IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP-T No.2546 of 2008. Date of decision: 18.10.2010. Ram Swaroop Verma … …Petitioner Versus State of H.P. & Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioners: Mr.Ajay Mohan Goel, Advocate. For Respondent No.1: Mr.P.K. Sharma, Additional Advocate General. For Respondent No.2: Mr.D.K. Khanna, Advocate. For Respondent No.3: Mr.Dalip Sharma, Advocate. Dev Darshan Sud,J. The petitioner approached the Administrative Tribunal for quashing the Rules governing selection to the post of Under Secretary in the Himachal Pradesh Public Service Commission on the ground that they were unconstitutional and granted an unfair advantage to junior officers for consideration to this post, thus, stealing a march over senior officers. 2. According to the petitioner, he joined the Commission in August, 1972 as Stenographer, was 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 promoted to the post of Personal Assistant in 1983 and to the post of Private Secretary on 11.1.1998. He was thereafter promoted as Additional Registrar on adhoc basis on 1.9.1997, Registrar on adhoc basis on 31.10.1997 and Registrar on regular basis on 8.6.1998. The next promotional post is that of Under Secretary. The Recruitment and Promotion Rules for the post of Under Secretary, which is a Class-1 post, provide that it is to be filled in “by promotion from amongst Registrar having three years regular service or regular combined with continuous adhoc (rendered up to 31.3.1991) in the grade, failing which by promotion from amongst the Registrar having five years regular service or regular combined with continuous adhoc (rendered up to 31.3.1991) as Registrar and Section Officer/Assistant Registrar combined failing both by promotion, from amongst the Section Officer/Assistant Registrar having six years regular service or regular combined with continuous adhoc (rendered up to 31.3.1991) service in the grade”. 3. Respondent No.3 is from the cadre of Section Officer and was promoted as Additional Registrar on 31.10.1997. The case of the petitioner is that the Rule operates unfairly inasmuch as the petitioner, who was senior to respondent No.3, has been ignored and respondent No.3 has been considered and promoted as Under Secretary. 3 4. In order to substantiate his plea, petitioner relies upon a decision of the Supreme Court in Shakuntala Sharma vs. High Court of Himachal Pradesh, (1994)2 SCC 411 in support of this proposition. 5. The fact is that on the day when respondent No.3 was promoted as Under Secretary, the petitioner did not have three years experience as Registrar. It is in this context that the decision in Shakuntala’s case supra was relied upon, more especially, the interpretation of the Rules by the Supreme Court holding that the Rule is unconstitutional. The Court holds:- “9. The result of the rule was that since the appellant had not put in three years' service as Revisor, she was disentitled to the post of Superintendent. The position further was that on the relevant date, i.e., 3/12/1992, there was no Deputy Superintendent or Revisor with minimum three years' service in the respective posts. Hence the post was given to Respondent 2, as he was Senior Assistant with more than six years' service. The consequence of the rule was that had she continued as Translator, being senior to Respondent 2, she would have got the post of the Superintendent. She lost the same because she was promoted to the post of the Revisor only a few days earlier to the appointment of Respondent 2 to the post of the Superintendent which in effect was a double promotion to 4 him. Since the two events, viz., her promotion to the post of Revisor and that of Respondent 2 to the post of Superintendent were close in proximity, a legitimate contention was advanced on her behalf that she was "kicked up" to the post of the Revisor only to facilitate the promotion of Respondent 2 to the post of the Superintendent and thus to deny her the said post. 10. … … … … … … … … … … … … 11. What is pointed out to us on behalf of the respondent-High court, is that the said Rule 10 had become necessary because there were more Deputy Superintendents than Revisors and the Senior Assistants and Translators were stagnated for want of a promotional post. Hence the said rule was framed by a Committee of Judges to provide suitable avenues of promotion to both Deputy Superintendents and Revisors on the one hand, and Senior Assistants and Translators on the other. It was also pointed out that even the earlier Rule 11 of the 1990 Rules was almost on the same pattern. In fact, by the said earlier rule, all graduate court employees who had put in minimum of six years' service in the grade of not less than Rs.1800-3200 were eligible on merit for promotion to the post of the Superintendent. Under the 1990 Rules, therefore, all Senior Assistants and Translators as well as Deputy Superintendents and Revisors were eligible for being considered on merit for promotion to the post of 5 Superintendent. The only two differences which the 1992 Rules brought about in the earlier situation were that they provided firstly, that the Deputy Superintendents and Revisors who carried the pay scale of more than Rs.1800-3200 with a minimum of three years' service, were eligible to the post of Superintendent and it is only failing the availability of the eligible candidates from the said two categories, that the Senior Assistants and the Translators should be considered for the said post. Secondly, a proportion between Deputy Superintendents and Revisors was laid down for promotion to the post of the Superintendent. 12. In this case, it is not necessary for us to go into the question whether Rule 11 of 1990 Rules which provided for the promotion to the post of the Superintendent was valid or not. Even assuming that the validity of the 1990 Rules was not challenged, that fact by itself would not validate the present Rule 10 if it suffers from an inherent infirmity. The basic weakness in the present Rule 10 is that it places two unequal sets of posts on a par with each other and also prescribes qualifying service for the higher post as well. The posts of Deputy Superintendents and Revisors admittedly are posts higher than those of Senior Assistants and Translators respectively. If the incumbents of both the sets of posts are to be made eligible for promotion to the post of Superintendent, no qualifying period 6 of service can be prescribed for the incumbents of the posts of Deputy Superintendents and Revisors. If Senior Assistants and Translators are to be provided with promotional avenue, more posts of Deputy Superintendents and Revisors which are above the posts of Senior Assistants and Translators respectively, should be created, and first the Senior Assistants and Translators have to be promoted to the said posts. In fact, the appellant who was a Translator was first promoted to the post of Revisor. We are informed that no eligible Deputy Superintendent was available for being considered to the post of Superintendent and hence Respondent 2 who was holding the post of Senior Assistant (post below that of Deputy Superintendent) had to be promoted to the said post as he had put in six years' service as required by the said Rule 10. Rule 10 of the 1992 Rules is thus inequitous and indefensibly unjust. It violates Article 14 of the Constitution since it treats unequals as equals and what is more gives unwarranted advantage to the incumbents of the lower posts over the incumbents of the higher posts. 13. We, therefore, strike down Rule 10 of the 1992 Rules and direct the High court to frame an equitable rule for promotion to the post of Superintendent in place of the said rule.” (pp-414-415) 7 6. Looking into the entirety of the facts and circumstances of the case, I do not think that it would be necessary to hold that the Rule is to be struck down as being violative of Article-14 of the Constitution of India. Clause-11 of the Rule is in three parts contains three proviso. It reads:- “11. In case of recruitment by promotion, deputation, transfer grade, from which promotion/ deputation/transfer is to be made “By promotion from amongst the Registrar having three years regular service or regular combined with continuous adhoc (rendered upto 31.3.1991) in the grade, failing which by promotion from amongst the Registrar having five years regular service or regular combined with continuous adhoc (rendered upto 31.3.1991) as Registrar and Section Officer/ Assistant Registrar combined failing both by promotion from amongst the Section Officer/ Assistant Registrar having six years regular service or regular combined with continuous adhoc (rendered upto 31.3.1991) service in the grade. (1) In all cases of promotion, the adhoc service rendered in the feeder post upto 31.3.1991, if any, prior to regular appointment to the post shall be taken into account towards the length of service as prescribed in these Rules for promotion subject to the condition:- (i) that in all cases where a junior person becomes eligible for consideration by virtue of his total length of service (including the service rendered on adhoc basis up to 31.3.1991) in the feeder post in view of the provisions referred to above, all persons senior to him in the respective category/post/cadre shall be deemed to be eligible for 8 consideration and placed above the junior person in the field of consideration; Provided that all incumbents to be considered for promotion shall possess the minimum qualifying service of at least three years or that prescribed in the Recruitment and Promotion Rules for the Post, whichever is less; Provided further that where a person becomes ineligible to be considered for promotion on account of the requirements of the proceedings proviso, the person(s) junior to him shall also be deemed to be ineligible for consideration for such promotion. Explanation:- The last proviso shall not render the junior incumbents ineligible for consideration for promotion if the Senior ineligible persons happened to be ex-servicemen recruited under the provisions of Rule- 3 of Demobilized Armed Personnel (Reservation of Vacancies in Himachal State Non-Technical Services) Rules, 1972 and having been given the benefit of seniority thereunder or recruited under the provisions of Rule-3 of Ex- Servicemen (Rule-3 or ex- servicemen (Reservation of vacancies in the Himachal Pradesh Technical Services) Rules,. 1985 and having been given the benefit of seniority thereunder. (2) Similarly, in all cases of confirmation adhoc service rendered on the feeder post upto 31.3.1991, if any, prior to the regular appointment against such post shall be taken into account towards the length of service; Provided that inter-se- seniority as a result of 9 confirmation after taking into account, adhoc service rendered upto 31.3.1991 shall remain unchanged.” 7. The second proviso to the Rule is clear and unambiguous when it provides that in case a senior person is ineligible a junior will also be considered to be ineligible. This is the plain and simple meaning to the Rule as the explanation is not applicable for the reasons that it applies to ex-servicemen governed by a separate set of Rules governing their Recruitment and Promotion. 8. A submission was made on behalf of the respondents that clause-1 controls the second proviso i.e. it is the combined adhoc and regular service which is to be counted for purposes of promotion and it is only in that event that the case of eligibility/in- eligibility of a junior or senior is to be considered. 9. I do not see as to how this interpretation can be placed on the Rule. A plain reading of the second proviso makes it absolutely clear and provides in no uncertain terms that reference is made to eligibility/ineligibility on account of the requirements of the preceding proviso. The law on interpretation is settled that the Rule must be interpreted on the plain language in which it is drafted unless it can be established on the record that some other intention appears which I do not find on the 10 record of this case. Thus, considered the rule is clear that where a senior is ineligible because of the necessary experience the junior would also become ineligible. 10. Looking to the facts in the present case, I find that respondent No.3 is in fact junior to the petitioner. In these circumstances, the second proviso should have been applied before any promotion is made to the post of Under Secretary. 11. It has been urged that respondent No.3 has since been superannuated from service this order shall not govern his rights. In other words his promotion, made during the pendency of this petition, shall not be disturbed and neither shall it have any effect on the promotion so made entitling him to retiral benefits etc. This petition is disposed of. No order as to costs. October 18, 2010. (Dev Darshan Sud) (aks) Judge. 11