IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPs No.1233 of 2001 and 292 of 2002. Judgment Reserved on: 16.9.2008. Date of decision: 21.10.2008. 1. CWP No.1233 of 2001. Joginder Singh & Others ….Petitioners Versus H.P. Gramin Bank & Others ….Respondents 2. CWP No.292 of 2002. Om Parkash Sharma & Others ….Petitioners Versus H.P. Gramin Bank & Others ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 CWP No.1233 of 2001. For the Petitioners: Mr.Baldev Singh, Advocate. For Respondent No. 1: Mr.Ramakant Sharma, Advocate. For Respondents No.2 to 5: Mr.Surinder Sharma, Advocate. For Respondents No.6 to 9: Mr.K.D. Sood, Advocate. CWP No.292 of 2002. For the Petitioners: Mr.Surinder Sharma, Advocate. For Respondent No.1: Mr.Ramakant Sharma, Advocate. For Respondent No.2: Mr.Sandeep Sharma, Advocate. Dev Darshan Sud,J. Both these writ petitions are being disposed of by a common judgment as a common question of law is involved. 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 The petitioners herein have approached the Court with a grievance that the interview letters issued vide Annexure P-3 to some of the candidates for promotion to the posts of Officer Junior Management Scale-1 from the posts of Clerk-cum-Cashiers be declared as null and void, the petitioners be held eligible for being promoted. The petitioners have approached this Court on the allegations that there are 44 vacant posts of Officer Junior Management Scale-1 with respondent No.1. The petitioners are eligible to be appointed to these posts. A written test was held on 19.8.2001 for promotion to 16 posts. The result was declared and the petitioners were declared successful alongwith 32 other candidates. No date for interview had been fixed for these posts. The petitioners allege that a new policy for promotion was issued vide Notification dated 29th July, 1999 and the Appointment and Promotion of Officers and other Employees Rules, 1998 have been framed. These Rules were adopted by the Board of Directors in its meeting on 24.10.1999 and have become effective with immediate effect. The petitioners claim is that prior to these Rules, there was another set of Rules dealing with the promotions. The petitioners aver that according to the old Rules, for promotions to the post of Field Supervisor which is now designated as Officer Junior Management Scale-1, no written test was required 3 and source of recruitment was 50% by direct recruitment and 50% by promotion from amongst confirmed Senior and Junior Clerks-cum-Cashiers or Clerks-cum-Typists on the basis of seniority-cum-merit basis. After the operation of the 1998 Rules, the Rules prescribed for promotion to be made on the basis of written test, interview and performance appraisal reports by the Committee. The grievance of the petitioners is that respondent No.1-Bank had issued interview letters to fill up 28 posts of Officer Junior Management Scale-1 without holding any written test and the date for interview has been fixed for 3.12.2001. The petitioners allege that filling up 28 vacancies out of 44 vacant posts without holding any written test is illegal and arbitrary. The bank having adopted the Rules of 1998 on 24.10.1999, the interview for 28 posts could not be held without a written test and they were governed by the new rules. The respondent-bank has denied the allegation made by the petitioners. It is submitted that pursuant to letter dated Ist August, 2000, written to the replying respondent by the Priority Sector & Lead Bank Division, sanction of 28 vacancies of Officers Scale-1 i.e. 50% of 57 (who were already promoted under the Old Promotion Policy) and 16 vacancies of Officer Scale-1 i.e. 50% of 31(who have been promoted under the new Promotion Policy) was granted. This matter was considered by the Board of Directors in its meeting 4 held on 31.10.2000 and the Directors accorded its approval to fill up these 18 and 16 posts under the Old Promotion Policy and New Promotion Policy respectively. In a nutshell, the case set up by the respondent is that these were already existing posts and had to be filled in under the Old Promotion Policy which fact was also acknowledged by the leading Bank (Punjab National Bank) by its communication Annexure R-3, dated 26.12.2000. In rejoinder, the petitioners have denied these allegations and submitted that in another writ petition on similar lines the respondent-bank had admitted that it was the New Promotion Policy which was governed for filling up of the vacant vacancies and not the Old Promotion Policy. A reference is made by the learned counsel to the reply filed by the bank in CWP No.239 of 2000, titled: Bimla Malhotra vs. Himachal Gramin Bank. I have heard learned counsel appearing for the parties and have gone through the record of the case. The bone of contention in this petition is the applicability of the Promotion Policy. The petitioners are aggrieved by the fact that there could not be two sets of policy which governed promotions. One set of employees are covered under the old Policy which provides for seniority-cum-merit basis and the others are governed by a policy which provides for a 5 written test, interview etc. The petitioners claim parity with the employees governed by the old policy. Learned counsel appearing for the petitioners places reliance on the decision of the Supreme Court in Rajasthan Public Service Commission vs. Chanan Ram and Another, (1998)4 SCC 202, Dr.K.Ramulu and Another vs. Dr.S.Suryaprakash Rao and Others, (1997)3 SCC 59, Delhi Judicial Services Association and Others vs. Delhi High Court and Others, (2001)5 SCC 145 and Satchidananda Misra vs. State of Orissa and Others, (2004)8 SCC 599, learned counsel submits on the basis of these decisions that two sets of Rules cannot govern the service and it is the Rule in existence as on the date when the promotion are being made which are to govern the promotion. In particular, learned counsel emphasized that the decision in Delhi Judicial Services Association’s case supra supports his contention. The Supreme Court held:- “5. In view of the submissions made at the Bar, the first question that requires consideration is whether the temporary posts having been created prior to the amendment of the Rules, is it the law that those posts could be filled up only in accordance with the un-amended rules and not otherwise? There is no dispute that 14 temporary posts of Additional District and Sessions Judge were created in June, 1986 and it is also not disputed that as 6 the posts in question were not filled up, which could be filled up at that point of time only by giving promotion to the Delhi Judicial Service, the association had approached this Court in Writ Petition No. 1540/86. Mr. P. N. Misra, relying upon the decision of this Court in the case of Y. V. Rangaiah v. J. Sreenivasa Rao (1983) 3 SCC 284 : (AIR 1983 SC 852 : 1983 Lab IC 1240), and the decision of this Court in B. L. Gupta v. M. C. D. (1998) 9 SCC 223 : (1998 AIR SCW 3969 : 1999 Lab IC 612), vehemently contended that the posts being available prior to the amendment coming into force, it was obligatory for the authority to fill up those posts in accordance with the rules, then in force and even after the amendment those posts could be filled up only in accordance with the un-amended rules. Mr. Misra contends that the rights of the members of the Delhi Judicial Service to get promotion to the Delhi Higher Judicial Service in respect of posts created prior to the amendment of the rules, cannot be taken away by inaction on the part of the concerned authority in not filling up the same and issuing advertisement only after the rules having coming into force. In Rangaiah's case 1983 3 SCC 284 : (AIR 1983 SC 852 : 1983 Lab IC 1240) this Court on consideration of the relevant rules as well as the instructions issued by the Government came to hold that a list of approved candidates was required to be 7 prepared as on 1-9-1976 for making appointments to the grade of Sub- Registrar Grade II by transfer, but no such list having been prepared and instead, the same having been drawn up in 1977 by which time the amended rules have come into force, it was held that the legitimate right and expectations of those, who were entitled to be included in the list which ought to have been prepared in September, 1976 cannot be frustrated on account of the fact that the panel had not been prepared and it was so prepared only in the year 1977. It is on this conclusion, the Court had held that the vacancies available prior to 1-9-76 ought to be filled up under the unamended rules. The aforesaid decision will have no application to the case in hand inasmuch as in Delhi Higher Judicial Service there is no requirement of preparation of any panel or list of candidates eligible for promotion by any particular date. Then again, merely because posts were created under Rule 16, it was not obligatory for the appointing authority to fill up those posts immediately. That apart, the most important feature is the earlier order/direction by this Court dated 18- 12-1986, which unequivocally indicated that the High Court should start the process of selection by direct recruitment in accordance with the draft rules which the Court had seen at that point of time. In other words this Court on being aware of the fact that 8 temporary posts have been created and a grievance has been made by the members of the Delhi Judicial Service that those posts were required to be filled up only by way of promotion from them in accordance with the rules as it stood then, a direction had been given that the posts should be filled up both by promotion and by direct recruitment in accordance with the draft rules, in the event the said draft rules ultimately come into force. This being the position, it is difficult for us to accept the contention of Mr. Misra, appearing for the association that the posts were required to be filled up only by way of promotion under the pre- amended rules notwithstanding the fact that the advertisement itself was issued subsequent to the rules being amended and notwithstanding the fact that this Court earlier had indicated that the process of selection even by direct recruitment should take effect, without waiting for the rules being finally enforced. The other decision in Gupta's case (1998) 9 SCC 223 : (1998 AIR SCW 3969: 1999 Lab IC 612) what the Court was considering is that the rules of 1995 being prospective in nature the vacancies arisen earlier to that, whether could be filled up under the pre-amended rules or the amended rules. Relying upon three earlier decisions of this Court referred to in paragraph (9) of the judgment, the Court held that the vacancies which had occurred prior to 9 the amended rules were required to be filled up under the old rules and not by the amended rules. This decision undoubtedly could have supported Mr. Misra's contention to a great extent, had not there been the order of this Court dated 18-12-1986 in Writ Petition No. 1540/86. The very dispute namely whether a mandamus could be issued to fill up the temporarily created posts by giving promotion to the officers of the Delhi Judicial Service was before this Court and the Court then evolved a formula which was held to be fair and reasonable and, therefore on the agreement of parties, the said formula was embodied in the order. In other words, the Delhi Judicial Service Association, which was petitioner in this Court, agreed to the formula evolved by this Court to be embodied. While embodying the formula, this Court had indicated that the High Court of Delhi should invite applications from the members of the Bar by way of public advertisement for making direct recruitment in anticipation of the sanction of the draft rules and further stated that after the draft rules are sanctioned and published, a further advertisement, inviting applications from the members of the Bar for direct recruitment shall be published to enable those members of the Bar who might not have responded to the first advertisement issued in anticipation of the sanction of the rules. In the teeth 10 of the aforesaid order, the conclusion is irresistible that 14 temporary posts created even prior to the amendment of the rules could not have been filled up only by promotion from the Delhi Judicial Service as contended by Mr. Misra, the learned senior counsel appearing for the Association. On the other hand, the earlier order of this Court unequivocally stipulates that those posts should be filled up in accordance with the rules to be amended, which at that stage was only in a draft form. That apart, the process of selection not having been started and even the advertisement itself not having been issued and such advertisement having been issued only subsequent to the amendment of the Rules, it is futile to contend that the posts could be filled up under the pre-amended rules, merely because the posts had been created while the amended rules have not come into force. We, therefore, do not find any substance in the first submission of Mr. Misra, the learned senior counsel appearing for the Association.” (Emphasis supplied) In Satchidananda Misra’s case the Supreme Court held: “9. It is an admitted position that the provisions of 1979 Rules were not followed and the appointments made in 1980 were after the said Rules had been enforced. It seems that the State 11 Government wanted to bypass the OPSC. The Selection Board comprising of a member of OPSC as its Chairman was never constituted, and the selections were sought to be made by the Board constituted under the 1973 Rules. This, in our opinion, is an illegality which strikes at the root of the appointment and, therefore, it is beyond the scope of the Legislature to validate such illegal appointments as any such attempt would violate Articles 14 and 16 of the Constitution. …. … … …” “16. It was also contended that 1973 Rules will be applicable and not 1979 Rules. We cannot permit the appellants to urge this point since it was not urged earlier and is sought to be put forth for the first time during the course of hearing, Further, as already noted, the advertisement was issued after 1979 Rules had been enforced. In fact, in terms of 1979 Rules, the State Government desired OPSC to regularise the illegal appointments. Since OPSC did not concur, the validating statute was enacted. Reliance placed on B. L. Gupta and Anr. v. M.C.D., (1998)9 SCC 223 for the proposition that 1973 rules will be applicable and not 1979 Rules is misplaced. The said decision is not relevant on the issue of constitution of Selection Board as per requirements of 1979 rules.” (Emphasis supplied) 12 Learned counsel appearing for the respondents has placed reliance on the decisions of the Supreme Court in Y.V. Rangaiah and Others vs. J.Sreenivasa Rao and Others, (1983)3 SCC 284, P.Ganeshwar Rao and others vs. State of Andhra Pradesh and others, AIR 1988 SC 2068, State of Rajasthan vs. R.Dayal and Others, (1997)10 SCC 419, B.L. Gupta and Another vs. M.C.D., (1998)9 SCC 223 and A.Manoharan and Others vs. Union of India and Others, (2008)3 SCC 641, to submit that the law applicable to fill in the vacancies existing prior to the issuance of the new policy would be the un- amended Rules/Policy and not the amended Rules. Learned counsel has laid particular emphasis on the judgments of the Supreme Court in Y.V. Rangaiah’s, B.L. Gupta’s and R.Dayal’s case, referring to the decision in A.Manoharan’s case where the Supreme Court held: “25. Furthermore, the Regulations have been amended only with effect from 11.8.2004. It would have a prospective effect. It cannot be applied retrospectively. Any vacancy which has arisen prior to coming into force of the said amended Regulations must be filled up in terms of the law as was existing prior thereto. (State of Rajasthan v. R.Dayal, (1997)10 SCC 419, para 8)”: “8. Therefore, it is not in dispute and cannot be disputed that while selecting officers, minimum requisite qualifications 13 and experience for promotion specified in the relevant column, should be taken into consideration against vacancies existing as on 1st April of the year of selection. But since the Rules came to be amended and the amendment became effective with immediate effect and clause (11-B) of Rule 24-A indicates that options have been given to the government or the appointing Authority, as the case may be, to revise the select list as existing as per the law as on the date of the appointment or as may be directed by a competent court, selection is required to be made by the concerned DPC. An appointment made, after selection as per the procedure, to the vacancies existing prior to the amendment, is valid. But the question is whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the amendment of the Rules came into force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24-A, as mentioned hereinbefore. This court has considered the similar question in para 9 of the judgment above-cited. This court has specifically laid that the vacancies which occurred prior to 14 the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in in accordance with the law existing as on the date when the vacancies arose. Undoubtedly, the selection came to be made prior to the amendment of the Rules in accordance with law then existing since the anticipated vacancies also must have been taken into consideration in the light of Rule 9 of the Rules. But after the amended Rules came into force, necessarily the amended Rules would be required to be applied for and given effect to. But, unfortunately, that has not been done in the present case. The two courses are open to the government or the appointing authority, viz., either to make temporary promotions for the ensuing financial year until the DPC meets or in exercise of the power under Rule 24-A (11-B), they can revise the panel already prepared in accordance with the Rules and make 15 appointments in accordance therewith.” There is no material on the record to show that the respondents have taken a conscious decision on some rational basis for filling up vacancies existing prior to the amended rules on the basis of the new Rules. If this was the case, the contention of the petitioner could have been accepted. No such pleadings have been filed nor is there any material on the record to substantiate this fact. Annexure R-1 setting out the vacancy position prior to and after the amendment of the promotion policy has remained un-rebutted. The submission that the vacancies for which the petitioners competed arose prior to the amendments in the Rules/ policy and hence could not be filled in by resort to the amended policy, cannot be accepted. Such a foundation has to be clearly pleaded and established. (See: State of Punjab and Others vs. Arun Kumar Aggarwal and Others, (2007)10 SCC 402). Moreover, the ratio of Y.V. Rangaiah’s and B.L. Gupta’s case has not been overruled by the Supreme Court in Delhi Judicial Services Association’s case where, a contention was raised about the applicability of the un-amended Rules that was rejected by the Supreme Court holding that mandamus had already been issued and could not be allowed to be nullified by action of the State. In the facts and circumstances, I hold that there is no merit in writ petition No.1233 of 2001 16 which is accordingly merits dismissal and is dismissed as such. The respondents have followed the correct criteria for effecting promotions. CWP No.292 of 2002 shall abide by the decision in CWP No.1233 of 2001. October 21, 2008. (Dev Darshan Sud) (aks) Judge.