Allowed

Kushal Singh Rana v. State of H.P

Himachal Pradesh HC3 Nov 2014CWP/2968/2014

Case brief

AI extract

What is this about?

High Court of Himachal Pradesh held that vacancies existing under old rules must be filled per old rules. Writ petition allowed; petitioner directed to be considered for promotion under 2000 rules. Junior promotions not quashed as vacancies exist.

What did the court decide?

Respondents directed to consider petitioner's case under 2000 rules within eight weeks by holding a Departmental Promotion Committee.

Kushal Singh Rana Vs State of H.P — Pension and Retirement Benefits | Himachal Pradesh HC (2014)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CWP No. 2968 of 2014 Reserved on: 30.10.2014 Decided on: 3.11.2014

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______ _____________________________________________ Kushal Singh Rana. …Petitioner. Versus State of H.P. and another. …Respondents.

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Coram:

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Hon’ble Mr. Justice Rajiv Sharma, Judge. Hon’ble Mr. Justice Sureshwar Thakur, Judge.

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Whether approved for reporting?¹ Yes

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For the Petitioner: Mr. Hamender Singh Chandel, Advocate.

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For the Respondents: Mr. Anup Rattan, Addl. A. G.

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Justice Rajiv Sharma, Judge.

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Petitioner was appointed as Computer on 6.3.1981. He was promoted as Junior Statistical Assistant in the month of December, 2008. Respondent-State has notified rules on 16.9.2000 called the “Himachal Pradesh Department of Health and Family Welfare Statistical Assistant Class-III (NonGazetted) Recruitment and Promotion Rules, 2000”. According to these rules, the post of Statistical Assistant is a nonselection post. The essential qualification and other eligibility

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1 Whether reporters of the local papers may be allowed to see the judgment? Yes

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criteria required for direct recruitment/promotion for the post

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of Statistical Assistant read as under:

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7. Minimum Educational	Essential Qualification:-
and other qualifications	i) Should be B.Com. or B.S	c. or
required for direct	B.A. with Econom	ics/
recruits.	Mathematics/ Statistics	as
	one of the subject or equivalent from a recogn University. ii) At least 03 years experi	its ized ence
	in the field	of
	collection/compilation statistical Data. Desirable Qualifications:- Knowledge of customs, man and dialects of Himachal Pra and suitability for appointmen the peculiar conditions preva in the Pradesh.	of ners desh t in iling
8. Whether age and	Age : Not applicable.
educational qualifications prescribed	Educational Qualification: applicable.	Not
for direct recruits will apply in the case of the
promotees.
9. Period of probation, if	Two years subject to such fur	ther
any:	extension for a period	not
	exceeding one year as may ordered by the competent auth in special circumstances reasons to be recorded in writin	be ority and g.
10. Method of	i) 66-2/3% by direct recruitmen	t;
Recruitment, whether by	ii) 33-1/3% by promotion fa	iling
direct recruitment or by	which by direct recruitment.
promotion, deputation,	For the purpose of appointm	ents
transfer and the	the following roster shall	be
percentage of vacancies	followed:-
to be filled in by various	Roster Point Category
methods;	1st point By promotion.
	2^ndPoint By direct recruitm	ent.

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	3^rdPoint By direct recruitment. Thereafter the roster will repeat.
11. In case of	By promotion from amongst the
recruitment by promotion, deputation, transfer, grade from which	Junior Statistical Assistant who possess five years regular service or regular combined with continuous ad hoc (rendered upto 31.3.98)
promotion/deputation/tr ansfer is to be made;	service, if any, in the grade.

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The method of recruitment was 66-2/3% by direct recruitment and 33-1/3% by promotion failing which by direct recruitment. The Junior Statistical Assistant, who possessed five years regular service or regular combined with continuous ad hoc service was eligible for promotion to the post of Statistical Assistant. Respondent-State framed rules called “The Himachal Pradesh, Department of Personnel, Statistical Assistant, Class-III (Non-Gazetted) Common Direct Recruitment and Promotion Rules, 2011. These were notified on 20.8.2011. Minimum Educational and other eligibility criteria required for direct recruits/promotion for the post of Statistical Assistant read as under:

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Minimum Edu	cation	a) ESSENTIAL QUALIFICATION:
and	other	B.Com or B.Sc/B.A. with
qualifications		Economics/Mathematics/Statistics
required for recruits:	direct	as one of the subjects or its equivalent from recognized
		University. DESIRABLE QUALIFICATION:
		i) At least 3 years experience in
		the field of collection
		compilation of statistical data.
		ii) Higher Qualifications in any of

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the above subjects.
iii) Knowledge of customs,
manners and dialects of
Himachal Pradesh and
suitability for appointment in
the peculiar conditions
prevailing in the Pradesh.

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The qualifications prescribed for direct

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recruitment were also made applicable for promotion. The post of Junior Statistical Assistant was taken out from the feeder category for promotion to the post of Statistical Assistant. These rules were amended by the rules called “The Himachal Pradesh Department of Personnel, Statistical Assistant, ClassIII (Non-Gazetted) Common Direct Recruitment and Promotion (First Amendment) Rules, 2013. The qualification of B.Sc. (Non-Medical) was also included in the essential qualification. The post of Junior Statistical Assistant was again put in feeder category for the post of Statistical Assistant.

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Case of the petitioner precisely is that though he was eligible and qualified for promotion to the post of Statistical Assistant as per the Recruitment and Promotion Rules, 2001 but he was not considered and the persons junior to him were considered and promoted vide Annexure P-4.

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Mr. Anup Rattan, learned Additional Advocate General, has vehemently argued that the petitioner was not eligible and qualified for the post of Statistical Assistant. He has also argued that petitioner has not put in five years

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qualifying service for being considered for promotion for the post of Statistical Assistant.

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There was no minimum educational qualification prescribed for promotion to the post of Statistical Assistant as per rules notified on 16.9.2000. Petitioner was in feeder category. Junior Statistical Assistants possessing five years regular service was eligible for promotion to the post of Statistical Assistant. The qualification for promotion was only prescribed vide notification 20.8.2011 and simultaneously the post of Junior Statistical Assistant was taken out from the feeder category for promotion to the post of Statistical Assistant, which was re-inducted with slight modification in educational qualification vide notification dated 11.2.2013. Case of the petitioner was required to be considered as per rules notified on 16.9.2000. Petitioner was promoted as Junior Statistical Assistant in the month of December, 2008. He has completed five years in the month of December, 2013. The Departmental Promotion Committee was convened in the month of January, 2014. It has come on record that old vacancies were existing when the Departmental Promotion Committee was convened in the month of February, 2014. Case of the petitioner ought to have been considered strictly in accordance with the rules notified on 16.9.2000. It is settled law old vacancies are required to be filled in as per old rules and the new vacancies which have occurred after 20.8.2011 were required to be filled in as per rules notified on 20.8.2011.

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Their Lordships of the Hon'ble Supreme Court

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in Y.V. Rangaiah and others versus J. Sreenivasa Rao

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and others , (1983) 3 SCC 284 have held that vacancies in the promotional posts occurring prior to the amendment have to be filled up in accordance with the un-amended rules. Their Lordships have held as under:

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“9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their rights of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewide basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.”

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We have also gone through the seniority list. Persons junior to petitioner have been promoted and the petitioner has not been considered.

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Accordingly, in view of above analysis and discussion, the writ petition is allowed. Respondents are directed to consider the case of the petitioner as per rules notified on 16.9.2000 to the post of Statistical Assistant

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within a period of eight weeks from today by holding Departmental Promotion Committee. In order to balance equities, we have decided not to quash the promotions of the persons, who have been promoted, though junior to the petitioner since vacancies are available. In case petitioner is found suitable to the post of Statistical Assistant, he will be entitled to all the consequential benefits. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.

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(Justice Rajiv Sharma), Judge. (Justice Sureshwar Thakur), Judge.

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3.11.2014 awasthi

Kushal Singh Rana v. State of H.P

Case brief

What is this about?

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Kushal Singh Rana v. State of H.P

Case brief

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