IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP-T No. 2573/2008 Decided on:22.6.2010 _____________________________________________ Rama Nand. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mrs. Ranjana Parmar, Advocate. For the Respondents: Mr. P.M. Negi, Dy. Advocate General. _____________________________________________________ Rajiv Sharma, Judge (oral). Petitioner was engaged as a Patwari in the year 1976. He was appointed to the post of Kanungo on 25.7.1987. He was reverted to the post of Patwari. He made representation against his reversion and thereafter he was again promoted to the post of Kanungo on 5.12.1990. He appeared in the departmental examinations on 11.6.1991, 21.4.1992 and June, 1994. He could not qualify few papers. He was reverted to the post of Patwari on 1.7.1995. 2. Mrs. Ranjana Parmar has strenuously argued that as per old Recruitment and Promotion Rules governing the promotion 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 to the post of Kanungo, passing of departmental examination was not sine qua non. In other words, her submission is that respondents could not insist for passing departmental examination by the petitioner on the basis of Recruitment and Promotion Rules promulgated in the 1992 for the post of Kanungo. 3. Mr. P.M. Negi, learned Deputy Advocate General has strenuously argued that since the petitioner could not qualify the departmental examination, there is no illegality in reverting him to the post of Patwari vide order dated 1.7.1995. 4. I have heard the learned counsel for the parties and have perused the record carefully. 5. Respondent-State was directed to file supplementary affidavit on 20.3.2010 regarding availability of vacancies of the posts of Kanungo before promulgation of 1992 Rules. In sequel thereto, the supplementary affidavit has been filed by respondents 1 and 3 on the affidavit of Ritesh Chauhan. Para 2 of the supplementary affidavit reads thus: “That before promulgation of 1992 Rules post of Kanungo was available therefore Shri Rama Nand Patwari was promoted as Kanungo on 5.12.1990 and due to non qualifying of Kanungo examination after availing of 4 chances and on the representation made by other eligible candidates/Patwaris the DPC had decided to revert the above official in the DPC meeting held on 27.6.1995 and vide order No. 781/SK dated 1.7.1995 official was reverted as Patwari.” 6. It is thus evident that post of Kanungo was available before the publication of 1992 Rules governing the 3 appointment/promotion to the post of Kanungo. It is settled law by now that old vacancies are to be filled up on the basis of old Recruitment and Promotion Rules and new vacancies are required to be filled as per new Recruitment and Promotion Rules. 7. Their Lordships of the Hon’ble Supreme Court in Y.V. Rangaiah and others versus J. Sreenivasa Rao and others, AIR 1983 SC 852 have held as under: “9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewide basis and therefore, there was no question of challenging the new rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.” 8. Similarly, their Lordships of the Hon’ble Supreme Court in A. Manmohran and others versus Union of India and others, (2008) 3 SCC 641 have held that vacancies existing prior to amendment to the rules are to be filled up according to the rules applicable prior to amendment. Their Lordships have held as under: 4 “25. Furthermore, the Regulations have been amended only with effect from 11.8.2004. It would have a prospective effect. It cannot be applied retrospectively. Any vacancy which has arisen prior to coming into force of the said amended Regulations must be filled up in terms of the law as was existing prior thereto. (State of Rajasthan v. R. Dayal (1997) 10 SCC 419, SCC para 8).” 9. Moreover, the petitioner has not been issued any notice before he was reverted vide office order dated 1.7.1995. The petitioner has suffered civil and evil consequences. Accordingly, it is held that since one post of Kanungo was lying vacant as per the contents of the supplementary affidavit before the enforcement of new Recruitment and Promotion Rules, the same was to be filled up by way of promotion as per the old Recruitment and Promotion Rules. 10. Consequently, in view of the observations made hereinabove and the definitive law laid down by the Hon’ble Supreme Court, the petition is allowed. Annexure A-8 dated 1.7.1995 is quashed and set aside. Petitioner is held entitled to all the consequential benefits. No costs. (Rajiv Sharma), Judge 22.6.2010 *awasthi*