IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.180/1998 Reserved on.27.6.2007 Decided on.30.8.2007 Mehar Singh. …Petitioner. Versus High Court of H.P. …Respondent Coram The Hon’ble Mr. Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Shrawan Dogra, Advocate. For the respondent : Ms. Ranjana Parmar, Advocate. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the petitioner was appointed as a Clerk in the High Court and was subsequently promoted to the post of Court Officer and then as a Reader from August, 1973. He was confirmed as a Reader with effect from 5th March, 1977 vide office order No.HHC/Admn.1(26)72 dated 10th August, 1978. A decision was taken in the year 1981 by the Punjab Government whereby in Punjab Civil Secretariat 25% of the posts in the cadre of Private Secretaries were given higher grade of Rs. 1400-1850 with a special pay of Rs. 250/- per month and those posts getting this higher pay scale were re-designated as Special Assistants in the Punjab Civil Secretariat. In sequel to the decision taken by the Punjab Government, the State of H.P. granted higher pay scale of Rs. 1400-1850 with a special pay of Rs. 250/- per month to 25% of the Private Secretaries attached with 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 the Ministers and such posts getting this higher pay scales were re- designated as Special Assistants in the H.P. Civil Secretariat also. In the Punjab and Haryana High Court also, out of total cadre of Readers, 25% posts were given pay scale of Rs. 1400-1850 with a special pay of Rs. 250/- per month on the pattern of Punjab Civil Secretariat, but the scales were given to them with effect from 23rd August, 1983. The posts getting the higher pay scales of Rs. 1400-1850 in Punjab and Haryana High Court were re-designated as Court Secretaries. Following the Punjab Civil Secretariat pattern equal numbers of posts of Readers were kept in abeyance by the Punjab and Haryana High Court. The respondent-High Court as per the decision taken by the Punjab Government and Punjab and Haryana High Court recommended the matter to the Government of Himachal Pradesh vide letter dated 11th November, 1983 for creation of two posts of Court Secretaries (being 25% of the-then existing posts of Readers) in the pay scale of Rs. 1400-1850 plus special pay of Rs. 250/- per month. The recommendations made by the High Court were not addressed to by the State Government. The petitioner filed a writ petition No. 39/1986 in the year 1986 and the same was disposed of along with CWP No. 817 of 1986 filed by Shri M.D. Kaushal, who was senior most Private Secretary on 19.7.1989. The operative portion of the judgment dated 19.7.1989 reads thus: “We allow these petitions only to the extent that a direction shall issue to the State Government to reconsider the question of sanctioning the creation of the posts of Secretary and Court Secretary with effect from the date suggested by the high Court, namely, August 23, 1983. It shall do so in the light of what we have said in this judgment.” It will be apt to note at this stage that during the pendency of the writ petitions filed by the petitioner and one Sh. M.D. Kaushal, two posts of 3 Court Secretaries were created vide letter dated January 7, 1987 in the pay scale of Rs. 1400-1850 with a special pay of Rs. 250/- per month and resultantly two posts of Readers in the pay scale of Rs. 825-1580 were held in abeyance. The creation of the posts was to take effect from the date of filling up the posts. The State Government vide letter dated 11.4.1997 amended earlier notification dated 7.1.1987 whereby the date of creation of posts in question in the earlier notification was altered to 23.8.1983. The petitioner made a representation on 15.11.1997 for consideration for appointment/promotion as Court Secretary with effect from 23.8.1983. The representation made by him was rejected on 12.12.1997. Mr. Shrawan Dogra, Advocate had strenuously argued that his client being the senior most Reader was to be considered for promotion to the post of Court Secretary with effect from 23.8.1983. He also contended that since no Recruitment and Promotion Rules were in existence for filling up the posts of Court Secretaries by way of promotion, the promotion was to be made on the basis of length of service as per the settled principle of service jurisprudence. He further contended that the imposition of penalty of compulsory retirement upon his client, which was subsequently revoked on 15th August, 1985, will not come in the way of his client for being considered for promotion to the post of Court Secretary being the senior most Reader. Ms. Ranjana Parmar, Advocate appearing on behalf of the respondent had primarily contended that the petitioner had retired on 31st March, 1987 and the decision to create two posts of Court Secretaries was taken on 11.4.1997 and the petitioner could not be considered for promotion retrospectively with effect from 23.8.1983. She also contended that the petitioner had been compulsorily retired from service with effect 4 from 24th July, 1982 which was revoked by the High Court on 15th August, 1985 and due to this development, he could not be considered for promotion. She further contended that the Recruitment and Promotion Rules were brought by way of amendment for filling up the posts of Court Secretaries in the year 1986 whereby the minimum qualification prescribed for filling up the post of Court Secretary was by way of selection from amongst the graduate Readers provided, however, with law graduates amongst the Readers may be preferred at the time of selection. This amendment was carried vide notification 21st October, 1986. She also argued that for the first time in the year 1989 one Sh. D.D. Kukreti and Sh. P.C. Sharma were promoted on ad hoc basis as Court Secretaries being law graduates and subsequently on the recommendations made by the Departmental Promotion Committee; these two incumbents were regularized from the date of their initial appointment on ad hoc basis. I have heard the learned counsel for the parties and perused the record. The position which emerges from the pleadings of the parties is that the Punjab Government had taken a decision to grant higher scale of Rs. 1400-1850 with a special pay of Rs. 250/- per month of the 25% of the posts in the cadre of Private Secretaries working in the Punjab Civil Secretariat. This decision was followed by the State of H.P. which led to grating higher pay scale of Rs. 1400-1850 with a special pay of Rs. 250/- per month to 25% of the Private Secretaries attached with the Ministers. The Punjab and Haryana High Court on the analogy of the decision taken by the Punjab Government in the year 1981 granted pay scale of Rs. 1400-1850 per month to 25% posts of Readers with effect from 23rd August, 1983. The High Court had made recommendations to the State of 5 H.P. to create two posts of Court Secretaries vide letter dated 11.11.1983. In the meantime the petitioner had filed civil writ petition No. 39 of 1986 in this Court seeking the creation of posts of Court Secretaries with effect from 23.8.1983. The writ petition was disposed of on July 19, 1989 in sequel to which a decision was taken by the State Government vide letter dated 11.4.1997 to create two posts of Court Secretaries with effect from 23rd August, 1983. It is in this backdrop the matter has to be considered. It was incumbent for the State Government to create the two posts of Court Secretaries on the basis of the recommendations made by the High Court with effect from 23.8.1983. The State Government for the reasons best known to it did not create the same with effect from 23.8.1983 and for the first time the two posts of Court Secretaries were created with effect from January 7, 1987 but with a rider that the creation will take effect from the date of filling up of the posts. It was only after the judgment of this Court rendered on July 19, 1989 that a decision has been taken by the State of H.P. to alter the date from January 7, 1987 to 23rd August, 1983. Since the posts had been created with effect from 23rd August, 1983 the same were to be filled up from that date. The petitioner was senior most confirmed Reader. True it is that the petitioner was compulsorily retired on 24th July, 1982 but the same was revoked by the High Court on 15th August, 1985. The conditions attached in the notification dated 16th August, 1985 read thus: (1) He will not be entitled to claim reimbursement of the difference of pension and the pay and allowances which would otherwise become due and payable to him upon reinstatement for the period from July 25, 1982 to August 15, 1985, and 6 (2) He will redeposit in his General provident Fund the sum withdrawn by him after his compulsory retirement. It will be apt to reproduce the operative portion of the order dated 16th August, 1985 whereby the petitioner has been held entitled to reinstatement with notional increments, seniority, continuity of service etc. The operative portion reads thus: “It is also clarified that the direction regarding his disentitlement to claim the reimbursement of the difference between the pension and pay and allowances for the intervening period will not operate to deny him all other and further benefits flowing from his reinstatement including notional increments, seniority, continuity of service, etc.” The petitioner had re-joined his duties on 16th August, 1985. He has not been held entitled to claim reimbursement of the difference of pension and the pay and allowances which would otherwise become due and payable to him upon reinstatement for the perform from July 25, 1982 to August 15, 1985. He was entitled to get notional increments, seniority, continuity in service and for all other purposes was deemed to be in service after his re-instatement. It is accordingly held that the petitioner was eligible to be considered for promotion/appointment to the post of Court Secretary and has not incurred any disqualification even as per letter dated 16th August, 1985. The issue which now needs consideration is that what could be the mode of considering the petitioner and similarly situate persons for promotion to the post of Court Secretaries after the creation of posts with effect from 23rd August, 1983. Admittedly the amendment was carried out in the High Court of Himachal Pradesh (Recruitment, Conditions of Service and Conduct) Rules, 1975 vide notification dated October 21, 1986 only. There were no Recruitment and Promotion Rules governing 7 the recruitment/conditions of service of the Court Secretaries in the year 1983. It is not necessary always that for appointment/promotion there ought to be Recruitment and Promotion Rules. The posts can also be filled up in the absence of Recruitment and Promotion Rules on the basis of executive decisions/instructions and the only safeguard which is required to be observed is that while filling up the posts the same should not be violative of Articles 14 and 16 of the Constitution of India. A specific averment has also been made in the writ petition that in the Punjab and Haryana High Court the posts of the Court Secretaries were filled up on the basis of seniority alone by invoking the principles of length of service. This averment has not been denied by the respondent in its reply. I am of the considered opinion that in the absence of Recruitment and Promotion Rules in the year 1983, the post in question i.e. Court Secretary was to be filled up on the basis of the seniority. The petitioner was the senior most confirmed Reader and was in the feeder category for promotion to the higher post. He was required to be considered and if found suitable was to be promoted to the post of Court Secretary. The Apex Court has held in B.N. Nagarajan Versus State of Mysore, AIR 1966 SC 1942 that it is not obligatory under proviso to Article 309 of the Constitution of India to make Rules of recruitment etc. before a service can be constituted or a post created or filled. Their Lordships have held as under: “It would be convenient to deal with this argument at this stage. Mr. Nambiar contends that the words “shall be as set forth in the rules of recruitment of such service special made in that behalf” clearly show that till the rules are made in that behalf no recruitment can be made to any service. We are unable to accept this contention. First it is not obligatory under proviso to Article 309 to make rules of recruitment etc. before a service can be constituted or a post created or filled. 8 This is not to say that it is not desirable that ordinarily rules should be made on all matters which are susceptible of being embodied in rules. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws. It follows from this that the State Government will have executive power in respect of List II, Entry 41, State Public Services. It was settled by this Court in Ram Jawaya Kapur V. State of Punjab, 1955-2 SCR 225: (AIR 1955 SC 549), that it is not necessary that there must be a law already in existence before the executive is enabled to function and that the powers of the executive are limited merely to the carrying out of these laws. We see nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Article 162 of the Constitution without a law. It is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that act or rule and it cannot in exercise of the executive power under Article 162 of the Constitution ignore or act contrary to that rule. In the background of this position we are unable to interpret R. 3 of the General Recruitment Rules as suspending the executive power of the State till rules of recruitment of a service are specially made in that behalf. Rules usually take a long time to make, various authorities have to be consulted and it could not have been the intention of R. 3 of the General Recruitment Rules, 1957, to halt the working of the public departments till rules were framed. This Court considered a similar point in T. Cajee v. U Jormonik Siem, 1961-1 SCR 750 at pp. 762-764: (AIR 1961 SC 276 at p. 281), and arrived at a similar conclusion. The following observations of Wanchoo, J., who delivered the judgment on behalf of the majority, bring out clearly the fallacy in Mr. Nambiar’s argument: “The High Court has taken the view that the appointment and succession of a Siem was not an administrative function of the District Council and that the District Council could only act by making a law with the assent of the Governor so far as the appointment and removal of a Siem was concerned. In this 9 connection, the High Court relied on Para 3 (1) (g) of the Schedule, which lays down that the District Council shall have the power to make laws with respect to the appointment and succession of Chiefs and Headmen. The High Court seems to be of the view that until such a law is made there could be no power of appointment of a Chief or Siem like the respondent and in consequence there would be no power of removal either. With respect, it seems to us that the High Court has read far more into Para 3 (1) (g) than is justified by its language. Paragraph 3 (1) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws. Under Para 3 (1) (g) it has power to make laws with respect to the appointment or succession of Chiefs or Headmen and this would naturally include the power to remove them. But it does not follow from this that the appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect.” “Further once the power of appointment falls within the power of administration of the district the power of removal of officers and others so appointed would necessarily follow as a corollary. The Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under Para 19 (1) (b) or till the District Council passed laws under Para 3 (1) (g). The Governor in the first instance and the District Councils thereafter were vested with the power to carry on the administration and that in our opinion included the power to appoint and remove the personnel for carrying on administration. Doubtless when regulations are made under Para 19 (1) (b) or laws are passed under Para 3 (1) with respect to the appointment or removal of the personnel of the administration, the administrative authorities would be bound to follow the regulations so made or the laws so passed. But from 10 this it does not follow that till the regulations were made or the laws were passed there could be no appointment or dismissal of the personnel of the administration. In our opinion, the authorities concerned would at all relevant times have the power to appoint or remove administrative personnel under the general power of administration vested in them by the Sixth Schedule. The view, therefore, taken by the High Court that there could be no appointment or removal by the District Council without a law having been first passed in that behalf under Para 3 (1) (g) cannot be sustained.” Mr. Nambiar in this connection also relied on Articles 15 and 16 of the Constitution. He urged that if the executive is held to have power to make appointments and lay down conditions of service without making rules in that behalf under the proviso to Article 309. Articles 15 and 16 would be breached because the appointments in that case would be arbitrary and dependent on the mere whim of the executive. We are unable to hold that Articles 15 and 16 in any way lead us to this conclusion. If the Government advertises the appointments and the conditions of service of the appointments and makes a selection after advertisement there would be no breach of Article 15 or 16 of the Constitution of India because everybody who is eligible in view of the conditions of service would be entitled to be considered by the State.” The Apex Court in Sant Ram Versus State of Rajasthan, AIR 1967 SC 1910 has held that that in the absence of any statutory rules governing promotions to selection grade posts the Government can issue administrative instructions. Their Lordships have held as under: “We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument 11 as correct. It is true that there is no specific principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.” The Hon’ble Supreme Court has held in Lalit Mohan Deb and others Versus Union of India and others (1973) 3 SCC 862 that there is no bar to the administration giving instructions regarding promotion to the higher grade as long as such instructions are not inconsistence with any Rule or subject. Their Lordships have held as under: “It is true that there are no statutory rules regulating the selection of Assistants to the selection grade. But the absence of such rules is no bar to the Administration giving instructions regarding promotion to the higher grade as long as such instructions are not inconsistent with any rule on the subject. The point was considered by this Court in Sant Ram Sharma v. State of Rajasthan, and it was declared that in the absence of statutory rules regulating promotion to selection grade posts the Government is competent to issue administrative instructions as long as those instructions are not inconsistent with the rules already framed. Mr. Sen’s argument is based on the absence of any statutory rule in this respect. Therefore, there is no question of any inconsistency with existing rules. In their affidavit in reply the Administration has stated that the appointment to the selection grade is made on the basis of seniority-cum-merit based upon a test open to all Assistants carried out in accordance with a prescribed procedure. It appears that there is a Departmental Promotion Committee whose business is to prepare a promotion list of 12 such Assistants who after passing the necessary tests are to be appointed in the selection grade. It is on the basis of this selection that respondents 4 to 20 and some others were appointed in the selection grade after they passed the tests and were selected by the Departmental Promotion Committee. The appellants did not appear for these tests and, therefore, can have no complaint about the selection. In fact they have not challenged the selection and appointment of respondents 4 to 20 in the selection grade posts.” The Hon’ble Supreme Court in Ramesh Prasad Singh Versus State of Bihar and others (1978) 1 SCC 37 that it is not obligatory to make rules of recruitment etc. before a service is constituted or a post is created or filled up: “Regarding the observation of the high Court that in the absence of rules laying down qualifications for appointment and promotion to the post of Executive Engineer (Tele- Communication), respondents 3 to 28 could not be excluded from consideration for appointment to that post, we would like to say that though it cannot be gainsaid that before initiation of the proposal for creation of the post of Executive Engineer (Tele-Communication), respondents 1 and 2 had not framed any rules prescribed etc. before a service is constituted or a post is created or filled up. As is well known, the process of rule-making is a protracted and complicated one involving consultation with various authorities and compliance with manifold formalities. It cannot also be disputed that exigencies of administration at times require immediate creation of service or posts and any procrastination in that behalf cannot but prove detrimental to the proper and efficient functioning of public departments. In such like situations, the authorities concerned would have the power to appoint or terminate administrative personnel under the general power of administration vested in them as observed by this Court in B.N. Nagarajan V. State of Mysore and T. Cajee V. U. Jormanik Siem. It follows, therefore, that in the absence of rules, qualifications for a post can validly be laid down in the self 13 same executive order creating the service or post and filling it up according to those qualifications. In the instant case, it