IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 6458 of 2008. Date of decision 12.11.2010. --------------------------------------------------------------------------------- Dinesh Kumar & another. ....Petitioners. Versus State of H.P. & others. ....Respondents. ---------------------------------------------------------------------------------- Hon'ble Mr. Justice: V.K. Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Ranjan Sharma. For the respondents: Ms Ruma Kaushik, Addl. A.G. --------------------------------------------------------------------------------- Justice V.K. Sharma, (oral): Though the petition has been filed for the grant of numerous reliefs but at the time of hearing, the learned counsel for the petitioners has restricted the same only with regard to the substantive reliefs as at para 7 (iv) to (vi), which are to the following effect:- “iv) The respondents may be directed to consider the case of the applicants for promotion as Grade- III carpenters in the pay scale of Rs. 950-1800/- w.e.f. 1.1.1990 as per the Rules vide Annexure A-8, without the requirement of educational qualifications for the applicant forthwith by invoking the relaxation clause as per Rule 17 of Rules forthwith. v) That in the alternative, the provision of Rule 7 & 8 which totally debars the applicants for further promotion as Grade-III carpenters in the scale of Rs. 950-1800, may kindly be declared illegal, malafide and ultra-vires the constitution of India- vi) That the R&P Rules vide Annexure A-8 for the post of Grade-II/III carpenters, which do not prescribe any promotional avenue for promotion to the aforesaid post, to the applicants (who are Grade-IV) (earlier Grade-I carpenters) do not possess the qualification of middle and or the certificate etc. on the basis of length of service of the applicants which a valid classification”. 2. In the reply filed on behalf of the respondents, the following stand has been taken: “The applicant is Middle Pass and does not posses of I.T.I. Diploma in the trade of Carpenter. As per the R&P Rules of Carpenter Grade so published in the year 1995 Grade-IV and then Gr-I. The mode of recruitment is 100% by promotion through respective feeder category.” He will be considered for the promotion to the post of Gr.III carpenter in the pay scale of Rs. 950-1800 as per R&P Rules, as and when his turn comes according to the seniority and roster on the availability of the vacancy to the said post. Hence his present claim is without any basis.” 3. Some undisputed facts may be noticed first. The petitioners joined the employment of the respondents, particularly respondent No.3 as carpenter Grade-IV in the year 1983. The Rules known as 'Recruitment and Promotion Rules for the post of Work Charged Carpenter Grade-III in the department of PWD' (for short R&P Rules), Annexure A-8 were framed thereafter. Later on in the year 1995 qualifying service of 5 years as Carpenter Grade-IV was also included in the R&P Rules, which the petitioners completed only in the year 1996. Apart from the minimum qualifying service of 5 years, another eligibility condition was relating to qualification which was provided as middle examination alongwith a certificate in the trade of Carpenter from a recognized institution. Though, the petitioners were middle pass, yet they were not having any certificate in the trade of Carpenter, which was and is a hurdle in their way for the promotion as Carpenter Grade-III. However, the fact remains that they have been working as carpenter grade-IV for a long time since, 1983. 4. In support of their claim for promotion, the petitioners have relied upon a judgment of the Hon'ble Supreme Court reported as A. Satyanarayana and others vs. S. Purushotham and others 2008 (5) SCC, 416. Paras 28, 30 and 34 of the judgment being relevant are extracted below:- “28. The superior courts, while exercising their power of judicial review, must determine the issue having regard to the effect of the subordinate legislation in question. There must exist a rational nexus between the impugned legislation and the object of promotion. Promotions are granted to a higher post to avoid stagnation as also frustration amongst the employees. This Court, in a large number of decisions, has emphasized the necessity of providing for promotional avenues. (See Food Corporation of India v. Parashotam Dass Bansal). The State, keeping in view that object, having found itself unable to provide such promotional avenue, provided for the scheme of accelerated career progress (ACP). The validity and effect of the impugned legislation must be judged keeping in view the object and purport thereof. This Court would apply such principle of interpretation of statute which would enable it to subserve the object in place of subverting the same. 30. Although mere chance of promotion is not a fundamental right, but right to be considered therefor is. In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all times to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India. 34. A statutory rule, it is trite law, must be made in consonance with constitutional scheme. A rule must not be arbitrary. It must be reasonable, be it substantive or a subordinate legislation. The legislature, it is presumed, would be a reasonable one. Indisputably, the subordinate legislation may reflect the experience of the rule-maker, but the same must be capable of being taken to a logical conclusion.” 5. Reliance has also been placed on a judgment rendered by this Court in CWP(T) No. 7449 of 2008, titled Lalit Kumar v. State of H.P. and others decided on 7.5.2009. 6. In view of the above legal position, the petition is disposed of with a direction to the respondents to consider the case of the petitioners for promotion to the post of Carpenter Grade-III on and w.e.f. the date when their juniors, if any, in the cadre of Carpenter Grade-IV were promoted as Carpenter Grade-III in the light of the law laid down by the Hon'ble Apex Court in the judgment referred to here-in-above. The needful shall be done within a period of three months from the date of production of certified copy of this judgment by the petitioners within one month from today. Needless to say that in the event of the petitioners being favourably considered for promotion, consequential benefits would follow. 7. With these observations, the writ petition is disposed of so also the pending application(s), if any. (V.K. Sharma) Judge. 12th November, 2010 (KCK) CWP (T) No. 7250 of 2008. 12.11.2010: Present: Mr. J.L, Bhardwaj, Advocate, vice counsel for the petitioner. Mr. Vinod Thakur, Advocate for respondents No. 1 & 6. Mr. Pushinder Singh Jaswal, Advocate, for respondents No. 2 to 5. At the request of the learned vice counsel for the petitioner, list on 16.11.2010. (V.K. Sharma) 12th November, 2010. Judge. (KCK) 12.11.2010: Present: Smt. Kamlesh Kumari alongwith her husband Sh. Mohinder Kumar. Sh. Surinder Kumar alongwith his Sh. Puneet Kumar. The case has been taken up for settlement at 2.00 p.m. In the first session, both the parties joined. Thereafter, it was deemed proper to have separate session, which was first started with talk to Smt. Kamlesh Kumari and Mohinder Kumar and thereafter, with Sh. Surinder Kumar and his son Sh. Puneet Kumar. Needless to point out that keeping in view the nature of the dispute, I thought it proper to take assistance of Sh. D.K. Shrma, Coordinator Mediation Center. The mediation proceedings have taken place by getting counter proposals from both the parties and now, there appears to some ray of hope for settlement of dispute. Hence, it is proper that the parties are given some more time. The proceedings are concluded at 5.00 p.m. and next session will be held on 10.12.2010 at 1.00 p.m. (G.D. Verma) Sr. Advocate.