IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 3028/2008 Reserved on: 2.12.2009 Decided on:28.12. 2009 _____________________________________________ Raj Kumar and others. …Petitioners. Versus State of Himachal Pradesh and others. … Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Acting Chief Justice. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioners : Mr. Neel Kamal Sood and Mr. Naresh Kaul, Advocates. For the Respondents: Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Ankush Dass Sood, Addl. Advocate General for respondents No.1 and 2. Mr. D.K. Khanna, Advocate for respondent No.3. Mr. Ajay Mohan Goel, Advocate for respondent No.4. Mr. Dushyant Dadwal, Advocate for respondent No.5. Mr. Neeraj K. Sharma, Advocate for respondent No.6. ____________________________________________________ 1 Whether reporters of the local papers may be allowed to see the judgment? 2 Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that the petitioners are working as Labour Inspectors in the respondent-Department. The Recruitment and Promotions Rules for the post of Labour Officer were notified on 1.3.1966. These Recruitment and Promotion Rules were subsequently amended on 17.12.1973 and 10.8.1983. The Under Secretary (Labour and Employment) sent a communication to the Labour Commissioner- cum-Director of Employment vide Annexure P-4 in the month of July, 2006. Seven additional posts of Labour Officers were sanctioned. The State Government has framed the Recruitment and Promotion Rules under Article 309 of the Constitution of India on 5.11.2006. These rules were to come into force from the date of their publication in the Himachal Pradesh Rajpatra. These were duly published in the Himachal Pradesh Rajpatra on 16.12.2006. Initially, as per Recruitment and Promotion Rules i.e. Annexure P-1, the posts of Labour Officers were to be filled up 100% by promotion from the category of Labour Inspectors. However, on the basis of the Rules published on 16.12.2006, 25% posts were to be filled up by way of direct recruitment and 75% posts by way of promotion. The petitioners have been assigned seniority at Sr. No. 8,9 and 10, respectively. Petitioners approached the learned Himachal Pradesh Administrative Tribunal (hereinafter referred to as ‘the tribunal’ for brevity sake) for the redressal of their grievance after the issuance of new Recruitment and Promotion Rules on 16.12.2006 by way of OA No. 252/2007. In sequel to the directions issued by the tribunal, 3 the OA No. 252/2007 was ordered to be treated as representation on 24.1.2007 by the Secretary (Labour and Employment). The Secretary (Labour and Employment) rejected the representation vide Annexure P-8. Thereafter the State Government started the process of filling up the posts of Labour Officers. The petitioners again approached the tribunal by way of OA No. 2394/2007. The tribunal passed the interim order on 20.9.2007. The Tribunal directed the respondents to keep three posts vacant. However, the respondents were permitted to proceed with the matter as far as the filling of posts by way of direct recruitment was concerned. Thereafter an advertisement was issued by the State Government on 7.9.2008. One of the petitioners made representation on 10.9.2008 bringing to the notice of the authority the order passed by the tribunal on 20.9.2007. The Labour Commissioner-cum- Director of Employment sent a communication to the Additional Chief Secretary (Labour and Employment) after the receipt of representation made by one of the petitioners on 10.9.2008 i.e. Sh. Prem Singh. The State Government vide notification dated 4.11.2008 promoted respondents No. 4 to 6 to the posts of Labour Officers. Mr. Neel Kamal Sood has vehemently argued that the posts created vide Annexure P-4 by way of letter No. Shram (A) 4- 1/96 were required to be filled up on the basis of old Recruitment and Promotion Rules notified vide Annexure P-1 and further amended on 17.12.1973 and 10.8.1983. He has further argued that the action of the respondent-State to fill up the posts on 4.11.2008 is contrary to law. 4 Mr. R.K. Sharma has supported the decision of the State Government. Mr. Ajay Mohan Goel, Dushyant Dadwal and Mr. Neeraj K. Sharma have supported the decision of the State Government promoting their clients to the posts of Labour Officers. We have heard the learned counsel for the parties and have perused the pleadings carefully. The petitioners are working as Labour Inspectors. A bare perusal of Annexure P-1 dated 1.3.1966 reveals that the posts of Labour Officers were to be filled up 100% from the feeder category of Labour Inspectors. Petitioners were possessing essential qualifications and the experience for being considered for the post of Labour Officer. The State Government has created additional seven posts of Labour Officers vide Annexure P-4. This fact has been admitted by respondent No.1 in its reply. Five posts were already available. In total, there were twelve sanctioned posts of Labour Officers as on 20.7.2006. Petitioners had immediately filed original application bearing OA No. 252/2007 when the respondents initiated the process of filling up the posts on the basis of new Recruitment and Promotion Rules. Primarily, it was contended by the petitioners that additional posts as well as old posts were to be filled up according to the Recruitment and Promotion Rules notified on 1.3.1966. The tribunal directed the original application to be decided as representation by the Secretary (Labour and Employment). He decided the same on 26.7.2007. Petitioners were constrained to file another original application when the respondents again initiated the process of 5 filling up the posts by way of OA No. 2394/2007. The tribunal on 20.9.2007 after the receipt of instructions by the learned Additional Advocate General directed the respondents not to fill up three posts of the Labour Officers. However, the respondent- State was permitted to continue with the process of filling up of three posts by way of direct recruitment. As per the old Recruitment and Promotion Rules, the posts were to be filled up by way of promotion only from the category of Labour Inspectors. However, for the first time the ratio was prescribed for filling up the posts of Labour Inspector in the ratio of 25:75 by way of Recruitment and Promotion Rules notified on 16.12.2006. The question whether the vacancies occurring before the amendment to the Recruitment and Promotion Rules are to be filled up as per the old Recruitment and Promotion Rules or by way of new Recruitment and Promotion Rules is no more res integra in view of the law laid down by their Lordships of the Hon’ble Supreme Court in Y.V. Rangaiah and others versus J. Sreenivasa Rao and others, (1983) 3 SCC 284. Their Lordships 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. Their Lordships have held as under: “6. The Tribunal on consideration of the materials on record came to the conclusion that the vacancies that arose between the preparation of the panels in December, 1975 and April, 1977 were eight, and that there was no reason why panel for that period should not have been drawn up at all. It is true that after 18th of 6 October, 1975 the zones came into existence and, therefore, promotions to the grade of Sub- Registrar were required to be made on zonal basis, but after the personnel had been allocated to various zones, the task of preparing the annual panel with reference to the vacancies arising during the period 1976-77 should have been taken up on the basis of the seniority list for Zone IV. Had such a list been prepared according to the Andhra Pradesh Registration and Subordinate Service Rules, the eligibility of the candidates would naturally have been considered without reference. to the amendment issued in March, 1977. On these findings the Tribunal held that the action taken by the Inspector-General of Registration and Stamps to make appointments against vacancies arising during the period 1976-77 from amongst the 'left- overs' of the panels drawn up in April, 1975 and to dispense with the preparation of panel for 1976-77 was in violation of the rules and thus liable to be set aside, and it directed the State of Andhra Pradesh and the Inspector-General of Registration and Stamps to draw up a fresh panel for the year 1976-77 with reference to the vacancies that arose during that period, strictly in accordance with the rules as they existed at the time and the vacancies pertaining to that period should be filled on the basis of such a panel. Since the amendment to the rules was made in March, 1977, it follows that for vacancies relating to the panel year 1977-78 and subsequent year the panels will have to be prepared in accordance with the rules as they 7 were amended by G. O. Ms. No. 265-Revenue (UI) dated 22nd March, 1977.” Their Lordships of the Hon’ble Supreme Court in B.L. Gupta and another versus M.C.D., (1998) 9 SCC 223 have held that the vacancies which have arisen prior to 1995 should have been filled up according to old rules. Their Lordships have held as under: “9.When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been held to be prospective by the High court and in our opinion this was the correct conclusion. This being so, the question which arises is whether the vacancies which had arisen earlier than 1995 can be filled as per the 1995 Rules. Our attention has been drawn by Mr Mehta to a decision of this court in the case of N.T. Devin Katti v. Karnataka public service commission. In that case after referring to the earlier decisions in the cases of Y.V. Rangaiah v. J. Sreenivasa Rao, P. Ganeshwar Rao v. State of A.P. and A.A. Calton v. Director of Education it was held by this court that the vacancies which had occurred prior to the amendment of the Rules would be governed by the old Rules and not by the amended Rules. Though the High court has referred to these judgments, but for the reasons which are not easily decipherable its applicability was only restricted to 79 and not 171 vacancies, which admittedly existed. This being the correct legal position, the High court ought to have directed the respondent to declare 8 the results for 171 posts of Assistant Accountants and not 79 which it had done. 10. We are unable to agree with Shri Sanghi that by virtue of their length of service while holding current duty charge as Assistant Accountants, his clients should be regularised in the said posts. Merely because the same posts have been upgraded from Senior Clerks to Assistant Accountants, it would not mean that persons who were given the current duty charge could be regularised without any selection. The clients of Mr Sanghi presumably hold lien in the posts of Senior Clerks. If they were to be regularised as Assistant Accountants, the effect would be that they would be promoted to the said posts. The Rules of 1978 prescribe the mode in which the promotions can be made. This mode has to be followed before the appointments could be made. If no statutory rules had existed, it may have been possible, though we express no opinion on it, that the existing incumbents may have been regularised. Where, however, statutory rules exist, the appointments and promotions have to be made in accordance with the statutory rules specially where it has not been shown to us that the Rules gave the power to the appointing authority of relaxing the said Rules. In the absence of any such power of relaxation, the appointment as Assistant Accountant could only be made by requiring the candidates to take the examination which was the method which was prescribed by the 1978 Rules. 11. We are informed at the Bar by Dr Singhvi, on the basis of instructions received by 9 him, that now there are about 323 posts of Assistant Accountants. Out of these about 80 have been filled on the basis of the December 1973 examination. The respondents are directed to fill 91 more vacancies on the basis of December 1993 examination which they have already conducted. This will leave a balance of 152 vacancies. The number of persons who are holding these posts on current duty charge appears to be less than the number of vacancies so available. Therefore, there will be no immediate danger of Mr Sanghi's clients being reverted to the post of Senior Clerks. The respondents will be at liberty to continue to retain them in the higher post, but it is made clear that the vacancies which had arisen prior to amendment of the Rules in 1995 can only be filled in accordance with the 1978 Rules, which means that if Mr Sanghi's clients want to be regularly appointed as Assistant Accountants, they will have to compete with and take the examination under the 1978 Rules. This is with regard to the vacancies which remain and are required to be filled under the 1978 Rules. Any vacancies which arise after 1995 will have to be filled as per the amended Rules. It is but obvious that the seniority in all these cases will have to be fixed according to the seniority rules which are applicable.” Similarly, their Lordships of the Hon’ble Supreme Court in Arjun Singh Rathore and others versus B.N. Chaturvedi and others, (2007) 11 SCC 605 have held that vacancies occurring prior to promulgation of the Recruitment and Promotion Rules 10 were to be filled up according to the old Rules even though interview was held in 2000 when the new rules had already been notified. Their Lordships have held as under: “5. Mr. Calla, the learned senior counsel for appellants has argued that the matter was fully covered by the judgment of this Court in State of Rajasthan vs. R.Dayal 1997(10)SCC 419 wherein it had been held that the vacancies to be filled by promotion were to be filed under the rules which were in operation on the date when the vacancies had occurred. Relying on and referring to an earlier judgment in the case of Y.V.Rangaiah vs. J.Sreenivasa Rao (1983) 3 SCC 284 it was opined as under: "This Court has specifically laid (sic) that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in accordance with the law existing as on the date when the vacancies arose." 6. The above legal position has not been seriously disputed by the learned counsel for respondent Nos.6 &7. We are therefore of the opinion that the vacancies which had occurred prior to the enforcement of the Rules of 1998 had to be filled in under the Rules of 1988 and as per 11 the procedure laid down therein. We are therefore of the opinion that the judgment of the learned Single Judge needs to be restored. We order accordingly. “ Mr. Ajay Mohan Goel has referred to Delhi Judicial Services Association and others versus Delhi High Court and others, (2001) 5 SCC 145. Their Lordships of the Hon’ble Supreme Court have also taken note of (1983) 3 SCC 284 and (1998) 9 SCC 223 in this judgment. In this case, the writ petition was disposed of on the basis of consensual order dated 18.12.1986. This is the distinguishable feature in this judgment. Accordingly, this judgment will not be applicable in the facts and circumstances of the present case. The core issue involved in this petition, as noticed above, is whether the vacancies, which have occurred prior to promulgation of new rules are to be filled up by way of old rules or new rules. We are of the considered view in view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court that the vacancies which have occurred before the amendment of the Recruitment and Promotion Rules were to be filled up on the basis of old Recruitment and Promotion Rules promulgated in the year 1966 and amended from time to time. The action of respondents to proceed with the matter despite settled law has seriously prejudiced the petitioners’ right to consideration for promotion to the post of Labour Officer by way of promotion. Five posts of Labour Officers were already sanctioned. Seven additional posts were sanctioned vide Annexure P-4. 12 In view of the legal position discussed hereinabove, respondents No.4 to 6 could not be considered for appointment by way of direct recruitment. The ratio of 25:75 could be applied only after the rules were published on 16.12.2006 and not for the vacancies, which occurred before this date. Accordingly, in view of the observations made hereinabove, the writ petition is allowed. Annexure P-16 dated 4.11.2008 is quashed and set aside. Respondents No.1 to 3 are directed to consider the case of the petitioners to the posts of Labour Officers according to old Recruitment and Promotion Rules i.e. Annexure P-1 amended from time to time with all consequential benefits within a period of eight weeks from today. No costs. (R.B. Misra), Acting Chief Justice (Rajiv Sharma), Judge 28.12. 2009. *awasthi*