Punjab-Haryana High Court
Mast Ram vs State Of Haryana on 7 March, 2001
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. The petitioners were appointed as Junior Engineers on as hoc basis on diffident dates. Petitioners 1, 2, 7 and 8 were regularised w.e.f. 1.11.1986. Petitioners No. 3,6 and 9 were regularised on 30.9.1988 and petitioners No. 4 and 5 were regularised on 31.12.1990. To govern the service conditions of Sub Divisional Officers, there were no statutory rules. However, in consultation with the Public Service Commission, a decision had been taken that 33% of posts of Sub Divisional Officers shall be filled up by direct recruitment and 67% posts shall be filled up by way of promotion from Junior Engineers or by transfer or by deputation. The statutory rules were notified on 16.2.1999. Under the said rules, for recruitment to the post of Sub Divisional Engineer percentage was prescribed that out of 50% to be promoted, 32% posts would go to Junior Engineers (Diploma Holder), 6% to the Circle Head Draftsman (Civil), Draftsman (Civil) and Tracers (Civil) (Diploma Holder) and 12% by promotion from amongst the Junior Engineers (Degree Holder/A.M.I.E.), Draftsman Civil and or Tracers (Civil Degree Holder/A.M.I.E.).
2. According to the learned Counsel, when the new rules came into force, total cadre strength of Sub Divisional Officer was 110, out of which 12 were permanent posts and 98 were temporary posts. Since then there is no increase in the cadre strength, 12% quota of Degree/A.M.I.E. holders from amongst the Junior Engineers/Head Draftsman/Draftsman/Tracers have been introduced first time as per new rules. Similarly, 6% quota had been prescribed for the first time by the new rules for Head Draft sman/Draftsman /Tracers. The grievance of the petitioners is that new rules could only prescribe the quota for the posts that fell vacant after the new rules came into force and the for posts that were available before the new rules were notified the earlier conditions must continue. It is asserted that all the years the posts that remained vacant are being filled up by applying the new rules. Challenging the same to be illegal, present will petition has been filed.
3. The writ petition has been contested only by respondents No. 1 and 2. It is admitted that there were no service rules governing the service conditions of Sub Divisional Officer, Panchayati Raj before 1.6.1988. Vide letter dated 1.6.1988, Haryana Public Service Commission approved to fill up the posts of Sub Divisional Officer (Panchayati Raj). 67% posts were to be filled up by promotion and 33% of posts by direct recruitment. However, with a view to provide avenues of promotion to the Junior Engineers having qualification of Bachelor of Engineering/AMIE and draftsman, a provision which also existed in the rules of Public Works Department was incorporated. Following percentage was fixed for different categories :-
"1. Director appointment 50%
2. Promotion from Junior Engineers having 40% Diploma (C) 3 By promotion from Junior Engineers hav- 4% ing AMIE/BE degree
4. Tracer/Draftsman/CHD 6% Later on, keeping in view the strength of Junior Engineers in the department, it was decided to enhance their promotion quota and on 23.1.1996 the percentage of the posts was prescribed as under :-
"1. By Direct recruitment 50%
2. By promotion from Junior Engineers having 32% Diploma qualification qualiification 3 By promotion from Junior Engineers having 12% BE/AMIE qualification
4. By promotion from Tracer/Draftsman/Head 6% Draftsman/CHD The said percentage was applied on the vacancies available on 23.1.1996. In this process, it was contended that the petitioners have no grievance or cause of action.
4. When the submissions were made, learned Counsel for the petitioners had withdrawn the writ petition on behalf of petitioners No. 3, 4, 6, 7, 8 and 9. It only survives so far as petitioners No. 1, 2 and 5 are concerned.
5. As referred to above, the sole argument advanced has been that percentage could not be reserved retrospectively and the posts that fell vacant before the amendment made could only be given as per earlier percentage.
6. Earlier, there were no statutory rules governing the Sub Divisional Officer in the Development and Panchayat Department. From 1.6.1988, in consultation with the Haryana Public Service Commission, the percentage prescribed was as under :-
"I am directed to refer to your letter No. 5747-5-ECD-187/1550 dated 26.2.1988 on the subject noted above and to say that the Haryana Public Service Commission have considered the proposal and approve the proposed qualifications as under :-
Name of Post Rule Provision to be included in Draft Rules of Class-11 S.D.O (NRI P) 9(1) (A)
(i) 33% by direct recruitment
(ii) 67% by promotion from amongst Junior Engineers or
(iii) By transfer of deputation of and an officer already in the service
7. The statutory rules were notified on 16.2.1999 as Haryana Development and Panchayat Department, Panchayati Raj Engineering (Group B) Services Rules, 1998 (for short "the Rules"). Rule 9 of the Rules pertaining to method of recruitment reads as under :-
"Rule 9(1) Recruitment to the service shall be made :
(a) in the case of Sub Divisional Officers, Panchayati Raj, Civil, recruitment to the service shall be made.
(i) 50% by promotion as under :-
(a) 32% by promotion from amongst Junior Engineers (Diploma Holder);
(b) 6% by promotion amongst the Circle Head Draftsman (Civil), Draftsman (Civil) and Tracer (Civil) (Diploma Holder);
(c) 12% by promotion from amongst the Junior Engineers (Degree Holders/AMIE) Draftsman Civil and or Tracers (Civil Degree Holder/AMIE).
(ii) 50% by direct recruitment; or
(iii) by transfer or deputation of any officer/official already in the service of any State Government or Government of India."
The grievance of the petitioners is that the posts that fell vacant before 23.1.1996, in any case, could not go to other categories because the percentage of the posts of Junior Engineers having BE/AMIE qualifications have been increased from 4% to 12%. The contention has been well taken. All decisions or rules, unless there is reason to held otherwise, would operate prospectively. If the vacancies in the cadre fall in the quota prescribed for the Junior Engineers having Diploma before January, 1996, necessarily they have to be made available to the concerned persons. The written statement does not indicate that this is being so done. Only the posts that would fall vacant after January, 1996 could be given when their percentage of promotion quota had been increased to certain percentage.
8. Similar question had arisen before this Court in the case of Smt. Kiran Paruthi and another v. State of Haryana and others, C.W.P. No. 7942 of 1998, decided on July 9, 1999, wherein a similar view point was expressed. It was held as under :-
".....The controversy herein is whether the non-graduate Supervisors, who have been for the first time given right of consideration for promotion as the Child Development and Project Officer to the extent of 10% of the posts meant to be filled by promotion would get that much percentage of the entire cadre strength or out of the posts, which came into existence after the promulgation of the rules. According to us, there should not be any controversy on this point because the non-Graduate Supervisors got a right under the rules for consideration for promotion for the first time on June 6, 1997, and any post/vacancy occurring thereafter and meant for promotee quota would have to be filled in the ratio of 9:1 amongst Graduate Supervisors and non-graduate Supervisors. Accordingly, out of the 5 posts meant for the promotee quota, the same will have to be divided between graduate and non- graduate Supervisors in the ratio 9:1. In other words, at the most one post would got to a non-graduate Supervisor. What the official respondents have done is that on the basis of the entire cadre strength, they have given all these five posts to non-Graduate Supervisors. This has been objected to by the petitioners in the present writ petition."
We are in full agreement with the aforesaid view point. It must, therefore, follow and we have no hesitation in holding that before January, 1996 the posts that fell vacant to the category of Diploma Holder, Junior Engineer must be given to them. Thereafter, if the posts fell vacant, the same be given as per the new Rules. The exercise in this regard should be done within four months.
Subject to aforesaid, the writ petition is disposed of.
9. Order accordingly.