Anita Gupta & Anr. v. State of Himachal Pradesh (cid:133) & Ors.

Hon(cid:146)ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mrs. Ranjana Parmar, Advocate. For the Respondents: Mr. Vikas Rathore, Dy. Advocate General for respondents No.1 to 3. Mr. Vikas Bhardwaj, Advocate for respondents No. 4 to 6. _____________________________________________________ Justice Rajiv Sharma, Judge. Petitioners were appointed Senior Draughtsman (Architect) on 19.12.1980 and 26.12.1980, respectively. They were promoted to the post of Head Draughtsman (Architect) on

28.10.1986. Thereafter petitioners were made Architectural Assistant in the year 1998. They were further promoted as Assistant Architect in the year 2002. Petitioners also improved their qualifications by obtaining degree in Architect. The promotion to the post of Architect was governed by the Recruitment and 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Promotion Rules called (cid:147)Himachal Pradesh Public Works Department Architect (Class-1 Gazetted) Recruitment and Promotion Rules, 1997(cid:148) (hereafter referred to as (cid:145)the Recruitment and Promotion Rules(cid:146) for brevity sake). The post was a selection post. The same was to be filled up 100% by promotion from the feeder category of Assistant Architects possessing a degree in Architecture equivalent a recognized University/Institution with eight years regular service or continuous ad hoc service. Respondent-State initiated the process for amendment to the Recruitment and Promotion Rules for the post of Architect in the Himachal Pradesh Public Works Department. Petitioners made representation for the redressal of their grievance to the Principal Secretary (PW) vide Annexure A-6. Chief Architect sent a communication to the Engineer-in-Chief, Himachal Pradesh vide Annexure A-8 dated 10.9.2007 bringing to his notice that there were eight sanctioned posts of Architects in the office out of which six posts were at Shimla and one each at Mandi and Dharamshala. Only four incumbents were working against these posts, i.e. three at Shimla and one at Mandi and four posts were lying vacant. This was the position as on 10.9.2007. Pursuant to the amendment process, as noticed above, in the Recruitment and Promotion Rules, the amendment was notified on 22.11.2007. These were published in the official Gazette on 4.12.2007.

2. Mrs. Ranjana Parmar has strenuously argued that the posts, which were lying vacant before 4.12.2007, are to be filled up on the basis of old Recruitment and Promotion Rules published on 3

30.4.1997. She then contended that four posts were lying vacant before the promulgation of new Recruitment and Promotion Rules dated 4.12.2007, as per Annexure A-8 dated 10.9.2007.

3. Mr. Vikas Rathore, learned Deputy Advocate General and Mr. Vikas Bhardwaj have vehemently argued that new rules do not take away the chances of consideration as far as petitioners are concerned and only the diploma holders have been provided with 30% promotional avenues. They then contended that even as per new rules published on 4.12.2007, there is a quota prescribed for the petitioner(cid:146)s category.

4. I have heard the learned counsel for the parties and have perused the pleadings carefully.

5. Petitioners are working as Assistant Architect. The post of Assistant Architect was in feeder category as per the Recruitment and Promotion Rules notified on 30.4.1997. Petitioners figure at Sr. No. 9 and 10 in the final seniority list of Assistant Architects, as it stood on 31.3.2005 vide Annexure A-11. State Government has amended the existing rules by Himachal Pradesh Public Works Department, Architect Class-I (Gazetted) Recruitment and Promotion (Second Amendment) Rules, 2007. These have come into force with effect from 4.12.2007. It is evident from the communication (Annexure A-8) sent by Chief Architect to the Engineer-in-Chief that four posts of Architects were lying vacant on 10.9.2007. 4

6. Their Lordships of the Hon(cid:146)ble Supreme Court in Y.V. Rangaiah and others versus J. Sreenivasa Rao and others, AIR 1983 SC 852 have held as under: (cid:147)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 right 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. 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.(cid:148)

7. Similarly, their Lordships of the Hon(cid:146)ble Supreme Court in A. Manmohran and others versus Union of India and others, (2008) 3 SCC 641 have held that vacancies existing prior to amendment to the rules are to be filled up according to the rules applicable prior to amendment. Their Lordships have held as under: (cid:147)25. Furthermore, the Regulations have been amended only with effect from 11.8.2004. It would have a prospective effect. It cannot be applied retrospectively. Any vacancy which has arisen prior to coming into force of the said amended Regulations must be filled up in terms of the law as was 5 existing prior thereto. (State of Rajasthan v. R. Dayal (1997) 10 SCC 419, SCC para 8).(cid:148)

8. However, Mr. Vikas Bhardwaj has heavily relied upon State of Punjab and others versus Arun Kumar Aggarwal and others, (2007) 10 SCC 402. According to him, State Government has taken a conscious decision to provide promotional avenue to the Assistant Architect, who are diploma holders. He has relied upon para 30 of the judgment. The judgment relied by Mr. Vikas Bhardwaj is distinguishable. In the instant case, there is no material brought on record by the respondents to show that a conscious decision has ever been taken not to fill up the posts under 1997 Recruitment and Promotion Rules. Accordingly, in view of the observations made hereinabove and the definitive law laid down by their Lordships of the Hon(cid:146)ble Supreme Court, the petition is allowed. Respondents are directed to fill up the posts of Architects, which were lying vacant as on 10.9.2007, as per Annexure A-8, according to 1997 Recruitment and Promotion Rules. No costs.

5.7. 2010 *awasthi* (Rajiv Sharma), Judge