NARINDER KUMAR SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners in this writ petition are the Lower Division Clerks (hereinafter shortly called as the L. D. C.s) in the Himachal Pradesh Public Works Department, and they joined their services as such in the composite State of Punjab on different dates from the year 1961 to 1965, and petitioner No. 2 was confirmed as L. D C. on 17 -10 -1966 in the State of Punjab. At the time of re -organisation of the State of Punjab, i. e. on 1 -11 -1966, the petitioners were serving in the territory of the presently constituted Himachal Pradesh and their services were transferred to the Union Territory of Himachal Pradesh under the Punjab Reorganisation Act, 1966 (hereinafter referred to as the Act). It is alleged in the petition that the petitioners were governed by the Punjab Public Works Subordinate Service Rules, 1934 (to be shortly called the Punjab Rules of 1934), and by virtue of these rules, the petitioners could be promoted to the posts of Sub -divisional Clerks (hereinafter shortly called as S. D. C.s) on the basis of seniority without any pre -condition. It is further alleged that the grade of scale for the post of S. D. C. is the same as that of the L. D. C. except that it carried a special pay of Rs. 20. It is further alleged that the employees of the erstwhile Union Territory of Himachal Pradesh prior to 1966 were governed by the Himachal Pradesh Public Works Department Subordinate Class III (Clerical and Stenographers Service) Recruitment and Promotion Rules, i960 (hereinafter called the Himachal Pradesh Rules of 1960). According to these rules an L. D. C. could only be promoted to the post of S. D. C. if he had passed a departmental examination for clerks as prescribed by the department from time to time. The petitioners allege that they are governed by the Punjab Rules of 1934, and the Himachal Pradesh Rules of 1960 could not be made applicable to them as the same were disadvantageous to the conditions of their services. It is further alleged that the Himachal Pradesh Rules of 1960 could not be made applicable to the petitioners without the prior approval of the Central Government in that behalf. The petitioners also allege that persons junior to them have been promoted as S. D. Cs. ignoring the claim of the petitioners on the ground that the petitioners had not passed the departmental examination as is required under the Himachal Pradesh Rules of IS60, and that this action of the Himachal Pradesh Government is illegal and unwarranted. It is further alleged that the State of Himachal Pradesh, and the Chief Engineer, Himachal Pradesh (respondents 2 and 3) have taken this action on the basis of the notification, dated 4th November, 1968 (copy Annexure D). It is alleged that this notification has been issued without the prior approval of the Central Government as required under the Act and that no blanket approval can be given by the Central Government and each individuals case had to be examined separately. The petitioners further allege that they made several representations but without any effect and that in fact the Government vide its letters, dated 11 -6 -1970 (Annexure E) and 13 -5 -1971 (Annexure F) expressed the view that the notification, dated 4th November, 1968, is not valid. The petitioners also alleged that the action of respondents 2 and 3 in promoting respondents 5 to 47 (who were junior to the petitioners) as S. D. Cs. is ultra vires, illegal, without jurisdiction and the same is liable to be set aside. On these grounds the petitioners have filed the present writ petition claiming that the order regarding the promotion of respondents 5 to 47 be quashed and that respondents 2 and 3 be directed to consider the cases of the petitioners in accordance with the Punjab Rules of i 934, and -the notification of 4th November, 1968, is illegal and invalid, and that the petitioners be deemed to be governed by the Punjab Rules of 1934.

(2.) A reply to the writ petition was filed on behalf of the respondents 1 to " 3 and the allegations made in the writ petition were denied. It was alleged that the petitioners have no right to file the writ petition claiming a right for future promotion. It was also alleged that the petitioners are governed by the Himachal Pradesh Rules of IS60 after their allocation to the Union Territory of Himachal Pradesh/Himachal Pradesh State, and the notification issued on 4tb November, 1968. is legal and valid as the same has been issued by the Central Government itself. It is further alleged that the letters, dated 15th May, 1971 and 11th June, 1970, could not make the operation of the notification as invalid and these letters could not be interpreted as such. It was further alleged that the promotion of respondents 5 to 47 is in accordance with the rules governing the employees. In the light of the above allegations it was prayed that the writ petition should be dismissed.

(3.) A rejoinder to the return was filed on behalf of the petitioners and the allegations in the writ petition were reasserted and those in the return were denied.