Dinesh Kumar and Ors. Vs State of Haryana and Others

The present writ petition has b een filed under Article 226/2 2 7 of the Co n stitution of India for the issu a nce of a writ in the nature o f certiorari q uashing the impugned orde r s dated 27.10.2023 (Annexu r e P-11), 29. 1 2.2023 (Annexure P-15), an d 06.01.2024 (Annexure P-16), whereby the Petitioners have been reverte d from the post of Assistant Fi r e Station Of fi cer/Sub Fire Officer to Leadin g Fireman. The petitioners furth e r pray for t h e issuance of a writ in the n a ture of mandamus directing t h e respondent s to allow the petitioners to co n tinue to work on the promot e d

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FACTUAL BACKGROUND

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2. Briefly stated, the petitioners w ere appointed as Fireman by t h e Deputy Co m missioner, Gurugram in exer c ise of power under the Harya n a Municipal Services (Integration, Recruit m ent & Conditions of Service s ) Rules, 198 2 (hereinafter ‘1982 Rules’). T hey were promoted as Leadi n g r Fireman by the Commissioner, Municipal C orporation, Gurugram vide ord e dated 25.1 1 .2011, in the exercise of pow e rs under the Haryana Municip a l Service Ru l es, 1998 (hereinafter ‘1998 Rul e s’).

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3. The genesis of the present d i spute lies in the creation of 9 7 posts of Sub Fire Officer by the G overnment of Haryana vi d e communic a tion dated 04.06.2014 to Direct o r, Urban Local Bodies, Haryan a . The Petitio n ers, along with others, filed CWP No. 262 of 2018 titled a s ‘ Mam Raj and others v. State of Haryana and others ’ seeking quashing o f advertisem e nt dated 19.12.2017 to the ex t ent vide which 26 posts of S u b Fire Offic e r were advertised by the De p artment to be filled by dire c t recruitment. The petitioners submitted that the posts are to be filled only b y way of pr o motion as per the 1982 Rules and 1998 Rules in light of t h e principle o f “old vacancy, old rules” as la i d down by the Hon'ble Supre m e Court in Y.V. Rangaiah & Ors. Vs. J. Sreenivasa Rao & Ors., (1983) 3 SCC 284 .

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4. Vide judgment dated 13.09.2018 (Annexure P-1), this Cou r t allowed th e writ petition, directing the Re s pondents to consider the case o f the Petitio n ers for promotion as per the 1 9 82 Rules, observing that the 9 7 sanctioned p osts were vacant prior to the p romulgation of the new Harya n a Fire (Grou p C) Service Rules, 2016 (herei n after, ‘2016 Rules’) and thus h a d to be filled b y promotion under the old rule s . The Court observed as follow s :

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“ The respondents cannot rely upo n the Haryana Fire (Group C ) Serv i ces Rules, 2016, as the princip l e of old vacancy old rule has t o be f o llowed by the department. Si n ce all the above 97 sanction e d posts are lying vacant prior to the p romulgation of the 2016 rule s , thes e posts can only be filled by wa y of promotion and not by dire c t recr u itment. Further the similarly s ituated persons have also be e n pro m oted by the department vide or d er dated 07.04.2017 (P-15).

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In vi e w of the above factual position, the instant petition is disposed o f with a direction to respondents to c o nsider the case of the petitione r s for p romotion, as per Haryana M unicipal Services (Integrati o n Recr u itment and Conditions of S ervice) Rules, 1982 and pa s s appr o priate orders within a period of three months and inform th i s Cou r t.”

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5. In compliance, after depar t mental correspondence and a Contempt P etition (COCP No. 484 of 20 1 9), the Respondent-Departme n t, vide letter dated 08.02.2019, directed the Commissioner, Municip a l Corporatio n , Gurugram—being the com p etent authority under the 19 9 8 Rules—to c onsider the case of the Petition e rs’ for promotion. Consequentl y , the Petitio n ers were promoted to the p ost of Assistant Fire Stati o n Officer/Su b Fire Officer vide order dated 26.06.2020 (Annexure P-4) by t h e Commissio n er, Municipal Corporation, Gu r ugram.

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6. Subsequently, the Responde n ts issued a show-cause noti c e dated 31.0 3 .2022 (Annexure P-5), allegin g that the promotion was void a b initio as it w as not passed by the competen t authority (the Director under t h e 2016 Rule s ) and that no vacant posts e x isted under the old rules. T h e Petitioners challenged this notice in CW P No. 7273 of 2022. This Cou r t, vide order dated 26.07.2023 (Annexure P-8), disposed of the petitio n , directing t h e Petitioners to submit a reply t o the show-cause notice and t h e competent a uthority to consider the same a s per the applicable rules and i n light of the j udgment in CWP-262-2018.

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7. The Petitioners submitted a detailed reply dated 27.07.20 2 3 (Annexure P-9) and were granted a p ersonal hearing. However, t h e Commissio n er, Municipal Corporation, G urugram, passed the impugn e d order dated 27.10.2023 (Annexure P-11), d e claring the promotion order vo i d ab initio. T h is was followed by consequen t ial communications/orders dat e d 29.12.2023 (Annexure P-15) and 06.01.2 0 24 (Annexure P-16). Aggriev e d by these ac t ions, the Petitioners have appro a ched this Court.

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CONTENTIONS

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8. Learned counsel for the petiti o ners inter alia contends that t h e impugned a ction is in direct contraventio n of the directions issued by th i s Hon’ble C o urt in CWP-262-2018 and C WP-7273-2022. The Court h a d r categorical l y directed the Respondents to c o nsider the case of petitioners f o promotion under the 1982/1998 Rules, a nd the Commissioner was t h e designated c ompetent authority under thos e very rules. To now hold that t h e

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same Com m issioner lacked competence i s a subterfuge to circumvent t h e Court’s ma n date. It is submitted that the p etitioners’ promotion vide ord e r dated 26. 0 6.2020 was not an indepe n dent or arbitrary act of t h e Commissio n er but a direct consequence of the compliance proceedin g s initiated pu r suant to this Court’s order dat e d 13.09.2018 and the subseque n t contempt p e tition. The competent authorit y in the case of petitioners wou l d be Commissioner, Municipal Corporation, Gurugram, as is discernible fro m letter dated 08.02.2019 attached with the s hort reply of respondent No.2 i n COCP No. 4 84-2019 (Annexure P-2). The impugned order also states th a t the petitio n ers neither fulfilled the require d qualification/experience for t h e promotion t o the post of Sub Fire Station O fficer nor any post of Assista n t Fire Stati o n Officer was lying vacant in the Municipal Corporati o n Gurugram.

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9. Furthermore, it is submitted th a t the action of the respondents i s blatantly discriminatory. Several other sim i larly situated co-petitioners fro m CWP No. 2 62 of 2018, who were promote d in other Municipal Corporatio n s in complia n ce with the very same High C o urt order, have been allowed t o continue i n their promoted posts. The pet i tioners alone have been singl e d out for rev e rsion, which smacks of arbitrari n ess and malice.

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10. Moreover, the impugned orde r dated 27.10.2023 passed by t h e Commissio n er, Municipal Corporation, G urugram (Respondent No. 4 ) suffers fro m the vice of non-application of mind. It is evident from t h e communic a tion dated 04.10.2023 (Annexu r e P-10A) from the Director, Fi r e

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and Emerg e ncy Services (Respondent No . 2), that the Commissioner w a s merely ac t ing under the dictation of a superior authority. The sa i d communic a tion categorically observed t h at the case of the petitione r s regarding r e version be considered being vo i d-ab-initio and not in accordan c e with 2016 Rules, thereby leaving the Co m missioner with no independe n t discretion. An authority exercising qu a si-judicial functions must a c t independe n tly and an order passed under d i ctation is a nullity in the eyes o f law.

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11. Per Contra , learned counse l for respondents No.2 and 3 submits th a t the promotion order dated 26.06.2020 was void-ab-initio as it was not p a ssed by the competent auth o rity. While the Commissione r , Municipal Corporation, was the competent authority under the repeal e d 1998 Rules, the appointing authority for t h e post of Sub Fire Officer und e r the current l y governing 2016 Rules is th e Director, Fire and Emergen c y Services, H aryana. Since the promotion w as granted on 26.06.2020, i. e ., after the 2 0 16 Rules came into force, onl y the Director was empowered t o issue such an order. The Commissioner's order was, therefore, witho u t jurisdiction and a nullity.

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12. It is argued that the claim of the petitioner has to be tested i n r the light of the factual matrix as prior to t h e passing of the promotion ord e of the peti t ioners. Municipal Corporation Gurugram vide its letter me m o dated 16.01.2019 (Annexure R-2) has inti m ated that the sanctioned streng t h of Sub Fir e Officer under the old rules i s 6 and that all these posts we r e

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filled up. H ence, there is no vacant post o f Sub Fire Officer under the o l d rules in M u nicipal Corporation Gurugram p rior to the coming into force o f the 2016 r u les. As such, in the absence o f any availability of sanction e d posts for t h e promotional posts, the claim o f the petitioner has been right l y rejected.

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13. In rebuttal, learned counsel fo r the petitioners contends that t h e respondent s assertion that “no vacancy is available” is factually incorre c t and deliber a tely misleading. In their detail e d reply to the show-cause noti c e (Annexure P-9), the petitioners had demo n strated with reference to specif i c promotion o rders of other officials (dated 1 2 .12.2019 and 16.06.2020), that a total of fiv e posts of Sub Fire Officer ha d fallen vacant in the Municip a l Corporatio n , Gurugram, just prior to their promotion on 26.06.2020. Thr e e persons na m ely Sh. Narender, Sh. Sunil a n d Sh. Mahender Singh who we r e working o n the post of Sub Fire Officer, Gurugram were promoted to t h e post of Fir e Station Officers on 12.12.2019 and three posts of Fire Officer i n Municipal C orporation became vacant. Th e reafter, on 16.06.2020 two mo r e persons n a mely Sh. Lalit Kumar and S h. Ramesh Kumar were al s o promoted t o the post of Fire Station Offic e r. Learned Counsel refers to t h e written stat e ment filed on behalf of respon d ents No.2 and 3 and submits th a t the respon d ents could not controvert the stand taken by the petitioners wi t h regard to c r eation of post under 1982 Rule s and further in para 8 of the sho r t reply, it h a s been clearly mentioned that there are six posts of Sub fi r e officers sa n ctioned in the Municipal C o rporation, Gurugram under t h e

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Haryana M unicipal Corporation Rules, 19 9 8 and no new post of Sub Fi r e Officer has been sanctioned within the Mu n icipal Limits of Gurugram.

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14. Learned counsel for the respo n dents submits that the posts we r e created in t he year 2014 as one time measure. Thereafter, these posts we r e filled and t h ey cannot continue to be gov e rned by old Rules of 1998. T h e promotion, if any, would now be done und e r the 2016 Rules.

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OBSERVATION & ANALYSIS

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15. I have heard the learned c o unsel for the parties and ha v e perused th e record with their able assistan c e. It transpires that this Hon’b l e Court vide o rder dated 13.09.2018 (Annex u re P-1) in CWP No. 262 of 201 8 held that since the 97 sanctioned po s ts lying vacant prior to t h e n promulgati o n of the 2016 rules , they can o n ly be filled by way of promoti o and not by direct recruitment under the 1982 Rules and not under the 201 6 Rules. Acc o rdingly, the Respondents wer e directed to consider the case o f the petition e rs for promotion under the 198 2 Rules. No LPA was filed by t h e Responden t s against the aforesaid jud g ement and thus, order dat e d 13.09.2018 attained finality. However, si n ce no action was taken by t h e Departmen t in complying with the directio n s of this Court, COCP no. 484 o f 2019 was f i led by the petitioners.

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16. In COCP No. 484 of 2019, a reply was filed by the Direct o r General, U rban Local Bodies Depart m ent-cum-Fire Service, Harya n a (Annexure P-2). It was stated that since th e 19 petitioners in that case we r e

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serving in different districts and munici p al corporations, a decision w a s taken vide l etter dated 08.02.2019 to ensur e expeditious compliance with t h e judgment o f this Court. Accordingly, it w as directed that the respecti v e appointing authorities of the petitioners would consider their cases f o r promotion at their own level in accord a nce with the 1982 Rules. T h e concerned a uthorities, being custodians of the petitioners’ personal record s , were best p laced to assess their eligibility and the availability of vacanci e s under the 1 9 82 and 1998 Rules. The letter f urther clarified that posts creat e d or availabl e exclusively under the 2016 R u les were not to be filled by w a y of promoti o n under the earlier Rules. Thus, the promotion of the petitione r s was to be c onsidered only against the po s ts of Sub-Fire Officer that we r e vacant und e r the 1982 and 1998 Rules.

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17. Consequently, in view of the v acancies available under the o l d Rules, pro m otion orders were issued by t he Municipal Commissioners o f Panchkula a nd Ambala, while the cases of the remaining petitioners we r e under con s ideration at that time. Howe v er, the Municipal Corporatio n , Gurugram, vide letter dated 16.01.2019, in f ormed that six posts of Sub-Fi r e Officer ha d been sanctioned and all were a lready filled, leaving no vacan c y under the o ld Rules. Subsequently, vide c o mmunication dated 15.03.201 9 , the Commi s sioner, Municipal Corporation , Gurugram, reiterated that in t h e absence of a ny vacancy under the old Rule s , the promotion of the petitione r s could not b e considered.

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18. Despite the non-availability o f vacancies, the petitioners in t h e present cas e were promoted to the post of A ssistant Fire Station Officer/Su b - Fire Offic e r vide order dated 26.06.202 0 (Annexure P-4) issued by t h e Commissio n er, Municipal Corporation, Gu r ugram. As per the stand taken i n n the impug n ed order dated 27.10.2023 ( Annexure P-11), this was a inadvertent mistake. Upon the matter bei n g brought to the notice of t h e Governme n t, it took cognizance and iss u ed directions vide letters dat e d 29.01.2021 and 25.06.2021 to the Comm i ssioner, Municipal Corporatio n , Gurugram to rectify the error. Consequ e ntly, show-cause notices we r e issued to t h e petitioners, and vide the i m pugned order dated 27.10.20 2 3 (Annexure P -11), their promotions were wi t hdrawn.

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A Two-Judge Bench of the H on’ble Supreme Court in Y.V . Rangaiah (supra) , laid down the principl e of ‘old vacancy, old rule’ a n d held that a n y post that fell vacant prior to c o ming into force of the new rul e s would be governed by the old rules and n o t by the new rules. The Hon’b l e Court spea k ing through Justice R.B. Misra o bserved as follows:

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“ 9. … Under the old rules a panel h ad to be prepared every year i n Sept e mber. Accordingly, a panel s h ould have been prepared in t h e year 1976 and transfer or promotion to the post of Sub-Registr a r Gra d e II should have been made o u t of that panel. In that event t h e petit i oners in the two representation p etitions who ranked higher th a n the r e spondents Nos. 3 to 15 would not have been deprived of the i r right s of being considered for pr o motion. The vacancies whic h occurred prior to the amended rules would be governed by the ol d rules and not by the amended rules . It is admitted by counsel for bo t h r the p arties that henceforth promot i on to the post of Sub-Registr a Gra d e II will be according to the ne w rules on the zonal basis and n o t on t h e Statewide basis and there f ore, there was no question o f

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chall e nging the new rules. But the question is of filling the vacancie s that occurred prior to the amended rules. We have not the slightes t doubt that the posts which fell vacant prior to the amended rule s would be governed by the old rules and not by the new rules . ”

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(Emphasis supplie d )

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This Court is of the considere d opinion that, as evident from t h e aforementi o ned communications, no p o sts of Assistant Fire Stati o n Officer/Su b -Fire Officer were lying va c ant in Municipal Corporatio n , Gurugram p rior to the enforcement of the 2016 Rules. Consequently, the r e existed no vacancy under the old Rules. Applying the principle of “o l d vacancy, o l d rules,” any vacancy arising after the coming into force of t h e 2016 Rules , i.e., from 3rd June 2016, must b e governed exclusively by tho s e Rules. Un d er the 2016 Rules, the Direc t or of Fire Services is the so l e - competent a uthority to grant promotions. T herefore, the five posts of Su b Fire Offic e r that fell vacant in the M u nicipal Corporation, Gurugra m , pursuant to promotion orders dated 12.12.2019 and 16.06.2020, are to b e governed b y the 2016 Rules and not the ea r lier Rules. In view of the abov e , the promot i on orders issued by the Com m issioner, Municipal Corporatio n , Gurugram, were void ab initio, having bee n passed without jurisdiction, a n d were rightl y withdrawn.

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Furthermore, the impugned o r der dated 27.10.2023 (Annexu r e P-11) stat e s that the promotion orders of the petitioners were issu e d inadvertent l y and have consequently bee n withdrawn to rectify the sa i d error . In t h is regard, the Hon’ble Supre m e Court in Union of India an d

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another v. Narendra Singh, (2008) 2 SCC 750 , speaking through Justi c e C.K. Thak k er has observed that even if an i neligible or unqualified person i s promoted, such a mistake can always b e rectified by following the d u e process of law. The relevant Para of th e judgement in Narendra Singh (supra) is r e produced as under:

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“ 28. It is true that the mistake w as of the Department and t h e resp o ndent was promoted though h e was not eligible and qualifie d . But, w e cannot countenance the sub m ission of the respondent that t h e mist a ke cannot be corrected. Mist a kes are mistakes and they c a n alwa y s be corrected by following due process of law. In Indi a n Cou n cil of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors., 1997 (4) SCT 156: (1997) 6 SCC 766, it was held that if erro n eous promotion is given by w r ongly interpreting the rules, t h e empl o yer cannot be prevented from applying the rules rightly and i n corr e cting the mistake. It may cause hardship to the employees but a cour t of law cannot ignore Statutory R ules.”

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22. Moreover, this Court is consci o us of the fact that the decision i n Y.V. Rangaiah (supra) has been overrule d by a Three-Judge Bench of t h e Hon’ble A p ex Court in State of H.P. v. Raj Kumar, (2023) 3 SCC 773 . T h e Court, spea k ing through Justice Pamidigha n tam Sri Narasimha has held th a t there is no inflexible or universal principl e mandating that vacancies mu s t invariably b e filled under the rules prevaili n g at the time they arose. Instea d , a candidate’s right is limited to being considered under the rules in effect o n the date of consideration, i.e., the rules cu r rently in force . The Governme n t is well wit h in its authority to adopt a deliberate policy decision to withho l d filling vac a ncies that existed prior to the amendment of the rule s . r Consequen t ly, employees cannot claim an y vested right to be considered f o

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n promotion u nder the repealed rules once such a policy decision has be e made. Rele v ant paragraphs of the judgeme n t are reproduced as under:

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“ 11. In view of the above principles, flowing from the constitutiona l status of a person in employment with the State, we have n o hesitation in holding that the observations in Rangaiah that post s which fell vacant prior to the amendment of Rules would b e governed by old Rules and not by new Rules do not reflect th e correct position of law. We have alr e ady explained that the status of a Gov e rnment employee involves a rel a tionship governed exclusively b y rules and that there are no rights o u tside these rules that govern t h e servi c es. Further, the Court in Ran g aiah's case has not justified i t s obse r vation by locating such a right on any principle or on the bas i s of th e new Rules…

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36. A review of the fifteen cases t h at have distinguished Rangai a h woul d demonstrate that this Court h as been consistently carving o u t exce p tions to the broad propositio n formulated in Rangaiah. T h e findi n gs in these judgments, that have a direct bearing on t h e prop o sition formulated by Rangaiah a re as under:

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1. There is no rule of universal application that vacancie s must be necessarily filled on the basis of the law which existe d on the date when they arose, Rangaiah's case must b e understood in the context of the rules involved therein .

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2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existed rules, which implies the "rule in force" as on the date consideration take s place. The right to be considered for promotion occurs on th e date of consideration of the eligible candidates.

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3. The Government is entitled to take a conscious polic y decision not to fill up the vacancies arising prior to th e amendment of the rules. The employee does not acquire an y vested right to being considered for promotion in accordanc e with the repealed rules in view of the policy decision taken b y the Government. There is no obligation for the Government t o make appointments as per the old rules in the event o f

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restructuring of the cadre is intended for efficient working o f the unit. The only requirement is that the policy decisions o f the Government must be fair and reasonable and must b e justified on the touchstone of Article 14.

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4. The principle in Rangaiah need not be applied merel y because posts were created, as it is not obligatory for th e appointing authority to fill up the posts immediately.

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5. When there is no statutory duty cast upon the State t o consider appointments to vacancies that existed prior to th e amendment, the State cannot be directed to consider th e cases. ”

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(Emphasis supplie d )

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CONCLUSION

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23. This Court is of the consider e d opinion that the Responden t s have duly c omplied with the decision of th i s Court in CWP No. 262 of 201 8 by grantin g promotions to similarly situa t ed co-petitioners therein, on t h e basis of v acancies available under the old Rules in their respecti v e Municipal C orporations. Shri Dharampal, Shri Mam Chand (Rewari), Sh r i Rajiv Kum a r (Karnal), Shri Jagdev (Narai n garh), Shri Raj Kumar (Karnal) , Shri Prom o d Kumar (Ambala), Shri Cha r an Dass (Panchkula), and Sh r i r Mam Raj ( P anchkula) were promoted to th e post of Sub Fire Station Offic e in their respective Corporations vide orders dated 13.12.2019 a n d 16.05.2019 , in compliance with this Cou r t’s directions. The Respondent s , therefore, c annot be held to have acted in a discriminatory manner by n o t granting pr o motion to the petitioners in the present case, as in the Municip a l Corporatio n , Gurugram, no vacancy was a vailable under the old Rules a n d

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all sanctio n ed posts already stood filled. T he promotion of the petitione r s can only be considered under the 2016 Rul e s.

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24. However, this Court is constr a ined to observe that the condu c t of the resp o ndents is unbecoming of a pub l ic employer. In the present cas e , the Com m issioner, Municipal Corpo r ation, Gurugram, has tak e n inconsisten t stands at different stages, the r eby blowing hot and cold in h i s approach t o wards the petitioners. Despite the non-availability of vacanci e s in the Mun i cipal Corporation, Gurugram, p romotion orders were issued a n d n were subse q uently sought to be withdrawn on the ground that they had be e issued ina d vertently. Such actions cause g rave mental agony, harassme n t, and loss of reputation to the employees co n cerned. Accordingly, the condu c t of the empl o yer is strongly deprecated.

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25. In view of the foregoing di s cussion, the present petition i s dismissed.

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26. Pending miscellaneous appli c ations, if any, shall also sta n d disposed o f .

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(HARPREET SINGH BRAR) JUDGE

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October 15, 2025 P.C Whether speaking/reasoned. : Yes/No Whether Reportable. : Yes/No

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Dinesh Kumar and Ors. v. State of Haryana and Others

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Dinesh Kumar and Ors. v. State of Haryana and Others

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