IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:2041/2008 and CWP-T No.2815/2008, CWPs (T) No.2226/2008 and 2378/2208 Reserved on: 21.5.2009 Decided on:19.6.2009 CWP (T) No. 2041/2008 Surjeet Singh Katoch and others. …Petitioners. Versus State of Himachal Pradesh. …Respondent. CWP -T No. 2815/2008 Sanjay Gupta. …Petitioner. Versus State of Himachal Pradesh. …Respondent. CWP (T) No. 2226/2008 Bikram Singh Mehta and others. …Petitioners. Versus State of Himachal Pradesh and others. …Respondents. CWP (T) No. 2378/2008 Amba Dutt. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. 2 Whether approved for reporting ?1. yes. CWP(T) No. 2041/200): For the petitioners : Ms. Ranjana Parmar, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. Addl. Advocate General and Mr. Ramesh Thakur, Asstt. A.G. for respondent No.1. Mr. Dilip Sharma, Advocate for respondents No.2 & 8. CWP-T No. 2815/2008: For the petitioner Mr. Ajay Mohan Goel, Advocate For the respondent Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. Addl. Advocate General and Mr. Ramesh Thakur, Asstt. A.G. CWP (T) No. 2226/2008: For the petitioners Mr. S.R. Sharma, Advocate vice Mr. B.N. Misra, Adv. For the respondents Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. Addl. Advocate General and Mr. Ramesh Thakur, Asstt. A.G. for respondents No.1 and 2. Mr. L.N. Sharma, Advocate for respondent No.12. Mr. Lokender Thakur, Advocate for respondent No.19. CWP (T) No. 2378/2008: For the petitioner Ms. Salochna Kaundal, Advocate vice Mr. O.P. Thakur, Advocate. For the respondents Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. Addl. Advocate General and Mr. Ramesh Thakur, Asstt. Advocate General. Rajiv Sharma, J. Since common questions of law and facts are involved in these petitions, the same were heard together and are being disposed of by a common judgment. However, for the sake of clarity, the facts of each petition are being discussed hereinafter in the same seriatum in which the petitions were filed before the erstwhile Himachal Pradesh Administrative Tribunal. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 3 CWP (T) No. 2041/2008: The petitioners were working as Junior Engineers in the Himachal Pradesh Public Works Department. They have assailed the issuance of notification dated 25.4.1992 whereby the earlier notification dated 5.7.1989 has been withdrawn. The precise case of the petitioners in this petition is that since they have passed the departmental examination as per the Departmental Examination Rules, 1976, they alone were to be considered for promotion to the next higher post of Assistant Engineers which had fallen vacant between 5.6.1989 to 24.4.1992. The learned Tribunal granted the interim relief to the petitioners on 3.6.1992 whereby the above notification dated 25.4.1992 was stayed. Order dated 3.6.1992 reads thus: “Admit. Shri A.L. Kapoor, the learned Addl. Advocate General Waives service of notice on behalf of the respondent. The reply be filed within one month from today. The operation of impugned notification dated April 25, 1992, Annexure A-4 is stayed in the meanwhile.” However, vide order dated 13.4.1993, the Tribunal permitted the respondents to fill up the post(s) of Assistant Engineers, Civil, Mechanical and Electrical in accordance with the rules. Order dated 13.4.1993 reads thus: “Application allowed. The respondents are at liberty to fill up the post(s) of Assistant Engineers, Civil, Mechanical and Electrical in accordance with the rules.” CWP (T) No. 2815/2008 The petitioner was working as Junior Engineer in the Himachal Pradesh Public Works Department.. The State Government issued 4 notification on 5.7.1989 whereby the Junior Engineers, who had put in five years of service were given the status of Gazetted (Class-III) Officers. The petitioner has qualified the departmental examination prescribed under the Departmental Examination Rules, 1976. However, the respondent-State vide notification dated 25.4.1992 withdrew the earlier notification issued on 5.7.1989. The petitioner has assailed the notification dated 25.4.1992 by way of present petition. CWP (T) No. 2226/2008 The petitioners were working as Junior Engineers in the Irrigation and Public Health Department and B&R. They have passed the departmental examination as per the Departmental Examination Rules, 1976. The petitioners were given the status of Gazetted (Class-III) Officers on the basis of notification dated 5.7.1989. The same stood withdrawn vide notification dated 25.4.1992. The gist of the averments contained in the petition is that the notification dated 25.4.1992 could not destroy the vested rights acquired by the petitioners vide notification dated 5.7.1989. Their further case is that only those persons, who had qualified the departmental examination as per the Departmental Examination Rules, 1976 were eligible to be promoted to the post of Assistant Engineer between 5.7.1989 to 25.4.1992. The further case of the petitioners is that the learned Tribunal had earlier stayed the operation of the notification in original application No. 634/1992 on 3.6.1992. The learned Tribunal had only allowed the respondent-State to fill up the posts in accordance with Rules on 13.4.1993 in original application (OA No. 634/1992) and despite that the State has carried out the promotions of the private respondents to the posts of Assistant Engineers. The issuance of Annexures A-7, A-8, A-9 and A-10 was subject to the outcome of the final decision of the petition. However, the respondents were restrained from making 5 promotions to the post of Assistant Engineer from amongst the Junior Engineers who had not passed the departmental examination. CWP (T) No. 2378/2008 In this petition the vires of notification dated 25.4.1992 has been challenged by the petitioner who is working as Junior Engineer (Mechanical). He has qualified the departmental examination as per the Departmental Examination Rules, 1976. ARGUMENTS OF THE COUNCEL FOR THE PARTIES The learned counsel appearing on behalf of the petitioners have vehemently argued that a conscious decision had been taken by the State Government to grant Gazetted status (Class-III) Officers to the Junior Engineers, who had put in five years of service vide notification dated 5.7.1989. Their further submission is that the petitioners have passed the departmental examination prescribed under the Departmental Examination Rules, 1976. They have contended that the notification dated 25.4.1992 could not be applied retrospectively to destroy and impair the rights acquired by the petitioners on the basis of earlier notification dated 5.7.1989. In other words, their case is that the only those Junior Engineers were to be considered for promotion to the post of Assistant Engineer between 5.7.1989 to 24.4.1992, who have passed the departmental examination. They lastly contended that the matter was taken up by the Secretary (PW) to the Government of Himachal Pradesh with the Secretary (Training) to seek exemption from passing the departmental examination. However, the same was turned down as per letter dated 24.8.1990 and 16.10.1990. Mr. R.K. Sharma, learned Additional Advocate General, Mr. Dilip Sharma, Advocate, Mr. L.N. Sharma and Lokender Thakur, Advocates have strenuously argued that the notification issued on 25.4.1992 whereby 6 the earlier notification dated 5.7.1989 has been withdrawn is valid. According to them the petitioners have not acquired any vested right to be considered for promotion on the basis of passing of departmental examination for the vacancies lying vacant between 5.7.1989 to 24.4.1992. They have further contended that even though notification was issued on 5.7.1989, the amendment corresponding to the post in question in the Recruitment and Promotion Rules was not carried out. The respondents in all the petitions were served as per the order sheets of the above mentioned petitions. I have heard the learned counsel for the parties and have perused the pleadings carefully. Findings: The petitioners were working as Junior Engineers in the Himachal Pradesh Public Works Department and Irrigation and Public Health. The State Government had taken a conscious decision to grant Gazetted status (Class-III) Officers to the Junior Engineers, who had put in five years of service vide notification dated 5.7.1989. It will be apt at this stage to take note of the Departmental Examination Rules, 1976 contained in Chapter 30 of the Handbook on Personnel Matters Volume-III (Second Edition). These rules were notified with the approval of the Public Service Commission and also with the prior approval of the Central Government as required under section 82 of the Punjab Re-Organization Act, 1966, and section 42 of the State of Himachal Pradesh Act, 1970 on 23.3.1976. These rules have come into force from 23.3.1976. These rules govern the Departmental Examination in respect of:- (i) ….. (ii) ….. (iii) …… (iv) all other Gazetted Officers working in Himachal Pradesh not included in item (i) to (iii) above. The provisions of the Departmental Examination Rules, 1976 were revised on 17th August, 1984. The same reads thus: 7 “The provision for Departmental Examination in the rules of Gazetted services/posts was first desired to be made through O.M. No. HIPA (Exam)-12/75 dated 23.3.1976 and subsequently certain amendments having been carried out in the Himachal Pradesh Departmental Examination Rules, 1976, the provision for departmental examination in service rules of various gazetted services/posts (excepting Indian Administrative Service, H.P. Administrative Service, H.P. Tehsildari and Naib Tehsildari service Rules) was revised. The revised provision was circulated vide H.P. Govt. Personnel Deptt. (Training) Memo. No. HIPA (Exam) 12/75-VII dated 17.8.1984.” A bare reading of these rules quoted hereinabove reveals that the person, who has been conferred with Gazetted status, is required to pass the departmental examination to enable him to seek promotion to the next higher post. The petitioners have qualified the examinations prescribed under the Departmental Examination Rules, 1976 revised from time to time. These persons have acquired a vested right to be considered for promotion since they became a special class after passing the departmental examination. It is apparent from the records that the Secretary (PW) to the Government of Himachal Pradesh took up the matter with the Secretary (Training) whereby exemption was sought from passing the departmental examination by the Junior Engineers. The same was turned down by the State on 24.8.1990. The text of letter dated 24.8.1990 reads thus: “With reference to your letter No. PWD Special Cell-2 (B)-15-2/88-Vol-V dated 5.7.1990 on the above subject, I have been directed to say that the matter of giving exemption of passing the Departmental Examination by the Junior Engineers, was examined in detail, and the Department of Personnel (Training) has expressed its dissent. Accordingly, the Government may issue 8 directions to the concerned officers to pass the Departmental Examination. This is as per directions of the Chief Minister.” In sequel to letter dated 24.8.1990, the State Government issued letter on 16.10.1990. The relevant extract of the same reads thus: “Further more, you are also requested to ask all the Gazetted (Class-III) Junior Engineers and ad hoc Assistant Engineers in IPH and HP PWD to pass the Departmental Examination failing which they will not be promoted to the post of Assistant Engineers even on ad hoc basis and the Assistant Engineers working on ad hoc basis will not be regularized as such. Simultaneously the information may also be collected and intimated to this Department who have already passed the Departmental Examination as prescribed in the HP Departmental Examination Rules, 1976.” What emerges from the contents of these two letters is that passing of the departmental examination was sine qua non for further promotion to the post of Assistant Engineer. The petitioners have admittedly passed the departmental examination between 5.7.1989 to 24.4.1992. The Junior Engineers’ Association had raised demand before the State Government for the withdrawal of notification dated 5.7.1989. The demand was raised by the Association on behalf of those Junior Engineers, who could not qualify the departmental examination between 5.7.1989 to 24.4.1992. The State Government succumbed to the pressure exerted by the Junior Engineers’ Association which led to the issuance of letter dated 25.4.1992. The notification dated 25.4.1992 reads thus: “Governor of Himachal Pradesh is pleased to withdraw the notification of even number dated July 05, 1989 vide which Junior Engineers (Civil) of Public Works Department were given the Gazetted Grade-III status.” 9 The petitioners and similarly situate persons have challenged the validity/vires of the notification dated 25.4.1992. The learned Tribunal, as noticed above, had earlier stayed the operation of notification dated 25.4.1992. However, the Tribunal had permitted the State Government to make promotions strictly as per the rules. The State Government misconstrued the order passed by the Tribunal whereby it was permitted to make the promotions as per the rules. The Tribunal had not vacated the earlier order whereby the operation of notification dated 25.4.1992 was stayed. The orders passed in original application No. 634/1992 on 3.6.1992 and 13.4.1993 were to be read harmoniously. The true import of these two orders was that the promotions could be made only from the category of those persons, who had qualified the Departmental Examination Rules, 1976. However, the State Government in its own wisdom has promoted all those persons who had not qualified even the departmental examination by misconstruing order dated 13.4.1993 passed in original application No. 634/1992. The promotions of such like persons, who had not passed the departmental examination, but had been promoted, has been specifically assailed in original application 408/1994. The learned Tribunal in original application No. 408/1994 on 3.5.1992 had made the promotion effected vide notification Annexures A-7, A-8, A-9 and A-10 subject to the final decision. Simultaneously, the Tribunal had restrained the State Government from making the promotions for the posts of Assistant Engineers from amongst the Junior Engineers, who had not passed the departmental examination. This order was modified by the Tribunal on 30.11.1994. It was modified to the extent that it was open to the respondent-State to fill up all the posts in accordance with the rules except three posts. The promotions already made were subject to the final decision of the petition. Similarly, in original application No. 10 634/1992, the learned Tribunal had modified the interim order dated 3.6.1992 on 30.11.1994. The promotions, if any, were to be made subject to the final decision of the petition. The interim order passed in original application No.3263/1994 was that the promotions to the posts of Assistant Engineers (Mechanical) was subject to the final decision of the petition. The Junior Engineers, who had put in five years of service and were granted Gazetted status and have passed the departmental examination as per the Departmental Examination Rules, 1976 constitute a separate class. These persons were eligible to be considered for promotion against the available vacancies between 5.7.1989 to 24.4.1992. The persons, who had not qualified the departmental examination, were not at all eligible for further promotion for the post of Assistant Engineer between 5.7.1989 to 24.4.1992. The persons, who had passed the departmental examination, had acquired vested rights to be considered for promotion to the posts of Assistant Engineers. These rights could not be destroyed by the respondents by issuing notification dated 25.4.1992 whereby the earlier notification dated 5.7.1989 was withdrawn. The vested rights could not be taken away by the respondents retrospectively on the basis of notification dated 25.4.1992. The notification dated 25.4.1992 was to be applied prospectively. The contention of the learned counsel appearing on behalf of the respondents that no corresponding amendment was carried out in the Recruitment and Promotion Rules for the post of Assistant Engineer after the conferment of the Gazetted status on 5.7.1989, merits rejection. The Departmental Examination Rules, 1976, as noticed above apply independently. These were not required to be incorporated in the Recruitment and Promotion Rules for the post of Assistant Engineer. A 11 bare perusal of the Departmental Examination Rules, 1976 suggests that only those persons, who qualified the departmental examination, are eligible for further promotion. The notification dated 5.7.1989 was issued with the consultation of the Finance Department. However, the same has been withdrawn on 25.4.1989 without any consultation with the Finance Department. There must be consistency in every administrative action of the State which has civil/administrative consequences. The consistency is one of the requisite of the principle of rule of law. The State Government cannot permit itself to be pressurized by one section of employees to reverse a particular decision. The persons who had not qualified the departmental examination though given the opportunity have succeeded in the present case to pressurize the State Government to reverse the earlier decision. The persons, who had passed the departmental examination, were on better footing vis-à-vis who had not passed the departmental examination despite repeated opportunities granted to them. The Secretary (PW) had also pleaded the case of the Junior Engineers, who could not pass the departmental examination as per the contents of letter dated 5.7.1990. He tried to seek exemption to this category. The same was rightly turned down by the State Government on 24.8.1990 in sequel to which letter dated 16.10.1990 was issued whereby it was clarified again that only those persons who had qualified the departmental qualifications were eligible for promotion to the post of Assistant Engineer. The State Government cannot be permitted to plead that the notification dated 5.7.1989 issued earlier was illegal. The State has taken a conscious decision whereby Gazetted status was conferred upon the Junior Engineers who had put in five years. It was in larger public interest to grant Gazetted status to the Junior Engineers, who had put in five years service. The gazetted status was conferred upon the Junior Engineers to 12 enhance their status and also to enhance their efficiency for the purpose of promotion after passing the departmental examination. The State could not give premium to inefficiency. The persons, who had passed the departmental examination, were better qualified to the post of Assistant Engineer. The State has taken an retrograde step by nullifying the progressive decision taken on 5.7.1989. The perusal of order sheets in all the petitions reveals that the promotions of the persons, who had not passed the departmental examination between 5.7.1989 to 25.4.1992 but were promoted to the post of Assistant Engineers, were made subject to the outcome of the present petitions. Accordingly, in view of the observations made hereinabove, it is declared that the notification dated 25.4.1992 was to be applied prospectively. It could not impair/destroy the rights of the petitioners and similarly situate persons accrued to them on the basis of notification dated 5.7.1989. The petitioners and similarly situate persons were only eligible and qualified to be considered for promotion to the post of Assistant Engineer which had fallen vacant between 5.7.1989 to 24.4.1992. The persons who have not qualified the departmental examination after the issuance of notification dated 5.7.1989 till 24.4.1992 are declared ineligible for consideration to the post of Assistant Engineer. Consequently, the petitions are allowed. The promotions orders Annexures A-7, A-8, A-9 and A-10 are quashed and set aside. The respondent-State is directed to consider the case of the petitioners for promotion to the posts of Assistant Engineers against the vacancies, which had fallen vacant between 5.7.1989 to 24.4.1992. The Review Departmental Promotion Committee shall be convened by the respondent- State within a period of six weeks from today. In case the petitioners are found suitable they shall be promoted to the posts of Assistant Engineers 13 with all consequential benefits. There will, however, be no order as to costs. 19.6. 2009 (Rajiv Sharma ), J. *awasthi*