Himachal Pradesh High Court
____________________________________________________________ vs State Of Himachal Pradesh & Ors on 28 May, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
( 2024:HHC:17027 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPOA No.6072 of 2020 Announced on:28.05.2025 ____________________________________________________________ Surinder Kumar Sharma ...Petitioner Versus State of Himachal Pradesh & Ors. ...Respondents Coram:
Hon'ble Mr. Justice Vivek Singh Thakur, Judge Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? Yes.
For the petitioner: Mr. Vishwa Bhushan, Advocate, and Ms. Anuja Mehta, Advocate.
For the respondents: Mr. Baldev Singh Negi and Mr. Vishav Deep Sharma, Additional Advocate General with Ms. Seema Sharma, Deputy Advocate General for respondent Nos.1 and 2.
Mr. Vikrant Thakur and Mr. Shubham Singh Guleria, Advocates, for respondent No.3.
Ranjan Sharma, Judge Petitioner, Surinder Kumar Sharma, working as Computer Operator in Regional Training Centre, Himachal Pradesh Institute of Public Administration has come up before this Court seeking the following 1 Whether reporters of Local Papers may be allowed to see the judgment?
-2- ( 2024:HHC:17027 )
reliefs:-
"(i) That proposed/draft R&P Rules for the post
of Manager (IT) Class-II (Non-Gazetted) Annexure-A/7 and letter dated 19.04.2018 (Annexure-A/13) issued by the respondent No.2 may kindly be quashed.
(ii) That the respondents may kindly be directed to finalize the proposed/draft R&P Rules for the post of Manager (IT) Class-II (Non- Gazetted) Annexure-A/5 whereby the post of Manager (IT) Class-II (Non-Gazetted) has been proposed to be filled up 100% by promotion from amongst the Computer Operator forthwith.
(iii) That the respondents may kindly be directed to promote the applicant to the post of Manager (IT) Class-II (Non-Gazetted), along with all consequential benefits." FACTUAL MATRIX
2. Case as set up by Learned Counsel is that after passing his 10+2 and Diploma in Computer Application [DCA] the petitioner was appointed as a Computer Operator at Regional Training Centre at Dharamshala on adhoc basis on 21.08.1990 [Annexure A-1], in pay scale of Rs.1,500-2640, initially for a period of six months but this appointment continued and later in terms of the policy issued by the State Government, the respondents on the
-3- ( 2024:HHC:17027 ) recommendations of Screening Committee regularized the petitioner as a Computer Operator on 13.03.2003 [Annexure A-2] w.e.f. 30.11.1996. While working as such, the petitioner improved his qualification and he passed Masters [M.A.] in Public Administration in the year 2000 and then passed M.Sc. in Computer Science in the year 2006.
2(i). While the petitioner was working as a Computer Operator on regular basis, the respondent No.1 issued a communication dated 05.08.2006 vide Annexure A-3, creating one post of Manager [IT] on regular basis in pay scale of Rs 6400-10640 in Himachal Pradesh Institute of Public Administration for strengthening its IT Centre. While creating the aforesaid post of Manager [IT], the respondent No. 1 directed the Respondent No.2-Director, HIPA, Shimla, to prepare the Recruitment and Promotion Rules [R&P Rules], for the post of Manager [IT] immediately and also to furnish a report to Principal Secretary
-4- ( 2024:HHC:17027 ) [Training] within 10 days.
2(ii). As a sequel to creation of the post of Manager [IT] on 05.08.2006, Respondents No.1 and 2 initiated the process for framing the R&P Rules for the post of Manager [IT] [Non-Gazetted]. Notably, the Draft R&P Rules dated 25.03.2007 {Annexure R-IV} {referred to as Draft Rules} for post of Manager [IT] were forwarded by Respondent No. 2 to Respondent No.1. As per the Draft Rules the respondent No.2 addressed a communication to respondent No.1 on 28.02.2008 [Annexure A-4], that in view of the Draft Rules, the present incumbent-petitioner may be considered for promotion to the post of Manager [IT] on adhoc basis till Draft Rules were finalized by the respondents.
2(iii). Though the Draft Rules dated 25.03.2007 [Annexure R-4], were duly furnished to respondent No.1 on 28.02.2008 [Annexure A-4], with the request to consider the petitioner for adhoc promotion as
-5- ( 2024:HHC:17027 ) per Draft Rules till these Rules were finalized but some observations were made inter-se. After addressing the observations made by the Respondent No 1 on 02.01.2009 [Annexure R-VI] respondent No. 2 forwarded Revised Draft R&P Rules dated 1.8.2009 {Annexure A-6 & A-7/Annexure R-VIII} {referred to as Revised Draft Rules} vide communication dated 18.02.2009 [Annexure R-VII], for the post of Manager [IT] to respondent No.1, whereby the Draft Rules dated 25.03.2007 [Annexure R-4], which provided for filling the post of Manager [IT] 100% by way of promotion from amongst the Computer Operators having three years of regular service failing which by secondment was altogether charged/modified in Revised Draft Rules dated 01.08.2009 [Annexure A-6 & 7/Annexure R-VIII] leading to an ambiguous situation for the reason that though on one hand as per Rule 10, this post was to be filled 100% by direct recruitment but on the other hand, as per Rule 11 the post
-6- ( 2024:HHC:17027 ) of Manager [IT] was sought to filled by promotion from amongst Computer Operators who possess five years regular service or regular combined with continuous adhoc service.
2(iv). Even the Draft Rules dated 01.08.2009 were sent by Respondent No.1 to Respondent No. 3-Commission on which, the Respondent-Commission, addressed a communication dated 24.08.2010 directing respondents to give reasons, as to why, the post of Manager [IT], was not proposed to be filled up 100% by promotion when, the post of Computer Operator existed in the department. In view of the anomaly and the ambiguity in Rule 10 and 11 of Revised Draft Rules dated 01.08.2009 [Annexure A-6/Annexure R-VIII], the petitioner submitted a representation on 02.09.2011 [Annexure A-9], then, on 11.05.2012 [Annexure A-10], then on 02.04.2013 [Annexure A-11], and on 10.01.2018 [Annexure A-12], requesting the respondents to consider the case of the petitioner
-7- ( 2024:HHC:17027 ) for adhoc promotion, till the Draft Rules were finalized. In response to the representations submitted by the petitioner, Respondent No.2-Director of Himachal Pradesh Institute of Public Administration, Shimla, has rejected the claim of the petitioner on 19.04.2018 [Annexure A-13/Annexure R-XII], on the ground that there is no provision in Draft Rules for filling the post of Manager [IT] on adhoc basis and therefore, the request of petitioner for promotion cannot be considered.
In the background of the above facts, the petitioner has assailed Draft Rules dated 01.08.2009 [Annexure A-7/Annexure R-VIII] and has prayed for a direction to the respondents to finalize the Draft Rules [Annexure A-5/Annexure R-IV] dated 25.03.2007 and to consider the petitioner for promotion to post of Computer Operator thereafter, in view of the fact that petitioner is stagnating on same post of Computer Operator since 1990 i.e. for last more than 34 years
-8- ( 2024:HHC:17027 ) now.
PROCEEDINGS BEFORE STATE ADMINISTRATIVE TRIBUNAL AND THEN BEFORE THIS COURT
3. The petitioner filed the Original Application i.e. OAD No.121 of 2018 on 21.05.2018. On abolition of State Administrative Tribunal, the Original Application was transferred to this Court and was registered as CWPOA No. 6072 of 2020.
4. The case records reveal that the matter was listed before the Learned State Administrative Tribunal on 22.05.2018 and respondents were directed to file reply. Accordingly, respondents filed the reply on 05.07.2018. Thereafter, the matter was listed from 24.07.2018 to 23.07.2019 before State Administrative Tribunal, enabling petitioner to file rejoinder which was accordingly filed.
5. Consequent upon the transfer of Original Application to this Court as CWPOA No. 6072 of 2020, the matter was taken up on 13.09.2023, when this Court observed that the pleadings are complete
-9- ( 2024:HHC:17027 ) and matter was directed to be listed for consideration on various dates, when, the Learned State Counsel prayed for time to file a Supplementary Affidavit in support of its contentions. Accordingly, State Authorities filed Supplementary Affidavit on 2.1.2024 and the petitioner filed a Counter to aforesaid Supplementary Affidavit on 29.04.2024.
STAND OF STATE AUTHORITIES IN REPLY-AFFIDAVIT:
6. Respondents No.1 and 2 have filed a joint reply on the affidavit of Director Institute of Public Administration, sworn on 29.06.2018. A perusal of reply reveals that the respondents have admitted that the petitioner being eligible was appointed as Computer Operator on adhoc basis on 21.08.1990 [Annexure R-1], in pay scale of Rs. 1500-2640. It is also admitted that the petitioner was regularized as Computer Operator as per orders dated 13.03.2003 [Annexure R-II], w.e.f. 30.11.1996 as he fulfilled all conditions of appointment as Computer Operator
- 10 - ( 2024:HHC:17027 ) in accordance with the Rules.
6(i). Reply-Affidavit admits in clear terms that Principal Secretary [Training], after due concurrence of Finance Department created one post of Manager [IT] Class-II [Non-Gazetted], in pay scale of Rs 6400
-10640 on 05.08.2006, as per Annexure R-III. Reply further admits that as a sequel to the directions contained in the sanctioned order dated 05.08.2006 [Annexure R-III], Respondent No.2 prepared the Draft Rules for post of Manager [IT] on 25.03.2007, as per Annexure R-IV, whereby, the post of Manager [IT] was proposed to be filled up 100% by way of promotion from amongst the Computer Operators working in pay scale of Rs.5,000-8,100 with at least three years of regular service in the cadre. 6(ii). Though Draft Rules dated 25.03.2007 were prepared and sent by the Respondent No. 2 to Respondent No. 1 on 25.03.2007 [Annexure R-IV] yet, respondent No.1-Additional Chief Secretary [Training]
- 11 - ( 2024:HHC:17027 ) addressed a communication on 02.01.2009 [Annexure R-6], directing the petitioner to furnish the Revised- Draft Rules for post of Manager [IT]. Accordingly, the Revised Draft Rules dated 1.8.2009 {Annexure A-6 & A-7/Annexure R-VIII} were sent by Respondent No. 2-Director HIPA, Shimla to Principal Secretary [Trg]. Perusal of Rule 10 of Revised Draft Rules for post of Manager [IT] reveals that though on one hand this post was intended to be filled up 100% by direct recruitment but on the other hand as per Rule 11, the post of Manager [IT] was sought to be filled by promotion from amongst Computer Operators, who possess five years regular service or regular combined with continuous adhoc service in the grade, failing which, by secondment basis, from amongst incumbents of this post working in the similar pay scale from other Government Departments/Autonomous Bodies. However, in the reply, respondents averred that the petitioner is fulfilling all eligibility conditions for
- 12 - ( 2024:HHC:17027 ) post of Manager [IT]; and as soon as the Draft Rules are approved from the State Government, the candidature of the petitioner will be considered as per the provision in the Rules.
In the above background, the case of the respondents, in brief is, that Draft Rules dated 25.03.2007 [Annexure R-IV], have been re-carved by Revised Draft Rules dated 01.08.2009 [Annexure A-6 and Annexure A-7/Annexure R-VIII with reply], whereby, the post of Manager [IT] is to be filled 100% by direct recruitment instead of 100% by promotion as provided in Earlier Draft Rules and therefore, the claim of petitioner was rejected on 19.04.2018 [Annexure A-13/Annexure R-XII], on the ground, that there is no provision in the Draft Rules, that the post of Manager [IT] is to be filled by promotion, therefore, the claim of the petitioner was turned down.
REBUTTAL BY WAY OF REJOINDER
7. Petitioner filed a rejoinder, controverting
- 13 - ( 2024:HHC:17027 ) the averments made in Reply-Affidavit and by stating that Revised Draft Rules dated 1.8.2009 were illegal, arbitrary and unconstitutional and the Respondents could not sit over the Draft Rules indefinitely, which has resulted in making the petitioner to stagnate on the same post for last 34 years, adversely affecting the service career of petitioner vis-vis his counterparts who have been granted alleast 2-3 promotions during this period. In this background, petitioner has reiterated his claim made in the writ petition.
SUPPLEMENTARY AFFIDAVIT BY RESPONDENTS NO.1 AND 2
8. In terms of the orders dated 18.12.2023, the State Authorities have filed a Supplementary Affidavit, with the averments that Draft Rules for post of Manager [IT] were sent by Respondent No.2- Director, HIPA, Shimla, to Respondent No.1-Principal Secretary [Training] on 25.03.2007 [Annexure R-IV], proposing that post of Manager [IT] was to be filled by promotion from amongst the Computer Operators
- 14 - ( 2024:HHC:17027 ) working in pay scale of Rs.5000-8100 with at least three years of regular service in the cadre but these Draft Rules of 2007 have been modified and the Revised Draft Rules dated 01.08.2009 [Annexure R- VIII] [Annexure A-6 and Annexure A-7 proposing in Rule 10 that the post of Manager [IT] was to be filled 100% by direct recruitment on regular basis or on contract basis and the case was rightly rejected.
8(i). Based on the Counter to Supplementary Affidavit it was asserted by the petitioner that the averments-stand in the Supplementary Affidavit was contrary to Revised Draft Rules of 2009 and the Rule 11 thereof and therefore, the rejection was untenable.
9. Heard, Mr. Vishwa Bhushan, Advocate, assisted by Ms. Anuja Mehta, Advocate, for the petitioner, Mr. Baldev Singh Negi and Mr. Vishav Deep Sharma, Learned Additional Advocate General,
- 15 - ( 2024:HHC:17027 ) for Respondent Nos.1 and 2 and Mr. Vikrant Thakur and Mr. Shubham Singh Guleria, Advocates, for Respondent No.3.
ANALYSIS:
10. In background of factual matrix as borne out from the Writ Petition; and the stand of official Respondents in Reply-Affidavits and the Supplementary Affidavit; and Counter filed thereto ; this Court is of the considered view that the rejection orders dated 19.04.2018 [Annexure A-13/Annexure R-XII] and the action of the Respondents in denying consideration of the case of petitioner for promotion as Manager [IT] on the basis of Revised Draft Rules dated 01.08.2009 [Annexure R-VIII/Annexures A-6 and A-7] cannot pass the test of judicial scrutiny, for the following reasons:-
10(i). Respondents-State Authorities created one post of Manager [IT] in pay scale of Rs 6400-10640 on regular basis after concurrence of the Finance
- 16 - ( 2024:HHC:17027 ) Department on 05.08.2006 [Annexure A-3]. In order to fill up this post, the Respondent No.1-Principal Secretary [Training] directed Respondent No.2 to start the process for framing the R&P Rules. Consequently, Respondent No.2-Director, HIPPA, Shimla, prepared the Draft R&P Rules for post of Manager [IT] on 25.03.2007 [Annexure R-IV], which reads as under :-
"No. HIPA (Estt.)-12/2006 Government of Himachal Pradesh Institute of Public Administration Fairlawns, Shimla-171012, Dated 25.3.2007 From The Director II.P. Institute of Public Administration.
To The Principal Secretary (Training) to the Government of Himachal Pradesh Shimla-171002 Subject:- R&P Rules for the post of Manager (IT) (Non-Gazetted) Class-II in the Department of Himachal Pradesh Institute of Public Administration.
Madam, Kindly refer to your letter No.Per (Trg.)A(3)-1/2006 dated 7.2.2007 on the subject cited above. The Draft R&P Rules for the post of Manager (IT) (Non-Gazetted) of this Institute is enclosed herewith for further necessary action at your end, please.
Yours faithfully.
-sd-
Joint Director (Admn.), HP Institute of Public Administration, Fairlawns, Shimla-171012"
- 17 - ( 2024:HHC:17027 ) RECRUITMENT AND PROMOTION RULES FOR THE POST OF MANAGER (IT) (NON-GAZETTED) IN THE H.P. INSTITUTE OF PUBLIC ADMINISTRATION
1. Name of the post Manager (IT)
2. Number of posts 1(One)
3. Classification: Class-II [Non Gazetted]
4. Scale of pay: 6400-200-7000-220-8100-275- 10300-340-10640
5. Whether selection post Non-Selection or non-selection post
7. Minimum Education & 1. Essential Qualifications:
other qualifications The candidate should possess required for direct Degree/Diploma from an recruits University /Institute recognized by H.P. Government in any of the following:
Master Degree in Computer Application Or Master Degree in Information Technology Or Degree in B.Tech (Computer Science/IT/E&C) Or Graduate in Computer Science/ Computer Application/ Infor-
mation Technology Or Graduate in any discipline with one year Diploma in Computer Science/Application/Programming with at least 5 years experience in the line from a university / Institute recognized by the HP Government
2. Desirable Qualifications:
Knowledge of customs, manner and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.
8. Whether age and other Age: Not applicable qualifications prescribed Educational Qualifications: Yes for direct recruits will apply in the case of the promotes
- 18 - ( 2024:HHC:17027 )
9. Period of probation, if Two years subject to further any. extension for a period not exceeding one year as may be ordered by the competent authority in special circumstances and reasons to be recorded in writing.
10. Method of recruitment, 100% by promotion failing whether by direct recr- which by secondment failing uitment or by which by direct recruitment on promotion deputation, regular basis.
transfer and the
percentage of vacancies
to be filled in by various
method
11. In case of recruitment (i) By promotion from amongst
by promotion, depu the officials working in the pay
tation, tra grade from scale of Rs.5000-8100 with at
which promotion/ depu- least 3 years regular service at
tation/transfer is to be their cadre
made. (ii) By Deputation/Transfer
on Secondment basis from HP
Government Departments/
Autonomous Bodies holding a
post on regular basis and
possessing requisite essential as well as Desirable qualifications and experience as prescribed.
Column No.12 to 18 not relevant.
10(ii). Though the Draft Rules dated 25.03.2007 [Annexure R-IV] [supra] were prepared yet on the direction of higher authorities, the Revised Draft Rules for the post of Manager [IT] were furnished by Respondent No.2-Director, HIPPA, Shimla to Respondent No.1-Principal Secretary [Trg] on 01.08.2009 [Annexure R-VIII], which reads as under :-
- 19 - ( 2024:HHC:17027 ) "No. HIPA (Estt.)-12/2006 Government of Himachal Pradesh Institute of Public Administration Fairlawns, Shimla-171012, Dated 01.08.2009 From The Director, II.P. Institute of Public Administration. To The Principal Secretary (Training) to the Government of Himachal Pradesh Shimla-171002 Subject:- R&P Rules for the post of Manager (IT) (Non-Gazetted), Class-II in the Department of H.P. Institute of Public Administration.
Sir, Kindly refer to your letter No. Per (Training)A(3)-1/2006 dated 21.4.2009 and 18.7.2009 on the subject cited above.
The R&P Rules for the post of Manager (IT) (Non-Gazetted), Class-II of this Institute as per latest instructions received from the Department of Personnel, government of Himachal Pradesh vide their letter No. Per(AP)- C-B-(2)-1/99-Vol.-I dated 5th March, 2009 is enclosed herewith for further necessary action at your end, please.
Yours faithfully.
Sd/-
Additional Director H.P. Institute of Public Administration, Fairlawns, Shimla-171012"
RECRUITMENT AND PROMOTION RULES FOR THE POST OF MANAGER (IT) (NON-GAZETTED) IN THE H.P. INSTITUTE OF PUBLIC ADMINISTRATION
1. Name of the post Manager (IT)
2. Number of posts 1(One)
3. Classification Class-II [Non-Gazetted]
4. Scale of pay i) Pay scale of regular incumbents:
6400-200-7000-220-8100-275-
10300-340-10640
- 20 - ( 2024:HHC:17027 )
ii) Emoluments for Contract
employees:-
Rs.9600/- as per details given in
Col 15-A
5. Whether selection post Selection
or non-selection post
7. Minimum Educational 1. Essential Qualifications:
& other qualifications The candidate should possess
required for direct Degree/Diploma from an
recruits University/Institute recognized by
H.P. Government in any of the
following:
Master Degree in Computer
Application
Or
Master Degree in Information
Technology
Or
Degree in B.Tech (Computer
Science/IT/E&C)
Or
Graduate in Computer Science/
Computer Application/ Inform-
ation Technology
Or
Graduate in any discipline with
one year Diploma in Computer
Science/Application/Programming with at least 5 years experience in the line from a University/ Institute recognized by the HP Government
2. Desirable Qualifications:
Knowledge of customs, manner and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.
8. Whether age and other Age: Not applicable qualifications Educational Qualifications: Yes prescribed for direct recruits will apply in the case of the promotes
9. Period of probation, if Two years subject to further
- 21 - ( 2024:HHC:17027 ) any. extension for a period not exceeding one year as may be ordered by the competent authority in special circumstances and reasons to be recorded in writing.
10. Method of 100% by direct recruitment recruitment, whether on a regular basis or by by direct recr-uitment recruitment on contract basis or by promotion as the case may be. The contract deputation, transfer employees will get emoluments and the percentage of as given in Col.15-A and will vacancies to be filled in be governed by service conditions by various method as specified in the said column.
11. In case of recruitment By promotion from amongst by promotion, depu- the Computer Operator who tation, tra grade from possess 5 years regular service or which promotion/ regular combined with continuous depu-tation/transfer is adhoc service rendered if any, to be made. in the grade failing which by secondment basis from amongst the incumbents of this post working in the similar pay scale from other H.P. Government departments/Autonomous Bodies.
Column No.12 to 18 not relevant.
11. A comparative analysis of Draft Rules dated 25.03.2007 [Annexure R-IV] provides that the post of Manager [IT] was to be filled 100% by promotion from amongst Computer Operators-Officials working in pay scale of Rs.5,000-8,100 with at least three years of regular service in the cadre, failing which by secondment, but a perusal of Revised Draft Rules dated 01.08.2009 [Annexure A-6-A-7/Annexure R-VIII],
- 22 - ( 2024:HHC:17027 ) reveals that though in Rule 10 of proposed Rules of 2009 it has been provided that post of Manager [IT] would be filled 100% by direct recruitment on regular basis or on contract basis yet, in Rule 11 of these Revised Draft Rules, it is provided that the post of Manager [IT] is to be filled up by promotion from amongst the Computer Operators, who possess five years regular service or regular combined with continuous adhoc service, if any, in the grade, failing which on secondment basis from amongst incumbents of this post working in similar pay scale from other H.P. Government Departments/Autonomous Bodies. 11(i). A bare reading of Rule 10 and Rule 11 of Revised-Draft Rules dated 01.08.2009 has certainly resulted in an ambiguous situation, whereby, though Rule 10 provides that post is to be filled 100% by direct recruitment yet, in Rule 11, the feeder category incumbents i.e. Computer Operators with five years of regular service have also been expressly
- 23 - ( 2024:HHC:17027 ) made eligible and were included to be a feeder category for promotion. Once the Rules conferred eligibility for promotion in Rule 11 to the Computer Operators i.e. the petitioner, then, there was no occasion to prescribe the mode of filling up the post by direct recruitment. Both the situations as contained in Rule 10 and Rule 11 leads to absurdity and ambiguous situation resulting in anomaly also. Further, once a post is intended to be filled by promotion from feeder category Computer Operators, then, the Revised Draft Rules prescribing that the post is to be filled up 100% by direct recruitment, shall definitely result in rendering these Rules as incapable of implementation in the present form. The anomaly, absurdity, ambiguity in the Revised Draft Rules dated 01.08.2009, as discussed above, has rendered these Rules incapable of implementation and unenforceability in the present form rendering it arbitrary; and therefore, these Revised Draft Rules
- 24 - ( 2024:HHC:17027 ) cannot be permitted to operate in the present form; and accordingly, Revised Draft Rules dated 01.08.2009 are declared inoperative and are quashed and set- aside.
EMPLOYERS DISCRETION TO FRAME RULES IS NOT UNFETTERED :
12. It is trite that prescription of eligibility, qualifications and mode and manner of recruitment for a post by way of direct recruitment or promotion and the prescription of other conditions of service normally falls within the domain of an employer.
This Court is cautious of the fact that though no specific mandate can be issued directing the Respondents-Employer to formulate and finalize the R & P Rules for a post in a specific manner. However, this Court cannot shut its eyes, so as to permit unfettered, unrestricted and uncanalized discretion on the State Authorities in not to preparing and finalizing the R&P Rules for the post of Manager [IT] endlessly. In the instant case, though the post
- 25 - ( 2024:HHC:17027 ) of Manager [IT] was sanctioned by State Government on 05.08.2006 [Annexure A-3] yet, the respondents have failed to finalize the R&P Rules for this post [since 2007 onwards] for the last more than 18 years now certainly speaks volumes of unfairness, unreasonableness, non-performance and arbitrariness in State action. In these circumstances, this Court mandates the State Authorities to finalize the R&P Rules for the post of Manager [IT] after completing all codal formalities not later than 31.07.2025.
FAILURE TO FINALIZE RULES SHALL RESULT IN RESTORATION-FINALISATION OF DRAFT RULES DATED 25.03.2007 [ANNEXURE R-IV] :
13. At the sake of repetition, it is important to note that the State Authorities-Respondent No. 1 created one post of Manager [IT] in the pay scale of Rs 6400-10640 on regular basis on 05.08.2006 [Annexure A-3]. While creating this post, it was mandated that the Rules be finalized at the earliest.
As a sequel to this, Draft Rules dated 25.03.2007
- 26 - ( 2024:HHC:17027 ) [Annexure R-IV], were framed, providing for filling the post of Manager [IT], 100% by promotion from amongst the Officials-Computer Operators working in Department, in pay scale of Rs.5000 - 8100 having three years of regular service as such. 13(i). Though the Draft Rules dated 25.03.2007 [Annexure R-IV] intended to fill up the post of Manager [IT] 100% by promotion and even Respondent No.2 has addressed a communication to Respondent No.1 on 28.02.2008 [Annexure A-4] that once the petitioner was eligible and had been working in the feeder category of Computer Operator for the last 18 years, therefore, his case for promotion may be considered on adhoc basis. In addition to this, on 18.2.2009 [Annexure R-7], State Authorities inter-se proposed that the posy of Manager [IT] may be filled by promotion, so that the petitioner, who is a Computer Operator is given promotional avenue and this post may be filled by direct recruitment in case
- 27 - ( 2024:HHC:17027 ) the available incumbent was not eligible. Even the Reply-Affidavit filed by State Authorities admit that the petitioner is eligible for the post of Manager [IT] as per the Existing Draft Rules also.
Thus, in the above background, once the petitioner is educationally qualified for the post of Manager [IT], in accordance with Draft Rules coupled with the fact that the Respondents intended to fill up the post of Manager [IT] then, the Respondents are bound to follow the Draft Rules for making promotion. The only caveat in not following the Draft Rules is when the R&P Rules notified under the proviso to Article 309 already occupied the field. In instant case, once no R&P Rules under the proviso to Article 309 of the Constitution of India either existed or occupied the field as on day, therefore, the Draft Rules can be followed by the respondents. Besides this, the respondents had clear intention to enforce the Draft Rules, but the inaction or lethargy
- 28 - ( 2024:HHC:17027 ) of respondents has resulted in not giving effect to the Draft Rules, then, the claim of the petitioner for being considered for promotion on the basis of Draft Rules dated 25.03.2007 [Annexure R-IV] has force, in view of the fact, that the Revised-Proposed Rules dated 01.08.2009 [Annexure A-7/Annexure R-VIII], revealed patent absurdity, ambiguity rendering these Revised Draft Rules incapable of implementation and enforceable in present form, and therefore the same have already been quashed and set aside by this Court [supra].
14. Notably, the Hon'ble Supreme Court has held that the Draft Rules can be followed for making promotion, except in case where the Rules notified under Proviso 309 do not exist. While dealing with an eventuality, where Draft Rules were not finalized from 1969 to 1975, coupled with the fact that no Rules were notified under Proviso to Article 309, therefore, the promotions made on the basis of
- 29 - ( 2024:HHC:17027 ) Draft Rules was held to be permissible and valid by the Hon'ble Supreme Court in I.K. Sukhija and Others vs Union of India and Others, AIR 1997 SC 2714, in following terms :-
"14. What emerges from the above discussion is that the promotion of the appellants as A.Es. (E) were not contrary to any statutory recruitment rules. Even if we proceed on the basis that in absence of statutory rules the draft recruitment rules of 1969 were applicable, what we find is that the appellants were eligible for promotion and their cases were duly considered by the D.P.C. They were promoted after they were found suitable by the D.P.C. and their promotions were made according to their placement in the merit list and not according to their seniority. When the appellants were promoted, though on ad hoc basis, clear vacancies were available in the promotion quota. The only reason for making their appointments as temporary and ad hoc was that the draft recruitment rules could not be finalised till 1975. There was no unusual spurt in the construction activity between 1970 and 1977 which necessitated giving of urgent temporary promotions. For all the reason stated above, it is not possible to accept that the appointments of the appellants as A.Es., though temporary and ad hoc, were by way of stop-gap arrangements only."
14(i). While dealing with a situation, where, the Draft Rules were not finalized from 1969 to 1976, the promotions intended to be made and in fact made on the basis of Draft Rules were held to be
- 30 - ( 2024:HHC:17027 ) valid by the Hon'ble Supreme Court in Abraham Jacob and Others vs Union of India (1998) 4 SCC 65, in the following terms :-
"4. Having heard the learned counsel for the parties it appears to us that the only question for consideration is on what principle the inter se seniority between the direct recruits and promotee Assistant Engineers will have to be determined for the period 1969 till 1976 i.e. the period from which 50 per cent of the posts were filled up by promotion till the enforcement of the statutory recruitment rules? It is undisputed that prior to 1969 no Junior Engineer was being promoted to the post of Assistant Engineer. From 1969 after formulation of set of draft rules promotion was being given to the Junior Engineers to the post of Assistant Engineer in accordance with the provisions contained in the draft rules even before such draft rules were approved by the governmental authority and became a statutory rule, by virtue of an administrative decision of the Government. It is too well settled that the service conditions of employes, in the absence of a statutory rule could be governed by administrative instructions. There was, therefore, no illegality in giving promotion to the Junior Engineers to the post of Assistant Engineer because of the aforesaid administrative decision of the Government. It is also conceded that in the statutory rules the principle of determination of inter se seniority between the direct recruits and promotees has not been indicated. It is in this context the Government of India followed the general principles for determining the seniority enunciated in the order of Ministry of Home Affairs dated 22.12.1959. Clause (6) of the aforesaid Memorandum which deals with relative seniority of direct recruits and promotees
- 31 - ( 2024:HHC:17027 ) stipulates that the relative seniority shall be determined according to the rotation of vacancies between the direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruits and promotees respectively. Since the statutory rule had not come into force and yet promotion could be given on the basis of the provisions contained in the draft rule by virtue of an administrative order of the Government such promotees cannot claim a greater advantage than the direct recruits having come into the cadre on the basis of the aforesaid draft rules. Further, the inter se seniority of such direct recruits and promotees has to be determined by taking recourse to the aforesaid office memorandum dated 22.12.1959 issued by the Government of India in the Ministry of Home Affairs. Needless to mention the at this principle has to be invoked for determination of inter se seniority of the appointees bother direct recruits and promotees during the period 1969 till 9.9.1976 and in fact the Government has drawn up the seniority list on following the said principle. In the aforesaid premises, the direction of the Tribunal in the impugned judgment to re-draw the seniority list without importing any quota/rota rule for the period prior to 9.9.1976 is unsustainable in law and we accordingly quash the said direction. Necessarily, therefore, the inter se seniority of the direct recruits and promotees in the cadre of Assistant Engineers for the period 1969 till 9.9.1976 has to be determined in accordance with the Government Order dated 22.12.1959 issued by the Ministry of Home Affairs."
14(ii). Likewise, while dealing with a similar fact- situation where, though Draft Rules were prepared in 1983 and promotions were made during the
- 32 - ( 2024:HHC:17027 ) finalization thereof, on the basis of seniority, the Hon'ble Supreme Court has outlined that such promotions are valid, in Vimal Kumari vs State of Haryana and Others, (1998) 4 SCC 114, reads as under :-
"8. In the absence of any decision of the State Government that so long as the Draft Rules were not notified, the service conditions of the appellant or the respondent and their other colleagues would be regulated by the "Draft Rules" prepared in 1983, it was not open either to the Government or to any other authority, nor was it open to the High Court, while disposing of the writ petition, to invoke any of the provisions of those Rules particularly as the Government has not come out with any explanation why the Rules, thought prepared in 1983, have not been notified for the long period of more than a decade. The delay, or, rather inaction, is startling.
9. On facts also, there is a strong case in favour of the appellant. She was appointed originally on the post of Tailoring Instructor in 1983. After having put in eight years of service, she was promoted on ad hoc basis to the post of Superintendent on the basis of seniority, as she was, by all reckonings, senor to other eligible candidates, including respondents 3 and 4 who were appointed in 1986. If the question of promotion is considered in the background of the fact that the Draft Rules, which were lying in a frozen state, could not have been utilised for regulating the services of the employees working in the department in question, the appellant's promotion, which
- 33 - ( 2024:HHC:17027 ) was made on the basis of seniority could not have been legally disturbed. Moreover, she was appointed on the post of Tailoring Technician which is the feeder post for making promotion to the post of Cutter Master and then to the post of Manager and ultimately to the post of Superintendent. It will be noticed that the State Govt. had not disputed before the High Court that the appellant was senior to respondents 3 and 4.
10. Since the appellant's reversion has been brought about only because of the promotion of respondent No. 3 on the post of Superintendent in terms of the order passed by the High Court and since we have found that the order passed by the High Court is not correct, we allow this appeal and set aside the impugned judgment dated 25.41994 and quash the order dated 1.7.1994 by which the appellant was reverted to the post of Tailoring Instructor. The appellant shall be allowed to continue on the post of Superintendent and shall be paid all consequential benefits, including the arrears of salary. There shall, however, be no order as to costs."
14(iii). The sanctity of Rules made under proviso to Article 309 vis-à-vis the Draft Rules has been outlined by reiterating that the Draft Rules cannot operate in an eventuality where the Rules made under Proviso to Article 309, are holding the field in Union of India through Govt. of Pondicherry and Another vs V. Ramakrishnan and Others
- 34 - ( 2024:HHC:17027 ) (2005) 8 SCC 394, in the following terms:-
"26. The rules did not become inoperative only because the two scales of pay of the Superintending Engineer and the Chief Engineer became same in terms of revised pay scales. A rule does not become inoperative only because the UPSC says so. A rule validly made even if it has become unworkable unless repealed or replaced by another rule or amended, continue to be in force. As regard, scale of pay, the matter should have been referred to the anomaly removal committee. In terms of the new rules, the criteria prescribed under the old rules were modified. Thus, till the new rules were given effect to, no promotion to the post of Chief Engineer could be effected in derogation to the criteria prescribed under the existing rules.
28. Valid rules made under proviso appended to Article 309 of the Constitution of India operates so long the said rules are not repealed and replaced. The draft rules, therefore, could not form the basis for grant of promotion, when Rules to the contrary is holding the field. It can safely be assumed that the principle in Abraham Jacob (supra), Vimal Kumari (supra) and Gujarat Kisan Mazdoor Panchayat (supra) that draft Rules can be acted upon, will apply where there are no rules governing the matter and where recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution of India."
14(iv). While dealing with the scope of Draft
- 35 - ( 2024:HHC:17027 ) Rules, the Hon'ble Supreme Court has held in D. Raghu and Others vs R. Basaveswarudu and Others, (2020) 18 SCC 01, by mandating that the Draft Rules can be acted upon in cases where, there are no rules governing the matter, in the following terms :-
"109. If so, the question would be the effect of promotion already made as noted by the Tribunal itself. As on 05.11.2002, the 1979 Rules governed promotions. The status of the draft Recruitment Rules is no longer res integra. While, promotion can be based on draft Recruitment Rules, it cannot be done, if the draft Rules are in the teeth of existing Statutory Rules.
110. In this regard, we may notice the following discussion in Union of India through Govt. of Pondicherry and another v. V. Ramakrishnan and others:
"28. Valid rules made under proviso appended to Article 309 of the Constitution operate so long the said rules are not repealed and replaced. The draft rules, therefore, could not form the basis for grant of promotion, when Rules to the contrary are holding the field. It can safely be assumed that the principle in Abraham Jacob; (1998) 4 SCC 65 : 1998 SCC (L&S) 995, Vimal Kumari; (1998) 4 SCC 114:
1998 SCC (L&S) 1018 and Gujarat Kishan Mazdoor Panchayat; (2003) 4 SCC 712 : 2003 SCC (L&S) 565 that
- 36 - ( 2024:HHC:17027 ) draft rules can be acted upon, will apply where there are no rules governing the matter and where recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution."
In the backdrop of the facts of instant case and the mandate of law, as referred to above, once the Revised Draft Rules dated 01.08.2009 [Annexure A-7/Annexure R-VIII] have already been quashed by this Court, as discussed hereinabove, with directions to the respondents to finalize the Existing Draft R&P Rules dated 25.03.2007 [Annexure R-IV/Annexure A-5], in its own wisdom on or before 31.07.2025, but with the further caveat that, while finalizing the Rules, the rights and interests of the petitioner and other eligibles, if any, be kept in view, who had been stagnating on same post for last 34 years vis-à-vis his counterparts who have been granted at least 2-3 promotions and thus unbridled and uncanalized discretion being exercised by the respondents in not finalizing the Rules since
- 37 - ( 2024:HHC:17027 ) the date of creation of the post of Manager [IT] on 05.08.2006 [Annexure A-3] for the last 18 years now, then, in such a situation, the Earlier Draft Rules dated 25.03.2007 [Annexure R-IV] shall stand restored, so that the petitioner and other eligible incumbents are considered for promotion to the post of Manager [IT], in facts of instant case.
NON FINALIZING OF RULES SINCE CREATION OF POST ON 05.08.2006 [ANNEXURE A-3] RESULTED IN PROLONGED STAGNATION OF PETITIONER FOR 24 YEARS NOW:
15. The petitioner joined service as Computer Operator on 21.08.1990 and was regularized on 13.03.2003 [Annexure A-2] w.e.f. 30.11.1996 and since then, the petitioner is stagnating on the same post of Computer Operator for the last 34 years. Though the respondents have created the post of Manager [IT] on 05.08.2006 [Annexure A-3] but respondents have failed to finalize the R & P Rules {since 2007} for the last more than 18 years now. The non-finalization of the Rules coupled with the
- 38 - ( 2024:HHC:17027 ) fact that the petitioner is stagnating for the last 34 years, reveals that the State Authorities have acted in negation of being a welfare State. Ensuring security of tenure and just service conditions for an employee are paramount consideration(s) for achieving the goals of an effective and vibrant civil service in the society. Inaction of the Government in not providing promotional avenues by not finalizing the Rules admittedly amounts to putting the petitioner to a disadvantageous position in service vis-à-vis to other incumbents in the same department i.e. Himachal Institute of Public Administration, where, the incumbents who were appointed on adhoc basis or regular basis on 21.08.1990/30.11.1996 later to petitioner have been granted promotion upto 2-3 hierarchical promotional posts; whereas, the petitioner has been made to stagnate on same post of Computer Operator for last 34 years. In these circumstances, the discrimination meted to the petitioner vis-à-vis
- 39 - ( 2024:HHC:17027 ) other counterparts by making him to stagnate has been deprecated by the Hon'ble Supreme Court in Union of India and Others versus Anil Kumar and Others, (1999) 5 SCC 743, in the following terms :-
"26. This view is strengthened more on account of the dismissal of the claim of the SSAs praying for their placement in the senior pay-scale, There is no denial of the fact that before and after the recommendations of the various Pay Commission the Assistant Foremen had been in the higher pay-scale as compared to the SSAs and Draughtsman Grade I. For a Welfare State the healthy and energetic civil services is a guarantee for good administrative system entrusted with the governance for the establishment of a rule of law. Security of tenure and the service conditions of the employees is of paramount consideration to achieve the goals for having an effective and vibrant civil service in the society. No government can resort to actions depriving the benefits to a section of the service enbloc which admittedly is to their disadvantage. Such enbloc deprivation of the promotional avenues and service benefits cannot be sustained when on cogent reasons are assigned by the administrative set up. Resort to differential treatment in the service can be had only for achieving the efficiency in the service or any other specified objective declared to be attained. No discrimination can be permitted only at the whims of the administration or to satisfy another section of the civil service. The Union of India in this case has not
- 40 - ( 2024:HHC:17027 ) been in a position to justify the differential treatment made to the Assistant Foremen by putting them en bloc junior to the Senior Scientific Assistants particularly when they have all along been found to be enjoying better position and higher grade as compared to the SSAs in the junior pay scale."
15(i). While dealing with rights of an employee who was made to stagnating for years together, the importance of providing channel of promotion has been outlined by the Hon'ble Supreme Court in V. Jagannadha Rao and Others versus State of Andhra Pradesh and Others, (2001) 10 SCC 401, in the following terms :-
"22. Notwithstanding our aforesaid conclusion, it would be in the interest of the Administration to have a channel of promotion for every service, so as to avoid stagnation at a particular level, subject however to the condition that the incumbents of a service are otherwise qualified to shoulder the responsibilities of the higher promotional post. The appropriate authority of the Government, therefore, should bear this in mind and consider the feasibility and desirability of continuing the supernumerary posts already created in the Boilers and Factories Department on a permanent basis, so that the employees from the lower echelon in the said Department have a promotional channel or to make suitable
- 41 - ( 2024:HHC:17027 ) promotional avenue at least upto some level, so that there would not be any discontentment amongst the employees in the concerned Department."
NON-FINALIZATION OF RULES SINCE 2007 TILL DAY ARBITRARY:
16. In instant case, respondent No 1 created one post of Manager [IT] on regular basis on 5.8.2006 [Annexure A-3]. The process for framing the Rules was undertaken. Accordingly, the respondent No 2-
Director, HIPA, Shimla, framed the Draft Rules on 25.03.2007 [Annexure R-IV]. These Draft Rules were modified by issuing the Revised Draft Rules dated 01.08.2009 [Annexure A-7/Annexure R-VIII], which being ambiguous, anomalous, absurd and incapable of being implemented in current form, has already been quashed and set aside by this Court. In this backdrop, this Court deprecates that the State Authorities have failed to perform its bounden statutory obligations by not finalizing the Rules since 2006 till today. This unfettered, unrestricted and uncanalized discretion exercised by State Authorities,
- 42 - ( 2024:HHC:17027 ) in sitting over the matter and in not finalizing the Rules [since 2007 onwards]. Non-finalization of Service Rules, has prejudiced the petitioner by the depriving him of the conditions of service including promotion and promotional avenues vis-à-vis his counterpart employees in the same department, who were appointed on analogous posts/cadre and thus non-finalization of Service Rules is not in spirit of good administration when, the State Authorities have prescribed-outlined the procedure for framing Rules on 07.07.2008, which reads as under :-
"(H.P. Govt. Deptt. of Personnel letter No. Per(AP-C)-A-4(1)/95-Loose, dated the 7th July, 2008 addressed to all the Pr. Secretaries/Secretaries, all Divisional Commissioners, Heads of Department and Deputy Commissioners, in HP) Subject: Amendment in the Rules of Business of the Government of H.P.- Instructions regarding framing/amending the Recruitment and Promotion Rules.
I am directed to refer to this Department letter No. PER(AP)-C-B(19)-2/98 dated the 22nd April, 1999 on the subject cited above and to say that presently in accordance with Rules-14 of the Rules of Business of the Government of Himachal Pradesh, 1971, the Recruitment and
- 43 - ( 2024:HHC:17027 ) Promotion Rules framed under provisos to Article 309 of the Constitution of India, and the Recruitment and Promotion Rules requiring substantive amendments in case of Class-I & II Posts/Services are taken to Cabinet for their approval. However, in case of minor amendments like change of nomenclature of post, increase or decrease of number of posts and change of pay scales, as per delegation made by the Cabinet, such amendments are not required to be taken to the cabinet for approval. Besides, the Recruitment and Promotion Rules in respect of Class III & IV posts are also not taken to the Cabinet for approval and such Rules whether framing of new Rules or carrying out of amendments in these Rules, are notified by the concerned Administrative Departments after having obtained the approval of the Hon'ble Chief Minister and Minister-in-charge concerned respectively.
2. The matter regarding delegation of powers for framing/amendment of Recruitment and Promotion Rules of Class-II posts was under consideration of the Government for quite some time. Now the Government after taking into consideration all aspects, have amended Clause 2(c) of the Schedule under Rule-14 of the Rules of Business in the following manner:-
"(c) Persons appointed to the Public Service and posts (Excepting Class-II, III & IV post(s) in connection with the Affairs of State:
"Provided that minor amendments in the service rules of Class-I posts like change of Pay scales, nomenclature of posts, number of posts and age limit for direct
- 44 - ( 2024:HHC:17027 ) recruitment pursuant to the notification /instructions of the Department of Personnel shall be made by the concerned Administrative Department with the approval of the Minister-in-charge.
Provided further that the cases of Class-II & III posts involving difference of opinion with the Himachal Pradesh Public Service Commission and where there is departure from common rules shall be brought to the Council of Ministers. (Proviso to Article-
309)"
3. In view of the aforesaid amendments in the Rules of Business of the Government of Himachal Pradesh, the following procedure should now be adopted for framing of Recruitment & Promotion Rules in future:-
1) The formal prescribed procedure for framing of Recruitment & promotion Rules for the present is that the Administrative Departments first of all obtain the clearance of the Department of Personnel and thereafter they seek clearance from the Law & Finance Departments.
2) In case all these Consulting Departments clear the cases of Recruitment & Promotion Rules, the Administrative Department are not required to come to the Rules Committee for their approval as was the practice in the past. As such they go to the H.P. Public Service Commission for obtaining their consent before taking the proposal to the Cabinet for their approval.
3) But, in case, if there is a difference of opinion of the Administrative Department either with any of the Consulting Departments or with the H.P. Public
- 45 - ( 2024:HHC:17027 ) Service Commission, only in that case the Rules are taken to the Rules Committee to sort out the difference of opinion.
4) All Recruitment & Promotion Rules in respect of Class-I posts or amendments thereto should continue to be brought before the Council of Ministers for their approval after following the existing procedure. However, minor amendments in the Recruitment & Promotion Rules of Class-I posts like change of Scale, nomenclature of posts, number of posts and age limits or direct recruitment in pursuance of Department of Personnel's notifications/ instructions issued, shall be made by the Administrative Departments with the approval of the Minister-in-
charge concerned.
5) All Recruitment & Promotion Rules in respect of Class-II & III posts whether framing of new Rules or amendments thereto should not go the Council of Ministers. The Administrative Departments should notify these Recruitment & Promotion Rules after having obtained the approval of the Hon'ble Chief Minister through the Minister-in-charge concerned. However, in cases where there is a difference of opinion with the H.P. Public service Commission and where there is departure from common Rules, only such matter shall be brought before the Council of Ministers after having the approval of the Rules Committee in the matter.
6) All Recruitment & Promotion Rules in respect of Class-IV posts together with substantial changes/amendments thereto shall continue to be notified by the Administrative Department after having the
- 46 - ( 2024:HHC:17027 ) approval of the Minister-in-Charge concerned, as heretofore.
4. These instructions may be brought to the notice of all concerned for strict compliance."
16(i). In above backdrop, the inaction of the State Authorities in neither finalizing the Rules nor in providing promotional avenues, but in forcing the petitioner to stagnate on the same post of Computer Operator since his initial appointment on adhoc basis on 21.08.1990 and since regularization on 30.11.1996 and thereafter vis-à-vis his counterparts who were given atleast 2-3 promotions amounts to an unfair treatment resulting in malice vis-à-vis the petitioner. In view of the discussion in preceding paras and in fact-situation of instant case, the denial of consideration and resultant promotion to the petitioner either to post of Manager [IT] or to any other promotional hierarchy is solicited in order to remove prolonged stagnation and to avoid the charge of discrimination qua other counterparts in
- 47 - ( 2024:HHC:17027 ) the same department who have been granted atleast 2-3 promotions in last 34 years whereas petitioner has been isolated/singled out.
CONCLUSION
17. Based on pleadings and contentions raised and the mandate of law, as referred to above, this Court is of the considered view, that the Revised Draft Rules dated 01.08.2009 [Annexure A-7/Annexure R-VIII] and Rule 10 and 11 results in absurdity and these provisions creates an anomalous situation rendering them incapable of implementation and impossible of being enforced, even if it is finalized in present form, in view of overlapping prescriptions provisions of Rule 10 and 11 in Revised Draft Rules dated 01.08.2009 being inter-se contradictory. Thus, these Revised Draft Rules are arbitrary, illegal, unreasonable and the same are declared inoperative and are quashed and set aside. Consequent upon, the quashing of the Revised Draft Rules dated 01.08.2009, this Court leaves it open for the State
- 48 - ( 2024:HHC:17027 ) Authorities, to finalize Draft Rules dated 25.03.2007 [Annexure R-IV] for the post of Manager [IT] in extant form or in modified form in accordance with law and while doing so, the State Authorities are mandated to consider and bear in mind the prolonged stagnation of the petitioner vis-à-vis his counterpart employees in the same department who have been granted atleast 2-3 promotions during a span of 34 years whereas as per the material on record, the petitioner has been made to stagnate on the same post since 1990.
Accordingly, in fact situation of instant case and the discussion made here-in-above, the State Authorities-Respondents are mandated to finalize the Draft Rules dated 25.03.2007 [Annexure R-IV] latest by 31.07.2025. Failure to finalize the Rules on or before the date fixed hereinabove shall result in deemed restoration and finalization of the Draft Rules dated 25.03.2007 [Annexure R-IV] for all intents
- 49 - ( 2024:HHC:17027 ) and purposes, by mandating the Respondents-State Authorities to mandatorily consider the petitioner and other eligibles for promotion against the post of Manager [IT] or any other equivalent post thereto so as to provide promotional avenues to petitioner, who has been made to stagnate on the same post of Computer Operator for the last 34 years in any appropriate manner, so as to provide parity and to avoid the charge of discrimination vis-à-vis his counterparts, who have been given promotion on 2-3 hierarchical posts in the same department. The entire exercise cannot be permitted to operate endlessly and accordingly, this Court mandates that the State Authorities to complete the entire process in aforesaid terms.
DIRECTIONS:
18. In view of the above discussion and for the reasons stated here-in-above, the instant petition is allowed, in the following terms :-
(i) The Revised Draft R & P Rules for the
- 50 - ( 2024:HHC:17027 ) post of Manager [IT] dated 01.08.2009 [Annexure A-7/Annexure R-VIII] and Rule 10 and 11 being arbitrary, illegal and violative of Article 14 and 16 of the Constitution of India are struck down and declared inoperative ;
(ii) State Authorities are mandated to finalize the Draft R & P Rules dated 25.03.2007 [Annexure R-IV/A-5 & A-6] for post of Manager [IT] on or before 31.07.2025;
(iii) Failure to finalize Rules as per direction no (ii) above; shall result in deemed finalization of the Draft Rules dated 25.03.2007 [Annexure R-IV], entitling the petitioner and other eligible to be considered for promotion to the post of Manager [IT] thereunder ;
(iv) While finalizing Rules are directed to consider and bear in mind prolonged stagnation of petitioner on same post for 34 years vis-à-vis his counterpart incumbents who were promoted on 2-3 hierarchical post during this period, so as to ensure parity and to avoid charge of discrimination;
(v). Parties to bear respective costs. In aforesaid terms, the petition is disposed of
- 51 - ( 2024:HHC:17027 ) and all pending application(s), if any, shall also stand disposed of.
(Vivek Singh Thakur) Judge (Ranjan Sharma) Judge 28th May, 2025 (Chiranjeev/tm)