IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 5706 of 2008 Date of decision: 29.11.2010 ________________________________________________________________ G.D. Goyal. .....Petitioner. Versus The State of H.P. & another. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ________________________________________________________________ For the petitioner: Mr. Surinder Sharma, Advocate. For the respondents: Mr. Anil Jaswal, Deputy Advocate General. V.K. Sharma, J. (Oral). On the averments that the petitioner stagnated in the post of Agriculture Engineer (Implements) later on designated as Divisional Engineer (Soil Conservation) from the initial date of appoint in the year 1991 up till retirement in the year 2004, he has filed the present petition on the following prayers: “7(i) That this Hon'ble Tribunal may declare the post of Divisional Engineer (Soil Conservation) at par with the post of Joint Director; (ii) That the respondents may be directed to consider the case of the applicant for the post of Additional Director after treating his post at par with that of Joint Director; 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ...2... (iii) That this Hon'ble Tribunal may declare the post of Divisional Engineer (Soil Conservation) to be deemed to be in the feeder category for promotion to the post of Joint Director or in the alternative the Recruitment & Promotion Rules for the post of Joint Director of Agriculture may be quashed and set aside with a direction to the respondents to frame more equitable rules by adding the category of Divisional Engineer (soil Conservation) in the feeder category for promotion to the post of Joint Director; (vi) That Annexure A-I, dated 6th January, 1995 may be quashed and set aside whereby the post of Superintending Driller has been upgraded and the post held by the applicant i.e., Agriculture Engineer (Implements) (redesignated as Divisional Engineer-Soil Conservation w.e.f. 6.1.1995) has been downgraded by reducing the pay scale of Rs. 3000-4500 to Rs. 2200-4000.” 2. It shall also be pertinent to notice at this stage that earlier the petitioner was appointed as Junior Engineer in the year 1970 and then selected as Superintendent Driller (Class-I) in the year 1973. 3. In the reply, respondents have taken the following stand vide paras 6(v), (vi), (vii), (ix), (x) and 6(d): “6(v) In reply to this para, it is submitted that the nomenclature post as mentioned at Annexure A/1 to the application born on Engineering Discipline and due to revision of the pay scale these posts have been restructured on forming common ...3... cadre for these category and three tyre pay scale has been granted. No reduction in pay of the applicant as contended has been made. (vi&vii) In reply to these paras, it is submitted that the representation made by the Indian Society of agriculture Engineering HP Chapter Annexure A.II which was referred to the Govt. vide Annexure A.III have examined by the respondent No. 1 in consultation with the Finance Deptt. and found unjust hence rejected. The concerned Chairman was also informed the decision vide letter No. Agr.H(I)(A)9-518/-Vo;.II dated 2.8.1997 Hence the Annexure A/1 is legal and just being based on hierarchical structure of the Engineering Discipline of the posts. (ix) In reply to this para, it is submitted that consequent upon the revision of pay scales of different nomenclature posts of Agricultural services Class III, II and I has been granted three tier pay scale of Rs. 2200 (initial scales) 3000-4500 after 8 years service 3700-5300 after 18 years service and these posts now formed single cadre called as Agricultural services (Class I Gazetted) which also includes the post of Senior Analytical Chemist. The cadre of the Engineering discipline is isolated and separate one from the cadre of Agricultural services and borne on different cadres and their Recruitment and Promotion Rules are separate one. Hence these two different cadres cannot be equated merely on pay structure. Therefore, the claim of the applicant for equation is illegal and unjust. ...4... (x) In reply to this para, it is submitted that the R&P rules to the post of Joint Director of Agriculture Annexure A-4 have been framed taking into consideration line of promotion of the incumbents of the Agricultural services as these rules based on hierarchical structure of the cadre. The post of Engineering discipline which has been re- structured and forming a common cadre w.e.f. 6-1-1995 Annexure A-1 has no nexus with Agricultural services cadre as these cadres have separate Recruitment and promotion Rules as they are forming a separate indentity and cadre. For the Agriculture services entry educational qualification is B.Sc (Agriculture); whereas for the Engineering Disciplines, the entry qualification is degree in Engineering Disciplines. The nature of duties of the incumbents of the cadre post are different and not similar one at all. As the posts Annexure A-1 are directly related to Soil Conservation and not to Agriculture at all. The common cadre has been formed taking into consideration hierarchical cadre structure, ranging from post Sub Divisional Soil Conservation Officer which is also a Class I post. As such, the applicant's category cannot be kept as feeder post for promotion to the post of Joint Director of Agriculture. 6(D) The contents of this para are wrong and repudiated. The applicant misrepresenting the facts of promotion avenues of the cadre of Engineering Discipline in the Agriculture Deptt. as is evident from para 6(i to iii) of the application. The promotion is available in the ...5... said discipline from the lower rung post of Junior Engineer onwards in a hierarchical structure of the cadre to the post of Joint Director Agriculture falls in different & Separate cadre for which the feeder category has been kept from amongst the Agricultural Services (Class-I Gazetted) which based on hierarchical structure of the said cadre. The cadre post of the applicant & the cadre of post of HP Agricultural Services (Class I Gazetted) are governed by separate Recruitment and Promotion Rules and the nature of their duties are different and not similar one nor these cadre post are inter-Changable at all.” 4. The learned counsel for the petitioner submits at the very out set that the case of the petitioner is covered by a judgment dated 27.6.2008 rendered by a Division Bench of this Court in CWP No. 935 of 2001, titled State of Himachal Pradesh vs. Vijay Kumar Sharma. 5. Reliance has also been placed on following pronouncements of law on the subject rendered by the Hon'ble Supreme Court: 1. Council of Scientific and Industrial Research and another vs. K.G.S. Bhatt and another, (1989) 4 Supreme Court Cases 635, paras 6, 12 and 14, which are extracted below:- 6. We may now turn to by-law 71(b)(ii) on which the Tribunal rested its conclusion. It reads as follows: “Notwithstanding anything contained in these bye-laws:..... ...6... (ii) the merit of officers of the rank of a Junior Scientific Officer/Junior Technical Officer and Senior Scientific Officer Gr. II/Senior Technical Officer Gr. II engaged in scientific work may be assessed for promotion to the next higher grade, after every five years of the appointment of the officer concerned against that post. Such assessment will also be made after completing one year's service at the maximum of the scale of pay of his grade.” ............... 12. But this Court under Article 136 exercises power only when there is supreme need. The decision on individual disputes of seniority, promotion, reversion, suspension, pay fixation, etc. are not ordinarily interfered with even though it is viewed as erroneous. The Tribunal may fall into some legal errors but if substantial justice has been rendered to a person, this Court will not interfere with such a decision. In Rashpal Malhotra v. Satya Rajput, this Court expressed the view that even if legal flaws might be electronically detected in the order of the Tribunal or court, this Court will not interfere unless there is manifest injustice or substantial question of public importance. .......... 14. In the instant case as already noticed that respondent 1 has suffered and stagnated for about twenty years in he same scale from ...7... inception due to defective promotional policy. Therefore, we decline to interfere with the relief granted by the Tribunal although we do not agree with the view expressed on the scope of bye-law 71(b)(ii). 2. Dr. Ms. O.Z. Hussain vs. Union of India, 1990(Supp) Supreme Court Cases 688, paras 7 and 8, which are as under:- 7. This Court, has no more than one occasion, pointed out that provision for promotion increases efficiency of public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A' category scientists in the non-medical wing of the Directorate. 8. This writ petition is allowed and the following directions are issued: ...8... (1) Within four months from today, the Ministry of Health and Family Welfare of the Union of India shall frame a set of appropriate rules, inter alia, providing suitable promotional avenue for the 'A' Group scientists in the non-medical wing of the establishment of Director General of Health Services; (2) These 'A' Group scientists shall be entitled to book allowance, higher degree allowance, risk allowance and conveyance allowance at the same rate as is admissible doctors in the medical wing in the Directorate w.e.f. April 1, 1989. (3) Government shall examine the tenability of the claim of equal pay scales for this category of officers within four months from today. 3. Union of India and others vs. Syed Modh. Raza Kazmi and others, 1992 Supp(2) Supreme Court Cases 534, paras12 and 13, which read as under:- 12. Now the short question is whether there is any injustice suffered by the respondents which can be remedied by the Tribunal or the Court. The respondents no doubt have a grievance that, though promoted to a grade higher than the Upper Division clerk they are being considered for promotion as Head Clerks only in accordance with their seniority in the cadre of Upper Division Clerks. This creates two types of anomalies. One is that a UDC (who has not qualified as TA) can become HC earlier than one who has, by virtue of his seniority as UDC. The second is that a senior ...9... UDC, who qualifies as a TA much later than a UDC junior to him, can become HC earlier, though, as TA, he would be junior to the latter. But as against these anomalies, one has to consider the difficulties faced by the Department in giving TAs as a class higher preference than UDCs for promotion as Head Clerks. For one thing, the Recruitment Rules of 1969 did not, naturally, envisage TAs as a feeder post for promotion as HCs and, when the posts of TAs were created, it was deliberately decided not to include them as such; the rules were not amended and the instructions only put them on par with other UDCs. This remained unchallenged and, even when challenged in 1987, the Central Government as such was not made a party and no specific directions for the amendment of the rule in this behalf were prayed for. But, this apart, there were insuperable difficulties in the way. The figures given to us indicate that there were about 13,000 Upper Division Clerks in 1978. Their promotional avenue was only to become Head Clerks by passing a ministerial service examination or to become Inspectors on passing the ITI examination. There were UDCs who could do this and get such promotions in due course. Secondly, there were Upper Division Clerks who were not capable of passing the Income-tax Inspectors' Examination but were able to qualify in the lower grade ministerial examination which made them eligible to become Head Clerks. There was a third category of Upper Division Clerks who fell in between these two categories. They did not ...10... completely pass the Income-tax inspectors' Examination but qualified in it with sufficient marks to justify the view that, given some encouragement, they would be able to move into the inspectors' executive line. The department was also in need of a category of persons who would not be simply doing clerical work but who showed such promise of developing into Inspectors. In this situation, the department created the post of Tax Assistants and promoted to these posts persons who had not fully completed the ITI examination but had secured a "limited" pass therein. This gave the UDCs who had achieved this distinction two advantages : (i) they became immediately entitled to a higher scale of pay than other UDCs, and (b) they acquired higher eligibility to become Inspectors of Income-tax for which selection they stood in between Head Clerks and other Upper Division Clerks. But they suffered this advantage (or disadvantage) that they would not become Head Clerks; their ability to pass the ITI examination was taken as an indication of their propensity to move to an executive line and so, promotion for them was to be only as ITIs in due course. So far as the rest of the UDC staff was concerned, who had qualified neither in the Income-tax Inspectors' Examination, nor in the Tax Assistants' Examination, they continued to be Upper Division Clerks. The department felt that, if the Tax Assistants were also allowed to compete for the post of Head Clerks by the mere reason of their, limited qualification in the Income-tax Inspectors' Examination at a level ...11... higher than UDCs, there would be a tremendous stagnation among the Upper Division Clerks. More than 23rd of the Upper Division Clerks would be completely shut out from at chances of promotion. However, realising that, to deny the Tax Assistants completed any promotion as Head Clerks would also amount to an anomaly since they were in no way inferior to the other Upper Division Clerks who were eligible for such promotion the department decided that while Tax Assistants should normally await promotion as Income-tax Inspectors, they should be enabled as and when their normal seniority II the rank of Upper Division Clerks warranted it, to be promoted as Head Clerks though strictly speaking, they belonged to a grad from which there would be no promotion to the posts of Head Clerks. This was a via media found by the department between the two alternatives (a) of altogether denying the Tax, Assistants promotion as Head Clerks, and (b) of treating the Tax Assistants as a cadre superior to Upper Division Clerks in al respects including promotion as Head Clerks It was a concession shown to the TAs, standing in the longer queue for ITIs, by permitting them to join the queue for HCs but with no precedence over other senior UDCs already standing in this second queue. In this situation, it is very difficult to agree that the department has acted unreasonably or unjustly. The respondents are no doubt better than the other Upper Division Clerks in the they have qualified in a limited manner in the Income-tax Inspectors' Examination which the other Upper ...12... Division Clerks have no done. But, for this "achievement", they have been given a promotion and they have been receipt of higher grades of salary right from the beginning from the day (they) became Tax, Assistants. To this extent, they have gained march over the other un- enterprising UDCs who could not qualify, wholly or partly, it the ITI examination. They have also gained preference, for promotion as ITIs, over UDCs who do not qualify as TAs but who pass the ITI's examination in due course. It is no doubt true that the promotion of the respondents as TAs has not been carried to it fullest logical sequel by giving them promotion as Head Clerks treating them as a cadre higher to UDCs entitled to such promotion But this was a calculated decision taken in the difficult situation of having to reconcile the claims of the large number of UDCs who would be left otherwise with no avenues of promotion and of the UDCs who had already earned some advantages by becoming TAs. The policy decision is not arbitrary or meaningless. It has a background and it has a purpose. It is for the department to decide on policies of promotion which will be consistent with the interests of all employees belonging to various cadres. It is not for the Administrative Tribunal or for the Courts to interfere with this and to dictate the avenues of promotion which the department should provide for its various employees. The courts cannot, we think, direct that TAs should be made a direct feeder post to HCs superior to UDCs. No doubt the Court will interfere if there is arbitrariness or resultant discrimination. But, ...13... after considering very carefully all aspects of the situation, we are unable to say that there is any such arbitrariness or discrimination. We are unable to see any ground for interfering with the policy of the department which has been in force since 1978. We may also point out that, in the proceedings before it, the Tribunal has had no opportunity to hear the point of view of the larger category of Upper Division Clerks who have not qualified to be either Inspectors or officers and whose future is fully jeopardised by the directions given by the Tribunal. This is also an additional reason why we think the Tribunal was not justified in giving such a direction as it did to the effect that the respondents should be promoted as HCs by treating them as belonging to a cadre higher than UDCs. 13. For the above reasons, we quash the Tribunal's direction to give promotion to the respondents on the basis indicated in its order. We would only like to add that, while there is no doubt some ground for complaint on the part of the respondents. it should not be forgotten that, for the "limited" qualification they had obtained, they have had clear and tangible benefits by being appointed to the higher post of TAs. They are better off then they would have been had they not qualified as TAs at all. We, therefore, do not consider it necessary to interfere in the matter. 6. In view of the above, if on facts, the case of the petitioner is covered under the Division Bench judgment of this Court in the case of Vijay Kumar Sharma, supra (CWP No. 935 of ...14... 2001), subject to the petitioner submitting a representation to respondent No. 1 alongwith copies of this judgment and the judgments referred to hereinabove, within one month from today, the said respondent shall consider the case of the petitioner for grant of reliefs prayed for with a specific reference to the prayers (i) and (ii) in the light of the aforesaid judgments and take a final decision thereon within next three months after affording to the petitioner an opportunity of being heard, if so advised. 7. Needless to say that consequential benefits, if any, shall ensue the decision on the representation and shall be payable within another one month. 8. In view of the above, the petition stands disposed of, so also the pending CMP(s), if any. (V.K. Sharma) Judge 29th November, 2010 (virender)