IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.546/1997 Reserved on.27.6.2007 Decided on.30.8.2007 M.D. Kaushal. …Petitioner. Versus The High Court of Himachal Pradesh. …Respondent Coram The Hon’ble Mr. Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Shrawan Dogra, Advocate. For the respondents Ms. Ranjana Parmar, Advocate. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the petitioner was appointed as Private Secretary (Class-II) in the High Court of Himachal Pradesh on 12th March, 1974 and was confirmed in the year 1977. The State of Punjab had taken a decision in the year 1981 whereby 25% posts in the cadre of Private Secretaries in the Punjab Civil Secretariat were granted higher grade of Rs. 1400-1800 with a special pay of Rs. 250/- per month and they were to be re-designated as Special Assistants. In sequel to the decision taken by the Punjab Government, the Private Secretaries attached with the Ministers in Himachal Pradesh Civil Secretariat were also granted higher pay scale of Rs. 1400-1850 with a special pay of Rs. 250/- per month confined to 25% posts of the cadre. Pursuant to the decision taken by the Punjab Government with regard to the Private Secretaries, the Punjab and 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 Haryana High Court also granted higher pay scale of Rs. 1400-1850 plus special pay of Rs. 250/- per month on the pattern of the Punjab Civil Secretariat to 25% of the cadre of Private Secretaries with effect from 23rd August, 1983. These posts were re-designated as Secretaries with a rider that equal number of posts of Private Secretaries were kept in abeyance as the similar exercise was undertaken in the Punjab Civil Secretariat. The High Court of Himachal Pradesh made a recommendation to the Government of H.P. for creation of 2 posts of Secretaries (being 25% of the then existing posts of Private Secretaries) in the pay scale of Rs. 1400-1850 with a special pay of Rs. 250/- per month. The Government of Himachal Pradesh did not take any action pursuant to the recommendations made by the High Court which led to filing of civil writ petition by the petitioner being CWP No. 817 of 1986 on 26.9.1986 seeking directions to the State to create posts of Secretaries as recommended by the High Court with effect from 23.8.1983. Similar writ petition was also filed by Shri Mehar Singh, who was the senior most Reader in the High Court at that time. During the pendency of the writ petition, the Government of Himachal Pradesh created two posts of Secretaries 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 Private Secretaries in the pay scale of Rs. 825-1580 were held in abeyance. There was a rider in the letter dated January 7, 1987 with regard to the date of the creation of the posts as it was stipulated in the letter dated January 7, 1987 that the creation of two posts was to take effect from the date of filling up the posts. The CWP No. 817 of 1986 and civil writ petition filed by Shri Mehar Singh were finally adjudicated upon by this Court on 19th July, 1989. In sequel to the directions issued by this Court in these two writ petitions, the State Government agreed to alter the 3 date of creation of the posts of Secretaries with effect from 23rd August, 1983 vide letter dated 11th April, 1987. The petitioner in fact was given the higher pay scale and was re-designated as Secretary by the High Court on ad hoc basis with effect from 1.1.1989 till June, 1991. He challenged the discontinuation of the higher pay scale by way of CWP No. 276 of 1991 which was dismissed by this Court on 16.10.1994. He was again granted the higher pay scale with effect from 3.7.1995. The petitioner made a representation after the issuance of communication dated 11.4.1997 to the Registrar of the High Court for giving benefit of higher pay scale with effect from 23rd August, 1983 being the senior most Private Secretary in the cadre at that particular time. A representation was made by the petitioner on 14th May, 1997, which was rejected by the High Court on August 29, 1997. Mr. Shrawan Dogra, Advocate had strenuously argued that the petitioner was entitled to be considered for promotion/appointment to the post of Secretary after the issuance of communication dated 11.4.1997 with effect from 23rd August, 1983. He also contended that the subsequent filing of the petition i.e. CWP No. 276/91 which was dismissed by this Court on 16.10.1994 had no bearing as far as the petitioner’s right to be considered for promotion/appointment to the post of Secretary is concerned with effect from 23.8.1983. He further contended that the Recruitment and Promotion Rules for the post of Secretary came into existence for the first time vide notification dated 21st October, 1986 and his client was to be considered for promotion on the basis of seniority since two posts were available on 23rd August, 1983 on the basis of letter dated 11.4.1997. 4 Ms. Ranjana Parmar, Advocate appearing on behalf of the respondent had primarily contended that the petitioner could not be considered for promotion retrospectively with effect from 23.8.1983. 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 pay scale to the 25% to the cadre of Private Secretaries with effect from 1983. The same was followed by the State of Himachal Pradesh and 25% posts of the Private Secretaries attached with the Ministers were granted the higher pay scale of Rs.1400-1850 with a special pay of Rs. 250/- per month. The Punjab and Haryana High Court had followed the pattern of the Punjab Civil Secretariat by granting higher pay scale of Rs. 1400-1850 with a special pay of Rs. 250/- per month to 25% posts of the total cadre of Private Secretaries with effect from 23rd August, 1983. The High Court on the basis of the decision taken by the State of Punjab, State of Himachal Pradesh and Punjab and Haryana High Court, made the recommendations to the State of Himachal Pradesh for creation of two posts of Secretaries with effect from 23rd August, 1983. The State though acceded to the recommendations made by the High Court but with a rider that the posts will be created with effect from the date the same are filled in. Before the issuance of letter January 7, 1987, the petitioner had approached this Court by way of CWP No. 817/86, which was decided on 19th July, 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 5 Court, namely, August 23, 1983. It shall do so in the light of what we have said in this judgment.” The matter went before the Hon’ble Supreme Court and the SLP preferred by the State was dismissed by the Hon’ble Supreme Court on 26.3.1996. The State after the dismissal of the SLP issued letter on 11th April, 1997 whereby earlier notification dated 7.1.1987 was amended and the posts were created with effect from 23rd August, 1983. It is in this backdrop that the case of the petitioner is required to be considered by this Court. The petitioner was one of the senior most Private Secretaries working in the Registry of this Court in the year 1985. Admittedly no Recruitment and Promotion Rules existed for the post of Secretary and the Recruitment and Promotion Rules came into existence vide notification dated 21st October, 1986. In the absence of the statutory Recruitment and Promotions Rules, the petitioner and similarly situate persons were to be considered for promotion on the basis of their seniority. This exercise has not been undertaken by the High Court for filling up two posts of Secretaries with effect from 23rd August, 1983. True it is that the petitioner was granted the higher pay scale with effect from 1.1.1989, but the same was discontinued in the month of June, 1991. The same was restored with effect from 3rd July, 1995. When the petitioner had filed CWP No. 276/91 the Recruitment and Promotion Rules were in place since the same were notified in the year 1986 and the rigorous of the same were to be gone into by the petitioner. The post in question as per the Recruitment and Promotion Rules was a selection post meaning thereby that the same was to be filled in purely on the basis of merit. But the position in the year 1983 was entirely different. In the year 1983, there were no Recruitment and Promotion Rules in existence for filling up the 6 posts of Secretaries thus; the same were to be filled up on the basis of seniority/length of service. The representation made by the petitioner has been rejected without a speaking order. A specific ground has been taken by the petitioner that in the Himachal Pradesh Civil Secretariat as well as in the Punjab and Haryana High Court, incumbents holding the identical posts had been granted the higher pay scale to the senior most persons. This has not been denied by the respondent in its reply. It is evident from the facts narrated hereinabove that the High Court itself was eager for the creation of posts with effect from 23rd August, 1983, but State had accepted the recommendations with a rider that the same will be deemed to have been created with effect of the date the same are filled in. The ratio of the judgment rendered by this Court in a petition filed by the petitioner (M.D. Kaushal V. State of H.P. and another, ILR (HP Series) 676) decided on 17.7.1989 was very explicit that the post in question was required to be created with effect 23rd August, 1983. The petitioner had undertaken protracted litigation by filing a writ petition in the year 1986 which was decided in the year 1989. The endeavour of the petitioner was always that the posts should be created with effect from 23rd August, 1983 since he was to fall in the zone of consideration being one of the senior most Private Secretaries. If the petitioner had been considered with effect from 23rd August, 1983 immediately after the issuance of letter dated 11.4.1997 he could be placed in the higher pay scale of Rs. 1400-1850 with a special pay of Rs. 250/- per month and the same had a direct bearing on his retiral benefits. It is by now settled that the appointments/promotions could also be made on the basis of executive instructions/guidelines and directions in the absence of Recruitment and Promotion Rules. 7 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. 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 8 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 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 9 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 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 10 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 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 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 11 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 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 12 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 same executive order creating the service or post and filling it up according to those qualifications. In the instant case, it is evident from a perusal of the proposal for creation of a Tele Communication Division at Patna and the aforesaid recommendation made by the Selection Committee in favour of the appellant that for ensuring reliability and continuity in power supply it was absolutely essential that maintenance of the sophisticated wave-change-over communication equipments of 33 KV installed by the Board in the Tele- Communication Sub Division should be entrusted to specially trained, experienced and qualified officer possessing specialized theoretical and practical knowledge of Tele- Communication which is a subject quite distinct from that of general Electricity and covers according to New Encyclopedia Britannica (15th Edition) and Webster’s Third New International Dictionary all types of communication at a distance as by cable, radio, telegraph, telephone, tele-typewriter and facsimile. Judged in this background, it is obvious that it was only the appellant who possessed degree in B.Sc. Engineering in Tele-Communication, was separately recruited and specially trained in that line in Switzerland and had thus acquired specialized knowledge therein