IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. No. 6178 of 2010. Reserved on: 16.09.2011. Decided on: 18.10.2011. _____________________________________________________ Chaman Lal Sharma. …Petitioner. -Versus- State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner : Mr. Shashi Shirshoo, Advocate. For respondent No. 1. : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. For respondent No. 2. : Mr. D.K. Khanna, Advocate. For respondent No. 3. : Mr. Ramesh Kaundal, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Material facts necessary for the adjudication of this petition are that the screening test was held for the post of Computer Operator (Class-III) on 21st August, 1999. Petitioner participated in the selection process. He was interviewed on 29.11.1999. He was offered appointment letter on 03.01.2000. Respondent No. 3 was appointed as Computer Operator on 12.09.1991 on ad hoc basis vide Annexure P-8. He was regularized pursuant to the decision taken vide Annexure A-2 on 30.05.1995 vide Annexure P-10. He was promoted to the post of Programme Planning Officer, initially on ad hoc basis w.e.f. 29.10.1997 vide 1 Whether the reporters of the local papers may be allowed to see the judgment? - 2 - Annexure P-12 and thereafter he was regularized on 18.01.1999 vide Annexure P-13. One Shri D.K. Sharma made a representation against the appointment of the petitioner on 22.03.2004. In sequel thereto, respondent No. 1 has sent a communication to respondent No. 2 on 16.04.2004. Thereafter, the respondent No. 2 has sent a communication to the Principal Secretary (Personnel), Government of Himachal Pradesh on 27th August, 2004. Thereafter, respondent No. 1 has sent a communication to respondent No. 2 on 11th October, 2004. The Principal Secretary (Personnel), Government of Himachal Pradesh has called upon the respondent No. 2 to process the matter further and simultaneously fix the responsibility and take action against the erring officer/official under intimation to the department. The letters dated 16.04.2004, 27.08.2004 and 11.10.2004 led to the issuance of notice by respondent No. 2 to respondent No. 3 on 06.04.2005 (Annexure P-16). Respondent No. 3 filed an Original Application before the learned erstwhile Himachal Pradesh Administrative Tribunal bearing O.A. No. 930 of 2005, which was transferred to this Court and was assigned CWP(T) No. 11864 of 2008. The same was disposed of by this Court on 23.11.2009. Thereafter, respondent No. 3 filed reply to the show cause notice on 30.12.2009. The final decision was taken by respondent No. 2 on 09.08.2010, whereby it was decided to withdraw the show cause notice issued to respondent No. 3. 2. Mr. Shashi Shirshoo, learned counsel for the petitioner has strenuously argued that the appointment of respondent No. 3, initially to the post of Computer Operator and his further promotion to the post of Programme Planning Officer - 3 - was violative of Articles 14 and 16 of the Constitution of India. According to him, no advertisement was ever issued at the time when the respondent No. 3 was offered appointment initially on ad hoc basis and when he was regularized on 30.05.1995. He then contended that respondent No. 3 did not possess the minimum essential educational qualification, i.e., diploma in Computer Application. According to him, the qualification obtained by respondent No. 3 was not duly recognized. He also contended that respondent No. 3 was not eligible for promotion since he did not have the basic essential qualification of computer application. He further contended that the State Government has taken a serious view of the matter, the manner in which, respondent No. 3 has been appointed as Computer Operator and subsequently promoted to the post of Programme Planning Officer. He has relied upon letters dated 16.04.2004, 27.08.2004 and 11.10.2004. He further contended that the decision dated 09.08.2010 is laconic. He also contended that there is non-application of mind while deciding the case of respondent No. 3 on 09.08.2010. He lastly contended that respondent No. 2 has taken diametrically opposite stand in the reply filed to earlier Original Application bearing O.A. No. 930 of 2005 and in the reply filed to the present petition. According to him, the stand of respondent No. 2 in O.A. NO. 930 of 2005, which was converted to CWP(T) No. 11864 of 2008, was that the appointment of respondent No. 3 was not in accordance with law. 3. Mr. Vikas Rathore, learned Deputy Advocate General has relied upon letters dated 16.04.2004 and 11.10.2004. According to him, the State Government was seized of the matter - 4 - and has apprised the respondent No. 2 the manner in which respondent No. 3 has been appointed. 4. Mr. D.K. Khanna, learned counsel for respondent No. 2 has strenuously argued that the decision has been taken by the Himachal Pradesh Public Service Commission strictly in accordance with law. He also argued that respondent No. 3 was fully eligible and qualified to be appointed initially to the post of Computer Operator and thereafter for regularization and further promotion to the post of Programme Planning Officer. 5. Mr. Ramesh Kaundal, learned counsel for respondent No. 3 has vehemently argued that the present petition is barred by delay and laches. He also argued that his client was fully eligible and qualified initially to be appointed as Computer Operator and thereafter for further promotion to the post of Programme Planning Officer. He has supported the decision dated 09.08.2010. He further contended that his client fulfilled the minimum essential qualification prescribed under the draft rules. 6. I have heard learned counsel for the parties and gone through the pleadings carefully. 7. Respondent No. 3 has been appointed as Computer Operator on 12.09.1991 on ad hoc basis. Respondents have not placed on record any advertisement, whereby this post was advertised. The name of respondent No. 3 was also not sponsored by the employment exchange. His name was only sponsored by the employment exchange for the post when he initially joined the Planning Department on 15.09.1990. The Himachal Pradesh Public Service Commission has approved the draft rules on 26.09.1991. The minimum qualification prescribed under these - 5 - draft rules dated 26.09.1991 was that the candidate should be (i) Graduate in Science with Physics and Mathematics (or) Graduate with Mathematics/Statistics of recognized University or its equivalent; (ii) Diploma in Computer Application of at least one year duration from an Institution recognized by H.P. Government/Central Government; and (iii) one year experience in Computer Operation. 8. Admittedly, the respondent No. 3 was in possession of 9 months Post Graduate Diploma in Computer Programming and System Analysis from India Education Centre, Centre for Computer Education, Research and Training, New Delhi. These draft rules were notified on 23.05.1998. The minimum essential qualification prescribed under the draft rules, which were approved on 26.09.1991 and the rules notified on 23.05.1998 remained the same. 9. Mr. Shashi Shirshoo, learned counsel for the petitioner has drawn the attention of the Court to communication dated 04.04.1990 (Annexure R-IV/T). It is evident from the contents of letter dated 04.04.1990 that the competent authority has recommended the affiliation of India Education Centre, Harola Market, Sector-5, NOIDA, District Ghaziabad (U.P.) only for Data preparation and Computer Software-Two units. The diploma obtained by the petitioner as per Annexure P-9 is in Computer Programming and System Analysis. The minimum essential qualification as per the draft rules and rules notified subsequently is graduate diploma in Computer Application. Thus, it is evident that respondent No. 3 lacked the minimum essential qualification at the time of his initial appointment and also at the time of his - 6 - regularization. The Himachal Pradesh Public Service Commission, being a Constitutional body, should have at least advertised the post when it decided to regularize the respondent No. 3 on 30.05.1995 10. Mr. D.K. Khanna, learned counsel for respondent No. 2-Commission has taken the Court through Annexure A-2, whereby the matter was deliberated at the time when respondent No. 3 was regularized. The operative portion of decision taken on 27.05.1995 before regularizing the petitioner reads thus: “…(v) Therefore, in view of the fact that prior oto his appointment in the Commission, Shri Chander Mohan Chauhan was working in the Planning Department, where his name had been sponsored by the Employment Exchange, the Commission decided to appoint Shri Chander Mohan Chauhan as Computer Operator on regular basis in the pay-scale of `1500- 2640/-.” 11. The name of respondent No. 3 was required to be sponsored by the employment exchange for filling up the post of Computer Operator at the time of initial appointment in the year 1995. The Himachal Pradesh Public Service Commission has taken into consideration the fact that since the name of respondent No. 3 was sponsored by the employment exchange when he was working in the Himachal Pradesh Public Service Commission, it decided to regularize the respondent No. 3 in the pay scale of `1500-2640/-.” The course adopted by respondent No. 2 while regularizing the service of respondent No. 3 is un-known in service jurisprudence. - 7 - 12. The matter is required to be considered from another perspective. When the notice was issued to respondent No. 3 on 06.04.2005, he assailed the same by filing O.A. No. 930 of 2005, which was converted to CWP(T) No. 11864 of 2008. The stand of respondent No. 2 in the reply filed to O.A. No. 930 of 2005, was that the respondent No. 3 was regularized to the post of Computer Operator without finalization of Recruitment and Promotion Rules, whereas no post can be filled up on regular basis in the absence of notified provision of R & P Rules under Article 309 of the Constitution of India. Further case of respondent No. 2 in the reply was that the R & P Rules for the post of Computer Operator were notified under the proviso to Article 309 read with Article 318 of the Constitution of India on 23.05.1998, i.e., three years later from the regular appointment of respondent No. 3. Respondent No. 3 has been further promoted to the post of Programme Planning Officer, initially on ad hoc basis, as noticed above on 29.10.1997 and on regular basis on 18.01.1999. The rules were framed by the respondent-Himachal Pradesh Public Service Commission under Article 309 of the Constitution of India on 24.09.1998. It was specific stand of the Himachal Pradesh Public Service Commission that the promotion of respondent No. 3 was in negation of the Recruitment and Promotion Rules for the post of Programme Planning Officer, since he did not possess the essential qualification and experience prescribed in the Rules, as his ad hoc service rendered up to 30.05.1995 as Computer Operator was counted, whereas in terms of Recruitment & Promotion Rules ad hoc service rendered up to 31.03.1991 was admissible to be counted. This was the precise stand of the - 8 - Himachal Pradesh Public Service Commission in reply to Original Application No. 930 of 2005. Now, the Himachal Pradesh Public Service Commission has taken a somersault and has justified that initial appointment and promotion of respondent No. 3 to the posts of Computer Operator and Programme Planning Officer. Respondent No. 2 is a Constitutional body and should have avoided taking the contrary stand from the one which has already been taken in reply to O.A. No. 930 of 2005. There are inherent contradictions in the stand taken by the Himachal Pradesh Public Service Commission. The Himachal Pradesh Public Service Commission has also tried to justify that the Post Graduate Diploma obtained by respondent No. 3 in Office Management offered by the Indira Gandhi National Open University was equivalent to diploma in Computer Application on the basis of Annexure R-2/1, dated 22.04.2010. This communication has been issued by the Regional Director of Indira Gandhi National Open University. Petitioner has also sought the information from the Indira Gandhi National Open University. The Regional Director has sent the communication to the petitioner on 29.07.2010, which reads thus: “Sub:- Information under Right to Information Act 2005. Dear Chaman Lal, This is with reference to your letter dt. 6.5.2010 regarding the subject cited above. In this context, the desired information has already been supplied to you (except point No. 3) vide his office registered letter No. IG. RCS/RTI/2010/1306, dt. 13.5.2010. So far as the - 9 - information regarding point NO. 3 is concerned, IGNOU Hqrs. New Delhi clarified as under: “The DCO Programme was for the purpose of Office Management and have not been/cannot be equated to PGDCA”. This is for kind information please.” 13. It is, thus, evident that DCO Programme was for the purpose of Office Management and cannot be equated with Post Graduate Diploma in Computer Application. Therefore, it is clear that the institute from which the respondent No. 3 has obtained the diploma, was not duly recognized since only two units were approved, i.e., Data preparation and Computer Software and not Computer Application. The Post Graduate Diploma obtained by respondent No. 3, as per the latest communication from the Regional Director Indira Gandhi National Open University, cannot be equated with Post Graduate Diploma in Computer Application. 14. Respondent No. 2 has reproduced the minimum essential qualification for promotion to the post of Programme Planning Officer. In these rules also, the minimum educational qualification is that the candidate should possess a diploma in Computer Application from a recognized University. Respondent No. 3 did not have this diploma as well. 15. Now, as far as the appointment of respondent No. 3 is concerned, he was initially appointed for a period of six months on 12.09.1991. Thereafter, the draft rules were approved on 26.09.1991, whereby the essential qualification of diploma in Computer Application was prescribed. 16. It is now well settled that the draft rules can be taken into consideration, if they are likely to be retained and notified as - 10 - such. Their Lordships of the Hon’ble Supreme Court in Abraham Jacob and others Vs. Union of India (1998) 4 Supreme Court Cases 65 have held as under: “4. Having heard the learned counsel for the parties it appears to us that the only question for consideration is on what principle the inter se seniority between the direct recruits and promotee Assistant Engineers will have to be determined for the period 1969 till 1976 i.e. the period from which 50 per cent of the posts were filled up by promotion till the enforcement of the statutory recruitment rules? It is undisputed that prior to 1969 no Junior Engineer was being promoted to the post of Assistant Engineer. From 1969 after formulation of a set of draft rules promotion was being given to the Junior Engineers to the post of Assistant Engineer in accordance with the provisions contained in the draft rules even before such draft rules were approved by the governmental authority and became a statutory rule, by virtue of an administrative decision of the Government. It is too well settled that the service conditions of employees in the absence of a statutory rule could be governed by administrative instructions. There was, therefore, no illegality in giving promotion to the Junior Engineers to the post of Assistant Engineer because of the aforesaid administrative decision of the Government. It is also conceded that in the statutory rules the principle of determination of inter se seniority between the direct recruits and promotees has not been indicated. It is in this context the Government of India followed the general principles for determining the seniority - 11 - enunciated in the order of Ministry of Home Affairs dated 22-12-1959. Clause (6) of the aforesaid Memorandum which deals with relative seniority of direct recruits and promotees stipulates that the relative seniority shall be determined according to the rotation of vacancies between the direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruits and promotees respectively. Since the statutory rule had not come into force and yet promotion could be given on the basis of the provisions contained in the draft rule by virtue of an administrative order of the Government such promotees cannot claim a greater advantage than the direct recruits having come into the cadre on the basis of the aforesaid draft rules. Further, the inter se seniority of such direct recruits and promotees has to be determined by taking recourse to the aforesaid office memorandum dated 22-12-1959 issued by the Government of India in the Ministry of Home Affairs. Needless to mention that this principle has to be invoked for determination of inter se seniority of the appointees both direct recruits and promotees during the period 1969 till 9-9- 1976 and in fact the Government has drawn up the seniority list on following the said principle. In the aforesaid premises, the direction of the Tribunal in the impugned judgment to re-draw the seniority list without importing any quota/rota rule for the period prior to 9-9-1976 is unsustainable in law and we accordingly quash the said direction. Necessarily, therefore, the inter se seniority of the direct recruits and promotees in the cadre of Assistant Engineers for the period 1969 till 9-9-1976 has to be - 12 - determined in accordance with the Government Order dated 22-12-1959 issued by the Ministry of Home Affairs.” 17. In the instant case, it is reiterated that respondent No. 3 did not possess the minimum essential educational qualification as per draft rules dated 26.09.1991. His name was never sponsored by the employment exchange. Respondent No. 2 has never advertised the post when respondent No. 3 was appointed on 12.09.1991, initially on ad hoc basis and when he was regularized on 30.05.1995. Reasons given by the Himachal Pradesh Public Service Commission to regularize respondent No. 3 are not in accordance with law. It has come in the reply filed by the Himachal Pradesh Public Service Commission to CWP(T) No. 11864 of 2008 that the promotion of respondent No. 3 was also bad in law, since he did not possess the minimum essential qualification and experience. The rules for promotion to the post of Programme Planning Officer were notified on 24.09.1998. The decision to regularize respondent No. 3 was taken on 18.01.1999 after the statutory rules have come into force. The ad hoc period was to be counted only up to 31.03.1991, but in the case of respondent No. 3, it was counted up to 30.05.1995. In the instant case, respondent-State was also seized of the matter and has entered into correspondence with respondent No. 2, the manner in which respondent No. 3 was appointed. The reasons assigned for promoting the respondent No. 3 were also not convincing. Petitioner has made a representation on 03.09.2004 and before that one Shri D.K. Sharma has also made a representation on 22.03.2004. It is only thereafter, the letters dated 16.04.2004, - 13 - 27.08.2004 and 11.10.2004 were exchanged between respondent No. 1 and respondent No. 2. Petitioner became eligible for promotion in 2005. Immediately when he came to know about the manner in which respondent No. 3 has been appointed, he made a representation in 2004. In the present case, respondent No. 3 has usurped the public office, since he did not possess the minimum essential qualification at the time of his initial appointment and at the time when he was regularized as Computer Operator and subsequently promoted to the post of Programme Planning Officer in violation of the statutory rules. A person, who has not been appointed in accordance with law, cannot be permitted to say that his appointment cannot be assailed. The illegality committed, cannot be permitted to be perpetuated and once it came to the notice of the Court that illegal appointment has been made, the matter is required to be probed deeply after taking into consideration all the facts and circumstances of the case. 18. Now, the Court will advert to the manner in which the respondent No. 2 has further dealt with the case of respondent No. 3. Respondent No. 3 has been issued show-cause notice on 06.04.2005 to the effect that why his service should not be dismissed. He approached the learned Tribunal against the issuance of show-cause notice by way of CWP(T) No. 11864 of 2008. Learned Tribunal without taking into consideration that in such like cases, interim relief should not be granted, has granted interim relief to respondent No. 3. CWP(T) No. 11864 of 2008 was disposed of by this Court on 23.11.2009. Respondent No. 3 has filed reply only on 30.12.2009 to the show-cause notice dated 06.04.2005. The decision taken by the Himachal Pradesh Public - 14 - Service Commission vide Annexure P-21 is not in accordance with law. The Himachal Pradesh Public Service Commission was required to look into the manner in which respondent No. 3 has been appointed and regularized as Computer Operator and promoted initially on ad hoc basis as Programme Planning Officer and subsequently regularized as Programme Planning Officer. The reasons assigned in Annexure A-2 were also not cogent and convincing, as discussed hereinabove. The respondent No. 2 has overlooked the sanctity attached to the Rule of law. Respondent No. 2 has taken the decision on 09.08.2010 vide Annexure P-21 by taking a stand which was contrary to one which was taken in reply to CWP(T) No. 11864 of 2008. 19. It is intriguing to note that how a constitutional body has taken two different stands on the same facts. The earlier stand of the Himachal Pradesh Public Service Commission was that respondent No. 3 could not be appointed initially as Computer Operator and could not be regularized. Now, the same has been justified by respondent No. 3 in the reply filed to this petition. There is no discussion in the order dated 09.08.2010 about the draft rules and the rules framed for the post of Computer Operator and Programme Planning Officer. There is no whisper whether respondent No. 3 was possessing the legal qualification in view of Annexure R-IV/T and P-26, dated 29.07.2010. The diploma in Office Management cannot be compared with diploma in Computer Application. These are entirely different subjects. The Himachal Pradesh Public Service Commission has stated that it has taken into consideration the qualification and service record of Shri Chander Mohan Chauhan. - 15 - There is no discussion about the qualification and service record except this bald assertion. The order passed by the Himachal Pradesh Public Service Commission ought to have been reasoned and self contained. How the Himachal Pradesh Public Service Commission has abruptly come to the conclusion that the notice dated 06.04.2011 issued to respondent No. 3 was to be withdrawn is not understandable. In case the respondent No. 3 has not been appointed or promoted as Programme Planning Officer, the petitioner was eligible for promotion to the post of Programme Planning Officer as per qualifying service and educational qualification. Respondent No. 3 has usurped the posts of Computer Operator and Programme Planning Officer illegally. 20. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. Annexures P-8, dated 12.09.1991, P-10, dated 30.05.1995, P-12, dated 29.10.1997, P-13, dated 18.01.1999, P-21, dated 09.08.2010 are quashed and set aside. Petitioner is entitled to costs quantified at `10,000/-. The pending application(s), if any, also stands disposed of. (Rajiv Sharma) Judge October 18, 2011. (bhupender) - 16 -