IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 963 of 2006 Date of decision: 14.10.2009 Harnam Singh Guleria …Petitioner Versus State of H.P. …Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Onkar Jairath, Advocate. For the respondent: Mr. Vikas Rathore, Deputy Advocate General. Per Deepak Gupta, J. This writ petition is directed against the order dated 3rd August, 2006 passed by the erstwhile H.P. State Administrative Tribunal in OA-(M) No. 472 of 1999, dismissing the Original Application filed by the present writ petitioner. Briefly stated, the facts of the case are that after his discharge from the Indian Army the petitioner was appointed as Tehsil Welfare Officer 19.4.1979. He was promoted as District Welfare Officer in the Welfare Department on 19.4.1986. He was inducted in the Himachal Administrative Service (HAS) on notional basis on 10.3.1997 on the basis of his seniority and service record. He actually assumed his duties as an HAS Officer on 29.1.1998. Admittedly, the petitioner had completed 50 years of age when he joined service as an HAS Officer. The petitioner did not qualify the 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 departmental examination within the period of two years prescribed under the HAS Rules. He applied for exemption from appearing in the departmental examination. This application was rejected on the ground that he is covered by the HPAS Rules and his request does not fall within the ambit of Rule 23(2) of the H.P. Departmental Examination Rules, 1997. To understand the controversy between the parties, it would be relevant to mention that the appointments to the H.P. Administrative Services are made both by way of direct recruitment and also by induction from other services. Rule 19 of the HP Administrative Service Rules, 1973 (here-in-after referred to as HPAS Rules) reads as follows:- “19. Candidates to pass the departmental examination within two years of selection :- (1) Every candidate shall within two years from the date of his appointment to the service pass by the prescribed standard the departmental examination from time to time prescribed for Himachal Pradesh Administrative Service and if any candidate fails so to pass the departmental examination, his name shall be removed from the register of candidates or, or if in the meantime he has been appointed to the service, he shall be removed from the service. (2). Every person holding a duty post under second provision to Rule 6 shall also be required to pass the departmental examination within a period of two years from the commencement of these rules. (3) Persons appointed to the service under proviso one to rule 6 shall also be required to pass within the period of their probation, the departmental examination in the subject(s) in which they have not already qualified under the DHANI Civil Service Rules, 1965. Provided that the Governor may in exceptional cases and for reasons to be recorded in writing exempt any candidate/person from passing the whole or any portion of the 3 departmental examination or may extend the period within which the candidate/person shall so pass the examination. (4) The candidate appointed from Register A-I or Register A-II who has attained the age of 55 years on the date of his appointment to the Himachal Pradesh Administrative Service on officiating or substantive provisional basis under Rule 15 shall not be required to pass the Departmental Examination as prescribed for the Himachal Pradesh Administrative Service under the Himachal Pradesh Departmental Examination Rules, 1976, for the purpose of confirmation and grant of second and subsequent increments after the first increment.” According to the State, as per these Rules, exemption to those candidates appointed from Register A-1 or Register A-II is covered by Rule 19 (4) and only officers who have attained the age of 55 years can be exempted from passing the departmental examination otherwise they shall not be entitled to any increment. The State of H.P. also framed the H.P. Departmental Examination Rules, 1997 under Article 309 of the Constitution of India. The relevant Rules, i.e. Rule 2(2)(i), 23(2), and 27(1) read as follows:- Rule -2(2)(i):- These shall govern the departmental examination in respect of (i) the members of the Himachal Pradesh Administrative Service. “Rule 23(2):- A Gazetted Officer on the attainment of 50 years of age shall not be required to appear in the departmental examination prescribed under these rules, as amended from time to time for the purpose of crossing the efficiency bar/proficiency step-up/ higher scale next due and confirmation in the service. However, the gazetted officer shall have to pass the departmental examination for the purpose of further promotion even after the attainment of the age of 50 years till the date of superannuation. 4 Provided further that no non-gazetted promotee to a gazetted post will be allowed to cross the efficiency bar/proficiency step-up/higher scale next due and confirmation in service before the age of 50 years until and unless he passes the prescribed departmental examination. In such cases the same will be treated automatically released only on attaining 50 years of age and not from the due date. Rule 27(1):- The H.P. Departmental Examination Rules, 1976 notified vide Notification No. HIPA (Exam) 12.75 dated 23rd March, 1976 and amended from time to time are hereby repealed. (2) Any other rules, instructions or orders laying the procedure for the Departmental Examinations now contained in these rules shall be deemed to have been repealed.” From a perusal of these Rules, it is apparent that these Rules have been made applicable to the H.P. Administrative Service. Rule 23 (2) provides that a Gazetted Officer after attaining the age of 50 years shall not be required to appear in a departmental examination for the purpose of crossing efficiency bar, proficiency step-up, higher scale, etc. However, for promotional purposes, he would be required to pass the examination. Rule 27(1) clearly lays down that the H.P.Departmental Examination Rules, 1976 stand repealed and any other rules, instructions or orders laying the procedure for promotional examination now contained in the Departmental Rules shall be deemed to have been repealed. Since, the State in its wisdom has made the departmental rules applicable to the Himachal Administrative Service, these Rules will prevail over the HAS Rules and in our considered view the exemption clause as laid down in the Departmental Rules will be applicable. The learned Tribunal in our opinion gravely erred in holding that whereas the Departmental Examination of the 5 members of the Himachal Administrative Service is required to be conducted as per the Departmental Examination Rules but the eligibility for exemption is governed by the HPAS Rules. Once the Departmental Rules were made applicable to the HPAS and the exemptions laid down in the Departmental Rules it is this exemption clause which will be applicable and not the provision of the HPAS Rules. The Departmental Rules were framed after the HPAS Rules and it can be presumed that the rule making authority was aware that the HPAS Rules also had certain exemption clauses. The rule making authority still decided to make these rules applicable to the H.P.Administrative Service and provide a different exemption clause. This later rule must be deemed to have repealed the earlier rule which was inconsistent with the freshly framed rules. We may approach this problem from another angle. In case the petitioner was not to be given increments then he should have been given a choice to revert to the post of District Welfare Officer where he could have earned increments. In case the Departmental Rules were applicable then the petitioner should not have been retained in the HAS since Rule 19 (1) provides that in case any candidate fails to qualify the Departmental Examination within two years of his selection in the HAS he shall be removed from service. In the case of the petitioner, he could not have been removed but would have gone back to his parent department. In view of the above discussion, we are clearly of the view that in fact the Departmental Examination Rules govern the case of the petitioner and since he had completed the age of 50 he was 6 not required to pass the Departmental Examiantion. The increments could not be denied to him. Keeping in view the aforesaid discussion, we allow the writ petition, set-aside the order of the learned Tribunal and direct that the petitioner be granted annual increments from the date they were due to the petitioner without the petitioner being required to appear in the Departmental Examination. The amount of arrears shall be paid to the petitioner within 12 weeks from today failing which the State shall be liable to pay interest on the said amount at the rate of 12% per annum from the date which fall due to the date of payment/deposit. The respondent is also directed to re-fix the pay and pension of the petitioner after granting him the increments within the period of four months from today. ( Deepak Gupta ), J. 14th October, 2009 ( V.K.Ahuja), J. ™