IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.518/1997 Reserved on.27.6.2007 Decided on.30.8.2007 Padam Chand Sharma. …Petitioner. Versus High Court of Himachal Pradesh. …Respondent Coram The Hon’ble Mr. Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Bimal Gupta, Advocate. For the respondent Ms. Ranjana Parmar, Advocate. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the petitioner was appointed as a Clerk in the month of September 1964 in the Court of Sub Judge Ist Class, Kandaghat, District Solan and thereafter he was transferred to the Court of Senior Sub Judge, Shimla in the month of August, 1964. He joined the Registry of the High Court as Junior Translator in August 1971 and was promoted as Assistant in the year 1974. He was promoted as a Superintendent-cum-Leave Reserve Reader in the pay scale of Rs. 450-800 with effect from 5th March, 1977. He was confirmed against the post of Superintendent-cum-Leave Reserve Reader in the pay scale of Rs. 500-900 with effect from September 10, 1979. The Punjab Government created certain posts of Secretaries to the Ministers in the pay scale of Rs. 1400-1850 with a special pay of Rs. 250/- per month. The Punjab and Haryana High Court following the pattern of 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 the Punjab Government also created temporary posts of Secretaries in the pay scale of Rs. 1400-1850 with a special pay of Rs. 250/- per month. The Government of Himachal Pradesh also by following the Punjab pattern created certain posts of Secretaries to the Ministers in the H.P. Civil Secretariat in the pay scale of Rs. 1400-1850 with a special pay of Rs. 250/- per month. The posts were created by the Punjab and Haryana High Court of secretaries with effect from 23rd August, 1983. The High Court made recommendations to the Government of Himachal Pradesh for creation of two posts of Court Secretaries in the year 1983. The recommendations made by the High Court were considered by the State Government but the posts were created in the year 1987 with a rider that the same will be deemed to be created from the date of filling up the same. Two writ petitions bearing No. 39 of 1986 and 817 of 1986 were filed in the year 1986 by Sh. Mehar Singh and M.D. Kaushal. These two writ petitions were disposed of by this Court on 19.7.1989. The operative portion of the judgment dated 19.7.1989 reads thus: “We allow these petitions only to the extent that a direction shall issue to the State Government to reconsider the question of sanctioning the creation of the posts of Secretary and Court Secretary with effect from the date suggested by the high Court, namely, August 23, 1983. It shall do so in the light of what we have said in this judgment.” In sequel to the directions issued by this Court, the State Government vide notification dated 11.4.1997 altered the date by creating the posts of Court Secretaries with effect from 23rd August, 1983. It would be apt to note at this stage that the petitioner was considered along with Sh. D.D. Kukreti for the post of Court Secretary and was promoted in the year 1989. 3 Mr. Bimal Gupta, Advocate had strenuously argued that his client was required to be considered for promotion to the post of Court Secretary with effect from 23rd August, 1983 with consequential benefits. He had also contended that one Sh. Mehar Singh who was confirmed as Reader with effect from 5th March, 1977 could not be considered for promotion to the post of Court Secretary after the penalty of compulsory retirement was imposed upon him. Ms. Ranjana Parmar, Advocate contended that the petitioner had no right to be considered for promotion retrospectively with effect from 23rd August, 1983 and if he was aggrieved of his non-consideration, he should have immediately approached the Court in the year 1987 when two posts were created. I have heard the parties and perused the record. The position which emerges from the pleadings of the parties is that the petitioner was confirmed as Reader with effect from 19th July, 1983 and one Sh. Mehar Singh was confirmed as Reader with effect from 5th March, 1977. Though detailed averments were made with regard to Sh. Mehar Singh to the effect that he was neither eligible nor qualified to be considered for promotion to the post of Court Secretary but his name was deleted from the array of respondents vide order dated 17th December, 1997. Since the name of Sh. Mehar Singh stood deleted at the request of the petitioner, the Court will not go into the allegations made against Sh. Mehar Singh in this writ petition. Ms. Ranjana Parmar, Advocate had submitted that Sh. Mehar Singh, in fact had filed an independent writ petition bearing No. 180 of 1998 seeking promotion with effect from 23rd August, 1983. The petition filed by Sh. Mehar Singh was also heard with this petition. 4 Now, this Court has to consider the case of the petitioner independently on the basis of the pleadings contained therein by excluding the averments contained against Sh. Mehar Singh. It is admitted fact that Sh. Mehar Singh was confirmed as a Reader with effect from 5th March, 1977 and the petitioner was confirmed on 19th July, 1983 as a Reader. This Court had directed the State to consider the creation of two posts of Court Secretaries with effect from 23rd August, 1983 instead of 1987. In sequel to the directions issued by this Court, the posts stood created with effect from 23rd August, 1983. Admittedly the Recruitment and Promotion Rules for the post of Court Secretary were notified vide notification dated 21st October, 1986. In the absence of the Recruitment and Promotions Rules to the post of Court Secretary, the incumbents were to be considered on the basis of seniority from the feeder cadre. The petitioner also fell in the zone of consideration on the basis of the seniority in the year 1983 and was to be considered for promotion with effect from 23rd August, 1983 instead of 7th January, 1989. It is settled law that in the absence of statutory rules, the promotions can be effected on the basis of the executive instructions. The Apex Court has held in B.N. Nagarajan Versus State of Mysore, AIR 1966 SC 1942 that it is not obligatory under proviso to Article 309 of the Constitution of India to make Rules of recruitment etc. before a service can be constituted or a post created or filled. Their Lordships have held as under: “It would be convenient to deal with this argument at this stage. Mr. Nambiar contends that the words “shall be as set forth in the rules of recruitment of such service special made in that behalf” clearly show that till the rules are made in that behalf no recruitment can be made to any service. We are unable to accept this contention. First it is not obligatory under proviso to Article 309 to make rules of recruitment etc. 5 before a service can be constituted or a post created or filled. This is not to say that it is not desirable that ordinarily rules should be made on all matters which are susceptible of being embodied in rules. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws. It follows from this that the State Government will have executive power in respect of List II, Entry 41, State Public Services. It was settled by this Court in Ram Jawaya Kapur V. State of Punjab, 1955-2 SCR 225: (AIR 1955 SC 549), that it is not necessary that there must be a law already in existence before the executive is enabled to function and that the powers of the executive are limited merely to the carrying out of these laws. We see nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Article 162 of the Constitution without a law. It is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that act or rule and it cannot in exercise of the executive power under Article 162 of the Constitution ignore or act contrary to that rule. In the background of this position we are unable to interpret R. 3 of the General Recruitment Rules as suspending the executive power of the State till rules of recruitment of a service are specially made in that behalf. Rules usually take a long time to make, various authorities have to be consulted and it could not have been the intention of R. 3 of the General Recruitment Rules, 1957, to halt the working of the public departments till rules were framed. This Court considered a similar point in T. Cajee v. U Jormonik Siem, 1961-1 SCR 750 at pp. 762-764: (AIR 1961 SC 276 at p. 281), and arrived at a similar conclusion. The following observations of Wanchoo, J., who delivered the judgment on behalf of the majority, bring out clearly the fallacy in Mr. Nambiar’s argument: “The High Court has taken the view that the appointment and succession of a Siem was not an administrative function of the District Council and that the District Council could only act by making a law with the assent of the Governor so far as the appointment 6 and removal of a Siem was concerned. In this connection, the High Court relied on Para 3 (1) (g) of the Schedule, which lays down that the District Council shall have the power to make laws with respect to the appointment and succession of Chiefs and Headmen. The High Court seems to be of the view that until such a law is made there could be no power of appointment of a Chief or Siem like the respondent and in consequence there would be no power of removal either. With respect, it seems to us that the High Court has read far more into Para 3 (1) (g) than is justified by its language. Paragraph 3 (1) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws. Under Para 3 (1) (g) it has power to make laws with respect to the appointment or succession of Chiefs or Headmen and this would naturally include the power to remove them. But it does not follow from this that the appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect.” “Further once the power of appointment falls within the power of administration of the district the power of removal of officers and others so appointed would necessarily follow as a corollary. The Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under Para 19 (1) (b) or till the District Council passed laws under Para 3 (1) (g). The Governor in the first instance and the District Councils thereafter were vested with the power to carry on the administration and that in our opinion included the power to appoint and remove the personnel for carrying on administration. Doubtless when regulations are made under Para 19 (1) (b) or laws are passed under Para 3 (1) with respect to the appointment or removal of the personnel of the administration, the administrative authorities would be bound to follow the 7 regulations so made or the laws so passed. But from this it does not follow that till the regulations were made or the laws were passed there could be no appointment or dismissal of the personnel of the administration. In our opinion, the authorities concerned would at all relevant times have the power to appoint or remove administrative personnel under the general power of administration vested in them by the Sixth Schedule. The view, therefore, taken by the High Court that there could be no appointment or removal by the District Council without a law having been first passed in that behalf under Para 3 (1) (g) cannot be sustained.” Mr. Nambiar in this connection also relied on Articles 15 and 16 of the Constitution. He urged that if the executive is held to have power to make appointments and lay down conditions of service without making rules in that behalf under the proviso to Article 309. Articles 15 and 16 would be breached because the appointments in that case would be arbitrary and dependent on the mere whim of the executive. We are unable to hold that Articles 15 and 16 in any way lead us to this conclusion. If the Government advertises the appointments and the conditions of service of the appointments and makes a selection after advertisement there would be no breach of Article 15 or 16 of the Constitution of India because everybody who is eligible in view of the conditions of service would be entitled to be considered by the State.” The Apex Court in Sant Ram Versus State of Rajasthan, AIR 1967 SC 1910 has held that that in the absence of any statutory rules governing promotions to selection grade posts the Government can issue administrative instructions. Their Lordships have held as under: “We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the 8 Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.” The Hon’ble Supreme Court has held in Lalit Mohan Deb and others Versus Union of India and others (1973) 3 SCC 862 that there is no bar to the administration giving instructions regarding promotion to the higher grade as long as such instructions are not inconsistence with any Rule or subject. Their Lordships have held as under: “It is true that there are no statutory rules regulating the selection of Assistants to the selection grade. But the absence of such rules is no bar to the Administration giving instructions regarding promotion to the higher grade as long as such instructions are not inconsistent with any rule on the subject. The point was considered by this Court in Sant Ram Sharma v. State of Rajasthan, and it was declared that in the absence of statutory rules regulating promotion to selection grade posts the Government is competent to issue administrative instructions as long as those instructions are not inconsistent with the rules already framed. Mr. Sen’s argument is based on the absence of any statutory rule in this respect. Therefore, there is no question of any inconsistency with existing rules. In their affidavit in reply the Administration has stated that the appointment to the selection grade is made on the basis of seniority-cum-merit based upon a test open to all Assistants carried out in accordance with a prescribed procedure. It appears that there is a Departmental Promotion 9 Committee whose business is to prepare a promotion list of such Assistants who after passing the necessary tests are to be appointed in the selection grade. It is on the basis of this selection that respondents 4 to 20 and some others were appointed in the selection grade after they passed the tests and were selected by the Departmental Promotion Committee. The appellants did not appear for these tests and, therefore, can have no complaint about the selection. In fact they have not challenged the selection and appointment of respondents 4 to 20 in the selection grade posts.” The Hon’ble Supreme Court in Ramesh Prasad Singh Versus State of Bihar and others (1978) 1 SCC 37 that it is not obligatory to make rules of recruitment etc. before a service is constituted or a post is created or filled up: “Regarding the observation of the high Court that in the absence of rules laying down qualifications for appointment and promotion to the post of Executive Engineer (Tele- Communication), respondents 3 to 28 could not be excluded from consideration for appointment to that post, we would like to say that though it cannot be gainsaid that before initiation of the proposal for creation of the post of Executive Engineer (Tele-Communication), respondents 1 and 2 had not framed any rules prescribed etc. before a service is constituted or a post is created or filled up. As is well known, the process of rule-making is a protracted and complicated one involving consultation with various authorities and compliance with manifold formalities. It cannot also be disputed that exigencies of administration at times require immediate creation of service or posts and any procrastination in that behalf cannot but prove detrimental to the proper and efficient functioning of public departments. In such like situations, the authorities concerned would have the power to appoint or terminate administrative personnel under the general power of administration vested in them as observed by this Court in B.N. Nagarajan V. State of Mysore and T. Cajee V. U. Jormanik Siem. It follows, therefore, that in the absence of rules, 10 qualifications for a post can validly be laid down in the self same executive order creating the service or post and filling it up according to those qualifications. In the instant case, it is evident from a perusal of the proposal for creation of a Tele Communication Division at Patna and the aforesaid recommendation made by the Selection Committee in favour of the appellant that for ensuring reliability and continuity in power supply it was absolutely essential that maintenance of the sophisticated wave-change-over communication equipments of 33 KV installed by the Board in the Tele- Communication Sub Division should be entrusted to specially trained, experienced and qualified officer possessing specialized theoretical and practical knowledge of Tele- Communication which is a subject quite distinct from that of general Electricity and covers according to New Encyclopedia Britannica (15th Edition) and Webster’s Third New International Dictionary all types of communication at a distance as by cable, radio, telegraph, telephone, tele-typewriter and facsimile. Judged in this background, it is obvious that it was only the appellant who possessed degree in B.Sc. Engineering in Tele-Communication, was separately recruited and specially trained in that line in Switzerland and had thus acquired specialized knowledge therein and acquitted himself creditably in the filed for five years, who could be said to possess the requisite qualification and be considered fit and suitable for the job in question and not any one of respondents 3 to 28 who were mere graduates in Electrical Engineering, nor even respondents 3 and 4 who had studied Tele-Communication only as one of the subjects in their final B.Sc. Engineering Examination. It is patent; therefore, that the High Court was in error in thinking that respondents 3 to 28 possessed qualification equal to the appellant or that they were eligible for the job.” Similarly the Apex Court has held in Ravi Paul and others Versus Union of India and others (1995) 3 SCC 300 that it is not obligatory to make rules of recruitment etc. before a service is constituted for a post is 11 created or filled up and in the exercise of executive powers can make appointment in the absence of Rules. Their Lordships have held as under: “As regards the absorption/appointment of the petitioners as Assistant Commandants in the BSF during the period 1974-78 it has already been noticed that initially, i.e. before the enactment of the BSF Act, appointment of superior officers in the BSF was governed by Rule 113 of the CRPF Rules. The enactment of the BSF Act in 1968 brought about a change. The said Act, in Section 4, provides for the constitution of the BSF and in sub-section (2) of Section 4 it is prescribed that subject to the provision of the BSF Act, the Force (BSF) should be constituted in such manner as may be prescribed and the condition of service of the members of the Force shall be such as may be prescribed. In sub-section (1) of Section 141 power has been conferred on the Central Government to make rules for the purpose of carrying into effect the provisions of the Act. In sub-section (2) of Section 141 it has been specifically provided that such rules may, inter alia, provide for the enrolment of the persons to the Force and the recruitment of the other Members of the Force [clause (b) and the conditions of service (including deductions from pay and allowances) of the members of the Force [clause (c)]. It would thus appear that after the enactment of the BSF Act in 1968, the CRPF Rules ceased to have application in the matter of recruitment to the BSF as well as the conditions of service of the members of the said force and the BSF was governed by the provisions of the BSF Act only. The BSF Act does not provide for continuing the applicability of CRPF Rules to the BSF. On the other hand, we find that in the matter of recruitment to the post of Assistant Commandant, the Central Government made BSF Recruitment Rules on 8.12.1969 which continued in force till they were repealed on 23.11.1973. Thereafter, recruitment to the post of Assistant Commandant in the BSF was governed by the executive order dated 16.1.1974 issued by the Government of India. In law it was permissible to do so because it is well settled that it is not 12 obligatory to make rules for recruitment etc. before a service can be constituted or a post created or filled and the Government, in exercise of its executive power, can make appointments in the absence of rules. (See: B.N. Nagarajan v. State of Mysore). Similarly the Apex Court in Nagpur Improvement Trust Versus Yadaorao Jagannath Kumbhare and others, (1999) 8 SCC 99 has held that in the absence of statutory rules governing service conditions, executive instructions and/or decisions taken administratively operate and appointments/promotions can be made in accordance with such executive instructions/directions. Their Lordships of the Hon’ble Supreme Court have held as under: “Even under section 24 (C) of the Act, if the State Government is of the opinion that the duties imposed on the Trust have not been performed or have been performed in an imperfect manner, then the State Government may direct the Trust to make arrangements for the proper performance of the duties or to take such measure as may be specified by the State Government. In view of the aforesaid provisions in the Act, the conclusion is irresistible that the State Government exercises effective control over the affairs of the Board including in the matter of appointments to different posts, if made by Board under its resolution. It is, no doubt, true that under Section 21 of the Act, the State Government is required to make rules prescribing the conditions under which members of the staff requiring professional skill could be appointed by the Trust. But when the State Government has not made any such rules even if the rules can be