High Court of Himachal Pradesh · 2011

Mr. Dilip Sharma has strenuously argued that the petitioner(cid:146)s promotion to the post of Health Educator on ad hoc basis was strictly in accordance with the draft Recruitment and Promotion Rules issued in the year 1994. According to him, there was 5% quota reserved for Projectionist and qualification prescribed was Health Education Media. He then contended the petitioner had continuously worked since 22.1.1997 till date and the 4 experience gained by the petitioner as Health Educator is to be treated as qualification to the post in question.

Mr. Anil Jaswal, learned Deputy Advocate General has vehemently argued that the draft Recruitment and Promotion Rules were never intended to be finalized and as per the Recruitment and Promotion Rules notified on 29.10.1999, the qualification for the post of Health Educator was notified and the petitioner being not in possession of the requisite qualification, Annexure A-6 dated

27.7.2005 was issued.

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

In the draft Recruitment and Promotion Rules 1994, 5% posts were reserved for promotion to the post of Health Educator from the category of Projectionists, who possesses qualification of Health Education Media. Petitioner was promoted on ad hoc basis vide Annexure A-2 to the post of Health Educator on 22.1.1997 for a period of 6 months. Thereafter, the Recruitment and Promotion Rules for the post of Health Educator were framed under Article 309 of the Constitution of India. The minimum 5 qualification for filling up the post of Health Educator in the Recruitment and promotion Rules notified on

29.10.1999 was diploma in Health Education. Petitioner does not possess diploma in Health Education. The qualification possessed by the petitioner is certificate in Health Education Media. However, in peculiar facts and circumstances of the case since the petitioner had already been promoted to the post of Health Educator on 22.1.1997, the Additional Secretary, Health and Family Welfare requested respondent No.2 to permit the petitioner to continue as Health Educator till the final decision was taken. Respondent No.2 has also supported the version of the petitioner and has recommended the case of the petitioner for regularization of the petitioner as per letter dated 28.8.2000. The respondents instead of taking a final decision on the basis of Annexure A-5, issued Annexure A-6 whereby the petitioner(cid:146)s salary was required to be regulated under F.R. 31-A. In other words, he had been reverted. The representation made by the petitioner on 4.8.2005 till date has not been decided.

The administrative decision could be taken to make promotion according to the draft Recruitment 6 and Promotion Rules, which were to be finalized later on as such. In the instant case, the qualification prescribed for filling up the post of Health Educator in the draft Recruitment and Promotion Rules was Health Education Media and as per the Recruitment and Promotion Rules notified on 29.10.1999 was diploma in Health Education.

Mr. Dilip Sharma has relied upon Vimal Kumari versus State of Haryana and others, (1998) 4 SCC 65. In this case, their Lordships of the Hon(cid:146)ble Supreme Court have held that it is open to the Government to regulate the service conditions of the employees for whom the rules are made by those rules even in their draft stage provided there is clear intention on the part of the Government to enforce those rules in the near future. Recourse to such draft rules is permissible only for the interregnum to meet any emergent situation. If, however, the intention is not to enforce or notify the rules at all, as is evident in the instant case, recourse to draft rules cannot be taken. In the instant case, the draft Recruitment and Promotion Rules had been adopted as such while framing rules under Article 309 of Constitution in India and by subsequently notifying 7 that the promotion of the petitioner was in order. However, in the case in hand, as noticed above, the draft rules as such were not notified but changes were made when the rules were finalized and notified on 29.10.1999. Thus, the intention of the State Government to enforce or notify the rules in the same shape cannot be gathered in the present case.

The matter is required to be considered from another angle. Case of the petitioner has been recommended by the Additional Secretary, Health and Family Welfare vide Annexure A-4 to continue his promotion to the post of Health Educator till the final decision was on his representation. Respondent No.2 has recommended the case of the petitioner for regularization on 28.8.2000. In view of this, the decision ought to have been taken by the respondents either way whether to continue the ad hoc promotion or to discontinue the same. No decision has been taken by the respondents on letters dated 24.1.2000 and 28.8.2000. The decision to the detriment of the petitioner has been taken on

27.7.2005. Respondents have also not taken into consideration that the petitioner had been working against the post of Health Educator since 22.1.1997 8 and has gained sufficient experience for the last 8 years.

Their Lordships of the Hon(cid:146)ble Supreme Court in Bhagwati Prasad versus Delhi State Mineral Development Corporation, (1990) 1 SCC 361 have held that practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. Their Lordships have further held that the initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service and once the appointments are made as daily rated workers and they are allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualification. Their Lordships have held as under: (cid:147)6. The main controversy centres round the question whether some. petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them.

The same principle is reiterated by their Lordships of the Hon(cid:146)ble Supreme Court in B.N. Saxena versus New Delhi Municipal Committee and others, (1990) 4 SCC 205. Their Lordships have held that a Senior Draftsman not possessing any diploma but having six years experience, qualified under the second alternative of the revised rules. Their Lordships have further held that the experience gained is itself a qualification. Their Lordships have held as under: (cid:147)7. The second limb of the rule was evidently, to benefit all those persons who have gained sufficient experience as Senior and Junior Draftsmen without possessing any qualification. Experience gained for a considerable length of time is itself a qualification (See the observation in State of U.P. v. J. P.