IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CWP(T) No.4783 of 2008 with CWP(T) No.2122 of 2008 Date of Decision : May 17, 2010 CWP(T) No.4783 of 2008 Krishan Bhardwaj & Ors. …Petitioners. Versus: H.P. Tourism Development Corporation & Ors. …Respondents. CWP(T) No.2122 of 2008 Krishan Bhardwaj & Ors. …Petitioners. Versus: State of H.P. & Ors. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No CWP(T) No.4783 of 2008 For the petitioners: Ms. Sulochana Kaundal, Advocate For respondent No.1 : Ms. Ranjana Parmar, Advocate CWP(T) No. 2122 of 2008 For the petitioners: Ms. Sulochana Kaundal & Mr. P. P. Chauhan Advocates. For respondent No.1: Mr. R. K. Sharma, Sr. Advocate with Mr. R. M. Bisht, Dy. A.G. and Mr. P.M. Negi, Dy.A.G. For respondent No.2 : Ms. Ranjana Parmar, & Mr. Bhuvnesh Sharma, Advocates 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Sanjay Karol, J. (Oral). O.A. No. 568/1993 (CWP(T) No. 2122/2008) was filed on 27.3.1993 and O.A. No. 2388/1997 (CWP(T) No. 4783/2008) was filed on 26.12.1997 before the erstwhile Himachal Pradesh Administrative Tribunal. Both these petitions stand transferred to this Court and re- numbered. 2. In O.A. No. 568/1993 petitioners have prayed for the following relief: “A) That the appointment of Respondent No.3 Shri Nand Lal be quashed and set-aside in the interest of justice and fair play. B) That the respondent No. 1 & 2 may very kindly be directed to promote the applicants, who have put up more than nine years of service, to the post of Commi-II. C) That the transfer orders of applicant No.3 from Holiday Home, Shimla to Ciraz Café, Mandi be set aside.” 3. In O.A. No. 2388/1997 petitioners have prayed for the following relief: “(i) That the promotion of respondents No. 2 and 3 be kindly declared illegal and office order, Annexure A-1 dated 22.11.97 be quashed/set aside. (ii) That the respondents be directed to produce the entire record pertaining to the case of the applicants for the perusal of this Hpn’ble Tribunal. (iii) That the respondents be burdened with the cost of this application throughout. 3 (iv) That for the convenience of this Hon’ble Tribunal, the Original Application be tagged with O.A. No. 568 of 1993 and be heard together.” 4. It cannot be disputed that if O.A. No. 568/1993 is dismissed then O.A. No. 2388/1997 would also automatically stand dismissed. Decision on the former shall have a definite bearing on the latter. 5. The respondents have framed Rules known as H.P. Tourism Development Corporation Limited (Staff) Recruitment & Promotion (Revised) Rules, 1985 (hereinafter referred to as ‘the Rules’) for filling up the post in question i.e. Commi-II. Relevant Rule reads as under:- “4. Commi-II (Rs.510-800) 50% by promotion. 50% by direct recruitment 75% from Commi-III with 3 years service as such on the basis of merit-cum-seniority. Matric/Hr. Secondary and having passed one year Cookery Course from a recognized Institute with experience of 5 years of working in hotels of repute.” 6. In O.A. No. 568/1993, it is the petitioners grievance that on 5.11.1992 the respondents issued an advertisement for filling up the posts of Commi-II by way of direct recruitment. These posts were actually to be filled up by promotion from amongst the persons occupying the posts of Commi-III which include the petitioners. 7. The respondents in their return have clarified that in fact the posts advertised were actually required to be filled up by direct recruitment and not by promotion. There does not seem to be much dispute about this fact now. 4 8. Ms. Sulochana Kaundal and Mr. P. P. Chauhan, learned counsel for the petitioners have however invited my attention to the fact that the private respondent Sh. Nand Lal was even otherwise ineligible to have been appointed as a direct recruit for the reason that he did not fulfill the eligibility criteria. I am afraid the contention needs to be rejected. 9. The Rules do not provide that the applicant must have an experience of 5 years as a Commi-III or that as a Cook. All that is required of a candidate is; (i) that he should be a Matriculate/Higher Secondary; (ii) he should have undergone one year course in Cookery from a recognized institute; (iii) he should have experience of 5 years of working in hotels of repute. The Rules are clear and unambiguous. 10. In para-6 of OA No. 2388/1997, the petitioners themselves have averred as under:- “(2) That the respondent No.3 herein, Shri Nand Lal was initially appointed as Trainee Waiter in the year 1984 and was subsequently regularized as Asstt. Waiter in the year 1986 in the pay scale of Rs.300-430. It is crucial to point out here that the applicants were regularized as Assistant Cooks (Commi-IV) in the higher pay scale of Rs.325-495 which was higher than that of the Assistant Waiter.” 11. Therefore, the private respondent did have a minimum experience of 5 years of “working in a hotel of repute”. Hotel Holiday Home where the said respondent was appointed is a hotel of repute. In fact it is a Flag Ship Hotel of the respondent Corporation. Even a trainee or an Assistant Waiter can be a good Cook. My attention has also been invited to letter dated 9.3.1993 (Annexure R-II) to contend that the same has been issued only to help the private respondent. The certificate issued in favour of the 5 private respondent by the Area Manager of Hotel Holiday Home, Shimla is of no consequence in view of the petitioners’ own averments noticed hereinabove. 12. In the return, the Corporation has clarified that in fact the private respondent is a graduate. He has also undergone one year Course in Cookery. According to the petitioners this Course was completed in the year 1989 which is much after the petitioners had completed their Course. In my view, even this fact would have no bearing for the reason that as on the date of issuance of the advertisement, the private respondent had acquired the requisite Course in Cookery. 13. In this view of the matter, it cannot be said that the appointment of the private respondent as Commi-II is contrary to and dehors the Rules. No legally enforceable right of the petitioners stands breached. No relief can be granted to the petitioners. Consequently, the present petition without merit is dismissed. 14. As a consequence of the dismissal of the first petition, the private respondent’s subsequent promotion as Commi-I, in terms of office order dated 22.11.1997 Annexure A-1 in OA No. 2388/1997, also cannot be said to be illegal. Hence the second petition also stands dismissed. ( Sanjay Karol ), Judge. May 17, 2010 (rana)