IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1944 of 2009 Date of decision: 29.07.2011 C.M. Bhandari …. Petitioner Versus Dr. Y.S. Parmar University of …. Respondents Horticulture and Forestry and others. Coram : The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 For the petitioner: Mr. K.D. Sood and Mr. Sanjeev Sood, Advocates. For the respondents: Mr. Onkar Jairath, Advocate for respondents No. 1 & 2. Mr. Virender Singh Chauhan, Advocate, for respondent No. 3. R.B. Misra, J. (Oral): The writ petition has been filed with following prayers:- “(a) Quash the order Annexure-P1 promoting the respondent No. 3 as Executive Engineer (Civil). (b) Direct the respondents to fill up the post of Executive Engineer on the basis of the un-amended rules after considering the case of the petitioner. (c) Quash the amendment of the recruitment and promotion rules made by notification Annexure-P11.” 2. According to the petitioner, he was appointed as Junior Engineer (Electrical) in the University of Himachal Pradesh (in short called ‘University’ hereinafter) on 30.6.1978 and was posted in ‘SNS 1Whether reporters of Local Papers may be allowed to see the judgment? 2 Horticulture Complex’, Nauni. He was promoted to the post of Sub Divisional Officer (Electrical) on 6.9.1990, however has claimed for promotion to the post of Executive Engineer in Dr. Y.S. Parmar University of Horticulture and Forestry, which had fallen vacant on 30.9.2006. 3. It appears, vide Notification No. 5-1/90(GAD)(17)/- 11541- 80 dated 21.8.1990 (Annexure P-2), the Board of Management of the said ‘University’ has approved the promotion rules in respect of Engineering and Architectural Staff of the ‘University’. The criteria prescribed under Clause (3) of the said notification dated 21.8.1990 is as follows:- “(3) The H.P.P.W.D. qualifications, length of approved service and field of choice for the above posts are subject to adoption from time to time under the authority of the Vice-Chancellor.” 4. By subsequent Notification No. UHF. 1-86/85 (Estt.) Vol. III/24428-466 dated 5.12.1995 (Annexure P-3), in exercise of the powers as per note (iii) of the Notification dated 21.6.1990, the Vice- Chancellor has amended the Recruitment and Promotion Rules for the post of Executive Engineer on the analogy of the provisions prevalent in PWD Department of Himachal Pradesh. Accordingly, revision of the Recruitment and Promotion Rules for the post of Executive Engineer was made, by which the post of Executive Engineer was to be filled in the ratio of 50:50 i.e. 50% by promotion and 50% by direct recruitment. It appears the Vice-Chancellor, thereafter, also amended the Recruitment and Promotion Rules to the post of Executive Engineer vide Notification No. UHF. Regr. E-II/8-462/99-20247-20302 dated 16.10.2008 (Annexure P-11). A combined seniority list was prepared, which was circulated vide Office Memorandum dated 3 7.1.1998 (Annexure P-9), in which respondent No. 3 was shown at Sl. No. 4 shown to be possessing Degree in Civil Engineering, whereas the petitioner was shown at Sl. No. 6 possessing Diploma in Electrical Engineering. Subsequently vide Office Memorandum dated 15.10.2008 (Annexure P-10), a separate seniority list was also circulated by the University effective from 1.10.2008, wherein the name of the petitioner was reflected exclusively in the seniority list of Assistant Engineer (Electrical), possessing Diploma in Electrical Engineering. Vide Office Memorandum No. UHF. Regr.E-II/9-280/88/- 19854-60 dated 15.10.2008, a separate seniority list of Assistant Engineers (Civil) was circulated, wherein respondent No. 3 was shown at Sl. No. 1. The petitioner since has challenged the amended rules circulated vide Notification dated 16.10.2008 (Annexure P-11), by which the post of Executive Engineer (Civil) was to be filled up exclusively by promotion in the ratio of 30:70 from amongst Diploma Holders Assistant Engineers (Civil) and Graduate Assistant Engineers (Civil) with 8 years regular service or regular combined with continuous adhoc service. Whereas in Clause 13 of Annexure-I of said rules dated 16.10.2008, the roster has been provided for filling up the post of Executive Engineer (Civil). 5. Though the petitioner on one hand has challenged the Notification dated 16.10.2008, however on the other hand he has prayed that his promotion has to be made according to the Rules dated 5.12.1995. As provided in Annexure-II enclosed with Notification dated 5.12.1995, the post of Executive Engineer could be filled up by direct recruitment, for which minimum educational qualifications are that an incumbent should be holder of Degree (in Civil Engineering) or equivalent from recognized University/Institution with seven years 4 practical experience as Assistant Engineer or equivalent. Clause (12) also provides method of recruitment, by direct recruitment or by promotion, deputation/transfer. The percentage of vacancies to be filled by various methods and the promotion could be made in the ratio of 30:70 amongst the diploma holder Assistant Engineers/and graduate Assistant Engineers respectively with 8 years regular service or regular service combined with adhoc service (rendered upto 31.3.1991). In Clause (13) of Annexure-II enclosed with the Notification dated 5.12.1995, for promotion to the post of Executive Engineer also, the roster has been provided. 6. It appears that the post of Executive Engineer available in the University is a selection post and the same is to be filled up on the basis of merit-cum-seniority. In reference to Rules notified on 21.8.1990, Er. D.S. Patial, Assistant Engineer (Civil) was promoted to the post of Executive Engineer (Design) on 19.1.1996. Whereas, in reference to the said Rules dated 21.8.1990, Er. S.H. Jaffri, Assistant Engineer (Civil) was promoted to the post of Executive Engineer (Civil) on 15.7.1991. It appears that no post of Executive Engineer (Electrical) exists in the Estate Organization and in order to look after the day to day work of the Estate Organization, the Executive Engineers (Civil) were taken on deputation from time to time. Therefore, it is clear that posts of Executive Engineers are meant for Civil work and not for Electrical work. Moreover, no Executive Engineer (Electrical) was ever appointed/taken on deputation as no post of Executive Engineer (Electrical) existed in the Estate Organization, as indicted by respondents No. 1 and 2 in their reply. The petitioner claimed for promotion to the post of Executive Engineer (Electrical) vide his representation dated 27.12.2005, which was duly forwarded and the 5 Estate Officer informed the petitioner that since no post of Executive Engineer (Electrical) exists in the Estate Organization, as such, his case cannot be considered for promotion. 7. The petitioner was further informed vide letter dated 23.6.2006 that the representation of the petitioner was considered and rejected. However, such aspect has not been revealed by the petitioner in his writ petition. The petitioner since has not challenged the combined seniority list as has been demonstrated vide Office Memorandum dated 7.1.1998, in which undisputedly, the petitioner was junior to respondent No. 3. Since no post of the Executive Engineer (Electrical) was available in the University and the post of the Executive Engineer (Civil) could only be filled up by the incumbents possessing appropriate degree in Civil Engineering. Since the post had fallen vacant in the year 2006, as such Rules issued vide Notification dated 5.12.1995 would be made applicable, according to which, the petitioner was not entitled to be considered for promotion to the post of the Executive Engineer (Electrical). In view of such rules, the respondent No. 3 found eligible and was considered and had been given appointment. An Endeavour has been made by the petitioner though his rejoinder affidavit that one post of Executive Engineer was created on 13.9.1977, however no where it was stated that it was exclusively for a Civil Engineer. 8. The original rules for filling up the post of Executive Engineer issued on 21.8.1990 has prescribed the criteria of 50:50 on the basis of merit-cum-seniority and in view of Clause (3) of the said Rules dated 21.8.1990, the Vice-Chancellor has issued subsequent Notification dated 5.12.1995, in which the criteria of 30:70 has been prescribed in Clause (12), wherein the minimum qualification for the 6 recruitment has been prescribed, whereby candidate with Degree in Civil Engineering or under Clause (12) the criteria for promotion to the post of Executive Engineer diploma holder Assistant Engineers/and graduate Assistant Engineers were entitled subsequently also vide Notification dated 16.10.2008, the Recruitment and Promotion Rules were revised exclusively for the post of Executive Engineer (Civil). If we read together the Rules of the years 1990, 1995 and 2008, we notice that all these rules were for the Executive Engineer (Civil). In view of Clause (3) of Rules 21.8.1990, the Vice-Chancellor was authorized by the Board of Management to prescribe the qualification, length of approved service and field of choice for the post of the Executive Engineer. From this point also, the assertion of the petitioner that the Vice-Chancellor was not empowered to change the criteria of the selection to the post of Executive Engineer, is without any legal force. 9. We find force in the contentions of the respondents that the post in question was exclusively of Executive Engineer (Civil) side where the petitioner was not eligible by virtue of his qualification and in view of the criteria laid down by the Notification dated 5.12.1995. As such, the petitioner is not entitled to the reliefs claimed for. The writ petition is devoid of any merit, is accordingly dismissed, so also the pending miscellaneous application(s), if any. ( R.B. Misra ), Judge ( V.K. Ahuja ), July 29, 2011 Judge (BSS) 7