IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 13835/2008 Reserved on: 14.6.2011 Decided on: 23.06.2011 __________________________________________________ Subhash Chand. …Petitioner. Versus State of H.P. and another. …Respondents. ______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Dilip Sharma, Advocate. For the Respondents: Mr. Anil Jaswal, Dy. A.G. with Mr. R. P. Singh, Asstt. A.G. ___________________________________________________ Justice Rajiv Sharma, Judge. Petitioner was appointed as Projectionist on 19.2.1977. Respondent-State has framed the draft Recruitment and Promotion Rules in the year 1994 whereby 5% posts were reserved for Projectionists for further promotion to the post of Health Educator. Petitioner has acquired the qualification of Health Education Media and on the basis of this; he was promoted on ad hoc basis as Health Educator on 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 22.1.1997 vide Annexure A-2. However, the State Government notified the rules called “The Himachal Pradesh Department of Health and Family Welfare Health Education Class-III (Non-Gazetted) Recruitment and Promotion Rules, 1999” (hereinafter referred to as the “Rules” for brevity sake) vide notification dated 29.10.1999. According to these Rules, minimum qualification for filling up the post of Health Educator was diploma in Health Education. Petitioner made representation that he may be permitted to continue since he fulfills the essential qualification provided under the draft rules. The Additional Secretary, Health and Family Welfare, Government of Himachal Pradesh wrote a letter to the Director of Health Services on 24.1.2000 to permit the petitioner to continue as Health Educator on ad hoc basis till appropriate decision was taken by the Government on his representation. In sequel to order dated 4.8.2000, the Director of Health Services requested the Financial Commissioner-cum-Secretary (Health), Government of H.P. that special relaxation may be granted as per the Recruitment and Promotion Rules notified by the Government to regularize the ad hoc promotion granted to the 3 petitioner under the proposed Recruitment and Promotion Rules. However, the respondents instead of taking a conscious decision on the basis of Annexures A-4 and A-5, issued a letter dated 27.7.2005 stating therein that since the promotion of the petitioner was made on ad hoc basis to the post of Health Educator for 6 months and thereafter he was not found suitable by the Departmental Promotion Committee for regular promotion twice as he did not fulfill the requisite qualification as laid in the Recruitment and Promotion Rules for promotion to the post of Health Educator, the pay of the petitioner ought to have been regulated in view of the provisions contained under F.R. 31-A. Petitioner made representation to respondent No.2 on 4.8.2005. 2. Mr. Dilip Sharma has strenuously argued that the petitioner’s promotion to the post of Health Educator on ad hoc basis was strictly in accordance with the draft Recruitment and Promotion Rules issued in the year 1994. According to him, there was 5% quota reserved for Projectionist and the qualification prescribed was Health Education Media. He then contended that the petitioner had continuously worked since 22.1.1997 till date and the 4 experience gained by the petitioner as Health Educator is to be treated as qualification to the post in question. 3. Mr. Anil Jaswal, learned Deputy Advocate General has vehemently argued that the draft Recruitment and Promotion Rules were never intended to be finalized and as per the Recruitment and Promotion Rules notified on 29.10.1999, the qualification for the post of Health Educator was notified and the petitioner being not in possession of the requisite qualification, Annexure A-6 dated 27.7.2005 was issued. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. In the draft Recruitment and Promotion Rules 1994, 5% posts were reserved for promotion to the post of Health Educator from the category of Projectionists, who possesses qualification of Health Education Media. Petitioner was promoted on ad hoc basis vide Annexure A-2 to the post of Health Educator on 22.1.1997 for a period of 6 months. Thereafter, the Recruitment and Promotion Rules for the post of Health Educator were framed under Article 309 of the Constitution of India. The minimum 5 qualification for filling up the post of Health Educator in the Recruitment and promotion Rules notified on 29.10.1999 was diploma in Health Education. Petitioner does not possess diploma in Health Education. The qualification possessed by the petitioner is certificate in Health Education Media. However, in peculiar facts and circumstances of the case since the petitioner had already been promoted to the post of Health Educator on 22.1.1997, the Additional Secretary, Health and Family Welfare requested respondent No.2 to permit the petitioner to continue as Health Educator till the final decision was taken. Respondent No.2 has also supported the version of the petitioner and has recommended the case of the petitioner for regularization of the petitioner as per letter dated 28.8.2000. The respondents instead of taking a final decision on the basis of Annexure A-5, issued Annexure A-6 whereby the petitioner’s salary was required to be regulated under F.R. 31-A. In other words, he had been reverted. The representation made by the petitioner on 4.8.2005 till date has not been decided. 6. The administrative decision could be taken to make promotion according to the draft Recruitment 6 and Promotion Rules, which were to be finalized later on as such. In the instant case, the qualification prescribed for filling up the post of Health Educator in the draft Recruitment and Promotion Rules was Health Education Media and as per the Recruitment and Promotion Rules notified on 29.10.1999 was diploma in Health Education. 7. Mr. Dilip Sharma has relied upon Vimal Kumari versus State of Haryana and others, (1998) 4 SCC 65. In this case, their Lordships of the Hon’ble Supreme Court have held that it is open to the Government to regulate the service conditions of the employees for whom the rules are made by those rules even in their draft stage provided there is clear intention on the part of the Government to enforce those rules in the near future. Recourse to such draft rules is permissible only for the interregnum to meet any emergent situation. If, however, the intention is not to enforce or notify the rules at all, as is evident in the instant case, recourse to draft rules cannot be taken. In the instant case, the draft Recruitment and Promotion Rules had been adopted as such while framing the rules under Article 309 of the Constitution in India and by subsequently notifying 7 that the promotion of the petitioner was in order. However, in the case in hand, as noticed above, the draft rules as such were not notified but changes were made when the rules were finalized and notified on 29.10.1999. Thus, the intention of the State Government to enforce or notify the rules in the same shape cannot be gathered in the present case. 8. The matter is required to be considered from another angle. Case of the petitioner has been recommended by the Additional Secretary, Health and Family Welfare vide Annexure A-4 to continue his promotion to the post of Health Educator till the final decision was taken on his representation. Respondent No.2 has recommended the case of the petitioner for regularization on 28.8.2000. In view of this, the decision ought to have been taken by the respondents either way whether to continue the ad hoc promotion or to discontinue the same. No decision has been taken by the respondents on letters dated 24.1.2000 and 28.8.2000. The decision to the detriment of the petitioner has been taken on 27.7.2005. Respondents have also not taken into consideration that the petitioner had been working against the post of Health Educator since 22.1.1997 8 and has gained sufficient experience for the last 8 years. 9. Their Lordships of the Hon’ble Supreme Court in Bhagwati Prasad versus Delhi State Mineral Development Corporation, (1990) 1 SCC 361 have held that practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. Their Lordships have further held that the initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service and once the appointments are made as daily rated workers and they are allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualification. Their Lordships have held as under: “6. The main controversy centres round the question whether some. petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 and ever since, they have been working and have gained sufficient experience in the actual 9 discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial-entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years' experience, ignoring artificial break in service for short periods created by the respondent. In the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re- appointment that period may be excluded in the computation of the three years period. Since the petitioners before us satisfy the requirement of three years, service as calculated above, we direct that 4 0 of the senior-most workmen should be regularised with immediate effect and the remaining 118 petitioners should be regularised in a phased manner, before April 1, 1991 and promoted to the next higher post according to the standing orders. All the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts. We further direct that 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately. Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts. The respondent is directed to deposit a sum of 10 Rupees 10,000/- in the Registry of this Court within four weeks to meet the remuneration of the Industrial Tribunal. The writ petitions are accordingly allowed, but without costs.” 10. The same principle is reiterated by their Lordships of the Hon’ble Supreme Court in B.N. Saxena versus New Delhi Municipal Committee and others, (1990) 4 SCC 205. Their Lordships have held that a Senior Draftsman not possessing any diploma but having six years experience, qualified under the second alternative of the revised rules. Their Lordships have further held that the experience gained is itself a qualification. Their Lordships have held as under: “7. The second limb of the rule was evidently, to benefit all those persons who have gained sufficient experience as Senior and Junior Draftsmen without possessing any qualification. Experience gained for a considerable length of time is itself a qualification (See the observation in State of U.P. v. J. P. Chaurasia, 1989 (1) SCC 121 : (AIR 1989 SC 19). It would be unreasonable to hold that in addition to this considerable experience, one must also have the diploma qualification prescribed under the first part. It could not have been the intention of the rule making authority that persons who were designated as Senior Draftsmen without any Diploma qualification should acquire such diploma qualification for further promotion. Such. a view would not be consistent and coherent with the 11 revised rule and its object. We have no doubt that the second limb of the revised rule is independent of the first. The High Court seems to have erred in this aspect of the matter.” 11. In Gujarat Agriculture University versus Rathod Labhu Bechar and others, (2001) 3 SCC 574, their Lordships of the Hon’ble Supreme Court have held that the daily rated workers who had been working on the posts for a long number of years without complaint is a ground by itself for the relaxation of the eligibility condition. Their Lordships have held as under: “28. We feel that daily rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts is a ground by itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption, hence Clause l(a) need modification to this effect. 30. Thus in view of their long experience on the fact of this case and for the concerned posts the prescribed qualification, if any, should not come in the way of their regularisation. Clause l(b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post.” 9. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure A-6 dated 27.7.2005 is quashed and set aside. Respondent-State is directed to take a 12 final decision on the basis of Annexures A-4 and A-5 dated 24.1.2000 and 28.8.2000 for the relaxation of essential qualification, within a period of 2 months, after the production of certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma), Judge 23.06.2011 *awasthi*