IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.2411 /2008 Reserved on:2.7.2009 Decided on:21.7. 2009 Narinder Kumar. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. no. For the petitioner : Mr. Lokender Thakur, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. for respondent No.1 and 2. None for respondents No. 3 to 5. Rajiv Sharma, J. The petitioner is working as a Peon in the office of the Advocate General. The post of Peon is also in feeder category for promotion to the post of Restorer along with Library Assistant, Daftri, Zamadar etc. as per the Himachal Pradesh Secretariat Class-III Services (Recruitment, Promotion and Certain Conditions of Service) (Fifth Amendment) Rules, 1975 notified on 26.5.1976 made applicable at the relevant time to the employees of the office of Advocate General. He has been over looked for promotion to the post of Restorer on the ground that he was not in possession of requisite essential 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 qualification of matriculation as per draft rules framed for the post of Restorer in the year 1994. Mr. Lokender Thakur has vehemently argued that similarly situate Sh. Dharam Singh, who was only 9th pass, has been promoted on ad hoc basis as Restorer with effect from 23.12.1991. He then contended that the promotion to the post in question i.e. Restorer was to be filled in by the rules called “the Himachal Pradesh Secretariat Class-III Services (Recruitment, Promotion and Certain Conditions of Service) (Fifth Amendment) Rules, 1975” made applicable to the employees of office of the Advocate General. He has further contended that as per the tentative seniority list of Peon published on 24.5.1994 his client was ranking senior to respondents No.3 to 5. He then contended that respondents No. 3 to 5 being juniors could not be promoted to the post of Restorer vide letter dated 24.12.1994. He lastly contended that the petitioner has a fundamental right under Articles 14 and 16 of the Constitution of India to be considered for promotion to the post of Restorer and the action of the respondents not to consider his client only on the ground that in the proposed Recruitment and Promotion Rules, essential qualification of Restorer was made matriculation. Mr. R.K. Sharma, learned Senior Additional Advocate General has vehemently argued that there is no arbitrariness or illegality in the action of the respondents for non-considering and promoting the petitioner on the basis of the proposed draft rules. According to him the petitioner lacked the basic educational qualification i.e. matriculation. I have heard the learned counsel for the parties and have perused the record carefully. 3 The petitioner ranks at Sr. No. 5 of the tentative seniority list in respect of Peons as it stood on 31.12.1993. He is middle pass. A bare perusal of this seniority list i.e. Annexure A-1 reveals that one Sh. Dharam Singh, who was only 9th pass stood promoted on ad hoc basis as Restorer with effect from 23.12.1991. It is not in dispute that service conditions of the employees working in the office of the Advocate General at the relevant time were regulated/governed under the Himachal Pradesh Secretariat Class-III Services (Recruitment, Promotion and Certain Conditions of Service) (Fifth Amendment) Rules, 1975. A bare perusal of these rules makes it abundantly clear that no educational qualification has been prescribed for effecting promotion to the post of Restorer from the post of Peon except length of service. The promotions have been effected on the basis of the recommendations made by the Departmental Promotion Committee whereby respondents No.3 to 5 were promoted to the post of Restorer on ad hoc basis in the pay scale of Rs. 950-1800. The petitioner was required to be considered for promotion to the post of Restorer on the basis of his seniority. The Departmental Promotion Committee as per the reply filed by the respondents has not considered the case of the petitioner only on the pretext that he was not in possession of the essential qualification which was proposed in the draft rules. The draft rules as per the submission of Mr. R.K. Sharma, learned Senior Additional Advocate General were promulgated on 8.7.1997. There is a gap of at least three years after the promotions were effected on 24.12.1994. The draft rules are to be applied only in emergent cases in interregnum to meet extreme emergency. The respondents have not spelt out what was the emergency in the present case not to effect promotions as per the Himachal Pradesh Secretariat Class-III Services (Recruitment, 4 Promotion and Certain Conditions of Service) (Fifth Amendment) Rules, 1975 and to resort to draft rules. The draft rules in rare cases, of course, can be applied but there has to be clear intention to notify the same in future. However, in the present case the rules have been notified on 8.7.1997 and the promotions were effected on 24.12.1994. A Division Bench of this Court in Dr. V.K. Bhargava versus State of H.P. and others, ILR 1985 H.P. 358 have held that in case of ad hoc appointment to any post by way of promotion, there is also the conferment of a higher status or position and when such an appointment is made to any office under the State, Articles 14 and 16 will undoubtedly have an impact. Their Lordships have held as under: “33. It cannot be possibly disputed that even an ad-hoc appointment to a post is an appointment to an office, howsoever tenuous its character may be. Such ad-hoc appointment authorizes the appointee to occupy the post and to perform the functions and to discharge the duties and to draw the emoluments attached to the post. In case of ad-hoc appointment to any post by way of promotion, there is also the conferment of a higher status or position. When such an appointment is made to any office under the State, Articles 14 and 16 will undoubtedly have an impact. Article 16, sub-Article (1) provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. It is settled law that Article 16 is only an incident of the application of the concept of equality enshrined in Article 14. Article 16, Sub-Articles (1) and (2), really give effect to the quality before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article 15 (1). These three provisions form part of the same 5 constitution code of guarantees and supplement each other and they give effect to the doctrine of equality in the matter of appointment and promotion. In other words, Article 16 guarantees that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. (see: General Manager, Southern Railway and another vs. Rangachari, Respondent, Gurbux Das, Intervener, AIR 1962 SC 36, The State of Mysore and another versus P. Narsingha Rao, AIR 1968 SC 349, and C.A. Rajendran v. Union of India and others, AIR 1968 SC 507). In deciding the scope and ambit of the fundamental right of equality of opportunity guaranteed by this Article, it is necessary to bear in mind that in construing the relevant Article a technical or pedantic approach must be avoided. Looked at from this angle, there is no reason to exclude the applicability of Article 16 in manners relating to ad-hoc employment or appointment to any office under the State. Any arbitrariness, unfairness or inequality of treatment in the matter of ad hoc employment or appointment, including an appointment by way of ad-hoc promotion, to any office under the State would, therefore, give rise to a legitimate challenge enforceable in writ jurisdiction on the ground of the breach of Article 16. If there are any policy decisions/executive instructions governing ad- hoc appointments and there is any arbitrary or irrational departure therefrom on the part of the State, the challenge can be justifiably based on the ground that such act impinges upon the guarantee of equality or treatment enshrined in Article 16. If there is a statutory enactment regulating such appointments and there is a breach thereof, an additional ground of challenge based on the infringement of a legal right would also be available. This much on principle. “ 6 There Lordships of the Hon’ble Supreme Court in Vimal Kumari versus State of Haryana and others, (1998) 4 SCC 114 have held that though it is open to the Government to regulate the service conditions of the employees for whom the rules are made at the draft stage, however, there must be clear intention on the part of the Government to enforce those Rules in the near future. Their Lordships have held as under: “6. The Draft Rules were prepared in 1983 and since then they have not been enforced. It is, no doubt, open to the government to regulate the service conditions of the employees for whom the Rules are made by those Rules even in their "draft stage" provided there is clear intention on the part of the government to enforce those Rules in the near future. Recourse to such Draft Rules is permissible only for the interregnum to meet any emergent situation. But if the intention was not to enforce or notify the Rules at all, as is evident in the instant case, recourse to "Draft Rules" cannot be taken. Such Draft Rules cannot be treated to be Rules made under Article 309 of the Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subjects covered by the Draft Rules nor can such Draft Rules exclude the jurisdiction of the government, or for that matter, any other authority, including the appointing authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them.” In the present case the Rules have remained in suspended animation from 1994 to 8.7.1997. In the interregnum the service conditions of the petitioner and similarly situate persons were to be regulated as per the rules as taken note of in the preceding paras of the 7 judgment. The criterion laid down for effecting promotion as per the rules which were prevalent in the year 1994 was seniority. The petitioner as per tentative seniority list was senior to respondents No.3 to 5. He was at Sr. No. 5 and respondents No. 3 to 5 were at Sr. No. 6 to 8. It is true that respondents No.3 to 5 have been promoted on ad hoc basis. The petitioner had right to be considered for promotion even if the same was on ad hoc basis. Respondents No.1 and 2 have promoted one Sh. Dharam Singh, who was only 9th pass for the post of Restorer though on ad hoc basis with effect from 23.12.1991. This is a case of invidious discrimination resorted to by respondents No.1 and 2. In case Sh. Dharam Singh has been promoted though not in possession of matriculation qualification, there is no reason why the petitioner though under matric has been over looked by the Departmental Promotion Committee for consideration to the post of Restorer. Respondents No.3 and 5 have been promoted on 23.12.1994. It will be unjust to set aside their promotions at this belated stage. However, the Court has to balance the equities and the petitioner, who has been ignored by respondents No.1 and 2, is entitled to be considered for promotion from the date his juniors were promoted. Consequently, the petition is allowed. Respondents No. 1 and 2 are directed to consider the case of the petitioner for promotion to the post of Restorer from the date his juniors were promoted i.e. 23.12.1994 with all consequential benefits within a period of four weeks from today. It is made clear that if the post is not available, it will be open for respondents No.1 and 2 to create supernumerary post. It is also made clear by way of abundant precautions that if respondents No.3 to 5 have already been regularly promoted during the pendency of this petition in that eventuality, 8 the case of the petitioner be considered for promotion to the post of Restorer on regular basis. No costs. 21.7. 2009 (Rajiv Sharma ), J. *awasthi*