IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.812/2007 Reserved on.27.3.2008 Decided on.5.4.2008 Duni Chand. …Petitioner. Versus The Bharat Sanchar Nigam Limited and another …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.No For the petitioner : Mr. Inder Jit Narwal, Advocate. For the respondents Mr. Ashok Sharma, Advocate. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the petitioner was appointed as a Driver in the P&T Civil Wing, Shimla on 14.12.1982 under the coordination of the Superintending Engineer (Civil) P&T Civil Circle, Ambala. He exercised his option on the terms and conditions contained in the office order dated 25.8.1982. He stood permanently placed within the territorial jurisdiction of Himachal Pradesh Telecom Circle under Coordination of Telecom Civil Circle, Chandigarh vide letter dated 31.5.1993. Subsequently, he was permanently placed in the territorial jurisdiction of the Himachal Pradesh Telecom Circle. He was promoted as a Driver Grade-II and Grade-I on 1.8.1993 and 14.12.1997, respectively. The Ministry of Personnel, Public Grievances and Pensions had issued office memo on 15th February, 2001 whereby Special Grade was introduced in the pay scale of Rs. 5000-8000 with effect from 1 Whether the reporters of Local Papers may be allowed to see the judgment? No 2 18.11.1996. The promotion to the Special Grade was to be governed by non-selection (seniority-cum-fitness) from Grade-I with 3 years regular service in Grade-I of Staff Car Drivers. The case of the petitioner was strongly recommended by the Chief Engineer (Civil) on 14.3.2002 and thereafter on 26.4.2002. The Superintending Engineer (A&P) had also recommended the case of the petitioner for promotion from Grade-I to Special Grade. The petitioner had also served a legal notice on 2nd August, 2003 seeking consideration for the promotion to the post of Driver Special Grade. It appears from the record that no action was taken by the respondents despite repeated communications made by the Chief Engineer as well as the Superintending Engineer (A&P) on 22.7.2005 and 4.8.2006. He also served a legal notice to the General Manager on 28.8.2006. He was assured by the Superintending Engineer (A&P) that his case was under examination. The respondents have placed on record the rules called “The Drivers (Recruitment) Rules, 2002” (hereinafter referred to as the Rules for brevity sake) which have come into force with effect from January 28, 2002. The Court had directed the respondents to take appropriate decision on the basis of the recommendations made by the Superintending Engineer on 4th August, 2006 vide order dated 19th September, 2007. In sequel to the directions issued on 19th September, 2007, the Chief General Manager Telecom had filed his affidavit stating therein that the case of the petitioner for the grant of Special Grade (Driver) was within the competence of BSNL (Corporate) Office and not within his competence. Mr. Inder Jit Narwal, Advocate had strenuously argued that his client is fully eligible for the grant of Special Grade (Driver) since 2000. He also contended that after coming into force of the Rules with effect 3 from 28.1.2002, there cannot be a separate cadre under the same company as far as the drivers are concerned. He further contended that his client should not be singled out by the respondents for invidious discrimination on the basis of cut off date i.e. 1.10.1986. Mr. Ashok Sharma, Advocate had argued that the case of the petitioner cannot be considered since the sanctioned strength of the Drivers in the office of Chief Engineer (Civil) is four and only 5% posts in the cadre strength could be treated as a unit for Special Grade (Driver). I have heard the learned counsel for the parties and have perused the record carefully. The petitioner had been granted Driver Grade-II and Driver Grade-I with effect from 1st August, 1993 and 14th December, 1997. The case of the petitioner has been strongly recommended as is evident from the Annexures placed on record by the Chief Engineer (Civil) as well as Superintending Engineer (A&P). Mr. Inder Jit Narwal, Advocate had submitted that his client was to be considered for Special Grade (Driver) on the basis of memo dated 15.2.2001 since his client had already completed three years service in Grade-I. The respondent-company has now framed the rules governing the service of drivers called “The Drivers (Recruitment) Rules, 2002”. Rule 3 provides that the rule shall apply to the posts as specified in column (1) of the Schedule annexed to these Rules. Rule 4 prescribes number of posts, classification and scale of pay. Rule 10 provides that all officials holding the posts of drivers on regular basis in the erstwhile DOT/DTS/DTO before commencement of these rules and those who have been regularized in the Bharat Sanchar Nigam Limited shall be appointed as driver in BSNL. It is evident from the Schedule annexed with the rules that there are four categories of drivers i.e. Driver Ordinary Grade, Driver Grade-II, Driver Grade-I and Driver 4 Special Grade. The strength of the services has been prescribed in the Schedule itself. The cadre strength of Driver Ordinary Grade is 1414, cadre strength of Driver Grade-II is 643, the cadre strength of Driver Grade-I is 514 and as far as Driver (Special Grade) is concerned, it is mentioned that the same will be subject to variation taken on work load. It will be pertinent at this stage to take note of note-3 appended to these rules, which reads thus: Note-3: for the purpose of promotion to Special Grade, the vacancies can be combined together at the circle level. However, for the purpose of posting and other service matters, it will be SSA Cadre.” It is clear from the combined reading of these rules as discussed hereinabove that there are no separate cadres except as mentioned in these rules. Once the Rules have come into force, there ought to have been only those cadres, which are prescribed in the Rules. It is perhaps for this reason that it is also mentioned in note-3 of the Rules that for the purpose of promotion to Special Grade, the vacancies can be combined together at the circle level. It appears that before coming into force of the Rules, there were separate cadres in Civil Wing Circle Office. However, after coming into force the Rules in the year 2002, there cannot be any separate cadre for the same category. The Court has already taken note of the cadre strength of four different categories of the drivers as per the Schedule annexed with the Rules. Now, the Court has to consider whether the petitioner is eligible for the grant of Driver (Special Grade) or not. The only requirement as per the Rules is that the incumbent should have put in three years regular service in Grade-I. The Special Grade is to be granted 100% by promotion. The vacancies for the purpose of promotion to Special Grade can be clubbed together. The basic concept for clubbing the posts at the 5 circle level is that no person is discriminated against if he/she may happen to work in a separate small wing in the respondent-organization. The petitioner has been treated differently by the respondents only on the ground that he was appointed as a Driver in Civil Wing on 1.10.1986. There is no explanation on what basis the date i.e. 1.10.1986 has been taken for treating the petitioner differently. The classification made on the basis of this artificial date has no intelligible differentia so as to distinguish one set of drivers’ vis-à-vis other drivers. If the plea put forth by the respondents that there are only four posts in the Chief Engineer (Civil) Wing is accepted in that eventuality the persons, who are juniors may be granted Special Grade and the persons who are seniors in the same organization may be left out. The further civil consequences for the persons like the petitioner if their appointment is confined to a smaller Unit, as projected by the respondents in this case, will be that they will never get Special Grade. This cannot be the true intention/ interpretation of the statutory rules. The Special Grade is granted to the senior most employees to remove the stagnation. In the present case the highest functionaries i.e. Chief Engineer (Civil) and Superintending Engineer (A&P) brought to the notice of the authorities concerned that the persons junior to the petitioner were granted special grade, but the petitioner was left out. Once the new Rules have come into force creating different cadres, the seniority list has to be drawn on the basis of these Rules. If the respondents are maintaining any separate list of the same category on the basis of the old Rules, they will have to prepare the seniority list as per the new Rules taking into consideration the different cadre strength as mentioned in the new Rules. In view of the above discussion, it is held that the petitioner is liable to be granted the Special Grade as per the Drivers (Recruitment) Rules, 6 2002 since he has already put in three years service after the grant of Grade-I to him in the year 1997. Consequently, the writ petition is allowed. The respondents are directed to consider the case of the petitioner for the grant of Special Grade with effect from the date he had completed three years after the grant of Grade-I to him with all consequential benefits. There shall be no order as to costs. ( Rajiv Sharma), Judge April 5, 2008 *Awasthi*