IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 3058 (OA 439/96) Date of Decision : March 16, 2009 Shri Yoginder Kumar Petitioner Versus State of Himachal Pradesh and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Y.P.S. Dhaulta, Advocate. For the respondents : Mr. R.K. Sharma, Senior Additional Advocate General and Mr. Anil Jaswal, Dy. Advocate General. Sanjay Karol, J. (Oral) In the present petition the petitioner has prayed for the following reliefs: “(i) That necessary directions may kindly be given to the respondents to grant the scales of Chief Pharmacist and thereafter Senior Chief Pharmacist to the applicant, which are being given in the Medical and Health Department of H.P.; (ii) That necessary directions may kindly be issued to the respondents to grant the scales of Chief Pharmacist and thereafter Senior Chief Pharmacist on Punjab pattern; 1 Whether reports of Local Papers may be allowed to see the judgment? 2 (iii) That in the alternative, it is also prayed that in the event of failure of the respondents to grant benefits to the applicant, the services of the applicant may kindly be intrigrated with the services of the Medical and Health Department of H.P. and also consequential relief of seniority and pay scales be given on that basis; (iv) That the applicant may kindly be considered for the notional promotion to the post of Chief Pharmacist and further promotion of Senior Chief Pharmacist; (v) That the respondents may kindly be directed to give senior/selection grade on the date from which Sh. Babu Ram Sharma, junior to the applicant, was allowed senior/selection grade; (vi) That the applicant may kindly be considered for the facilities of availing the leave and other facilities which are prevalent in the Medical and Health Department of H.P.” The petitioner was appointed as Dispenser in the Jail Department of the State on 24.7.1971. Thereafter with the passage of time certain benefits were accorded to him and the pay scale of Dispenser was revised w.e.f. 1.1.1986. That the petitioner was subsequently accorded benefit of Senior Scale Dispenser in the pay scale of Rs. 1640-2925 is not in dispute. Mr. Y.P.S. Dhaulta, learned counsel for the petitioner has, however, narrowed down his submissions only with regard to the lack of promotional avenues from the post of Senior Pharmacist to that of Chief Pharmacist as is so provided in the Health and Family Welfare Department of the State. 3 Respondents in their reply have clarified that the petitioner cannot claim parity with employees of the State of Punjab or the Department of Health. The Recruitment and Promotion Rules as applicable to the employees in the State of Punjab and to the employees of the Health and Family Welfare Department of the State provide for the post of Chief Pharmacist. It has been explained that in the State of Punjab, for the Jail Department and the Welfare Department there is a joint cadre and common Recruitment and Promotion Rules. However, in the State of Himachal Pradesh there are different Recruitment and Promotion Rules with regard to the Health and Family Welfare Department and the Jail Department. The R&P Rules and the recruitment and promotion process being totally distinct and separate there cannot be any parity. From the record it is evident that the petitioner and other similarly situated persons in the Jail Department are being given certain additional benefits of 15 days special casual leave in addition to normal casual leave and rent free accommodation. These benefits have not been granted to the employees of the Health and Family Welfare Department of the State. This position is not disputed. Be that as it may be, the creation of a post is solely the prerogative of the Government being a policy decision and this Court cannot pass any direction with regard to the same unless it is malafide, arbitrary, capricious or illegal. 4 The Apex Court in M.P. Rural Agriculture Extension Officers Association versus State of M.P. and another, (2004) 4 SCC 646, has held that two different pay scales can be provided in the same cadre (Rural Agriculture Extension Officers) on the basis of educational qualification (graduates and non-graduates) even if nature of work is the same and posts are interchangeable. From the record, however, it is evident that the issue of creation of the post of Chief Pharmacist is pending consideration with the Government. The matter has been pending consideration since long hence in the facts and circumstances the only order which can be passed is that the respondents shall decide the same positively before 30th June, 2009, if already not decided. The petitioner shall be at liberty to place, by way of representation, additional material, including various decisions rendered by the Apex Court for consideration before the State. The decision taken by the Government shall be communicated to the petitioner and it shall be open for the petitioner to take recourse to such remedies as may be available to them in accordance with law. With the aforesaid observations, the present petition stands dismissed. (Sanjay Karol), Judge. March 16, 2009 (PK)