IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1646/2011-B along- with CWP Nos. 4130/2011-E and 7088/2011-B Reserved on: 3.11.2011 Decided on: 21.12.2011 _____________________________________________ 1. CWP No. 1646/2011 Kam Raj son of late Sh. Khoob Ram r/o village and Post Office Kandha, Tehsil Thunag, District Mandi, H.P. presently Class IV employee, Veterinay Dispensary, Bagsaid, Tehsil Thunag, District Mandi, H.P.. …Petitioner. Versus 1. State of H.P. through Secretary (Animal Husbandry) to the Government of H.P. Shimla 2. Director, Department of Animal Husbandry, Himachal Pradesh, Shimla-5. …Respondents. 2. CWP No. 4130/2011 Raj Kumar son of Sh. Bhim Singh, r/o village Bhajrala, P.O. Matroo, Tehsil Jogindernagar, District Mandi, H.P. presently class –IV employee, Veterinary Dispensary Pandol, Tehsil Jogindernagar, H.P.. …Petitioner. Versus 3. State of H.P. through Secretary (Animal Husbandry) to the Government of H.P. Shimla 4. Director, Department of Animal Husbandry, Himachal Pradesh, Shimla-5. …Respondents. 3. CWP No. 7088/2011 Suresh Kumar son of Panju Ram r/o village Moulichak, P.O. Saliana, Tehsil Palampur, District Kangra, H.P. presently Class-IV employee, Veterinary Hospital Salyana, Tehsil Palampur, District Kangra, H.P. …Petitioner. Versus 2 5. State of H.P. through Secretary (Animal Husbandry) to the Government of H.P. Shimla 6. Director, Department of Animal Husbandry, Himachal Pradesh, Shimla-5. …Respondents. Civil Writ Petition under Article 226 of the Constitution of India. _______________________________________________________ Coram: Hon’ble Mr. Justice Kurian Joseph, Chief Justice. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. (in all the petitions) For the petitioner : Mr. Keshav Thakur, Advocate. For the Respondents: Mr. Ankush Dass Sood, Addl. A.G. with Mr. J.K. Verma, Dy. A.G. ____________________________________________________ Per Justice Rajiv Sharma, Judge. Since common questions of law and facts are involved in all these petitions, the same were taken up together and are being disposed of by a common judgment. However, in order to maintain clarity, the facts of CWP No. 4130/2011 are being taken into consideration. 2. Material facts necessary for the adjudication of these petitions are that the petitioner in CWP No.4130/2011 has passed matriculation examination with science on 7.7.1981. He was selected as daily wage Class-IV employee on 1.1.1984. He was regularized as Class-IV employee in the respondent-department on 1.4.1995. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 3 3. The Himachal Pradesh Animal Husbandry (Class-IV) Non-Gazetted Employees’ Organization approached this Court by way of CWP No.950/2010 for the redressal of the grievance of its members. CWP No. 950/2010 was disposed of by this Court on 30.3.2010. Operative portion of judgment dated 30.3.2010 reads thus: “It is for the petitioners to approach the Government in which case the Government would get opportunity to look into the matter and take appropriate action thereon in accordance with law. The writ petition is hence disposed of as follows; The petitioners may file appropriate representations before the first respondent. In the event of the petitioners filing representations within one month from today, the first respondent shall consider the same within another three months from the date of production of a copy of this judgment along with a copy of the writ petition.” 4. Thereafter, the representation was made by the petitioner. The same was rejected on 19.6.2011. The representation has been primarily rejected on the ground that on same and similar facts CWP No. 275/2009 has been rejected by a Division Bench of this Court on 4.8.2008, titled as Nehar Singh and others versus State of H.P. and another. 5. Respondent-State has framed Recruitment and Promotion Rules called “Himachal Pradesh Animal Husbandry Department, Veterinary Pharmacist (Class-III, Non Gazetted) Recruitment and Promotion Rules, 2002” under Article 309 of the Constitution of India. These Rules were notified on 23.5.2002. According to these Rules, the 4 total cadre strength of Veterinary Pharmacist was 2066. The minimum qualification prescribed for direct recruitment was matriculation examination with Science (Physics and Chemistry) or its equivalent examination from a recognized Board/University recognized by the State Government and should have passed the prescribed Veterinary Pharmacist training course from departmental training centre for the duration as may be prescribed in the Training Regulations of this category by the Government from time to time. 75% posts were to be filled up by direct recruitment and remaining 25% by promotion, failing which by direct recruitment. Minimum educational qualification for the promotees was also the same as prescribed for direct recruits. 25% promotional posts were to be filled up from amongst the departmental Class-IV employees, who were matric pass with science or its equivalent examination from a recognized University or Board and also possessed one year regular service or regular combined with continuous ad hoc service rendered upto 31.3.1998 plus five years service on daily wages in the Department. He should have also passed the prescribed pharmacist training course from the Departmental Training Centre for the duration as prescribed in the Training Regulations for this category by the Government from time to time. 6. The respondent-State initiated process for selecting Class-IV employees for Pharmacist training on 5 26.9.2002 from those Class-IV employees, who had put in five years daily wage service and one year regular service on 31.8.2002 with matriculation with science. The necessary information of the Class-IV employees with their seniority and original matriculation certificate was to be supplied before 10.10.2002 by all the Assistant Directors. The respondent-State amended the Recruitment and Promotion Rules on 31.7.2003. For the existing provision, against column No. 7(A) I, the following provision was substituted, namely: “Should have passed the 10+2 or its equivalent examination and also should have passed the Matriculation Examination with Science (Physics and Chemistry) from the Board/University recognized by the State Government.” 7. For the existing provision against column No.10, the following was substituted: “87 ½% by direct recruitment. 12½ % by promotion failing which by direct recruitment.” 8. Similarly, in the existing provision against column No.11, the following substitution was made: “By promotion from amongst the departmental Class-IV employees who possess one year regular service or regular combined with continuous ad hoc service rendered in the grade plus 5 years service on daily wages in the department: Provided that he should have passed the prescribed Pharmacist Training Course from Departmental Training Centres for the duration as prescribed in the Training Regulations of this category by the Government from time to time.” 6 9. Mr. Keshav Thakur has strenuously argued that names of the petitioners and similarly situate persons were required to be sponsored on the basis of Annexure P-5 dated 26.9.2002 strictly as per the regulations notified on 9.2.1985 whereby qualification of matriculation with science has been prescribed for sponsoring the names of candidates for Veterinary Pharmacist course. He then argued that the amendment carried out in the Recruitment and Promotion Rules with effect from 31.7.2003 could not be given retrospective effect to destroy the vested/accrued rights of the petitioners and similarly situate persons. He also argued that the new guidelines though approved by the Cabinet on 31.10.2002 were never notified. He further argued that by way of amendment carried out in the year 2003, only rule 7- A (i) has been substituted, but rule 7-A (ii) has been retained, which talks of passing of Veterinary Pharmacist training from the department training centre for the duration as may be prescribed in the training regulations of this category by the Government from time to time. He further contended that column 11 also talks of training regulations and not guidelines. Thus, according to him, order dated 19.6.2010 is illegal and arbitrary, as such, violative of Articles 14 and 16 of the Constitution of India. 10. Mr. Ankush Sood, learned Additional Advocate General has supported the decision dated 19.6.2010. According to him, the issues raised in these petitions have 7 already been adjudicated upon by a Division Bench of this Court in CWP No. 275/2005 decided on 4.8.2008. According to him, though the process had commenced for sponsoring Class-IV employees on 26.9.2002 but the same was put in abeyance after the new guidelines had come into existence as per Annexure SA-2 dated 14.11.2002. He further argued that the process initiated was scuttled as per Annexure SA-3 dated 4.4.2003. He has also argued that now the candidates are being sponsored, who are in possession of 10+2 qualification and four batches have already been sent for training. 11. We have heard the learned counsel for the parties and have perused the pleadings carefully. 12. It will be apt at this stage to take into consideration the Regulations called “The Himachal Pradesh Animal Husbandry Department Training Regulation for Pharmacist” dated 19.12.1984, which were duly published in the Rajpatra on 9.2.1985. According to these Regulations, the eligibility for the new entrants was matriculation with science (Physics and Chemistry) or equivalent examination from recognized University or Board. 25% of candidates to be sponsored out of Class-IV employees, who were matriculate with chemistry and physics/general science having five years regular service in the Department and 75% by selection from open market and these candidates were required to be from rural areas. In service Class-IV officials were to be treated 8 on duty for all intents and purposes and were to get their salaries from the offices from where they were getting at the time of their proceeding for the training. According to the Recruitment and Promotion Rules notified on 23.5.2002, the minimum essential qualification was matriculation examination with science with physics and chemistry or its equivalent examination for promotion from amongst the Departmental Class-IV employees. The mode of recruitment was 75% by direct recruitment and 25% by promotion failing which by direct recruitment. It is mentioned in rule 7 that the candidate should have passed the prescribed Veterinary Pharmacist training course from Departmental training centre for the duration as may be prescribed in the Training Regulations of this category by the Government from time to time. Similarly, in rule 11 for promotion from amongst the Departmental Class-IV employees, there is a condition that the Departmental candidate should have passed the prescribed Pharmacist Training Course from Departmental Training Centres for the duration as prescribed in the training regulations for this category by the Government from time to time. The rules notified on 23.5.2002 are required to be read in conjunction with the Himachal Pradesh Animal Husbandry Department Training Regulations for Pharmacists. According to these Regulations, minimum essential qualification prescribed is only matric with science (physics and chemistry). 9 13. Respondent-State has already initiated the process for sponsoring the names of Class-IV employees for Veterinary Pharmacists Training on 26.9.2002. The Assistant Directors, Department of Animal Husbandry, Himachal Pradesh were directed to supply the requisite information by 10.10.2002. However, in the meantime, new guidelines were approved by the Cabinet for selection of candidates for the Veterinary Pharmacist Training Course, vide Annexure SA-2 dated 14.11.2002. According to these guidelines, written test was to be conducted by C.S.K.H.P.K.V., Palampur for selection of candidates for admission to the two years training course. The minimum essential qualification was 10+2 examination. It was also stipulated therein that 12.5% candidates of the batch of 400 candidates would be reserved for Class-IV candidates of Animal Husbandry Department having 5 years service in the Department after fulfilling the requisite qualification, i.e. 10+2 examination. 14. We had passed the following order on 1.9.2011: “During the course of hearing, it has come out that the Animal Husbandry Department had duly notified the Regulations for training of veterinary pharmacists. According to the learned Additional Advocate General, the notification was first issued on 19.12.1984. However, it is seen from the government’s letter dated 14.11.2002 that these Regulations were kept in abeyance and a new set of guidelines was issued, as approved by the Cabinet. There will be a direction to the respondents to file a supplementary affidavit producing the Regulations, specifying the dates on which the Regulations of 1984 were notified in the Rajpatra and also the new guidelines of the year 2002. It shall also be 10 specified in the affidavit as to whether the new guidelines had been notified, as was duly done in the case of the previous one. It shall also be further clarified in the affidavit as to when was the decision taken to keep in abeyance the Regulations and with effect from what date the new guidelines were introduced and whether such decision was also duly notified. Still further, it shall be made clear in the affidavit as to how many training programmes were conducted as per new guidelines and in such training programmes how many class-IV employees had been included as per the 10+2 qualification or /and on relaxation. Post on 21st September, 2011.” 15. In sequel to order dated 1.9.2011, the supplementary affidavit has been filed by respondent No.2. According to the averments contained in the supplementary affidavit, 1984 Regulations were published in Rajpatra on 9.2.1985. The new guidelines were not notified in the Rajpatra as the decision was taken with the approval of the Government and the same was conveyed by the Government vide Annexure SA-2 dated 14.11.2002. We had issued another set of directions to the respondent-State on 12.10.2011, which read thus: “Though the learned Additional Advocate General harped on the several legal as well as factual positions, there appears to be an undisputed legal as well as factual position, as is discernable from the records available before this Court at this stage. In the judgment, dated 4th August, 2008 in CWP No. 275 of 2005, passed by the Division Bench of this Court at paragraph 5, it is stated as follows:- “On 11th September, 2002 advertisement was issued for filling in 400 seats in the Veterinary Pharmacist Training Course. Out of these seats, 100 seats were reserved for class-IV departmental staff. Thereafter, a letter was issued on 13th September, 2002 that only the names of those employees who had passed 10+2 11 examination having done matriculation with science subject should be sponsored for training.” 2. Though we made an attempt to find out the basis of that letter, we have not been able to lay our hands on the records as available with us. In the letter, dated 14th November, 2002 from the Under Secretary (Animal Husbandry) to the Government of Himachal Pradesh, there is a reference to the Cabinet decision on certain issues regarding the conduct of entrance test for admission to two years’ Veterinary Pharmacist Training Course. There cannot be any dispute that entrance test is only for direct recruits and not for the promotees. Therefore, ex facie the Cabinet decision, as such, may not apply to promotees. Be that as it may, there is no reference to the date of Cabinet decision as to whether the same is prior to 11th September, 2002 or not. At any rate, the same has not been duly notified, as is clearly admitted in the affidavit, dated 20th September, 2011, filed by the Director on a query from this Court. It has to be noted that the training regulations, as originally framed, had been duly notified and the same have been in force ever since 1984. The 1984 training regulations prescribed qualification for training in respect of 25% quota of promotees as matric with Chemistry with Physics/General Science only. There is no valid, proper or legal amendment to these regulations. Still further, it has to be noted that admittedly amendment in the R&P Rules for appointment to the post of Veterinary Pharmacist came into force only on 31st July, 2003 and which prescribed qualification to the post as 10+2 and matriculation with science. The quota of the promotees has also been reduced to 12 ½ % from 25%. 3. From the letter, dated 26.9.2002, which is Annexure P-5 in CWP No. 4130 of 2011 from the Director, it is seen that availability of class-IV employees, who fulfilled the qualification matric with science had been called for the purpose of sending them for training. Necessarily, this is for the purpose of filling up 25% of the quota of 400 posts, already advertised. 4. The position emerging from the factual matrix is as follows:- (i) When 400 posts were sought to be filled up in September, 2002, the qualification, both for direct and promotees, was 12 only matric with science, since the amendment in the R&P Rules was notified only on 31.7.2003. (ii) Of the 400 posts, 100 were to be given to the in-service candidates. (iii) The in-service candidate(s) can be appointed only after training. In other words, the intending appointees are sent for training and those candidates needed to fulfill only the qualification as on September, 2002. (iv) Whether the candidates, both in the direct and promotees, are initially appointed and sent for training or recruited and sent for training and after training their appointment is not quite clear. 5. In the above circumstances, there appears to be a good case for the in-service candidates who fulfilled the qualification in terms of the un-amended R&P Rules and also the regulations for laying a claim in respect of 100 vacancies out of 400 vacancies, already notified in September, 2002. 6. There will be a direction to the Director to file an affidavit with reference to the position as discussed above. It shall also be clarified as to what is the fate of selection as per advertisement for 400 posts, made in September, 2002. There shall also be a specific clarification on point (iv). Post on 19th October, 2011.” 16. In sequel to the directions issued by us on 12.10.2011, supplementary affidavit has been filed by respondent No.2 on 22.10.2011. According to this affidavit, the new guidelines were approved by the Cabinet on 31.10.2002 and vide letter dated 14.11.2002, educational qualification has been increased from matric to 10+2. It is also averred in the supplementary affidavit that the advertisement made for 400 posts in the month of September, 2002 was cancelled. The gist of the supplementary affidavit is that 12.5% quota was reserved for the category of Class-IV employees, who were possessing 10+2 qualification. 13 17. The Regulations were duly framed on 19.12.1984 whereby detailed procedure has been laid down for sponsoring the names of the candidates from Class-IV employees, who were possessing matriculation qualification with science. The ratio prescribed was 25% for Class-IV employees and 75% by way of direct recruitment. These regulations are also referred to in the Recruitment and Promotion Rules notified under Article 309 of the Constitution of India on 23.5.2002. The process was also initiated, as noticed above, for sponsoring the names of Class-IV employees on 26.9.2002. The process has been stalled only on the basis of guidelines approved by the Cabinet on 31.10.2002 conveyed vide Annexure SA-2 dated 14.11.2002. These guidelines are in conflict with the Regulations, i.e. Annexure SA-1. These were notified in Rajpatra on 9.2.1985. The new guidelines have never been notified by the State Government. The qualification and the mode of recruitment prescribed under the Regulations coupled with Recruitment and Promotion Rules notified on 23.5.2002 could not be altered to the disadvantage of the petitioners on the basis of letter dated 14.11.2002. The process once initiated as per letter dated 26.9.2002 read in conjunction with 1984 Regulations was required to be completed till the Regulations framed in the year 1984 were repealed/substituted in accordance with law. What has been stated in letter dated 14.11.2002 is that the 14 Regulations framed in the year 1984 for training course of Veterinary Pharmacist were to be held in abeyance and new guidelines have been approved by the Government. There is no tangible evidence placed on record to show when 1984 Regulations were superseded/rescinded. Even according to amendment carried out in the Rules on 31.7.2003, there is a reference of training regulations and not guidelines, vide Annexure SA-2 dated 14.11.2002 18. The matter is required to be considered from another perspective. According to the pleadings, 297 seats were available for Class-IV employees to make them eligible for sponsoring their names for Veterinary Pharmacist Training course and thereafter they were to be promoted as Veterinary Pharmacist. This was the position when 1984 Regulations and Recruitment and Promotion Rules notified on 23.5.2002 were in force. The amendment has been carried out on 31.7.2003 whereby qualification of 10+2 has been prescribed and the quota has been reduced from 25% to 12.5% of Class-IV employees. 19. We are of the considered view that letter dated 14.11.2002 and the amendment dated 31.7.2003 were prospective and could not be given retrospective effect, more particularly, when the process had already been initiated on 26.9.2002 for sponsoring the names of petitioners and similarly situate persons against 25% quota with matriculation with science as qualification. The regulations 15 could not be put in abeyance only on the basis of guidelines. It is settled law that if there is a conflict between Act and Rules, the Act will prevail, if there is a conflict between Rules and Regulations, Rules will prevail and if there is a conflict between Regulations and instructions/guidelines, Regulations would prevail. 20. It has come in the supplementary affidavit filed by the State that the guidelines issued by the State were never published. 21. Their Lordships of the Hon’ble Supreme Court in Harla versus The State of Rajasthan, AIR (33) 1951 SC 467 have held that natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognizable way so that all men may know what it is or at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. Their Lordships have further held that in the absence of any law, rule, regulation or custom, a law cannot come into being by merely passing a resolution without promulgation or publication in the Gazette or other means. Promulgation or publication of some reasonable sort is essential. Their Lordships have held as under: “8. We do not know what laws were operative in Jaipur regarding the coming into force of an enactment in that State. We were not shown any, nor was our attention drawn to any custom which could be said to govern the matter. In 16 the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before the law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential. '' 22. Their Lordships of the Hon’ble Supreme Court in Y.V. Rangaiah and others versus J. Sreenivasa Rao and others, (1983) 3 SCC 284 have held that the vacancies in the promotional posts occurring prior to the amendment have to be filled up in accordance with the un-amended rules. 23. In the instant case the Regulations were framed in the year 1984 and the same were published in the year 1985. The rights, which have accrued to the petitioners on the basis of un-amended rules read with Regulations framed in the year 1984, could not be taken away merely on