IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 1197 of 2007 Reserved on : 25th June, 2008 Date of Decision: 30th June, 2008 Kishori Lal Petitioner Versus State of H.P. and others Respondents. Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the petitioner: Mr.Tarlok Chauhan, Advocate. For the respondent: Mr.Vivek Thakur, Addl. Advocate General, with Mr.Shubh Mahajan, Dy. Advocate General, for respondent No.1. Mr.Ashok Sharma, Advocate, for respondent No.2. Mr.Shrawan Dogra, Advocate, for respondent No.3. Sanjay Karol, J. The Himachal Pradesh Vidhan Sabha Secretariat (Recruitment & Conditions of Service) Rules, 1974 (hereinafter referred to as the Rules) created an anomalous situation, giving the Private Secretaries unproportionately higher avenues of promotion as compared with the Section Officers, who jointly constituted a common cadre for filling up the post of Under Secretary in the H.P. Vidhan Sabha – respondent No.2. On the asking of the employees Association, a Committee was constituted to Whether the reporters of Local Papers are allowed to see the Judgment? 2 undertake the task of reviewing and updating the Rules. The report was deliberated and discussed and a proposal was sent to the Government – respondent No.1 recommending that the existing cadre of Clerks/ Stenographers upto the level of Deputy Secretary be bifurcated and one of Under Secretaries be re-designated as Senior Private Secretary in the same pay scale. Since no action was taken by the Government, some of the employees including the present petitioner filed CWP No. 1228 of 2001 dated 25.11.2001 challenging the Rules; seeking a direction to the respondent to legislate the recommended Rules; and a direction that pending finalization of the proposed Rules, no promotion take place to the post of Under Secretary. It is a matter of record that no interim stay/ direction was given on the stay application filed by the petitioners in the said writ petition save and except that the promotion, if any, made will be subject to the final outcome of the writ petition. On 7.10.2003 respondent No.2 ordered the bifurcation of the existing common cadre of the Section Officers and Private Secretaries in the H.P. Vidhan Sabha Secretariat. Since no action had been taken by the respondent No.1 on the recommendation made by respondent No.2 and adhoc vacancy for the post of Under Secretary had fallen vacant, respondent No.3 Smt. Santosh Negi in terms of order dated 2.5.2005 was promoted on adhoc basis from Private Secretary to Under Secretary in the pay scale of Rs.10025 – 15000 + 800 Secretarial allowance, as temporary arrangement with immediate effect. Her adhoc appointment was not to confer any right for regular promotion and/or seniority. In fact even as late as 14.2.2007 respondent No.2 had reminded respondent No.1, in writing, to get approval of the Cabinet for the 3 creation of the post in order to implement the orders of bifurcation of the cadre of the Private Secretaries and Section officers. The issue of bifurcation, framing of Rules and also creation of one post of Senior Private Secretary was considered by the State of Himachal Pradesh at the highest level and in principal concurrence having been granted by the Finance Department on 19.2.2007, vide letter dated 27.2.2007 the respondent No.1 informed respondent No.2 that the Governor, Himachal Pradesh, was pleased to bifurcate the cadre of Private Secretaries and Section Officers in the H.P. Vidhan Sabha with immediate effect and one post of Senior Private Secretary also stood created. The fact that the cadre of Private Secretaries and Section Officers stood bifurcated with effect from 27.2.2007 was brought to the notice of the Court in the aforesaid writ petition and consequently vide order dated 11.6.2007, the same was dismissed with the following orders:- “CMP No.1368 of 2007 This application has been filed by respondent No.1 stating that the cadre of Section Officers and Private Secretaries has been bifurcated w.e.f. 27.2.2007. Learned counsel for respondent No.2 submits that in view of this development, the writ petition does not survive. Learned counsel for the petitioner prays that in the writ petition, relief claimed was w.e.f. the date of filing of the writ petition. I have heard learned counsel for the parties. In view of the Notification which has been filed with CMP No.1368 of 2007 being Notification No. GAD-C(GI) 6(F) 46/84-III dated 27.2.2007, this writ petition is disposed as being infructuous with liberty reserved to the petitioner to agitate any other claim to which he is entitled to as prayed for by him in this writ petition. There shall be no order as to costs.” 4 The adhoc appointment of respondent No.3 Smt. Santosh Negi made vide order dated 2.3.2005 was in the meantime regularized in terms of order dated 22.2.2007 with effect from 2.3.2005. The petitioner herein has filed the present writ petition impugning the order dated 22.2.2007 regularizing the respondent No.3 to have been appointment on regular post. Mr. Tarlok Chauhan, learned counsel for the petitioner has argued as under:- As on 2.3.2005 there was no clear vacancy available and therefore, appointment of respondent No.3 Smt. Santosh Negi on adhoc basis is illegal; respondents No.1 and 2 have shown undue haste in appointing the said respondent on regular basis; since the matter of bifurcation of cadre was pending consideration, no appointment in any event could have taken place and the existing Rules ought to have been kept in abeyance. Per contra, the learned counsel for the respondents have argued as under:- As on 2.3.2005, in addition to two clear regular vacancies, one adhoc vacancy was available as Mr. V.C.Thapliyal who was holding the post of Under Secretary was on secondment with the Uttranchal Vidhan Sabha and there being every likelihood of he being absorbed there permanently, the post was necessarily required to be filled in on adhoc basis to meet the office requirement; no undue haste has been shown in regularizing the appointment of respondent No.3. On the contrary her regularization stood delayed as Shri Thapliyal was permanently absorbed in the Uttranchal Vidhan Sabha on 1.6.2005 and with effect from 1.6.2005 a 5 clear regular vacancy had arisen which was necessarily required to be filled up. The adhoc appointment was made after the constitution of the Departmental Promotion Committee and in full compliance of the existing Rules; the existing Rules were never kept in abeyance; till the time new Rules were notified in accordance with Article 187 of the Constitution of India, no legally enforceable right could be said to have accrued in favour of the petitioner, who in any event was no where within the zone of consideration for promotion. The maintainability of the petition is questioned on this ground. I have heard the learned counsel for the parties and perused the record. Article 187 of the Constitution of India enables the State, by law, to regulate recruitment and conditions of service of persons appointed to the Secretarial Staff of the House and till such time it is so done, the Governor after consultation with the Speaker may frame Rules for the said purpose. The Rules have been in existence since 1974. There is no order passed by any Authority including this court in CWP No.1228 of 2001 staying the operation of these Rules. From the supplementary affidavit dated 2.5.2008 and the record annexed therewith, it is evident that as on 1.3.2005, the date when the memorandum of consideration by the Departmental Promotion Committee was prepared three vacancies to the post of Under Secretaries were available (two clear vacancies and one adhoc vacancy which had arisen due to secondment of Shri V.C.Thapliyal). Accordingly, the eligible candidates were considered and three persons, namely, Chuni Lal, Amar Singh and 6 Santosh Negi were recommended. Chuni Lal and Amar Singh were appointed in order of their merit against the regular vacancies and Smt. Santosh Negi was appointed on adhoc basis against the third vacancy. From the affidavit filed by respondent No.2, it is evident that Shri Thapliyal, was permanently absorbed as Deputy Secretary in Uttranchal Vidhan Sabha on 1.6.2005 and, therefore, a substantive vacancy had arisen on that date and respondent No.3 was eligible to have been considered for regular promotion to the post of Under Secretary thereafter. Between 1.6.2005 and 27.2.2007 no action, whatsoever was taken and the issue of bifurcation; framing of Rules and creation of post was still under consideration with the Government. Keeping in view the said circumstances, it cannot be said that there was no vacancy available as on 2.3.2005 against which respondent No.3 was appointed on adhoc basis. Undoubtedly the issue of bifurcation, creation of new post and framing of Rules was precipitated on 14.2.2007, but, however, that fact alone would not be enough to indicate and prove that respondent No.2 had acted with undue haste in regularizing the appointment of respondent No.3 on regular basis. The respondent No.3 had been serving on the said post since 2.3.2005, which was regularized only on 22.2.2007. Therefore, I find no merit in the submission made by the learned counsel for the petitioner on this count. Mr.Dogra, learned counsel for the private respondent has invited my attention to the Notification published in H.P. Rajpatra on 28th February, 2008 from which it is clear that the Rules, only for the post of Senior Private Secretary have been notified and in fact, the Government has not notified the new Rules of appointment to the post in question even as on 7 date. On a query put to the learned counsel for the petitioner, this fact is not disputed. Be that as it may be, the fact of the matter is that upto 27.2.2007 the bifurcation had not been approved by the Government at all and all appointments and promotions had to take place in accordance with the existing Rules. It is a settled law that an authority which has framed Rules must adhere to the same and all actions ought to be regularized in accordance with the same. The Rules framed must be strictly followed. [A.K.Bhatnagar and others vs. Union of India and others, (1991) 1 SCC 544]. It is also a settled law that once an incumbent is appointed to the post in accordance with Rules his seniority has to be counted from the date of his appointment and not the date of his confirmation. [Direct Recruit Class II Engineering Officers’ Association vs. State of Maharashtra and others, (1992) 2 SCC 715; Keshav Chandra Joshi and others vs. Union of India and others, 1992 Supp (1) SCC 272; Santosh Kumar vs. State of A.P. and others, (2003) 5 SCC 511]. The regularization of respondent No.3 vide order dated 22.2.2007 cannot be faulted for any reason except that the same would be effective from 1.6.2005 the date when a clear regular vacancy fell vacant. No other point has been urged. For the aforesaid discussion and reasons, I find no merit in the writ petition and the same is dismissed. June 30, 2008 (Sanay Karol) (C) Judge. 8