IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 4627/2008 Reserved on: 23.8.2010 Decided on:7.9. 2010 _____________________________________________ Bishan Singh. …Petitioner. Versus Himachal Pradesh University and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Tek Chand Sharma, Advocate vice Mr. Bhuvnesh Sharma, Advocate. For the Respondents: Mr. B.C. Negi, Advocate for respondent No.1. None for respondents No. 2 to 4. _____________________________________________________ Justice Rajiv Sharma, Judge. Petitioner was appointed as Library Assistant vide order dated 21.8.1979. He joined his duties as such with effect from 11.10.1979. The post of Library Assistant is in feeder category for promotion to the post of Catalogue Typist. Petitioner and similarly situate persons were informed to sit in the typing test vide memorandum dated 28.1.1987, which was scheduled for 10.2.1987 in the office of Registrar. Petitioner made himself available for the typing test on the date prescribed, i.e. 10.2.1987. He qualified the 1 Whether reporters of the local papers may be allowed to see the judgment? typing test as per memorandum dated 5.5.1987. However, respondent-University instead of considering the case of the petitioner for promotion to the post of Catalogue Typist promoted respondents No. 2 to 4 on ad hoc basis on 31.3.1987. Petitioner made a detailed representation to the Vice Chancellor of the respondent-University on 11.5.1987 seeking promotion to the post of Catalogue Typist. Petitioner was informed by the Deputy Registrar (Establishment) that his representation will be placed before the Recruitment and Promotion Committee. However, the fact of the matter is that representation made by the petitioner was rejected and conveyed to him on 15.10.1993. He made two representations on 3.8.1994 and 5.2.1996 followed by legal notice 22.8.1997. 2. Mr. Tek Chand Sharma has strenuously argued that the promotion of respondents No.2 to 4 on ad hoc basis on 31.3.1987 was contrary to the University Ministerial and Administrative Service (Recruitment, Promotion and Certain Conditions of Service) Rules, 1973 (hereinafter referred to as ‘the Rules’ for brevity sake). He then contended that only his client had qualified the typing test which was held on 10.2.1987. Persons, who were appointed on ad hoc basis to the post of Catalogue Typist, had not qualified the same. He further contended that since his client had alone qualified the typist test, he should have been considered for promotion to the post of Catalogue Typist on regular basis instead of resorting to make ad hoc promotion on 31.3.1987 by the respondent-University. 3. Mr. B.C. Negi appearing on behalf of the respondent-University has vehemently argued that the regular promotions could not be made due to administrative reasons and the respondent-university has resorted to make promotions on ad hoc basis under rule 7. He then contended that when the ad hoc promotions were made, respondents No.2 to 4 were directed to pass the typing test and according to him they passed the same on 30.4.1987 and 30.5.1987, respectively. Their services were regularized on 16.12.1992 with effect from 1.4.1988 and 9.7.1989, respectively. He further contended that the petitioner had also been promoted on 17.10.1990 as per seniority. He lastly contended that the Catalogue Typist is a non-selection post and the same was required to be filled up by way of seniority. 4. I have heard the learned counsel for the parties and perused the record carefully. 5. It will be appropriate at this stage to take note of rule 10 (ii), 12 (a) and 14.7 (A) of the Rules, which read thus: “10 (ii) Catalogue Typist: he has passed the Matriculation Examination of a recognized University/Board and also possesses certificate in Library Science and has a typing speed of 30 words per minute. 12 (a) : Merit for Promotion: merit as determined by confidential reports and seniority based on the length of service in the case of posts higher than the posts of Section Officers or equivalent posts, and seniority-cum- merit in the case of posts of Superintendents and below or equivalent posts, shall be the criteria for promotion. 14.7(A) : Catalogue Typist: (i) Qualifications As under Rule 10 (ii) Minimum length of Three years service. (iii ) Quality of approved service. Three atleast good reports during the preceding three years. (iv ) Field of Choice. Library Attendant. 6. It will also be apt at this stage to take note of rule 7, which reads thus: “Rule 7: Notwithstanding anything contained in these Rules the Vice Chancellor will have the authority to make an ad hoc appointment against any of the posts covered by these Rules for a period not exceeding one year; provided that the period, will be extendable by one year with the concurrence of the Executive Council.” 7. The minimum qualification prescribed for the post of Catalogue Typist as per the Recruitment and Promotion Rules is matriculation with certificate in library science and typing speed of 30 words per minute. Respondent-University being aware of this mandatory conditions asked the petitioner and similarly situate persons to sit in the typing test on 10.2.1987 vide memorandum dated 28.1.1987. Petitioner qualified the same and the decision was conveyed to him on 5.5.1987. However, surprisingly the respondent-University, without considering the case of the petitioner for promotion to the post of Catalogue Typist, has promoted respondents No. 2 to 4 on ad hoc basis on 31.3.1987. It is not in dispute that three posts of Catalogue Typists were available in the year 1986-1987 and for which the process had already been initiated by respondent-University. The respondent- University should not have scuttled the process in midway by making ad hoc promotions on 31.3.1987. It was incumbent upon the respondent-University to consider the case of the petitioner in accordance with law and promote him to the post of Catalogue typist since he was the only candidate, who had qualified the typing test. Respondents No. 2 to 4 promoted on ad hoc basis on 31.3.1987 were permitted to qualify the typing test vide letters dated 30.4.1987 and 30.5.1987. Respondent-University has simply put the cart before the horse. They were required to pass the typing test before they were promoted on ad hoc basis. The ad hoc promotions as per rule 7, quoted hereinabove, can be made by the Vice-Chancellor against any of the posts for a period not exceeding one year, though the period is extendable by one year with the concurrence of the Executive Council. Respondent-University has not placed on record any tangible material to show the compelling circumstances in which respondents No. 2 to 4 were permitted to work on ad hoc basis as Catalogue Typist beyond the period of one year. Respondent-University has not placed any document to prove that the Executive Council had concurred to extend the ad hoc period beyond the period of one year. In these circumstances, respondents No. 2 to 4 also could not be permitted to work beyond one year even on ad hoc basis. 8. Respondents No. 2 to 4 have been regularized vide office order dated 16.12.1992 with effect from 1.4.1988 and 9.7.1989, respectively. Petitioner has been promoted on 17.10.1990. Petitioner was the only candidate, as noticed above, who had qualified the typing test and he had prior right to be considered for regular promotion vis-à-vis those candidates, who had not qualified the typing test. The post of Catalogue Typist may be a non-selection post. Respondent-University has not explained what was the administrative reasons compelling it not to fill up the post on regular basis for which the process had already been commenced, as per letter dated 28.1.1987. It was scuttled midway to favour respondents No.2 to 4. There is no merit in the contention of Mr. B.C. Negi that respondents No.2 to 4 have been appointed on seniority basis. However, still they were required to pass the typing test before they could be considered for promotion even on ad hoc basis. Rather they were not even eligible to be considered for promotion on ad hoc basis. 9. Respondent-university is a State within the meaning of Article 12 of the Constitution of India and it is required to scrupulously follow the University Act, Statue and Ordinances framed thereunder. In the present case, the petitioner made representation and he was assured that his case will be put up before the Recruitment and Promotion Committee as per communication dated 24.6.1987. The same was kept pending by the respondent-university for the reasons best known to it and the same was rejected and conveyed to him only on 15.10.1993. His representation dated 3.8.1994 and 5.2.1996 have not been decided by the respondent-University. It is also pertinent to mention that rule 7 has to be resorted in rarest of the rare cases that too for compelling reasons to be recorded in writing. Promotion on regular basis is a rule and ad hoc promotion is an exception. Respondent- University in the present case has made the ad hoc promotion as a rule, and regular promotion as an exception. 10. Petitioner was required to be considered and promoted to the post of Catalogue Typist on the basis of typing test, particularly, when he fulfilled all the essential qualifications vis- à-vis respondents No.2 to 4. Respondents No.2 to 4 though promoted on ad hoc basis were regularized on 16.12.1992 with effect from 1.4.1988 and 9.7.1989, respectively. Petitioner has been promoted only on 17.10.1990 and according to Mr. Tek Chand Sharma he is ranked below respondents No.2 to 4. Respondent-university has given preference to mediocracy instead of meritocracy. The post filled up in the respondent-university is a public employment and it must conform, under all circumstances, to Articles 14 and 16 of the Constitution of India. The University cannot fill up the vacancies either by way of promotion or direct recruitment by treating them as largess. The respondent-University has not explained how the petitioner was not eligible as per the Recruitment and Promotion Rules. The averment made that the petitioner was not eligible has not been substantiated by the respondent-university. 11. Accordingly, in view of the observations made, the petition is allowed. In normal circumstances the promotion of respondents No.2 to 4 initially on ad hoc basis with effect from 31.3.1987 and on regular basis on 16.12.1992 to the post of catalogue typist ought to have been quashed and set aside, however, taking into consideration that sufficient period has elapsed, the Court in order to balance the equities has restrained itself from quashing the same. However, the respondent-University is directed to consider the case of the petitioner for the post of Catalogue Typist from the date he has qualified the typing test, i.e. 5.5.1987 with all the consequential benefits. Respondent- university is directed to do the needful within a period of twelve weeks from today and in case the petitioner is found suitable by the committee he shall rank senior to respondents No. 2 to 4 and shall also be considered for further promotion before respondents No.2 to 4 were promoted. The petitioner is held entitled to costs, which are quantified at Rs. 5000/-. (Rajiv Sharma), Judge 7.9. 2010 *awasthi*