IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.4031 of 2010. Decided on: 15.12.2010. _______________________________________________________ Ashok Kumar & Others. ……..Petitioners. Versus. State of H.P. & Others. ……..Respondents. _______________________________________________________ Coram: The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioners : Mr. Dilip Sharma, Advocate. For respondents : Mr. R.K. Bawa, Advocate General No.1 & 2. with Mr. J.K. Verma, Dy. Advocate General. For respondents No.3 : Mr. Ajay Mohan Goel, Advocate. to 9, 14, 18, 19,21,23, 25 & 27. For respondents No.10, : Mr. Y.W. Chauhan and Mr. Rakesh 11,13,15,16,17,20,22, Sharma, Advocates. 26,28 & 29. _________________________________________________________ Justice Kurian Joseph, C.J.(Oral): What is the purpose behind the provision for relaxation of the rules and how and when such power has to be exercised, are the two main issues arising for consideration in this case. The petitioners in this case were appointed as Clerks/Junior Assistants under the Excise and Taxation Department during the period 1992 to 1996. The private respondents were appointed as Camp Clerks during the period 1981 to 1995. Both of them are form the feeder cadre for the post of Excise and Taxation Inspector under the 20% quota reserved for promotion in Himachal Pradesh Excise and Taxation Department (Inspectorate Staff Class-III) Service Rules, 1976. The method of promotion is prescribed under Rule 11, which reads as follows: “From amongst Clerks/Camp Clerks in the Excise & Taxation Department with 8 years regular or ad hoc service or both in the grade (officiating or confirmed) provided that the posts falling under promotion quota which remains unfilled due to non-availability of Clerks/ Camp Clerks with requisite qualifications and service will be filled by direct recruitment and posts may not be accumulated and carried over to the subsequent years.” 2. There was also a regular channel of promotion for both the Clerks and Camp Clerks in their own separate category of posts in their normal channel of promotion in addition to the 20% quota for promotion to the post of Excise and Taxation Inspectors. While so, in the year, 1994, it is seen that the department invited options as to whether the Camp Clerks wanted to opt for their normal channel of promotion as Jr. Scale stenographers or to go for with 20% promotion quota of Excise and Taxation Inspectors. All the private respondents, who were in the category of Camp Clerks, opted for promotion to the post of Excise and Taxation Inspectors. The posts of Camp Clerks are re-designated as Steno-typists. From amongst the Clerks, by way of placement given to the Clerks, the clerks are placed in the category of Jr. Assistants on 50:50 basis. Though the private respondents opted for the post of Excise and Taxation Inspectors, it appears that owing to non-availability of vacancies none of them was promoted as Excise and Taxation Inspector. At the same time, their juniors who opted for promotion in the normal channel, were promoted to higher category of Jr. Scale Stenographers and they mainly form the petitioners. While so, in the year 2001, the Government introduced the new rules for Recruitment and Promotion of Excise and Taxation Inspectors (Annexure P-2); i.e. The Himachal Pradesh Excise and Taxation Department, Excise and Taxation Inspector (Class-III Non- Gazetted) Recruitment and Promotion Rules, 2001. The 1976 Rule was repealed. As per Rule 11 of the said Rules, promotion to the 20% quota of Excise and Taxation Inspector, was stipulated “by promotion from amongst the Jr. Assistants and Jr. Scale Stenographers with 10 years regular or regular combined with continuous ad hoc (rendered upto 31.03.1998) Service, in the grade of Jr. Assistant and Clerk combined, Jr. Scale Stenographer and Steno-typist combined, respectively.” 3. For the purpose of promotion, a combined seniority list of eligible officials on the basis of length of service (without disturbing their cadre-wise inter-se seniority), was prepared in terms of the said rules of Junior Assistants and Junior Scale Stenographers. The private respondents were left out since they had not opted for the promotion channel to the Jr. Scale Stenographers and since their option was for Excise and Taxation Inspectors only. In this context, the submission made by the learned counsel for the private respondents that some of them were offered promotion to Jr. Scale Stenographers, but they had declined the same in view of their option for Excise and Taxation Inspectors is also to be noted. 4. The private respondents challenged the 2001 Rules before the erstwhile Administrative Tribunal. The Tribunal, as per order dated May 6, 2005, passed in O.A. No.2970 of 2001, dismissed their applications, holding that merely because the private respondents exercised their option for a particular cadre, that does not create any vested right in the applicants so as to take away the rule making power of the Government conferred in it under Article 309 of the Constitution of India. It was observed that “the amendment was carried out absolutely according to administrative exigency and not with an object to harm the applicants. The Government is competent to change the feeder cadre for promotional post in the public interest. The promotional avenues of the applicants have not been hampered by the amended Rules.” Some of the private respondents challenged the order of the Tribunal in C.W.P. No.963 of 2005 and the same was dismissed by the High Court vide Judgment dated 08.12.2005, observing only that “After hearing the learned counsel for the parties, we do not find any ground to interfere with the well reasoned judgment of the tribunal. Accordingly, this writ petition is dismissed.” 5. When the vacancies for the cadre of the Excise and Taxation Department arose, the private respondents, mainly Camp Clerks and Steno-typists, approached the Government, seeking relaxation of the rigor of (Annexure P-2) 2001 Rules. As per Annexure P-6, the Government invoking its power under Rule 18, relaxed the rigor of the rules in favour of the private respondents, permitting promotion of the private respondents against the posts lying or falling vacant in terms of their option exercised in the year 1994. The petitioners have challenged the said relaxation in the writ petition. 6. It is contended that the private respondents had once opted for promotion to the post of Excise and Taxation Inspector and having declined to opt for normal channel of promotion to the post of Jr. Scale Stenographers, the respondents cannot be permitted to turn round and contend that had they opted for the post of Jr. Scale Stenographer, they would have in the feeder cadre as per the amended rules in view also of the fact that the challenge to the rules has been repelled both by the Tribunal and this Court. Therefore, it is submitted that the petitioners are entitled to be considered for the post of Excise and Taxation Inspectors as per the 2001 Rules and their legitimate claim in such a situation cannot be taken away by the Government by invoking the power for relaxation. In other words, it is submitted that what is given by one hand cannot be taken by the other hand. 7. On the contrary, learned Advocate General and learned counsel appearing for the private respondents, contended that power to relax is also a provision in the rules and this is meant to be invoked if it is considered expedient and necessary by the Government. It is also submitted that the Government had followed the procedure of mandatory consultation with the Public Service Commission and hence, the petitioners cannot be allowed to contend that the Government had arbitrarily exercised its power to relax the rigor of the rules. 8. If the factual background of the petitioners is closely scanned in the light also of the observations made by the learned Administrative Tribunal, in Annexure P-3 (Judgment dated 06.05.2005, O.A. No.2970/2001), it is clear that the Tribunal declined to interfere with the matter and upheld the power of the Government to amend the Rules with the finding that the same would not work out any undue hardship and injustice to the applicants before the Tribunal, who are private respondents in this case. The Tribunal, hence, rightly observed that the promotional avenues of the applicants have not been hampered by the amended Rules. Logically, it could not be maintained that the promotional prospects of the applicants (private respondents herein), have been affected by the amendment. In this context, it is to be noted that there is no case for the petitioners that in terms of date of entry in service, any of the private respondents are juniors to the petitioners and they are getting any undue advantage that way over the seniors. 9. There is another angle of view for this issue. Had the amendment brought out in 2001 Rules had been introduced in the year 1994, simultaneously with the opportunity for option to the Steno-typists, mainly the private respondents, none who is otherwise likely to be promoted to the post of Excise and Taxation Inspector in terms of the normal channel of the promotion in the General Rules, through the post of Jr. Scale Stenographers, would have opted otherwise the post of Excise and Taxation Inspectors. Having given an avenue for promotional prospect to the post of Excise and Taxation Inspector in the year 1994, would it be just and fair and equitable to take away that avenue by a subsequent change in the rules of service? If the issue is addressed in that manner, it has to be held that the private respondents cannot be deprived of their normal chance/prospect of the promotion to the post of Excise and Taxation Inspectors by changing the base. Precisely to redress such undue hardships and unjust situation, a prayer has been accepted as per the 2001 Rules by relaxing the rigor of the rules. 10. The power to relax the Rules is provided to meet equity and justice, though under Rule18 of 2001 Rules, the expressions used are only expediency and necessity. In 1992 Suppl.(I) Supreme Court Cases 272, Keshav Chandra Joshi & Others versus Union of India & Others, the apex court had an occasion to consider the need and relevance for such relaxation and it was held that such power can be invoked to avoid disorder and frustration in the cadre. In (1997) 6 Supreme Court Cases 614, Dr. Ami Lal Bhat versus State of Rajasthan and Others, the Supreme Court held that the power to relax can be invoked for removing undue hardship to any employee. In (2006) 8 Supreme Court Cases 671, Kendriya Vidyalaya Sangathan & Others versus Sajal Kumar Roy & Others, it was held that the power to relax the Recruitment and Promotion Rules, has to be exercised in a fair and reasonable manner and the prescribed procedure has also to be followed. Thus, in view of the guiding principle laid down by the Supreme Court, it can be seen that the power to relax, if provided under the Rules, is to be exercised as per the procedure provided under the Rules and that the same is to be exercised only in a situation of (1) removal of undue hardship; (2) to avoid disorder and frustration in a cadre; (3) to meet equity and justice; and (4) it should be exercised fair and reasonable. 11. Viewed in the factual matrix which we have analyzed above, it can be clearly seen that all the relevant aspects requiring invocation power of relaxation had been addressed by the Government and no irrelevant consideration has crept in the process. It has not worked out any injustice to the petitioners. The Rules are relaxed only for meeting ends of justice as far as the private respondents are concerned, who admittedly, at the source are seniors to the petitioners, in terms of date of entry in service, as is clearly stated in Para-8 of the reply-affidavit filed by the first respondent. The Government has followed the procedure of mandatory consultation with the Public Service Commission. 12. In the above circumstances, we do not find any merit in the writ petition. Interim order dated 15.07.2010, is vacated. Accordingly the writ petition is dismissed, so also the pending applications, if any. (Justice Kurian Joseph) Chief Justice. (Justice V.K. Ahuja) Judge. December 15, 2010. (ysc)