IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P.(T) No. 5795 of 2008 Decided on: 16th November, 2010 Amar Singh & another Petitioner Versus State of H.P. and others Respondents Coram The Hon’ble Mr.Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Ahuja, Judge Whether approved for reporting : Yes For the Petitioner: Mr. K.D. Shreedhar, Advocate For the Respondents: Mr. Mr. R.K. Bawa, Advocate General, with Mr. J.K.Verma, Dy. A.G. ______________________________________________________ Justice Kurian Joseph, C.J. (Oral) The writ petition has been filed with the following prayers:- (i) That the impugned provisions of rules 10 & 11 of the Recruitment and Promotion Rules for the post of Foreman (Annexure A-1) may be declared illegal and be quashed and set aside. (ii) That the respondents may be directed to either prescribe essential technical qualifications for promotion to the post of Foreman or exclude the categories of Pump operator and Mechanic-cum-Fitter grade-I from the feeder category for promotion to the post of Foreman. (iii) That clubbing of three posts namely; Pump Operator, Mechanic-cum-Fitter Grade-I and Electrician Grade-I in the feeder category for promotion to the post of Foreman may be declared illegal. The respondents may further be directed to give preferential treatment to Electricians Grade-I in the matter of promotion to the post of Foreman and for this purpose, if required, make suitable amendment in the Recruitment and Promotion Rules. 2. In reply, at para 2 of the Preliminary Submissions, it has been stated as follows:- “2. The present Original Application is also not maintainable on merits as the Irrigation & Public Health Department is having 3 type of posts i.e. Electrician (Civil), Mechanic cum Fitter (Gr.I) and Pump Operators in the department and the department of Irrigation & Public Health has considered the case of all these 3 categories sympathetically to provide promotional avenue to these posts depending upon their qualification, experience and the number of strength in their respective category. Since the post of Foreman is a promotional post provided by the Government to all the three category, therefore, the applicant cannot challenge the same by saying that this post be exclusively granted to Electrician. It is prerogative of the Government to provide the promotional avenue to its employees of various categories jointly in order to open promotional avenue to all its employees, having similar and equivalent qualification and experience. It is submitted that in Irrigation & Public Health department nearly 80% of posts are Pump Operators and 20% posts are of Electrician and Mechanic Grade. Therefore, the Government after considering their qualifications and their strength has clubbed all the three category in the matter of promotion so as to provide some promotional avenue to these categories by framing the Recruitment and Promotion Rules designating as Foreman (Class III Non Gazetted) post. The applicant has no constitutional right to claim the post of Foreman exclusively to himself or to the Electrician Gr. I by excluding the other category, which are considered to be equivalent and appropriate by the department. The educational qualification, Pay scales of these posts are similar. 3, Still further at Para 6(ii) & (iii), it has been stated as follows:- “The contents of these sub paras are wrong and denied. The Irrigation & Public Health department has been finally bifurcated by the Government of HImachal Pradesh and came into existence w.e.f. 27.4.1994. Therefore, the respondent department has considered the cases of various category and has framed the recruitment and promotion rules under article 309 of Constitution of India by clubbing altogether the equivalent posts having the equivalent qualification and experience and trade by providing promotional avenue to these categories hence the averments made by the applicant with respect to Public Works Department has no relevance with the framing of the Recruitment and Promotion Rules in the Irrigation & Public Health Department as both the departments are different being different working. The functioning of both the departments are quite; different. The department of IPH is generally maintaining, manning the pumps and other machines and there is very less work of Electrician as such all the 3 posts have been made the feeder category having the minimum qualification of Matric and certificate in ITI. Therefore, the recruitment and promotion rules have been framed by the Irrigation & Public Health Department depending upon its requirement qualification, experience and number of posts of various categories in the department, which has been notified by the Govt. of Himachal Pradesh vide notification dated 17.2.1997, copy already annexed with the original application.” 4. Learned counsel for the petitioner submits that if the Rules regarding promotion operates only qua the vacancy, there may not be any chance at all for the 10% of Electrician or 10% category of Mechanic. It is settled law that the quota is to be worked out in terms of the cadre strength and not against vacancy, after the prescription of the quota in the cadre. Therefore, there is no basis for the apprehension that the Electrician or Mechanics Grade I may not get any chance at all for promotion. By way of abandoned caution, it is clarified that 80% of the posts of Foreman in I&PH department are to be filled up by way of promotion from among the Pump Operators and 10% are to be filled up from among the Electrician Grade-I and another 10% from the Mechanic-cum- Operator Grade-I. The same is to be calculated on the basis of cadre strength of Foreman in the I&PH department and not against vacancy. In case there is any back log of promotees, as above, in the cadre strength after introduction of Annexure P-1 Rules, steps shall be taken to make up those deficiencies. Yet, we may refer to one another ground regarding qualification. The post is that of Foreman (Electrical). Therefore, only a duly qualified person can be appointed in that post. This aspect of the matter will be ensured, while making the promotion. The writ petition is disposed of, so also the pending application(s), if any. Copy dasti. (Justice Kurian Joseph), Chief Justice November 16, 2010(K) ( Justice V.K. Ahuja), Judge