Mere pendency of the writ petition should not disentitle the petitioner from the benefits flowing out of the order under challenge in the present writ petition

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWP No. 1299 of 2009-C

Decided on: 12th June, 2012.

                       Indian Council of Agriculture Research, Krishi Bhawan, New

Delhi through its Secretary. …Petitioner.

Versus

1. Shakti Ram son of Shri Melar Ram, SS Gr III (ID-40881),

IARI Regional Station, Amartara Cottage, Shimla, HP.

2. Shri Ranjeet Singh son of Sewa Ram, Fieldman T-1/Cat-1,

IARI Regional Station, Amartara Cottage, Shimla HP. …Respondents.

________________________________________________________________

Coram

The Hon’ble Mr. Justice Kurian Joseph, Chief Justice

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.

For the Petitioner: Mr. Sandeep Sharma, ASGI.

For the Respondents: Mr. Dilip Sharma, Senior Advocate with Ms. Nishi Goel, Advocate for respondent No. 1.

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Justice Dharam Chand Chaudhary, Judge.

Aggrieved by order dated 23.10.2008, passed by a Division Bench of Central Administrative Tribunal, Chandigarh Bench in OA No. 399/HP/2007, whereby the 1st respondent (hereinafter referred to as the ‘original applicant’) has been held entitled to promotion to the cadre of T-1/Category-1 from the date the 2nd respondent has been promoted, the petitioner (hereinafter referred to as the ‘1st respondent’) has preferred the present writ petition for quashing and setting aside the same.

2. The facts, as disclosed from the record, in a nut-shell are that the original applicant was initially recruited as Supporting Staff Grade-I on 25.7.1979 by the 1st respondent and subsequently promoted as Supporting Staff Grade-II on 4.10.1996. In the meanwhile, he acquired matriculation qualification in the year 1995 while in service. The promotion from the cadre of Supporting Staff Grade-II is to the next higher cadre i.e. the Technical cadre T-1 in Category-1. According to the Recruitment and Promotion Rules, a member of service in the cadre of Supporting Staff Grade-II having matriculation as qualification with five years experience in the feeder category is eligible for promotion on the basis of merit however, with due regard to seniority. The 1st respondent allegedly issued guidelines dated 14.7.1997, making a provision thereby that the experience of five years in the feeder category gained after acquiring the qualification of matriculation will be counted for the purpose of promotion to the higher post i.e. Technical cadre T-1 in Category-1. Some of the affected and similarly situated persons had assailed the guidelines before the Principal Bench of the Central Administrative Tribunal by filing a bunch of original applications and the Principal Bench while holding the guidelines, so issued as illegal and contrary to the provisions contained under statutory rules had allowed the said original applications so filed vide order dated 8.11.2009. After the said decision, the 1st respondent had circulated the seniority list of Supporting Staff Grade-II category in which the petitioner was placed at Serial No. 50, whereas, the 2^nd respondent who was appointed as Supporting Staff Grade-I on 25.6.1985 was promoted to Grade-1 on 29.1.1998 i.e. much after the applicant was shown at Serial No. 286. The 1st respondent however, issued another seniority list dated 22.7.2006 in line with the aforesaid guidelines dated 14.7.1997 which were even disapproved by the Principal Bench of the Central Administrative Tribunal, assigning therein erroneously Serial No. 167 to the applicant, whereas, Serial No. 39 to the said respondent. Not only this, but on the basis of the seniority list so circulated, DPC was convened and the 2nd respondent irrespective of being junior to the applicant was promoted to the cadre T-I vide office order dated 26.9.2006/17.11.2006 retrospectively w.e.f. 26.10.2006. Against the promotion of the 2nd respondent in supersession of the applicant, he submitted a representation on 10.11.2006, however the same was rejected on 19.9.2007.

3. In this backdrop, the applicant had approached the Central Administrative Tribunal, Chandigarh Bench by way of Original Application No. 399/HP/2007 with a prayer that he being similarly situated, is entitled to the relief granted by the Principal Bench of the Tribunal vide its order in OA No. 1120/2000 and its connected applications dated 8.11.2000.

4. The Chandigarh Bench of the Central Administrative Tribunal while allowing the original application preferred by the applicant has held him entitled to promotion as T-I category-I post with all consequential benefits from the date the 2nd respondent has been promoted as such.

5. The 1st respondent has questioned the legality and validity of the impugned order Annexure P-3, on the grounds interalia that the same is not only against the facts but against law also, hence deserves to be quashed and set aside. It has been urged that the applicant did not challenge the guidelines in the original application, he preferred before the Tribunal and as such, no relief could have been granted in the said OA. The factum of the 2nd respondent having acquired the matriculation as educational qualification before the applicant and on the basis thereof he was placed over and above the applicant in the seniority list in accordance with the guidelines and subsequently promoted to the grade of T-I category-I is also not taken into consideration at all. The conclusion that the guidelines dated 14.7.1997 are contrary to the Recruitment and Promotion Rules is also stated to be erroneously drawn, as the rules are not stated to be framed under Article 309 of the Constitution of India. The rules are framed by the 1st respondent Council itself, hence not statutory rules and as such could have been amended by the said respondent by Resolution to this effect or any legislation. A reference in this behalf has been made to a judgment of the Hon’ble Apex Court in ICAR Vs. Satish Kumar AIR 1998 SC 1782. The order dated 8.11.2000 passed by the Principal Bench of Central Administrative Tribunal in a similar petition is stated to be under challenge before the High Court of Delhi. The said order having not attained finality thus could have not been relied upon nor any relief granted to the applicant on the basis thereof.

6. We have heard learned counsel on both sides and also gone through the records.

7. Learned Assistant Solicitor General of India has mainly emphasized that the Recruitment and Promotion Rules being not framed under Article 309 of the Constitution of India, are not statutory rules and as such can be altered/amended suitably by the governing body of the Council i.e. the respondent-petitioner. We are however, not in agreement with the contentions so raised for the reason that before the Principal Bench of the Central Administrative Tribunal, it was the admitted case of the parties that the R&P Rules were framed in accordance with the provisions of Article 309 of the Constitution of India. It is recorded so in para 5 of the order dated 8.11.2000, Annexure P-1 (Colly.) passed in Original Application No. 1120/2000 and its connected applications, which were preferred against the guidelines dated 14.7.1997 by the aggrieved persons similarly situated to the applicant. Nothing has been brought to our notice that the R&P Rules are not framed under Article 309 of the Constitution of India and as such are not statutory rules. The bald assertions in the writ petition to this effect cannot be believed as gospel truth, particularly the observations hereinabove made by the Principal Bench of Central Administrative Tribunal while deciding the similar matters. It would thus not be improper to conclude that in view of there being the statutory rules in existence, the service conditions/criteria prescribed there-under for promotion from the cadre of Supporting Staff Grade-II to T-1 in Category-I could have not been altered or changed by way of issuance of the guidelines dated 14.7.1997. Otherwise also, nothing tangible has been brought to out notice, suggesting the nexus between fresh criteria i.e. counting of five years experience from the date of acquiring matriculation as qualification and the responsibilities/duties assigned to the higher post i.e. T-1, Category-I, particularly when the feeder category for promotion in R&P Rules to the said cadre is Supporting Staff Grade-II having five years experience as such. The 1st respondent-petitioner is not at all justified in assailing the impugned order on the ground that the guidelines were not challenged by the applicant before the Tribunal for the reason that firstly the same were already held illegal and contrary to the Recruitment and Promotion Rules by the Principal Bench of the Tribunal in its order passed in OA No. 1120 of 2000 and its connected petitions, Annexure P-1 (Colly.) and secondly, the challenge thereto is writ large from the perusal of para Nos. 4 & 6 of the copy of the Original Application, Annexure P-1. Thus, there is no force in the contentions so raised.

8. No doubt, the 2nd respondent had acquired matriculation qualification well before the applicant however, in view of there being only provision under the Rules that a person in the cadre of Supporting Staff Grade-II having five years experience as such is eligible for promotion to T-I, Category-I, therefore, the said respondent could have not been promoted earlier to the applicant, merely because of having acquired the matriculation as qualification earlier in point of time when he was much much junior to the applicant.

9. There cannot be any quarrel qua the competency of the governing body of the 1st respondent to frame/amend the Recruitment & Promotion Rules. However, the exercise of such powers cannot be contrary to the constitutional mandate and in case any change/amendment in the rules is required, the 1^st respondent is competent to incorporate the same however, not by issuing guidelines like the one viz. the subject matter of dispute in the present list, but by incorporating suitable amendment in the existing Rules in accordance with procedure. Thus on this score also the respondent-petitioner has miserably failed to make out a case enabling this Court to take any other or further view of the matter.

10. The matter arising out of the order dated 8.11.2000passed by the Principal Bench of Tribunal may be pending disposal in the High Court of Delhi however, in view of there being nothing on record qua its stage coupled with the fact that interim order, Annexure P-2 (Colly.) passed on 25.5.2001 was in force only till next date i.e. 4.9.2001, mere pendency of the writ petition should

not be taken to disentitle the petitioner from the benefits flowing out of the order under challenge in the present writ petition.

11. The present, in our considered opinion, is thus a case where no interference with the impugned order Annexure P-2 dated 23.10.2008 passed in OA No. 399/HP/2007 is warranted by

this Court.

12. In view of all the reasons hereinabove, this writ petition fails and the same is accordingly dismissed, so also the pending application(s), if any.

No orders as to costs.

(Justice Kurian Joseph),

Chief Justice.

(Justice Dharam Chand Chaudhary),

Judge.