IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.16413/2008 Reserved on: 6.9.2010 Decided on: 14.9. 2010 _____________________________________________ Rajinder Prasad Dhiman. …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 : Mr. Ranjan Sharma, Advocate. For the Respondents: Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General for respondent No.1. None for respondent No.2. Mr. Sanjay Jaswal, Advocate for respondent No.3. _____________________________________________________ Rajiv Sharma, Judge. Petitioner was appointed as a Junior Engineer in the year 1974. He was promoted to the post of Assistant Engineer on 13.4.1999. Respondent-State has framed the Recruitment and Promotion Rules called “The Recruitment and Promotion Rules for the post of Executive Engineer (Civil) (Gazetted) Class-I in the Department of Irrigation and Public 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Health, Himachal Pradesh (hereinafter referred to as ‘the rules’ for brevity sake). These were notified on 2.4.1997. The post of Executive Engineer is a selection post. According to rule 11, 70% of the promotion are to be made from the amongst Graduate Assistant Engineers with eight years of regular service or regular combined with continuous ad hoc service rendered upto 31.3.1991 and remaining 30% by promotion from amongst Diploma Holder Assistant Engineers with eight years regular service or regular combined with continuous ad hoc rendered upto 31.3.1991, failing which by deputation from amongst Executive Engineers working in the identical pay scale in other Government Department. For the purpose of promotion, 10 point roster is required to be followed. Respondent-Department promoted respondents No.2 and 3 on the basis of the recommendations made by the Departmental Promotion Committee on 9.5.2006 and 1.2.2007, respectively. Petitioner made representation against the promotions of respondents No. 2 and 3 to the Principal Secretary (IPH) on 22.3.2007. 2. Mr. Ranjan Sharma has strenuously argued that the promotions of respondents No. 2 and 3 to the post of Executive Engineer made vide Annexures A-3 and A-4 are violative of Recruitment and Promotion Rules notified on 2.4.1997. He further contended that the post of Draftsman is 3 not in the feeder category for promotion to the post of Executive Engineer. In other words, his submission is that only Assistant Engineers could be promoted to the post of Executive Engineers. 3. Mr. P.M. Negi, learned Deputy Advocate General and Mr. Sanjay Jaswal have strenuously argued that since the names of respondents No.2 and 3 were reflected in the list of Assistant Engineers, they have rightly been promoted to the post of Executive Engineers on the recommendations made by the Departmental Promotion Committee. 4. Notice was issued to respondent No.2 on 21.7.2010. He was duly served. However, neither he appeared nor he was represented by Advocate. 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 6. Petitioner was promoted as Assistant Engineer from amongst the diploma holders’ quota on 13.4.1999. Respondent-State has framed the rules, as noticed hereinabove. A bare perusal of the rules reveals that only Assistant Engineers are in feeder category for promotion to the post of Executive Engineers, which is required to be filled in the ratio of 70:30 from amongst the Graduate Assistant Engineers to the extent of 70% and from amongst the Diploma Holder Assistant Engineers to the extent of 30%. The post of 4 Draftsman does not find mention in these rules. In these circumstances the promotion of respondents No.2 and 3 to the post of Executive Engineer is in violation of the mandatory provisions of the Recruitment and Promotion Rules. The Recruitment and Promotion Rules are required to be followed scrupulously. Respondents No.2 and 3 were working as Draftsmen and they could not be considered for promotion as Executive Engineer being ineligible. Petitioner has made representation against the promotions of respondents No. 2 and 3 on 22.3.2007. He brought to the notice of the Principal Secretary (IPH) that respondents No.2 and 3 were not eligible to the post in question. 7. There is no merit in the contention of Mr. P.M. Negi and Mr. Sanjay Jaswal that respondents No.2 and 3 have been promoted merely on the basis of their names included in the list of Assistant Engineers. These persons could not be promoted even though their names find mention in the seniority list of Assistant Engineers since the post of Draftsman is not in the feeder category for promotion to the post of Executive Engineer. There is also no merit in the contention of Mr. P.M. Negi and Mr. Sanjay Jaswal that since there was no specific bar in the Recruitment and Promotion Rules for considering the category of Draftsmen, they have rightly been considered and promoted. Merely that the 5 Draftsmen are not barred from being considered for promotion to the post of Executive Engineer does not presupposes that they are eligible for promotion to the post of Executive Engineer. There is fallacy in the argument of Mr. P.M. Negi and Mr. Sanjay Jaswal. In these circumstances, respondents No.2 and 3 were wrongly considered and promoted. They could not be promoted as Executive Engineers since they were neither Assistant Graduate Engineers nor Diploma Holder Assistant Engineers. They had only passed certificate in Draftsman Trade. 8. Their Lordships of the Hon’ble Supreme Court in H.R. Ramachandraiah and another versus State of Karnataka and others, (1997) 3 SCC 639 have held that one category cannot be transposed by interpretation of rules, and fitted into altogether a different category of service, merely because channel of promotion in that service is not provided. Their Lordships have further held that unless the petitioners get into the channel of promotion under statutory rules, they cannot, by interpretation, be fitted into a category to which they did not belong and cannot claim promotion on that basis. Their Lordships have held as under: “3. It would appear that by giving retrospective promotions to various persons, huge public funds have been frittered away by an illegal action of the Director of Horticulture and, therefore, the aforestated direction came to be issued. While reiteration that action should be taken 6 against erring officers and personal responsibility also fixed; apart from that, disciplinary action should be taken against the persons concerned. We do not think that there is any force in the contention raised by the learned counsel for the petitioners. May be that the learned counsel for the petitioners. May be that the learned single judge of the High Court had taken the view that the petitioners. May be that the learnedsingle judge of the High Court had taken the view that the Laboratory Attenders could also be treated as Head Gardeners. Unless the Rules are integrated and the channel of promotion is given, by interpretation one category cannot be transposed from other channels and fitted into altogether a different category of service merely because channel of promotion in that service is not provided. Under these circumstances, unless the petitioners get into the channel of promotion under the statutory Rules, they cannot by interpretation be fitted into the category to which they do not belong and cannot claim promotion on that basis. Accordingly, we do not find any illegality in the order passed by the Tribunal warranting interference.” 9. In the instant case also, the category of Draftsmen could not be transposed as feeder category for promotion to the post of Executive Engineer merely on the basis of interpretation/construction. 10. Their Lordships of the Hon’ble Supreme Court in Mangni Lal versus State of Rajasthan, (2007) 9 SCC 189 have held that where feeder post to promotional post is provided under rules claim for promotion from the post next below the feeder post cannot be allowed. Their Lordships have held as under: 7 “5. Column 6 of the Rajasthan Mines & Geological Service Rules, 1960 (for short, 'the Rules') lays down the minimum qualification and experience required for promotion, which is in the following terms: "3 years experience in case of holders of degree in Mining Engineering or equivalent and 7 years experience in case of Diploma Holders in Mining Engineering from a recognized Institution on any post in Subordinate Mines and Geological Service not lower than Mines Foreman Grade-II. 10. 'Eligibility' and 'Experience' stand on different footings. For filling up the post by way of promotion, there must exist a channel. In absence of any channel, promotion cannot be effected. 11. The Rule must be read in its entirety. So read, there cannot be any doubt whatsoever that for the purpose of promotion to the post of Assistant Mining Engineer, the candidate must be a holder of a post of Mines Foreman Grade-I or Head Draftsman or Senior Surveyor. As the appellant did not hold any of the said posts, the question of promoting him to the post of Assistant Mining Engineer, did not arise.” 11. Accordingly, the petition is allowed. Annexures A-3 and A-4 dated 9.5.2006 and 1.2.2007 are quashed and set aside. Respondents are directed to consider the case of the petitioner, if found eligible, as per the Recruitment and Promotion Rules notified on 2.4.1997 within a period of two months from the date of production of certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma), Judge 14.9.2010 *awasthi*