IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 4592 of 2008 Judgement reserved on: 8.12.2010. Date of decision: 21.02.2011. H.K.Gupta …..Petitioner. Vs. H.R.T.C. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. P.P.Chauhan, Advocate. For the Respondents : Mr. Adarsh Sharma, Advocate for respondent No.1. Mr. Dilip Sharma, Advocate for respondent No.7. Mr. B.N.Gupta, Advocate for respondent No.8. Respondents No.2 to 6 and 9 exparte. Kuldip Singh, Judge. The petitioner in the petition has prayed mainly the following reliefs:- (a) Quash the seniority lists Annexures PC and PD; (b) Direct the respondent No.1 Corporation to prepare fresh seniority lists by keeping the rota and quota in view and in accordance with the rules of 1983, by fitting the direct recruits in the slots reserved for them; (c) Direct the respondent-Corporation to give fitment to the applicant as a direct recruit below Shri Ram Lal Gupta and above Shri K.N.Uppal and consequential benefits. (d) Quash the proceedings and recommendations and retrospective regularization of promotions made in Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… pursuance to the Departmental Promotion Committee meetings held on 24.6.87, 12.9.89 and 18.11.91; (e) Direct the respondent-Corporation to hold review DPC and make regular promotions in accordance with R & P Rules 1983 as per the rota and quota prescribed therein, and as per the actual vacancies available; (f) Direct the respondent-Corporation not to make any adhoc promotion to the category of Deputy Divisional Manager and Divisional Manager, till the finalization of this O.A. (g) Quash the illegal promotion of respondent No.7 Annexure PG. 2. The facts, in brief, are that the petitioner in response to the advertisement dated 22.2.1985, interview on 24.9.1985, initially joined the respondent No.1-Corporation as Assistant Automobile Engineer on 26.11.1985 at Dharamshala. The essential qualifications for the post of Assistant Automobile Engineer as per Recruitment and Promotion Rules were 1st class degree in Mechanical Engineering with Automobile Engineering as one of the subjects and one year experience in a transport undertaking of repute. The essential qualification for the post of Regional Manager for direct recruit was master degree or degree in Automobile Engineering or equivalent. The essential qualifications for the post of Assistant Automobile Engineer according to the petitioner were higher than those of the Regional Manager. 3. The respondent No.1-Corporation in September, 1988 advertised direct posts of Regional Managers. The petitioner applied for the post of Regional Manager. He was selected and was placed …3… first in the merit list. The petitioner joined as Regional Manager of respondent No.1-Corporation at Chamba on 30.6.1989. 4. The respondent No.1-Corporation has framed the regulations known as ‘Himachal Road Transport Corporation (Class-I, II, III & IV) Service (Recruitment, Promotion & Certain Conditions of Service) Regulations, 1983 (for short ‘regulations’) which came into force on 21.9.1983. The regulations were amended from time to time. The amendment to the regulations was made on 25.6.1984 wherein the quota for promotees was increased from 50% to 75% by amending Rule 6. 5. The provisional seniority list of Regional Managers working in the Corporation was issued on 25.9.1989 as on 30.6.1989. It has been alleged that this seniority list was not circulated to the petitioner. The name of the petitioner was not mentioned in the list dated 25.9.1989 whereas the petitioner had been working as Regional Manager of respondent No.1-Corporation at Chamba since 30.6. 1989. The petitioner had no knowledge of the provisional seniority list dated 25.9.1989. 6. The respondent No.1-Corporation thereafter on 9.9.1996 issued another provisional seniority list of Regional Managers as on 31.8.1996. In this seniority list only the Regional Managers working as on 31.8.1996 were shown and the petitioner was shown junior to respondent No.7 S.P.Chaterjee, respondent No.6, B.L.Lohia, respondent No.8 Devi Singh and respondent No. 9 B.S.Chauhan. The other respondents were not shown in the said provisional seniority list …4… as they had already been promoted on the basis of provisional seniority list dated 25.9.1989 as on 30.6.1989. 7. The petitioner was not shown at proper place in the provisional seniority list dated 9.9.1996, therefore, he made inquiry and petitioner came to know that earlier also provisional seniority list dated 25.9.1989 was issued. The petitioner made representation dated 17.9.1996. The petitioner did not receive any reply and in the meantime, the respondent No.7 S.P.Chaterjee was wrongly promoted on 11.7.1997. The petitioner and other direct recruits met the Managing Director of the Corporation against the promotion of S.P.Chaterjee and also submitted representation dated 26.8.1997 but without any positive result. 8. The grievance of the petitioner is that initially in the regulations for the post of Regional Managers, 50% posts were to be filled in by direct recruits and 50% by promotion. The promotions were to be made from amongst different categories of serving employees such as Superintendent Grade-I with atleast 3 years service and remaining 37½ percent from amongst the Assistant Managers with atleast 3 years service. It was also made clear in the regulations that the vacancies would rotate in the ratio of 1 : 3 and the first vacancy would go to the Superintendent Grade-I, the next three to Assistant Managers, next five to the Superintendents and 50% by direct recruits. The regulations provide both quota and rota. The regulations were amended by second amendment and quota of promotion categories was increased to 75% and the quota of the direct recruits was fixed as 25%. A roster was drawn up which …5… clearly show that 4th, 8th, 12th, 16th and 20th posts in the roster would go to direct recruits. This 20 point roster was to form part of the regulations as per second amendment carried out in regulations and this roster was to be repeated. 9. The Private Secretaries and Personal Assistant to Managing Director with requisite service were also made eligible to the post of Regional Manager by 4th amendment of regulations. The ratio inter se the promotee categories was changed for promotion to the post of Regional Manager by 8th amendment of the regulation. The fresh roster was drawn out. The 4th, 8th, 12th, 16th and 20th posts were again reserved for direct recruits. The respondent No.7 did not fulfill the qualifications as per 4th amendment and in order to help him 8th amendment was brought malafide and, therefore, the relevant regulations are liable to be set-aside. 10. The direct recruitment had not been made for a considerable length of time prior to the promulgation of regulations of 1983. Only after 1983 regulations, the Corporation for the first time advertised five posts of Regional Managers on direct basis, but those posts were not filled in. Thereafter the Corporation with an ulterior motive of helping some employees did not advertise the posts of Regional Managers to be filled in on direct basis till September, 1988 in which petitioner and A.P.Nadda were selected. 11. The petitioner and other direct recruits did not get their fitment in the seniority as per the roster. The petitioner is liable to be placed below Ram Lal Gupta and above K.N.Uppal. The Corporation is not redressing the grievances of the petitioner despite several …6… representations. The action of respondent No.1 in retrospectively regularizing and giving seniority without confirming the availability of posts in promotion category to respondents No.2 to 9 and other similarly situate Regional Managers is totally illegal. The posts meant for direct recruits were filled up illegally by way of promotion. The Corporation has been following the roster and placing the direct recruits in the slots meant for the direct recruits so far other employees are concerned who are also governed by the regulations. But in the case of Regional Managers not only the fitment has not been made according to the roster but the promotee Regional Managers have been regularized with retrospective effect on non- available posts. The action of the respondent No.1-Corporation in not giving the benefit to direct recruits is against the settled position of law and is also against the instructions issued by the State Government and Government of India. The respondent No.1-Corporation under Section 34 of the Road Transport Corporation Act is bound by the instructions given by the State Government. The petitioner has shown his apprehension that the amendments carried out in the regulations were not carried out with previous sanction of the government. In these circumstances, the petitioner has filed the petition for the reliefs noticed above. 12. The respondent No.1 has contested the petition by filing reply in which preliminary objections of delay, laches and limitation have been taken. On merits, it has been stated that seniority list of Regional Managers as it stood on 30.6.1989 cannot be quashed as the petitioner was not holding the post of Regional Manager till …7… 30.6.1989. The seniority list as it stood on 31.8.1996 was prepared in accordance with regulations in force at the relevant time. The post of Regional Manager in the scale of Rs.2410 -4000 is Class-I post whereas the post of Assistant Automobile Engineer, re-designated as Works Manager in the pay scale of Rs. 2200-4000 is Class-II post. The post of Regional Manager is higher in status. 13. It has been admitted that in pursuance to advertisement during September, 1988 the petitioner was selected as Regional Manager and joined as such on 30.6.1989 (afternoon). 1983 regulations and amendments thereto, were issued by the Corporation after due concurrence of the State Government under Section 45 of the Road Transport Corporation Act, 1950. The petitioner joined the post of Regional Manager on 30.6.1989 afternoon and his benefits will flow from 1.7.1989 forenoon for all intents and purposes. The seniority list dated 30.6.1989 was duly circulated to the Heads of Offices of the Corporation and petitioner himself was Head of Office in Chamba unit. The petitioner had submitted representations dated 17.9.1996 and 28.8.1997 which are under consideration. The seniority of respondents No.6 to 9 was determined properly. 14. The contention of petitioner that quota and rota would govern the seniority has been denied. The rota has nothing to do with the relative seniority between direct recruits and promotees. The respondent No.1 Corporation has made specific provision by way of regulation 11 (7) for determination of seniority between direct recruits and promotees. The relative seniority between direct recruits and the promotees is required to be determined by the length of continuous …8… service on a post in that cadre and not on the basis of ratio of vacancies between direct recruits and promotees. After 1983 regulations, neither any post of Regional Manager falling under direct quota was diverted to promotion quota nor any post of direct quota was filled by promoting any serving eligible officer on regular basis. The respondent No.1-Corporation denied the claim of the petitioner and has prayed for dismissal of the petition. 15. The respondent No.2 has contested the petition by filing reply. It has been submitted that he possessed the requisite qualification and experience for the post of Regional Manager. The contention of the petitioner for fitment in the seniority list as per roster is not tenable in view of 1983 regulations. The petitioner is not entitled to claim seniority over respondent No.2. The respondent No.2 was officiating the post of Regional Manager w.e.f. 30.4.1984 and holding the post substantively w.e.f. 24.6.1987 whereas the petitioner joined on the post of Regional Manager on 30.6.1989. The respondent No.2 has prayed for dismissal of the petition. 16. The respondent No.7 has filed the separate reply. He has taken the preliminary objections of limitation, laches. The relative seniority of direct recruits is to be determined by length of continuous service on a post in the cadre. The seniority cannot be fixed by invoking quota and rota rule which is not provided in the rules. Rules make a specific provision regarding fixation of seniority and as such, the principle of rota and quota cannot be invoked for fixation of seniority. …9… 17. The petitioner has not sought any relief for quashing of Recruitment and Promotion Rules. The promotion of respondent No.7 cannot be permitted to be quashed after delay of about a decade. The ad hoc promotion of respondent No.7 in 1987 was made on the recommendations of the DPC in accordance with Recruitment and Promotion Rules within the quota prescribed for promotion. Therefore, simply by terming the promotion of respondent No.7 as ad hoc, would not change its nature. The regularization of promotion of respondent No.7 in 1989 is only to put the record straight and not a fresh action, so as to affect any vested right of petitioner. The respondent No.7 has contested the remaining claim of the petitioner and prayed for dismissal of the petition. The petitioner has filed rejoinder to the reply of respondent No.1 and denied the defence set up by respondent No.1 while reiterating his own case. He has stated that as per regulations rota has to be followed. 18. I have heard the learned counsel for the parties. It has been contended on behalf of the petitioner that petitioner is entitled to fitment as a direct recruit as Regional Manager below Ram Lal Gupta and above K.N.Uppal. The petitioner is entitled to seniority as per quota and rota prescribed in the regulations. It is the grievance of the petitioner that promotees were appointed on the posts of direct recruits but such promotees would not be entitled to seniority over direct recruits, they are bound to be placed below the direct recruits by applying the principle of quota and rota. The petitioner is entitled to connected reliefs of direction to respondent No.1-Corporation to prepare the fresh seniority list of Regional Managers as per 1983 …10… regulations fitting the direct recruits in the slots reserved for them. The petitioner has prayed quashing of the retrospective regularization of promotions in pursuance to the Departmental Promotion Committee meetings held on 24.6.87, 12.9.89 and 18.11.91. The petitioner has also prayed for a direction to respondent No.1- Corporation for holding review DPC as per rota and quota prescribed in the regulations and as per actual vacancies available. The grievance has also been raised against the promotion of respondent No.7. The learned counsel for the petitioner has relied Maya Mathew vs. State of Kerala & Ors 2010(2) S.C.T. 568 and Union of India and others vs. S.D.Gupta and others (1996) 8 SCC 14. 19. On the contrary, it has been argued on behalf of the respondents that no promotee has been appointed against the post of direct recruits as Regional Manager after 1983 regulations. The posts of Regional Managers in the Corporation were filled in strictly in accordance with 1983 regulations amended from time to time. The determination of seniority amongst direct recruits and promotees is provided in Regulation 11(7) where the length of service is the criteria and there is no place for rota and quota. The petitioner has not projected the case that on the basis of length of service he is senior to private respondents as Regional Managers in the Corporation. The Regulation 11 (7) has not been challenged and, therefore, there is no merit in the petition. 20. The respondent No.1 in the reply has taken a specific stand that after 1983 regulations, neither any post of Regional Manager falling under direct quota was diverted to promotion quota …11… nor any post of direct quota was filled by promoting any serving eligible officer on regular basis. It is the case of the petitioner that respondent No.1 in retrospectively regularizing and giving seniority without confirming the availability of posts in promotion category to respondents No.2 to 9 and other similarly situate Regional Managers has committed illegality. In other words, the petitioner intends to convey that there were no promotion posts available to respondents No.2 to 9 as Regional Managers but they were wrongly adjusted or promoted as Regional Managers. This was possible only when the direct recruit posts of Regional Managers were to be utilized for giving benefit to respondents No.2 to 9. As noticed above, the respondent No.1 has categorically taken the plea that after 1983 regulations, no posts of Regional Manager under direct quota was diverted to promotion quota nor any post of direct quota was filled by promoting any serving eligible officer on regular basis. There is no reason to disbelieve the stand of respondent No.1 on this score when petitioner has placed nothing on record to show that Corporation has utilized the quota of direct recruits Regional Manager for adjusting, accommodating promotee Regional Managers. 21. It is admitted case of the parties that the posts of Regional Managers in respondent No.1-Corporation are to be filled in by direct recruits and promotion as prescribed in the regulations. The added case of the petitioner is that the posts of Regional Managers in the Corporation are to be filled in and slot is to be given to the direct recruits and promotees as per rotation fixed in the regulations and the candidate will get the seniority after fitment in accordance with the …12… rotation prescribed in the rules. In Maya Mathew, the Supreme Court has held as follows:- “11. The rules of interpretation when a subject is governed by two sets of Rules are well settled. They are: (i) When a provision of law regulates a particular subject and a subsequent law contains a provision regulating the same subject, there is no presumption that the later law repeals the earlier law. The rule making authority while making the later rule is deemed to know the existing law on the subject. If the subsequent law does not repeal the earlier rule, there can be no presumption of an intention to repeal the earlier rule; (ii) When two provisions of law – one being a general law and the other being special law govern a matter, the court should endeavour to apply a harmonious construction to the said provisions. But where the intention of the rule making authority is made clear either expressly or impliedly, as to which law should prevail, the same shall be given effect. (iii) If the repugnancy or inconsistency subsists in spite of an effort to read them harmoniously, the prior special law is not presumed to be repealed by the later general law. The prior special law will continue to apply and prevail in spite of the subsequent general law. But where a clear intention to make a rule of universal application by superseding the earlier special law is evident from the later general law, then the later general law, will prevail over the prior special law. (iv) Where a later special law is repugnant to or inconsistent with an earlier general law, the later special law will prevail over the earlier general law.” 22. In Union of India Vs. S.D.Gupta, the Supreme Court has noticed the following Rule 6: “Relative seniority of direct recruits and promotees.- The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.” It has been held as follows:- “A reading thereof would clearly indicate that the seniority of the persons promoted to the various grades shall be determined in the order of the selection for such promotion …13… and the relative seniority of the direct recruits and the promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of various vacancies reserved for direct recruits and promotees respectively in the recruitment rules. The rules were made in 1959 which would indicate the fixation of the quota-rota as available.” The Supreme Court has further held: “6.In view of the respective contentions the question arises whether the fitment of seniority determined by the appellant Union is in accordance with the rules? It is seen that the fitment of rota and quota is not specifically provided in 1982 statutory rules. But it prescribes admittedly 60% of the substantive vacancies for the direct recruits and 40% for the promotees. Among the 40% quota, they further made a demarcation in the ratio of 25 : 15 between the Extra Assistant Directors and the appointees by transfer. We are not concerned with each class in this case. Admittedly, the promotees are entitled to their fitment within 25% of the quota prescribed for them under the rules. Since rules are silent, sub-rule (2) of Rule 8 clearly mentions that the determination of seniority in accordance with the rules of the Government of India, Ministry of Home Affairs, Personnel and Administrative Reforms Department will be applicable to the members of the service. It is seen that under 1959 instructions, the quota and rota procedure has been prescribed as extracted hereinbefore. In other words, since the statutory rules are silent as regards the fitment of the rota and quota and determination of the inter se seniority, the administrative instructions issued by the Government, would supplement the rules and accordingly they must be worked out.” 23. In the present case, regulation 11 (7) is as follows:- “RELATIVE SENIORITY OF DIRECT RECRUITS AND PROMOTERS: The relative seniority of direct recruits and of promotees shall be determined by the length of continuous service on a post in that cadre.” The regulations are very explicit, clear for determining the inter se seniority among direct recruits and promotees. The regulation 11 (7) specifically provides that relative seniority of direct …14… recruits and of promotees shall be determined by the length of continuous service on a post in that cadre. It has nothing to do with fitment or rotation. The judgments relied by learned counsel for the petitioner, noticed above, are not applicable in the facts and circumstances of the present case. It is not the case of the petitioner that as per the length of service he is senior to private respondents. There is specific regulation 11(7) for determining inter se seniority among direct recruits and promotees, which has not been challenged by the petitioner. There is nothing on record to show that as per regulation 11(7) the petitioner is senior to private respondents as Regional Manager. 24. It has been submitted by the learned counsel for the parties that now the private respondents have already retired. The petition was filed on 26.9.1997 in which promotions made in pursuance to departmental promotion committee meetings held on 24.6.87, 12.9.89 and 18.11.91 have been assailed. It is not possible to believe that the petitioner had no knowledge of seniority list dated 25.9.1989 when it was circulated. It is the stand of the respondent No.1 that seniority list dated 25.9.1989 was circulated to all the Heads of Offices in H.R.T.C. for information and at that relevant time, the petitioner was Head of Office of H.R.T.C. at Chamba. The petitioner remained silent. He raised grievance only after the issuance of provisional seniority list dated 9.9.1996. The position had settled by the time the petitioner filed the present petition in the year 1997. In the facts and circumstances of the case, the petition is hit by delay and laches. The settled position cannot be unsettled with the passage …15… of time more particularly when the petitioner has failed to make out a case on merits. No case for review DPC has been made out. Thus, seen from any angle, the petitioner is not entitled to any relief as prayed by him. 25. As a result of above discussion, the petition fails and is accordingly dismissed. February 21, 2011 ( Kuldip Singh ), (GR) Judge.