STATE OF HIMACHAL PRADESH & Ors. v. RAJ KUMAR & Ors.

From the Judgment and Order dated 28.12.2009 of the High Court of Himachal Pradesh at Shimla in Civil Writ Petition No.3028 of 2008. G With Civil Appeal No.9747 of 2011. Abhinav Mukerji, AAG, P. S. Patwalia, Ms. Aprajita Singh, Ravindra Kumar Raizada, Sr. Advs., Mrs. Bihu Sharma, Ms. Pratishtha H 854 SUPREME COURT REPORTS [2022] 15 S.C.R. A B C D E F G H Vij, Akshay C. Shrivastava, Vishal Sharma, Prasanjit Keswani, Mahesh Kumar, Nikhilesh Kumar, Ms. Devika Khanna, Mrs. V. D. Khanna, Vmz Chambers, Ms. Divya Roy, Akshay Amritanshu, Kartikey Singh, Ashutosh Jain, Ankit Kumar Lal, Varinder Kumar Sharma, Umang Shankar, Madhup Singhal, Nirmal Singh, Ramjee Pandey, Advs. for the Appellants. The Judgment of the Court was delivered by PAMIDIGHANTAM SRI NARASIMHA, J.

1.1 These appeals arise out of the decision of the High Court of Himachal Pradesh allowing the writ petition and directing the State to consider the case of the writ petitioners, Respondents no. 1 to 3 herein, for promotion under Rules that existed when the vacancies arose and not as per the subsequently amended rules. These directions were based on the decision of this Court in the case of Y.V. Rangaiah v. J. Sreenivasa Rao1. As we noticed a number of decisions of this Court that have followed Rangaiah, and far more decisions that have distinguished it, we had to examine the issue afresh. The question is whether appointments to the public posts that fell vacant prior to the amendment of the Rules would be governed by the old Rules or the new Rules. After examining the principle in the context of the constitutional position of services under the State, and having reviewed the decisions that have followed or distinguished Rangaiah in that perspective, we have formulated the legal principles that should govern services under the State. Applying the said principles, we have held that the broad proposition formulated in Rangaiah does not reflect the correct constitutional position. We have thus allowed the appeals following the principles that we have laid down.

1.2 We will first refer to the facts leading to the present controversy. Facts:

1.3 The Himachal Pradesh Recruitment and Promotion Rules, 19662 dated 01.03.1966 made in exercise of the powers under Article 309 of the Constitution govern the post of Labour Officer. There were5 posts of Labour Officers and these were to filled by promotion from (i) 1 Y.V. Rangaiah v. J. Sreenivasa Rao (1983) 3 SCC 284, hereinafter referred to as ‘Rangaiah’. 2 hereinafter referred to as the ‘1966 rules’. STATE OF HIMACHAL PRADESH & ORS. v. RAJ KUMAR & ORS. [PAMIDIGHANTAM SRI NARASIMHA, J.] 855 factory Inspectors, (ii) labour inspectors and (iii) sectt. superintendents, being the feeder category. On 20.07.2006, Secretary, Labour and Employment Department addressed a letter to the Labour Commissioner intimating sanction for creation of additional posts in the department which inter alia included 7 more posts for Labour Officers. As a consequence of the said decision, the total posts for Labour Officers increased from 5 to 12. At this point in time Respondents No. 1 to 3 were working as Labour Inspectors in the service of the State.

1.4 Within four months from the sanction of the additional posts, the 1966 Rules came to be amended on 25.11.2006. Under the New Rules called the H.P. Labour and Employment Department, Labour Officers, Class-II (Gazetted) Ministerial Services R & P Rules, 20063, recruitment to the post of Labour Officer is to be made by promotion as well as direct recruitment in the ratio of 75 per cent and 25 per cent respectively. The effect of the New Rules coupled with the 7 new posts for Labour Officers is that, from out of the total number of 12 posts of Labour Officers, the promotional posts increased from 5 to 9 (being 75 per cent)and direct recruitment posts came to 3 (being 25 per cent).Immediately thereafter, the Government issued a notification creating 12 Labour zones in the State.

1.5 It is in the above-referred background, that Respondents No. 1 to 3 approached the Administrative Tribunal challenging the proposed action of the State Government in filling up 25 per cent of the posts of Labour Officers by direct recruitment. They contended that the vacancies arose in July 2006, which is before the promulgation of the New Rules and therefore all the vacancies must be filled only by promotion. By its order dated 24.01.2007, the Tribunal directed the State Government to consider the grievance raised in the Original Application as if it is a representation to it. The representation was considered and rejected by the Government on 27.06.2007. Challenging the rejection, the second Original Application was filed by the Respondents before the State Administrative Tribunal.

1.6 While the matter was pending before the Tribunal, the State Government proceeded further and issued an advertisement through the H.P. Public Service Commission, calling for applications for filling up the 3 posts of Labour Officers under the quota of direct recruitment. The Public Service Commission completed the recruitment process and 3 hereinafter referred to as ‘the New Rules’. A B C D E F G H 856 SUPREME COURT REPORTS [2022] 15 S.C.R. A B C D E F G H recommended the names of Respondents No. 4 to 6.The recommendation was accepted and the said Respondents were appointed. It is not in dispute that they joined duties on the 4th and 5thof November, 2008. Questioning the legality and validity of the said appointments, Respondents No. 1 to 3 filed Civil Writ Petition No. 3028/2008 before the High Court of Himachal Pradesh, which came to be allowed by the Division Bench of the High Court by the impugned order on 28.12.2009. Challenging the decision of the Division Bench the State of Himachal Pradesh preferred a Special Leave Petition before this Court, from which the present Civil Appeal arises pursuant to leave being granted on 08.11.2011. Similarly, the direct recruit appointees, Respondents No. 4 to 6 also filed a Special Leave Petition, which is numbered Civil Appeal no. 9747/2011 after leave was granted.

#2. The solitary argument advanced on behalf of Respondents No. 1 to 3, which was accepted by the Division Bench was that the vacancies which arose prior to the promulgation of New Rules were to be filled only as per the 1966 Rules and not as per the New Rules. The High Court formulated the issue and proceeded to allow the Writ Petition on the ground that it is covered by the decision of this Court in Y.V. Rangaiah v. J. Sreenivasa Rao (supra).The operative portion of the judgment is extracted herein for ready reference: “The question whether the vacancies occurring before the amendment to the Recruitment and Promotion Rules are to be filled up as per the old Recruitment and Promotion Rules or by way of new Recruitment and Promotion Rules is no more res integra in view of the law laid down by their Lordships of this Court in Y.V. Rangaiah and others versus J. Sreenivasa Rao, (1983) 3 SCC 284.” Submissions:

3.1 In these appeals, we heard Shri P.S. Patwalia, Senior Advocate assisted by Advocate-on-Record Shri Abhinav Mukerji, for the Appellant- State and Shri. Prasanjit Keshvani, Ld. Advocate representing the Respondents and also Shri. Ravindra Kumar Raizada, Senior Advocate assisted by Ms. Divya Roy, Advocate-on-Record appearing for some other Respondents.

3.2 Shri P.S. Patwalia, learned Senior Advocate for the Appellant- State made the following submissions. At the outset, he would submit, STATE OF HIMACHAL PRADESH & ORS. v. RAJ KUMAR & ORS. [PAMIDIGHANTAM SRI NARASIMHA, J.] 857 that there was no challenge to the legality of the New Rules and therefore the Respondents cannot seek a relief which is contrary to the Rules i.e., filling up the posts by way of promotion as per the Old Rules. Secondly, the inter-departmental letter dated 20.07.2006 followed by the notification dated 02.01.2007 creating the posts was in furtherance of the new policy which was brought into effect by the amendments made to the Rules. It was therefore contended that the inter-departmental letter dated 20.07.2006 cannot be seen as a standalone event and that it is part of the larger policy to restructure the cadre. Thirdly, there is no vested right to promotion, though there is only a right to be considered for promotion as per the rules which are in force at the time of such consideration. Fourthly, the recruitment exercise undertaken by the State is completely based on the policy consideration of the State which the High Court failed to take into account. In support of this submission, reliance was placed on judgments of this Court in K. Ramulu4, Deepak Agarwal5 and Krishna Kumar6. It was finally contended that the High Court erred in applying the decision of Rangaiah which was the case of promotion, while the present case is about direct recruitment to the post of Labour Officers.

3.3 Shri Keshwani followed by Shri Raizada, Senior Advocate for the Respondents made the following submissions. They would contend that the 7 new posts were created before the promulgation of the New Rules and there was no Governmental Policy regarding the applicability of the New Rules retrospectively. Secondly, there is no evidence to show that the State made a conscious decision to keep the posts vacant, to be filled as per the New Rules. On the contrary, they would submit that the communication dated 20.07.2006 sanctioning the creation of the posts stated that they must be filled on a regular basis. Thirdly, the High Court was right in applying the decision of Rangaiah which settled the law on appointments to posts falling vacant prior to the amendment of the rules by holding that they must be governed by the old rules and not the new rules. Finally, to apply the New Rules to the pending vacancies, the appointing authority must demonstrate that they had (i) taken a conscious decision not to fill the vacancies until the promulgation of the new rules and (ii) such a decision must be for a good and a valid reason. For this purpose, reliance is placed on judgments of this Court in K. Ramulu7,