IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 3837 of 2008 (OA No.1638 of 1996). Judgement reserved on: 30.09.2009. Date of decision: 05.10.2009 Bhagi Rath Sharma ..…..Petitioner Versus State of H.P. & ors. ….…. Respondents Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Jeevesh Sharma, Advocate. For the Respondents : Mr. R. K. Sharma, Senior Addl. Advocate General with Mr. R.P. Singh, Asstt. Advocate General, for respondents No. 1 & 2. None for respondents No.3 & 4. Kuldip Singh, Judge. The OA No. 1638 of 1996 was filed in Himachal Pradesh Administrative Tribunal which was abolished and the cases of erstwhile Tribunal were transferred to this Court and on transfer Original Application No.1638 of 1996 has been registered in this Court as CWP (T) No. 3837 of 2008. 2. The petitioner in the petition has prayed for quashing of order dated 31.10.1996 Annexure P-1 with a direction to the respondents to promote the petitioner on regular basis to the post of Technical Assistant in the pay scale of Rs.1640-2925 w.e.f. Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 13.08.1987 i.e. the date on which the petitioner was promoted on ad-hoc basis and to allow the petitioner to work as Technical Assistant in the respondent-Department in accordance with law. The petitioner has also prayed for a direction to the respondents to include the Senior Certificate Course (one year) alongwith Graduate Degree in the required qualification as contained in Col. No. II of the Recruitment and Promotion Rules for the post of Technical Assistant by carrying out necessary amendment. 3. The facts in brief as per pleaded case of the petitioner are that petitioner had joined as Sub Inspector in the Department of Agriculture. The petitioner was graduate and he applied to the Department for permission to complete Senior Certificate Course in Agricultural and Animal Husbandry Statistics from Indian Agricultural Statistics Research Institute, New Delhi. The petitioner successfully completed the aforesaid course in the year 1975-76 which is clear from mark-sheet dated 26.02.1979 Annexure A-4. 4. The respondent-Department had advertised post of Statistical Investigator in the pay scale of Rs.200-Rs.500 vide Notification dated 11.01.1977 Annexure P-5. The petitioner had applied for the said post. The petitioner was fulfilling all the requisite qualifications and eligibility criteria for the said post. The petitioner annexed certificate/Degree of Senior Certificate Course in Agricultural and Animal Husbandry Statistics from Indian Agricultural Statistics Research Institute, New Delhi. The petitioner was found fulfilling the minimum qualifications as required under Column No. 8 of Notification dated 11.01.1977 Annexure P-5. The petitioner was …3… selected and joined as Statistical Investigator vide order dated 10.02.1977 Annexure A-6. The petitioner was shown at Sl. No. 1 in the seniority list of Statistical Investigators as it stood on 31.3.1995 Annexure A-7. The respondents No. 3 and 4 were shown in the seniority list at Sl. Nos. 2 and 4, respectively. The respondents No. 3 and 4 are juniors to the petitioner in the final seniority list of Technical Assistants as it stood on 31.01.1995. The petitioner has been shown at Sl. No. 2. In the final seniority list Annexure A-8 the petitioner has been shown working on temporary basis as Technical Assistant, whereas, respondent No.3 has been shown working as Technical Assistant on ad-hoc basis. 5. The petitioner was promoted as Technical Assistant vide order dated 13.08.1987 Annexure A-3 in the pay scale of Rs.700-1200. The petitioner was initially promoted to the post of Technical Assistant on ad-hoc basis for a period of three months. The petitioner was allowed to continue as such continuously. The petitioner had joined as Technical Assistant in pursuance to order dated 13.08.1987 on 24.08.1987. The petitioner was promoted as Technical Assistant in the respondent-Department in accordance with the Recruitment and Promotions Rules and after taking into consideration his qualifications including Senior Certificate Course in Agricultural and Animal Husbandry Statistics. 6. The respondent No.1 without providing an opportunity of hearing to the petitioner, issued order dated 31.10.1996 Annexure P-1 and the petitioner was ordered to be reverted to the post of Statistical Investigator. The respondents No. 3 and 4 wrongly, …4… illegally and unlawfully ordered to be regularly promoted as Technical Assistants after superseding the petitioner by respondent No.2. The petitioner has alleged violation of Articles 14 and 16 of the Constitution of India and has prayed the reliefs in the petition as noticed above. 7. The respondents No.1 and 2 had filed reply on the affidavit of Dr. A.N. Saini, Director, Animal Husbandry, Himachal Pradesh. The stand of respondents No. 1 and 2 is that the petitioner does not meet the requirements of promotion to the post of Technical Assistant on the basis of Recruitment and Promotion Rules notified by the department of Animal Husbandry dated 07.06.1996. It has been admitted that the petitioner had undergone Senior Certificate Course in Agricultural and Animal Husbandry Statistics from Indian Agricultural Statistics Research Institute, New Delhi but he was not eligible for the post of Statistical Investigator in the Department. The minimum qualification prescribed for the aforesaid post is Graduate with Economics, Mathematics and Commerce as one of the subjects. The petitioner does not have Degree in either of the subjects. It has been pleaded that it is not clear under what circumstances he was selected as Statistical Investigator. The petitioner was promoted on ad-hoc basis as Technical Assistant for a period of three months in the first instance. He continued to work as such till the meeting of Departmental Promotion Committee was held on the basis of new Recruitment and Promotion Rules notified by the Government for the post of Technical Assistant. The petitioner was not having basic …5… qualifications for the post of Technical Assistant which is Bachelor Degree with Economics/Statistics/Mathematics/Commerce as one of the subjects, therefore, the petitioner was not promoted to the post of Technical Assistant. The petitioner was rightly reverted to the post of Statistical Investigator. The Recruitment and Promotion Rules were notified under Article 309 of the Constitution of India which have statutory force. The ad-hoc promotion of the petitioner as Technical Assistant has nothing to do with his regular promotion to the post of Technical Assistant as per Recruitment and Promotion Rules. The respondents have ultimately prayed for dismissal of the petition. The petitioner has filed rejoinder to the reply of the respondents No.1 and 2 and reiterated his stand initially taken by him in the petition. 8. Heard and perused the record. The petitioner has prayed for quashing of Annexure P-1 dated 31.10.1996 vide which he was reverted from the post of Technical Assistant to substantive post of Statistical Investigator. The perusal of Annexure P-1 indicates that petitioner was holding the post of Technical Assistant on temporary/ad-hoc basis. It is the case of the petitioner that respondents may be directed to promote the petitioner on regular basis to the post of Technical Assistant w.e.f. 13.8.1987, the date on which the petitioner was promoted on ad-hoc basis as Technical Assistant and thereafter he continued as such till he was reverted on 31.01.1996. 9. The Annexure P-9 dated 2.2.1979 is the notification vide which under Article 309 of the Constitution of India, the …6… Governor of Himachal Pradesh was pleased to frame the Recruitment and Promotion Rules for the post of Technical Assistant (Statistics) Class-III in the Animal Husbandry Directorate as per Annexure A. The method of recruitment for Technical Assistant(Statistics) is provided in Rule 10, 50% by promotion and 50% by direct recruitment. As per Rule 11 promotion is to be made from amongst the Statistical Assistants/Statistical Investigators with atleast 2 years regular or ad-hoc service or both as such. The rule further provides that the eligible officials for promotion should be atleast graduate with Economics/Statistics/Mathematics/Commerce as one of the subjects in graduation. 10. The Recruitment and Promotion Rules notified on 2.2.1979 were repealed vide Notification dated 7.6.1996 and vide Notification dated 7.6.1996, the Governor of Himachal Pradesh was pleased to make Recruitment and Promotion Rules for the post of Technical Assistant, Class-III(Non-Gazetted) in the Animal Husbandry Department, Himachal Pradesh as per Annexure A. According to rules notified on 7.6.1996, 75% Technical Assistant are to be appointed by promotion and 25% by direct recruitment. As per Rule 11 promotion is to be made from amongst Statistical Assistants/Investigators/Inspectors who possess Bachelor Degree in Economics/Statistics/Mathematics/Commerce as one of the subjects and also possess 3 years regular service or regular combined with continuous ad-hoc (rendered upto 31.3.91) service, in the grade. 11. It has been stated at the bar by the learned counsel for the petitioner at the time of hearing that the petitioner has passed …7… graduation but not with any subjects mentioned in the Recruitment and Promotion Rules notified on 2.2.1979 or in the Recruitment and Promotion Rules notified on 7.6.1996. It has also been submitted that the petitioner was appointed as Statistical Investigator and for that post the qualification required is same as required for the post of Technical Assistant. The petitioner was found eligible for the post of Statistical Investigator, and therefore, the respondents are wrong in taking the stand that the petitioner is not eligible for promotion to the post of Technical Assistant. It has been submitted that the petitioner has Senior Certificate Course in Agricultural and Animal Husbandry Statistics from Indian Agricultural Statistics Research Institute, New Delhi and according to the petitioner as per Annexure P-11 dated 29.11.1996 of Registrar Himachal Pradesh Krishi Vishvavidyalaya, Palampur, the contents of said course are much higher than the contents of statistics course taught to the undergraduate students of the University. The learned counsel for the petitioner has submitted that in view of Annexure P-11, the petitioner is fully qualified and eligible for promotion to the post of Technical Assistant as per Recruitment and Promotion Rules dated 2.2.1979 and 7.6.1996. This contention of the learned counsel for the petitioner is noticed only to be rejected. 12. The Recruitment and Promotion Rules dated 2.2.1979 were framed under Article 309 of the Constitution of India and similarly Recruitment and Promotion Rules for the post of Technical Assistant dated 7.6.1996 have been framed under Article 309 of the Constitution of the India. As per aforesaid rules eligible officials …8… for promotion should be atleast graduates with Economics/Statistics/Mathematics/Commerce as one of the subjects in graduation. 13. The petitioner is graduate but admittedly not with any of the subjects mentioned in the Recruitment and Promotion Rules dated 2.2.1979 and 7.6.1996. The letter dated 29.11.1996 Annexure P-11 of the Registrar Himachal Pradesh Krishi Vishvavidyalaya, Palampur, is based upon on the comments of Dean College of Basic Sciences. Annexure P-11 is not the decision of university. It is based on the comments of Dean and has no legal sanctity. Annexure P-11 cannot be interpreted to equate Senior Certificate Course in Statistics of Agriculture Institute New Delhi with graduation with the subject of Statistics. The mark-sheet Annexure P-4 indicates that Senior Certificate Course is of one year duration. It is common knowledge that in graduation a particular subject is taught for 3 years. There is nothing on record to compare and infer that aforesaid certificate course of one year is equivalent to 3 years Degree course in the subject. The petitioner cannot take benefit of Annexure P-11. The petitioner is not eligible for promotion to the post of Technical Assistant on the basis of Recruitment and Promotion Rules dated 2.2.1979 and 7.6.1996. 14. The petitioner cannot take benefit of his initial appointment as Statistical Investigator for promotion to the post of Technical Assistant on the ground that qualification for two posts is similar and once he was appointed Statistical Investigator on the basis of particular qualification, then he is also entitled to promotion …9… to the post of Technical Assistant on the basis of same qualification. The petitioner is graduate but not with any subject mentioned in the Recruitment and Promotion rules. Thus, even if case of the petitioner is taken at its best, still he is not entitled to promotion to the post of Technical Assistant as per rules. The petitioner cannot take help of a precedent vide which he was wrongly given benefit for appointment as Statistical Investigator even if the submission of the learned counsel for the petitioner is accepted that qualification for the post of Statistical Investigator and Technical Assistant is same. The wrong cannot be perpetuated by again promoting the petitioner wrongly to the post of Technical Assistant for which post the petitioner does not have the requisite qualification. 15. The petitioner was promoted on ad-hoc basis temporarily and for unknown reasons his such promotion continued for some time. The case of the petitioner for promotion was to be considered on the basis of Recruitment and Promotion Rules prevalent at the time of his regular promotion. There is no denial of the fact that at the relevant time Recruitment and Promotion Rules dated 7.6.1996 were in force and therefore, the case of the petitioner for promotion to the post of Technical Assistant was to be considered as per Recruitment and Promotion Rules dated 7.6.1996. The petitioner was not eligible for promotion to the post of Technical Assistant on the basis of Recruitment and Promotion Rules dated 7.6.1996, therefore, no fault can be found for reversion of the petitioner to his substantive post of Statistical Investigator vide office order dated 31.10.1996 Annexure P-1. …10… 16. The petitioner has not prayed for quashing of Col. No. 11 of Recruitment and Promotion Rules dated 7.6.1996. He has prayed that Senior Certificate Course alongwith Graduate Degree in the required qualification as contained in Column No. 11 of Recruitment and Promotion Rules for the post of Technical Assistant be ordered to be carried out by necessary amendment. This prayer of the petitioner is of academic interest only inasmuch as the petitioner has already retired. In addition without going into the question whether a direction to amend the rules can be given, there is no foundation in the petition so as to give a direction to the respondents to carry out amendment in the rules. The point raised by the petitioner after his retirement is only of academic interest, therefore, the petitioner is not entitled to this relief also. 17. No other point was urged. 18. As a result of the above discussion, the petition fails and is accordingly dismissed. No costs. (Kuldip Singh) Judge October 5, 2009 *brb*