IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 6455 of 2008. Date of decision 12.11.2010. ------------------------------------------------------------------------------------ Anil Kumar. ....Petitioner. Versus State of H.P. & others. ....Respondents. ------------------------------------------------------------------------------------ Hon'ble Mr. Justice: V.K. Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Ranjan Sharma. For the respondents: Ms Ruma Kaushik, Addl. A.G. ------------------------------------------------------------------------------------ Justice V.K. Sharma, (oral): Though the petition has been filed for the grant of numerous reliefs but at the time of hearing, the learned counsel for the petitioner has restricted the same only with regard to the substantive reliefs as at para 7 (iv) to (vi), which are to the following effect:- “ iv) The respondents may be directed to consider the case of the applicant for promotion as Grade-III carpenter in the pay scale of Rs. 950-1800/- w.e.f. The date of his eligibility after completion of 5 years of service on 22.3.1995 without the requirement of the certificate in the trade of carpenter from the applicant by invoking the relaxation Clause in Rule 17 of the R&P Rules vide Annexure A-7 forthwith. v) In the alternative, the provision of Rule 7 & 8 which totally debars the applicant for further promotion (either as Grade-III) carpenter or to any higher post in the scale of Rs. 950-1800), may kindly be declared illegal, malafide and the ultra-vires the constitution of India. vi) That without prejudice to the relief(s) (iv) & (v) above, the respondents may be directed to provide further promotional avenues as Grade-III carpenter in pay scale of 950-1800 either on the basis of length of service or by providing a reasonable quota for promotion, in order to avoid stagnation as Grade-IV carpenter for the remaining service career of about 30 years of the applicant forthwith”. 2. In the reply filed on behalf of the respondents, the following stand has been taken:- “The applicant is Middle Pass and does not posses of I.T.I. Diploma in the trade of Carpenter. As per the R&P Rules of Carpenter Grade so published in the year 1995 Grade-IV and then Gr-I. The mode of recruitment is 100% by promotion through respective feeder category. He will be considered for the promotion to the post of Gr.III carpenter in the pay scale of Rs. 950-1800 as per R&P Rules, as and when his turn comes according to the seniority and roster on the availability of the vacancy to the said post. Hence his present claim is without any basis.” 3. Some undisputed facts may be noticed first. The petitioner joined the employment of the respondents, particularly respondent No.3 as carpenter Grade-IV on 22.3.1991. The Rules known as 'Recruitment and Promotion Rules for the post of Work Charged Carpenter Grade-III in the department of PWD' (for short R&P Rules), Annexure A-7 were framed thereafter. Later on in the year 1995 qualifying service of 5 years as Carpenter Grade-IV was also included in the R&P Rules, which the petitioner completed only in the year 1996. Apart from the minimum qualifying service of 5 years, another eligibility condition was relating to qualification which was provided as middle examination alongwith a certificate in the trade of Carpenter from a recognized institution. Though, the petitioner was middle pass, yet he was not having any certificate in the trade of Carpenter, which was and is a hurdle in his way for the promotion as Carpenter Grade-III. However, the fact remain that he has been working as 'Carpenter Grade IV for a long time since 22.3.1991. 4. In support of his claim for promotion, the petitioner has relied upon a judgment of the Hon'ble Supreme Court reported as A. Satyanarayana and others vs. S. Purushotham and others 2008 (5) SCC, 416. Paras 28, 30 and 34 of the judgment being relevant are extracted below:- “28. The superior courts, while exercising their power of judicial review, must determine the issue having regard to the effect of the subordinate legislation in question. There must exist a rational nexus between the impugned legislation and the object of promotion. Promotions are granted to a higher post to avoid stagnation as also frustration amongst the employees. This Court, in a large number of decisions, has emphasized the necessity of providing for promotional avenues. (See Food Corporation of India v. Parashotam Dass Bansal). The State, keeping in view that object, having found itself unable to provide such promotional avenue, provided for the scheme of accelerated career progress (ACP). The validity and effect of the impugned legislation must be judged keeping in view the object and purport thereof. This Court would apply such principle of interpretation of statute which would enable it to subserve the object in place of subverting the same. 30. Although mere chance of promotion is not a fundamental right, but right to be considered therefor is. In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all times to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India. 34. A statutory rule, it is trite law, must be made in consonance with constitutional scheme. A rule must not be arbitrary. It must be reasonable, be it substantive or a subordinate legislation. The legislature, it is presumed, would be a reasonable one. Indisputably, the subordinate legislation may reflect the experience of the rule-maker, but the same must be capable of being taken to a logical conclusion.” 5. Reliance has also been placed on a judgment rendered by this Court in CWP(T) No. 7449 of 2008, titled Lalit Kumar v. State of H.P. and others decided on 7.5.2009. 6. In view of the above legal position, the petition is disposed of with a direction to the respondents to consider the case of the petitioner for promotion to the post of Carpenter Grade-III on and w.e.f. the date when his junior, if any, in the cadre of Carpenter Grade-IV was promoted as Carpenter Grade-III, in the light of the law laid down by the Hon'ble Apex Court in the judgment referred to here-in- above. The needful shall be done within a period of three months from the date of production of certified copy of this judgment by the petitioner within one month from today. Needless to say that in the event of the petitioner being favourably considered for promotion, consequential benefits would follow. 7. With these observations, the writ petition is disposed of so also the pending application(s), if any. (V.K. Sharma) Judge. 12th November, 2010 (KCK) CWP (T) No. 7250 of 2008. 12.11.2010: Present: Mr. J.L, Bhardwaj, Advocate, vice counsel for the petitioner. Mr. Vinod Thakur, Advocate for respondents No. 1 & 6. Mr. Pushinder Singh Jaswal, Advocate, for respondents No. 2 to 5. At the request of the learned vice counsel for the petitioner, list on 16.11.2010. (V.K. Sharma) 12th November, 2010. Judge. (KCK) 12.11.2010: Present: Smt. Kamlesh Kumari alongwith her husband Sh. Mohinder Kumar. Sh. Surinder Kumar alongwith his Sh. Puneet Kumar. The case has been taken up for settlement at 2.00 p.m. In the first session, both the parties joined. Thereafter, it was deemed proper to have separate session, which was first started with talk to Smt. Kamlesh Kumari and Mohinder Kumar and thereafter, with Sh. Surinder Kumar and his son Sh. Puneet Kumar. Needless to point out that keeping in view the nature of the dispute, I thought it proper to take assistance of Sh. D.K. Shrma, Coordinator Mediation Center. The mediation proceedings have taken place by getting counter proposals from both the parties and now, there appears to some ray of hope for settlement of dispute. Hence, it is proper that the parties are given some more time. The proceedings are concluded at 5.00 p.m. and next session will be held on 10.12.2010 at 1.00 p.m. (G.D. Verma) Sr. Advocate.