IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.8648 of 2008 Decided on : 8.12.2010 ___________________________________________________________ Tara Chand Joshi and others … Petitioners. Versus State of Himachal Pradesh and another … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the petitioner : Ms Ranjana Parmar, Advocate. For the Respondents : Mr. Anil Jaswal, Dy. Advocate General. __________________________________________________________ V.K. Sharma, Judge.(Oral) The petition is filed on the following prayers:- “7(i) That the respondent No. 1 may be directed to implement the recommendations of respondent No.2 forthwith and thereafter to make promotions to the cadre of Mechanical Engineers to make promotion of the applicants as Assistant Engineers forthwith from the dates their counterparts in civil side have been promoted to the post of Assistant Engineers with all consequential benefits.” 2. In the reply filed on behalf of the respondents, the following stand has been taken in paras 1 and 2 of the preliminary submissions and paras 6(iii) and (iv) on merits:- 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 “1. That the applicants in the present O.A has presented before this Hon’ble Tribunal a very wrong and incorrect case and has thus tried to mislead this Hon’ble Tribunal. The fact remains that the cadre of Junior Engineers (Mech) do have promotional avenues to the post of Assistant Engineer (Mech) and there exist R&P Rules for the post of Assistant Engineer (Mech) in the respondent Department. A copy of the s;aid R&P Rules is appended as Annexure R-I for kind perusal of this Hon’ble Tribunal. Further there do exists the post of Executive Engineer (Mech) in the respondent department and all the posts are presently filled up and manned by Mech. Cadre incumbents. So much so, the present applicant No.4 has been promoted, amongst others, to the post of Assistant Engineer (Mech) vide Department Notification No. IPH(A)-2(B)-4/98-II dated 28.10.02. A copy of which is placed on record as Annexure R-II for kind perusal of this Hon’ble Tribunal. Hence, the averments made in the present O.A. by the applicants are far from even an iota of truth, but are based on figment or imagination with a view to misleading this Hon’ble Tribunal. Hence, the present O.A. deserved dismissal and may kindly be dismissed on this short ground alone with heavy costs against the applicants and in favour of the respondent department. 2. That the Mech. Engineering and Civil Engineering are two separate and specialized wings in the respondent department and each have their respective distinct cadre strength and R&P Rules. As such, none of them has any locus standi to agitate about the other cadre. Hence, the present O.A deserves dismissal and may kindly be dismissed forthwith in the interests of justice of fair play. 6(iii) That in reply to this para it is submitted that as per the bifurcation orders, the R&P Rules of combined cadre shall remain in force till the rules are not 3 framed/amended separately by the concerned department after bifurcation of their own. Meaning thereby the respondent department did have the R&P rules for them. It is emphatically denied that I&PH Department has not framed the R&P Rules to the post of Assistant Engineer (Mech). In fact the respondent department ahs framed the R&P rules to the post of Assistant Engineer (Mech) vide Govt Notification No. IPH-A(3)-17/94 dated 22.2.2001 and are in force since then. It is emphatically denied that the Respondent Department is not making any promotions to the posts of Assistant Engineer (Mech). The fact remains that the promotions to the post of Assistant Engineer (Mech) are being made from time to time as and when vacancy arises. Recently, due to arisen of vacancies, four Junior Engineer (Mech) were promoted to the post of Assistant Engineer (Mech) on 7.4.2000 and two Junior Engineer (Mech) were further promoted to the posts of Assistant Engineer (Mech) on 7th November, 2001. Now, again 3 Junior Engineer (Mech) have been promoted to the posts of Assistant Engineer (Mech) as is evident vide Annexure R-III. Further, the cadre strength of the Mechanical Engineers in the Respondent Department is as under:- ---.-.-.-.-.-.-.--..-.-.-.-.-.-.--.-.-.-.-.-.-.-.--.-.-.-.-.-.-.-.-.-.-.-.--.-.-.-.-. Sr, No. Name of post No of posts .-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.--.--.-.-.-.--.-.-.-.-.-.-.-.-.-.-.--.-.-.-.--. 1. Executive Engineer (Mech) 3 Nos. 2. Assistant Engineer (Mech) 13 Nos. 3. Junior Engineer (Mech) 38 Nos .-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.--.-.-.--.-.-.-.-.-.-.-.-.-.-.-.-. As such , it is totally wrong and absurd to contend that there does exist any post of Executive Engineer (Mech). In the respondent department. Hence, the averments made by the applicant contrary to what is 4 stated above in the corresponding para under reply are wrong and therefore denied. (iv) That in reply to this para, it is submitted that the matter of merging the cadre of Mech wing and Civil wing into a common cadre was considered at the Govt level and the respondent No.2 was asked by the respondent No.1 to consult with both the associations of the Civil wing and Mech. Wing in order to arrive at a consensus so that there may not be any litigation later on and the matter of merger of both the cadres into the common cadre could be processed further. In pursuant to this, the respondent No.2 consulted and held a meeting with botht eh said Associations viz: Mech wing and Civil wing are not in favour of the merger of the cadre for formation of common cadre. Rather these associations have pleaded/recommended for strengthening of the cadre of Mech wing in order to avoid stagnation, and as a result of which only recently one post of Executive Engineer (Mech) was created and its cadre was increased from 2 posts to 3 posts, besides 13 posts of Assistant Engineer (Mech) and 38 posts of Junior Engineer (Mech). As such, the department has strengthened the Mech, wing and the ratio of 38:13:3 is quite sufficient to provide promotional avenues in the cadre. Further the applicant No.4 has been promoted to the post of Assistant Engineer (Mech) as is evident vide Annexure R-II. Thus, the cadre of Mech Engineers as well as of Civil Engineers in the respondent department are separate and distinct and each cadre has its own separate and distinct R&P rules and has sufficient promotional avenues in the cadre. In view of this, question of merger of both the cadres does not at all arise. Hence, the averments contrary to what is stated above is the corresponding para under reply are wrong and therefore denied.” 5 3. In view of the pleadings on behalf of the parties and on an overall view of the matter, the petition is disposed of with a direction to respondent No.1 to consider the case of the petitioners for providing promotional avenues in the light of representations Annexures A-2 and A-8 by taking into consideration the law laid down by the Hon’ble Apex Court in Raghunath Prasad Singh v. Secretary, Home (Police) Department, Government of Bihar and others, AIR 1988 Supreme Court 1033, paras 3 and 4 whereof are re-produced below for the sake of reference, within six months from today after affording an opportunity of being heard to the petitioners, if so advised:- “3. We have read the judgment of the High Court with reference to the documents placed and heard learned counsel for parties. There is no doubt that the High Court was right in finding against the appellant that the option in terms of the instructions dated 1st of Oct. 1974 was available to those who came within the ambit of the earlier judgment. Thus the appellant being a recruit of 1972-73, not in the combined cadre but in the wireless organization, was not entitled to the benefit of option. His appeal is, therefore, liable to be dismissed. 4. Before we part with the appeal, we would like to take notice of another aspect. In course of hearing of the appeal, to a query made by us, learned counsel for the appellant indicated the reason as to why the appellant was anxious to switch over to the general cadre. He relied upon two or three communications which are a part of the record where it has been indicated that there is no promotional opportunity available in the wireless organization. Reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the 6 appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospectus, the service is bound to degenerate and stagnation kills the desire to serve properly. We would, therefore, direct the State of Bihar to prove at least tow promotional opportunities to the officers of the State Police in the wireless organization within six months from today appropriate amendments of Rules. In case the State of Bihar fails to comply, with this direction, it should, within two months thereafter, give a fresh opportunity to personnel in the Police wireless organization to exercise option to revert to the general cadre and that benefit should be extended to everyone in the wireless organization.” 4. The writ petition, so also the pending application(s), if any, stand disposed of in the above terms. (V.K. Sharma) Judge. 8th December, 2010. (lsp)