dated 3.2.1995 as well. There is no quarrel with the proposition that it is for the employer, rather it is the prerogative of the employer, to frame the Recruitment and Promotion Regulations/Rules. The qualification prescribed must have nexus sought to be achieved. The petitioners were appointed in the year 1965 and 1966. They were indeed qualified as per un-amended qualifications. They were possessing qualification of ITI and had the requisite qualifying service. It is only on 21.11.1984 that new qualification has been inserted. The fall out of the insertion of this qualification was 4 that the petitioners’ chances of promotion were foreclosed forever. In theory the petitioners had the chances for further promotion to the post of Licenced Electrician/Electrical Mechanic, but after the insertion of new qualification i.e. certificate of competency, their chances of promotion have been foreclosed. The petitioners had been stagnating on the same post since 1965 and 1966. In these circumstances it was necessary for the respondent-corporation to explore the possibilities of at least providing two to three opportunities for promotion to the petitioners and similarly situate persons. Mr. Adarsh Sharma, Advocate has strenuously argued that the respondent-Corporation to remove stagnation has introduced the Assured Career Progression Scheme. This step is progressive. However, the fact of the matter is that the Assured Career Progression Scheme is not a substitute for promotion. The incumbents entitled for the benefit of Assured Career Progression Scheme are held entitled on the basis of putting in certain length of service. In the present case the respondent by inserting new qualification has foreclosed the chances of promotions of the petitioners forever, as noticed above. Their Lordships of the Hon’ble Supreme Court in A. Satyanarayana and others versus S. Purushotham and others, (2008) 5 SCC 416 have held that any policy whereby all promotional avenues to be promoted in respect of a category of employees for all times to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India. Their Lordships have further held that statutory rule must be made in consonance with constitutional scheme. A rule must not be arbitrary. It must be reasonable, be it substantive or a subordinate legislation. Their Lordships have held as under: “30. Although mere chance of promotion is not a fundamental right, but right to be considered therefor is. 5 In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all time to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India. 34. A statutory rule, it is a trite law, must be made in consonance with constitutional scheme. A rule must not be arbitrary. It must be reasonable, be it substantive or a subordinate legislation. The Legislature, it is presumed, would be a reasonable one. Indisputably, the subordinate legislation may reflect the experience of the Rule maker, but the same must be capable of being taken to a logical conclusion.” Their Lordships of the Hon’ble Supreme Court in Food Corporation of India and others versus Parashotam Das Bansal and others, (2008) 5 SCC 100 have held that when there are no promotional avenues resulting in stagnation for a long time (30 years in that case), the superior courts have the jurisdiction to issue direction for framing appropriate scheme though the modalities are left to be decided by the authorities concerned. Their Lordships have held as under: “12. When employees are denied an opportunity of promotion for long years (in this case 30 years) on the ground that he fell within a category of employees excluded from promotional prospect, the Superior Court will have the jurisdiction to issue necessary direction. 13. If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the Court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a Superior Court of the country.” 6 In the present case the petitioners are working as Electricians since 1965 and 1966. They were entitled to at least two to three promotions in their service career. Their chances of promotion have been foreclosed forever on the basis of insertion of new qualification in view of the amendment carried out in the year 1984. The duties discharged by the petitioners are of Electrician. They had been performing these duties for more than three decades. Though the petitioners are in feeder category for promotion to the post of Licenced Electrician/Electrical Mechanic, but on the basis of qualification prescribed they cannot be considered for promotion. In a hard case like this it was expected from the Corporation to evolve a scheme to provide promotional avenues to the employees who are stagnating for more than three decades. The Corporation is a State within the meaning of Article 12 of the Constitution of India. The working conditions of the employees must be made humane. Their conditions of service must also pass the test of Articles 14 and 16 of the Constitution of India. The promotional avenues are necessary to enhance the efficiency in the administration and to remove the stagnation. Accordingly, in view of the aforesaid reasoning, the Court is of the opinion that without declaring the Regulations ultra vires whereby the additional qualification of “competency certificate” has been prescribed, it is a fit case where the respondent-corporation should evolve a scheme as per law laid down by their Lordships of the Hon’ble Supreme Court to grant two to three promotional avenues to the petitioners. Accordingly, the petitions are allowed. The respondent-corporation is directed to frame a scheme for providing two to three promotional avenues to the petitioners and similarly situate persons, who are stagnating for more than 30 years on the same post. However, the modalities shall be worked out by the employer after taking into 7 consideration all the factors/parameters as per settled principles of law. The needful be done within a period of eight weeks from today. There will, however, be no order as to costs. No costs. 29.4.2009 (Rajiv Sharma ), J. *awasthi*