LAWS(SC)-2005-11-61

JAGDISH KUMAR Vs. STATE OF H P

Decided On November 11, 2005
JAGDISH KUMAR Appellant
V/S
STATE OF HIMACHAL PRADESH Respondents

JUDGEMENT

(1.) In these appeals challenge is to the legality of the judgment rendered by a Division Bench of the Himachal Pradesh High Court holding that though the appellants were eligible for regular promotion as Assistant Draftsmen, their inter-se seniority was to be reckoned with effect from the date they qualified at the departmental examinations. The judgment of the Himachal Pradesh State Administrative Tribunal (in short the Tribunal") holding that they were not eligible for promotion was held to be not correct.

(2.) Background facts in a nutshell are as follows : The appellants were recruited during the period 1974-76 as Tracer Draftsmen. Respondent Nos. 3 to 18 were appointed on such posts during the period from 1976 to 1980. Rules governing appointments of Tracers are covered by Himachal Pradesh P.W.D. Subordinate Services Class III Draftsman and Tracers Recruitment and Promotion Rules, 1961 (in short "Rules"). The educational and technical qualifications of the candidates for the posts of Tracers, Assistant Draftsmen and others are provided under Rule 6 of the Rules. Respondent Nos. 3 to 18 possessed the qualification of Diploma in Draftsman course. According to Rule 6(i) the requisite qualification for the post of Tracers was that the candidate must have passed matriculation examination of a recognized University or above as well as passed the Draftsman Course from a recognized Institution or as a plan printing machine operator with an experience of four years. For the post of Assistant Draftsman the requisite qualification of matriculation as well as a Diploma of Draftsman Course from a recognized Institution with an experience of minimum three years was provided. Five footnotes are appended under Rule 6 and footnote No.5 which has significance in the present dispute related to the Government"s power to relax any of the provisions of the Rules with respect to any class or category of persons or posts, if it was considered necessary or expedient to do so for reasons to be recorded in writing and in consultation with the Himachal Pradesh Public Service Commission. By order dated 31-10-1973 Government relaxed Rule 6 so far as it related to appointment of Tracers Draftsman. In place of Draftsman Course, training from Industrial Training Institute (in short the "ITI") for three months a service for one year or such period as the Chief Engineer may decide after assessing performance of the candidate was provided. Under the relaxed conditions the appellants were appointed. A seniority list was circulated on 14-10-1977 showing position as on 31-10-1975. The names of the appellants were included in the seniority list. By that time the respondent Nos. 3 to 18 had not been appointed. On 19-2-1980 the Chief Engineer provided for departmental examination for the unqualified Tracers Draftsman on the ground that ITI had refused to impart training. Therefore, a departmental examination was provided and it was substituted for the training by the ITI. The appellants appeared at such departmental examination and qualified in 1980. In the seniority list circulated on 2-6-1980 the appellants were ranked seniors to the respondent Nos. 3 to 18. On 19-8-1980 the appellants were promoted as Assistant Draftsmen. Writ petitions were filed by the respondent Nos. 3 to 18 challenging the appellants" appointments as Tracers Draftsmen, placement in the seniority list above them and promotion as Assistant Draftsmen. On constitution of the Tribunal, the writ petitions were transferred for disposal by it. On 5-9-1981 the Rule 6(ii) which related to the posts of Assistant Draftsman was amended and the qualification of Diploma in Draftsman Course was substituted as follows :

(3.) The appellants were promoted on regular basis to the posts of Assistant Draftsmen under the amended Rule 6 (ii) on 2-11-1981. On 14-7-1994 the original applications filed by the respondent Nos. 3 to 18 were allowed. The Tribunal held that the appointment of the appellants as Tracers Draftsmen was illegal as they were neither qualified Tracer Draftsman nor qualified Assistant Draftsman. However, on the ground of equity demotion was held to be not desirable. It quashed their inclusion in the seniority list dated 2-6-1980 and the promotions on 19-8-1980 to the higher posts of Assistant Draftsmen. It directed that the respondent Nos. 3 to 18 were to be considered for promotion as Assistant Draftsmen with effect from 18-8-1980. Review Petition filed by the appellants before the Tribunal was dismissed. Writ Petitions were filed by the appellants before the High Court, which, by the impugned order gave directions as noted above and moulded the reliefs.