IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. No. 3784 of 2010. Reserved on: 06.07.2011. Decided on 14.07.2011. _____________________________________________________ Himachal Dharamsthal Karamchari Union, Deothsidh, Barsar. …Petitioner. -Versus- State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner. : Mr. Ajay Sharma, Advocate. For respondent No. 1. : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. For respondents No. 2 and 3. : Mr. K.D. Sood, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: The grievance of the petitioner-Union, in a nut-shell, is that its workers have not been released increments under Assured Career Progression Scheme by the Baba Balak Nath Temple Trust, Deothsidh, Barsar. The management of the Baba Balak Nath Temple was taken over by the State Government vide notification issued on 16th January, 1987. Thereafter, a decision was taken by the Trust to terminate the services of those employees, who were not possessing the requisite essential qualification as per Baba Balak Nath Temple Trust employees (Terms of employment) and working conditions Rules notified on 18th November, 1991. Their services were terminated on 10.02.1993. The employees filed number of petitions before this 1 Whether the reporters of the local papers may be allowed to see the judgment?. Yes. - 2 - Court and the compromise was arrived between the parties on 19.09.1994, whereby the decision was taken to withdraw the termination order dated 10.02.1993. Consequently, the Baba Balak Nath Temple Trust employees (Terms of employment) and working conditions Rules as notified on 18th November, 1991, were amended by the Rules called ‘the Baba Balak Nath Tust Employees (Terms of employment) and working condition, fifth amendment Rules, 1995. These rules had come into force at once. In the existing Rule No. 9, Sub para No. 9.1, the following amendment was made: “The provision of screening committee for initial recruitment of existing staff engaged by Baba Balak Nath Temple Trust, Deotsidh on its formation and those who have sought employment before the service rules came into force and who did not fulfil the requisite qualification but they have got sufficient experience in the field of their working and are fit to carry out their duties entrusted to them energetically and they may be excluded from the purview of Rule No. 9 Sub para No. 9.1 and will be applicable to the employees to be recruited after the enforcement of Baba Balak Nath Temple Trust Employees (Terms of employment and working condition) Rules and shall not be applicable to the employees recruited prior to the enforcement of rules ibid.” 2. The Baba Balak Nath Temple Trust Deothsidh has framed Employees Service Rules-2001. According to Rule 49, the Old Bye-Laws stood repealed. 3. Mr. Ajay Sharma, learned counsel for the petitioner has strenuously argued that his clients are fully eligible to get - 3 - the benefit of increments under the Assured Career Progression Scheme. He then contended that the action of respondents not to grant increments under Assured Career Progression Scheme, merely on the ground that they are not qualified as per 2001 Rules is illegal, arbitrary, unreasonable and, thus, violative of Articles 14 and 16 of the Constitution of India. He then contended that as far as the issue of qualification is concerned, that has already been set to rest by amending the previous Rules in 1995. He then contended that the Employees Service Rules, 2001 cannot be given retrospective effect to destroy the vested and acquired rights of his clients. 4. Mr. Vikas Rathore, learned Deputy Advocate General and Mr. K.D. Sood, learned counsel, for respondents No. 1 to 3 have vehemently argued that since the members of petitioner-Union are not possessing the essential qualification as per Employees Service Rules, 2001, therefore, there is no illegality in the action of respondents by not granting the increments to them under the Assured Career Progression Scheme. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. The members of petitioner-Union had been working as employees before the notification was issued by the State Government in 1987, whereby the management of the Mandir was taken over. The trust has framed the Rules called ‘the Baba Balak Nath Temple Trust employees (terms of employment) and working conditions Rules, notified on 18.11.1991. It is not disputed that the members of petitioner-Union were not - 4 - possessing the essential qualification prescribed in these Rules. Consequently, their services were terminated on 10.02.1993. They approached this Court and the matter was compromised on 19.09.1994, which led to the withdrawal of termination order dated 10.02.1993. Consequently, the amendment was carried out in 1991 Rules in 1995, whereby the qualification of the members of the petitioner-Union was relaxed and it was held that the amendment will be applicable to the employees to be recruited after the enforcement of Baba Balak Nath Temple Trust employees (Terms of employment and working condition) Rules and shall not be applicable to the employees recruited prior to the enforcement of these rules. Thereafter, the members of the petitioner-Union started discharging their duties and there is no complaint against them. 7. Mr. Ajay Sharma, learned counsel for the petitioner has strenuously argued that his clients were entitled to increments under the Assured Career Progression Scheme after putting in requisite number of years service. He then contended that the release of increment was not at all dependant on the possession of essential qualification by the members of petitioner-Union neither in the Rules notified in 1991 nor in the Rules notified in 2001. He has taken the Court through 2001 Rules. There is no expressed prohibition for not releasing the increments to the members of the petitioner-Union under the Assured Career Progression Scheme. The only rule which talks of increment is Rule-35, which lays down that the increment shall ordinarily be granted on the completion of one year in the pay scale allowances as decided by the trust with the approval of - 5 - the Commissioner from time to time. There is no provision other than this, dealing with the issue of A.C.P.. The Court can also take judicial notice of the fact that A.C.P. scheme has been initiated by the Central Government and adopted by the State Government and by the respondent-Trust to remove stagnation and to improve public service. The rights of the workers of the petitioner-Union have crystallized after the relaxation was given to them qua possession of essential qualification when the amendment was carried out in 1991 Rules in 1995. The handicap of possession of essential qualification stood removed and they started discharging their duties after the withdrawal of termination order dated 10.02.1993. Therefore, their conditions of service are to be regulated at par with other employees. The workers of petitioner-Union cannot be discriminated vis-à-vis those employees who were in possession of essential qualification according to the Rules of 1991 and 2001. The workers of petitioner-Union and those who possessed the essential qualification formed a homogeneous class and they could not be discriminated for the purpose of release of increments under A.C.P. scheme. What was to be seen, was whether the members of the petitioner-Union had put in requisite number of years service or not to get the benefit of increments under the A.C.P. scheme. The rights which have accrued to the workers of the petitioner-Union on the basis of 1995 amendment could not be destroyed on the basis of 2001 service rules. The Rules of 2001 cannot be applied retrospectively to destroy the acquired benefits, which had crystallized in 1995. The respondents have treated the equals as - 6 - un-equals by insisting for possession of essential qualification in the year 2001 when the workers of petitioner-Union had already been employed on the basis of 1991 Rules. Their conditions of service are to be continued as per 1991 Rules, which were amended in their favour in 1995. Once a conscious decision has been taken, that too, after intervention of the Court, the members of the petitioner-Union cannot be treated differently and deprived of the rights to get the increments under A.C.P. scheme. Even, as discussed hereinabove, there is no specific bar under 2001 Rules that the A.C.P. shall be paid only to those persons who are in possession of essential qualification. The amendment was carried out in 1991 Rules in 1995 and the petitioners were continued to discharge their duties in the same capacity in which they were engaged at the time when their services were taken over and they stood regularized subsequently. 8. Mr. Ajay Sharma, learned counsel for the petitioner has also brought to the notice of the Court that some members of the petitioner-Union have already retired from service during the pendency of this petition without getting the benefit of A.C.P. scheme. 9. The matter is required to be considered from another angle. The experience gained by the members of the petitioner-Union is itself a qualification since they were engaged either un-skilled or semi skilled jobs. The experience gained by the members of the petitioner-Union while working for more than two decades is itself a qualification and this aspect of the matter has been overlooked by the respondents while denying - 7 - the benefit under the A.C.P. scheme to the workers of the petitioner-Union. 10. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Respondents are directed to release the increments under the Assured Career Progression Scheme to the workers of the petitioner-Union within a period of ten weeks from the date of production of a certified copy of this judgment by the petitioner. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma) Judge July 14, 2011. (bhupender) - 8 - `