IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.385 of 2001 Reserved on 11.3.2008 Date of decision 26.3.2008 Ramesh Chand Petitioner Vs. State of H.P. and ors. Respondents Coram: The Hon’ble Mr. Justice Deepak.Gupta, Judge The Hon’ble Mr. Justice Rajiv Sharma, Judge Whether approved for reporting?1 Yes. For the Petitioners: Mr.Rajiv Jiwan, Advocate For the Respondents: Mr.R.M.Bisht and Mr.Rajesh Mandhotra, Deputy Advocate Generals, for respondents No.1 and 2. Rajiv Sharma,J. A challenge has been laid by way of this petition to the order passed by the Himachal Pradesh State Administrative Tribunal in O.A.No.2451/98 on 29.6.2000. The brief facts necessary for the adjudication of this petition are that the petitioner joined as Projector Operator on 1.2.1991 on the basis of the recommendation made by the Himachal Pradesh Public Service Commission. The petitioner approached the Himachal Pradesh Administrative Tribunal by way of O.A. No.2451/98 assailing two notifications dated 19.7.1997 and 30.11.1996. It was submitted by the petitioner before the learned Tribunal that the issuance of these two notifications dated 19.7.1997 and 30.11.1996 has reduced his chances of 1 Whether reporter of local papers are allowed to see the judgment ? Yes. 2 promotion to the post of Assistant Radio Engineer. The learned Tribunal dismissed the O.A. on 29.6.2000. Mr.Rajiv Jiwan, learned counsel for the petitioner has strenuously argued that before the issuance of notifications dated 19.7.1997 and 30.11.1996 the petitioner being in possession of higher qualification was eligible and qualified to be considered for the post of Assistant Radio Engineer directly. He then contended that the State could not create a new cadre of Technical Assistant between the cadre of Projector Operator and Assistant Radio Engineer. Mr. R.M. Bisht, learned Deputy Advocate General had argued to the contrary that creation of a cadre, merger of a new cadre and bifurcation of a cadre is a policy matter and the scope of interference by the courts in these matters is very limited. He then contended that the vires of Recruitment and Promotion Rules being a subordinate legislation could only be assailed if there is prima facie arbitrariness which violates Articles 14 and 16 of the Constitution of India. We have heard the learned counsel for the parties and perused the record carefully. It is evident from the contents of Annexure A-1 that the post of Assistant Radio Engineer is to be filled up by way of promotion from amongst the Technical Assistant who possesses 2 years trade certificate in Radio and Television from an Industrial Training Institute with 5 years regular service. True it is that before coming into force of the Himachal Pradesh Department of Information and Public Relations, Assistant Radio Engineer, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 1997 the Projector Operators were also eligible to be considered for promotion directly to the post of Assistant Radio Engineers on the basis of their higher educational qualification in the prescribed ratio. However, the State had created a new cadre of Technical Assistant as per Himachal Pradesh Information and Public Relations Department, Technical 3 Assistant (Class-III Non-Gazetted) Recruitment and Promotion Rules, 1996. The post of Technical Assistant is to be filled up in a ratio of (a) Radio Mechanic 60% and (b) Projector Operator/Auto Mechanic 40%. The Projector Operators now cannot be considered for promotion directly to the post of Assistant Radio Engineers. The Project Operators have to be considered for promotion to the post of Technical Assistant and thereafter the Technical Assistants are to be promoted to the post of Assistant Radio Engineers. It is for the State to create a new cadre or to merge or bifurcate a cadre. The framing of recruitment rules falls within the realm of the policy. The jurisdiction of the Court to look into the vires of the rules is very limited. The petitioner has to establish that the rules made by the State are unreasonable, unjust, arbitrary and violative of Articles 14 and 16 of the Constitution of India. The petitioner has failed to establish in the present case that the recruitment rules are arbitrary, unreasonable or violative of Articles 14 and 16 of the Constitution of India. These rules apply to all the similarly situate persons uniformally. The contention of the petitioner that his chances of promotion have been obliterated for being not considered for the higher post is not tenable. The petitioner has a right to be considered for promotion to the post of Technical Assistant and thereafter to the post of Assistant Radio Engineer. Similarly, the contention raised by the petitioner that less qualified persons have been promoted to the post of Technical Assistant and Assistant Radio Engineer is also misconceived. The petitioner has not laid any foundation in his Original Application in what manner he has been prejudiced by the promotion of his senior to the post of Technical Assistant and Assistant Radio Engineer. We would like to observe at this stage that the employees who had been discharging the duties of Project Operators may not be possessing diploma from the I.T.I. but have acquired 4 experience. The experience gained while discharging the duties is also a qualification and this aspect cannot be over looked. Their Lordships of the Supreme Court have held in in B.N.Sexena vs. New Delhi Municipal Committee and others, (1990) 4 SCC 205 that experience gained for a considerable length of time is itself a qualification. Their Lordships have held as under: The second limb of the rule was evidently to benefit all those persons who have gained sufficient experience as Senior and Junior Draftsmen without possessing any qualification. Experience gained for a considerable length of time is itself a qualification (see the observation in State of U.P. v. J.P.Chaurasia). It would be unreasonable to hold that in addition to this considerable experience, one must also have the diploma qualification prescribed under the first part. It would not have been the intention of the rule making authority that persons who were designated as Senior Draftsmen without any diploma qualification should acquire such diploma qualification for further promotion. Such a view would not be consistent and coherent with the revised rule and its object. We have no doubt that the second limb of the revised rule is independent of the first. The High Court seems to have erred in this aspect of the matter.” The matter can be viewed from another angle. The revised pay scale of the post of Projector Operator is Rs.3120-5160. The pay scale of Radio Mechanic is Rs.4020-6200(revised). The pay scale of Technical Assistant is Rs.4400-7000 revised. It appears that since the pay scale of Radio Mechanics is higher they have been granted quota of 60% vis-à-vis 40% to the Projector Operators/Auto Mechanics for being considered for promotion to the post of Technical Assistant. Their Lordships of the Supreme Court have held in the following cases that the Court, Tribunal, cannot direct the government to frame statutory rules or amend existing statutory rules under Article 309 of the Constitution of India. Their Lordships have held in Mallikarjuna Rao and 5 others v. State of Andhra Pradesh and others, (1990)2 SCC 707 as under : Special Rules have been framed under Article 309 of the Constitution of India. The power under Article 309 of the Constitution of India to frame rules is the legislative power. This power under the Constitution has to be exercised by the President or the Governor of a State as the case may be. The High Courts or the Adminsitratrive Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India. The courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule making power in any manner. The courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution of India.” Their Lordships of the Supreme Court have held in State of Jammu and Kashmir vs. A.R. Zakki and others, 1992 Supp (1) SCC 548 that the power to frame rules is legislative in nature and a writ of mandamus cannot, therefore be issued directing the State Government to make the rules. Their Lordships have held as under: In our opinion there is considerable merit in this submission. A writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. Section 110 of the J and K Constitution, which is on the same lines as Article 234 of the Constitution of India vests in the Governor, the power to make rules for appointments of persons other than the District Judges to the Judicial Service of the State of J and K and for framing of such rules, the Governor is required to consult the Commission and the High Court. This power to frame rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Government to make the rules in accordance with the proposal made by the High Court. 6 The aforesaid observations leave no room for doubt that the purport of the direction that has been given by the High Court is that the amendments that have been recommended by the High Court should be incorporated in the rules. In our opinion, such a direction was impermissible and cannot be upheld.” The Hon’ble Supreme Court has further observed in Union of India and others vs. Syed Mohd. Raja Kazmi and others, 1992 Supp (2) SCC 534 that it is not open for the Administrative Tribunal or for the Courts to interfere with and to dictate the avenues of promotion, which the department should provide for its various employees. Their Lordships have held as under: “It is not for the Administrative Tribunal or for the Courts to interfere with and to dictate the avenues of promotion which the department should provide for its various employees. The Courts cannot, we think, direct that TAs should be made a direct feeder post to HCs superior to UDcs.” Similarly, their Lordships of the Supreme Court have reiterated in Govt. of T.N. and another v. S.Arumugham and others, (1998) 2 SCC 198 that the Government has a right to frame a policy to ensure efficient and proper administration and to provide suitable channels of promotion to officers working in different departments and offices. Their Lordships have held as under : The Tribunal itself came to the conclusion that combining all the departments and having a common seniority list was neither justified nor feasible. But it has given directions for a different kind of allocation and a different scheme. These directions pertain to policy matters. The Tribunal ought not to have directed the Government to change its policy. The Government has a right to frame a policy to ensure efficiency and proper administration and to provide suitable channels of promotion to officers working in different departments and offices. In Indian Rly. Service of Mechanical Engineers’ Assn. v. Indian Rly. Traffic Service Assn. 7 this Court reiterated that the correctness of a policy should not be questioned by the Tribunal. The appellants in their affidavit before the Tribunal have given in detail the history of these provisions and the justification for these provisions in the interests of efficiency and proper administration. The Tribunal cannot substitute its own views for the views of the Government or direct a new policy based on the Tribunal’s view of how the allocation should be made. The three groups which have been formed as far back as in 1977 for the purposes of allocation consist of officers performing different functions and having different prospects and different avenues of promotion. They cannot be equated for the purposes of Articles 14 or 16. In the case of Govind Dattatray Kelkar v. Chief Controller of Imports & Exports this Court held that the concept of equality in the matter of promotion can be predicated only when promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the difference between the two sources, the recruitment can be justified as legitimate classification. This reasoning directly applies in the present case. Therefore, the scheme does not violate Articles 14 of 16, nor is it arbitrary. The quota which should be fixed or the allocation which should be made for the purpose of deputing officers to the Tamil Nadu Revenue Subordinate Service is basically in the domain of the executive. Unless there is a clear violation of any provision of the Constitution, the Tribunal ought not to have given directions for formulating a new policy and a different quota.” In view of the observations made here in above, and the law laid down by the Hon’ble Supreme Court we are of the considered opinion that the petitioner has not made out a case for striking down the rules notified on 30.11.1996 and 19.7.1997 for the post of Technical Assistant and Assistant Radio Engineer. The rules are neither violative of Articles 14 or 16 of the Constitution of India nor are they arbitrary, oppressive or unreasonable. There is no illegality in the orders passed by the learned Tribunal whereby the O.A. preferred by the petitioner has been dismissed. We uphold the order passed by the learned Tribunal and consequently the 8 writ petition is dismissed. However, before parting with the judgment, we are of the opinion that if the State deems just and proper a separate quota to the category to which the petitioner belongs taking into consideration their higher qualification be carved out for promotion to the post of Technical Assistants. This observation has been made only to mitigate the hardship faced by the petitioner after coming into force of the rules as noted above. (Rajiv Sharma), (Deepak Gupta), March 26 , 2008 Judge. Judge. (g)