IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP (T) No.2319 of 2008 Date of Decision: 18th September,2009 Smt. Shashi Bijalwan Petitioner Versus State of Himachal Pradesh and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the petitioner: Mr. Dilip Sharma, Advocate. For respondent No.1&2 : Mr.Vivek Thakur, Addl. Advocate General, With Mr.J.S.Rana, Asstt. Advocate General. For respondent No.3 : Mr.D.K.Khanna, Advocate. Sanjay Karol, J. (Oral) Petitioner herein originally filed OA No.2164 of 1994 before the erstwhile H.P. Administrative Tribunal at Shimla. On 27.9.1994, the petition was admitted and interim order passed to the effect that promotion, if any, to the post of District Welfare cum Probation Officer, shall be subject to final decision. By virtue of the provisions of Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008 (No.14 of 2008), the petition stands transferred to this Court and renumbered as CWP (T) No.2319 of 2008. The petitioner has filed the present writ petition, inter alia, praying for the following main reliefs:- Whether the reporters of Local Papers are allowed to see the Judgment? 2 (i) That the D.P.C. held by respondents on 9.9.1994 for making promotions to the post of District Welfare- cum-Probation Officer in accordance with the Rules at Annexure A-3 by ignoring the Roster prescribed in the said rules, may be quashed and set aside; (ii) That if during the pendency of this Original Application, respondents make promotions to the post in question in violation of Roster prescribed in Rule 11 of the Rules in question, in that event those promotions may be quashed and set aside; (iii) That respondents may be directed to make promotions to the posts of District Welfare-cum- Probation officers strictly in accordance with the Roster prescribed in Rule 11 of the rules at Annexure A-3 with all consequential benefits and in case during the pendency of this application, respondents illegally make promotions to the posts in question, then they may be directed to consider the claim of applicant also for promotion from due date, from which date, they make such promotions during the pendency of this case. At the time of filing of the petition on 26.9.1994, , the petitioner was working as Superintendent (Home). The State of Himachal Pradesh framed “Recruitment and Promotion Rules for the post of District Welfare-cum probation Officer in the department of Welfare, Himachal Pradesh” (hereinafter referred to as the old Rules). In terms of the said Rules the method of Recruitment and Promotion to the post of District Welfare cum Probation Officer, stipulated that 25% of the posts were to be filled up on the basis of direct recruitment and 75% of the posts were to be filled up by promotion by following four point roster. The relevant provisions of the said Rules are reproduced as under:- 3 “10. Method of recruitment, whether by direct recruitment or by promotion, deputation/ transfer and the percentage of vacancies to be filled by various methods. (i) Direct recruitment 25% on the basis of H.P. Administrative Service etc. Examination. (ii) Promotion:75% 11. In case of recruitment by promotion, deputation/ transfer grades from which promotion, deputation/ transfer to be made By promotion from amongst (i) Tehsil Welfare Officer in the pay scale of Rs.140-300 with seven years regular or ad hoc service or both as such …..50% (ii) Superintendent (Home)/ Assistant Superintendent (Home) in the pay scale of Rs.300-600 and Rs.200-450 respectively with five years service as such ……25% Provided that for purpose of promotion a combined list of eligible officials will be prepared in which the Superintendent (home) shall be placed enblock above Assistant Superintendent (Home):- The posts shall be filled in the following roster:- Ist post, Supdt.(Home/ Asstt. Supdt. (Home) 2nd post Tehsil Welfare 3rd post Officers. 4th post Direct recruitment and the roster to be repeated after every 4th vacancy.” (Emphasis supplied) By virtue of Notification dated 21.9.1993, the old Rules were repealed and new Rules were framed as “H.P. Social & Women’s 4 Welfare Department, District Welfare-cum-Probation Officer (Class-II, Gazetted) Recruitment and Promotion Rules, 1993” (hereinafter referred to as the new Rules). The new Rules brought in change whereby instead of 25%, 20% posts were to be filled up by direct recruitment and instead of 75%, 80% posts were to be filled up by promotion and in place of four point roster, 10 point roster was required to be followed for filling up of the posts by promotion. The relevant provisions of the new Rules are as under:- “10. Method of recruitment, whether by direct recruitment/ by promotion, deputation/ transfer and the percentage of vacancies to be filled by various methods. (i) 80% by promotion failing which by direct recruitment. (ii) 20% by direct recruitment 11. In case of recruitment by promotion, deputation/ transfer grades from which promotion, deputation/ transfer to be made By promotion from amongst following who possess 6 years regular service or regular combined with continuous ad hoc (rendered upto 31.3.93) service:- (i) Tehsil Welfare Officers 70% (ii) Superintendent Home 10% Total… 80% The following roster shall be followed for filling in the posts:- 1st post .. Superintendent Home 2nd,3rd, Tehsil Welfare 4th post .. Officer 5th post .. Direct Recruit- ment 6th,7th,8th and 9th post … Tehsil Welfare Officer. 10th post .. Direct recruit- Ment and the roster will be 5 repeated after every 10th post. Note-1. In all cases of promotion, the ad hoc service rendered in the feeder post upto 31.3.91, if any, prior to regular appointment to the post shall be taken into account towards the length of service as prescribed in these rules by promotion subject to the conditions:- (a) That in all cases where a junior person eligible for consideration by virtue of his total length of service (including adhoc service rendered upto 31.3.91) in the feeder post in view of the provisions referred to above, all persons senior to him in the respective category/post/ cadre shall be deemed to be eligible for consideration and placed above the junior person in the field of consideration: Provided that all incumbents to be considered for promotion shall possess the minimum qualifying service of atleast three years or that prescribed in the Recruitment and Promotion Rules for the post, whichever is less: Provided further that where a person becomes ineligible to be considered for promotion on account of the requirement of the preceding proviso, the person(s) junior to him shall also be deemed to be ineligible for consideration for such promotion. Explanation. – the last proviso shall not render the junior incumbents ineligible for consideration for promotion of the senior ineligible persons happened 6 to be Ex-servicemen recruited under the provisions of rule 3 of Demobilised Armed Forces Personnel (Reservation of Vacancies in Himachal Pradesh State Non-Technical Services) Rules, 1972 and having been given the benefit of seniority thereunder or recruited under the provisions of rule 3 of Ex-servicemen (Reservation of Vacancies in the Himachal Pradesh Technical Services) Rules, 1985 and having been given the benefit of seniority thereunder. (b) Similarly, in all cases of confirmation, adhoc service rendered in the post upto 31.3.1991 if any, prior to the regular appointment against such post shall be taken into account towards the length of service: Provided that the inter se seniority as a result of confirmation after taking into account adhoc service shall remain unchanged. Note 2.- Provisions of column 10 and 11 are to be revised by the Government in consultation with the commission as and when the number of posts under rule 2 are increased.” (Emphasis supplied) Apprehending that the respondents would continue to follow the old Rules for filling up the posts having fallen vacant to the promulgation of the new Rules the petitioner filed the present petition. The respondent-State opposed the petition on the ground that keeping in view Section 2(2) of the new Rules all actions taken under 7 the old Rules were to be deemed to have been validly done under those Rules. Without disputing the factual matrix the stand taken is that roster point to be adopted was to be in continuation of the old Rules and no new roster point from point No.1, was to begin under the new Rules. Keeping in view the stand taken by the parties, the Court had directed the Government to look into the grievances of the petitioner and during the course of hearing the Court was informed that there was a divergence of opinion in the various departments of the Government, hence the petitioner’s grievance could not settled amicably. The Apex Court in Paramjit Singh Sandhu and others vs. Ram Rakha Mal and others, AIR 1983 SC 314, has held as under:- “Ordinarily speaking, where recruitment is from two sources with a view to integrating recruits from both sources after the recruitment seniority is determined from the date of entry into the cadre except where there has been a substantial violation of the quota giving undeserved advantage to one or the other source Seniority ordinarily speaking is determined with reference to the date of entry into the cadre which in service jurisprudence is styled the date of continuous officiation. These notions of service jurisprudence may have to yield place to the specific rules and the fact situation with reference to Rule 10 did compel this Court to depart from the normal concept in service jurisprudence. However, introduction of a roster system is very well known in service jurisprudence. What this Court meant while saying that when a quota rule is prescribed for recruitment to a cadre it meant that quota should be correlated to the vacancies which are to be filled in. Who retired and from what source he was recruited may not be very relevant because retirement from service may not follow the quota rule. Promotees who come to the service at an advanced age may retire early and direct recruits who 8 enter the service at a comparatively young age may continue for a long time. If, therefore, in a given year larger number of promotees retire and every time the vacancy is filled in by referring to the source from which the retiring person was recruited it would substantially disturb the quota rule itself. Therefore, white making recruitment quota rule is required to be strictly adhered to. That was what was meant by this Court when it said: "The quota rule would apply to vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota." The quota in the present case is 4:1 that is, four promotees to one direct recruit. Therefore, whenever vacancies occur in the service the appointing authority has to go on recruiting according to quota. In other words, whenever vacancies occur, first recruit four promotees irrespective of the factors or circumstances causing the vacancies and as soon as four promotees are recruited bring in a direct recruit. That was what was meant by this Court when it said that a roster has to be introduced and this roster must continue while giving confirmation. The sentence which seems to have created a difference of opinion reads as under: "A roster is introduced while giving confirmation ascertaining every time which post has fallen vacant and the recruit from that source has to be confirmed in the post available to the source." 7. The sentence cannot be read in isolation. It has to be read with the earlier sentence that the quota rule would apply to the vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota. The Court then proceeded to say that if the quota rule is strictly adhered to there will be no difficulty in giving confirmation keeping in view the quota rule even at the time of confirmation. 9 8. Introduction of a roster system is well known to service jurisprudence. When a roster is to be introduced it only means that ascertain the available number of vacancies and proceed to make recruitment keeping in view the quota. Now, if recruitment is strictly made according to quota there will be no difficulty in applying the very rule of quota even while giving confirmation. To illustrate, assuming there are five vacancies in a given-period, the recruitment will be four from the cadre from which promotion can be given and one would be a direct remit. Naturally when the date of confirmation comes it would obviously follow that confirmation will proceed along that very fine. In our opinion, therefore, there is neither any ambiguity nor any blurred area which requires to be explained. 9. There was some discussion that seniority list as at present drawn up is not in conformity with the judgment of this Court. The rules constituting the service were brought into force in 1959. Therefore, those who were recruited/promoted to the service prior to the constitution of the service under 1959 Rules would maintain their seniority as given and they cannot be disturbed by retrospective operation of the 1959 Rules. Subsequently Mr. Tarkunde, learned counsel for the State of Punjab, assured us that both the recruitment and confirmation have strictly been made according to the quota rule, namely, when vacancies occur recruit first four promotees and the fifth post will go to the direct recruit and the same rule is followed in confirmation.” Subsequently in State of Punjab vs. Dr.R.N.Bhatnagar and another, AIR 1999 SC 647, the Apex Court while dealing with a case where the Punjab Medical College Education Service (Class I) Rules, 1978, provided for the method of appointment to the post of Professors by promotion to the extent of 75% and by direct recruitment to the extent of 10 25%, after considering the ratio of law laid down by the Apex Court in R.K.Sabharwal vs. State of Punjab, (1995) 2 SCC 745, came to the conclusion that by use of the expression “post” used in the Rule, it “cannot be said” that it must necessarily reflect in the total posts in the cadre and not to vacancies. The Apex Court in All India Federation of Central Excise vs. Union of India and others, AIR 1999 SC 1204, while dealing with the Rules which provided that the promotion to Group A in Customs and Central Excise Service was to be from (i) Superintendents of Customs, Group B, (ii) Superintendents of Customs, Group B and (iii) Customs Appraisers, held that because of frequent retirement of those Group A officers who are promoted from the category of Excise Superintendents Group B, it could not be held that every such vacancy is to be filled up only by promotion of another officer from Central Excise Superintendents Group B. The Court observed that once officers from the feeder categories are promoted, they cease to have their birthmarks in the promoted category, hence, there is no question of filling up of a vacancy created by retirement of a promotee from feeder category, by another officer from the same feeder category, for the reason that the identify of the feeder channel from which they are promoted ceases to exist. It is a settled position of law that whenever a new percentage is prescribed for promotion, with the formation of new roster, the roster point is required to start from Point I. Now in the present case, the promotion is to be effected on the vacancies, which have arisen after the new Rules. The stand of the respondents that the roster point is to be in continuation of the old Rules is thus erroneous and untenable in law. It is 11 not disputed that posts required to be filled in by promotion has arisen after the publication of the new rules and the first post as per 10 point roster falls to the category of Superintendent (Home), hence, the petitioner has a genuine grievance and the respondents’ stand to the contrary is untenable in law. The roster point prescribed for the category of Superintendent (Home) cannot be ignored. The plea that with the application of a new roster point under the new Rules the number of persons from a particular category would be in excess to the quota is untenable in law keeping in view the ratio of law laid down by the Apex Court as noticed above. For the aforesaid reasons, the present petition needs to be allowed. The respondents are directed to hold a review DPC and consider the case of the petitioner as on 9.9.1994 when the DPC was initially held. Consequential action shall be taken in accordance with law. Needful be done within three months from today. 18th September, 2009 (Sanjay Karol) (C) Judge.