Himachal Pradesh High Court
State Of H.P vs Sanjay Gupta on 3 November, 2015
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
LPA No. 133 of 2009 along with LPA Nos. 121, 134 to 136 of 2009, 77 of 2010 and CWPOA No. 7854 of 2008 Judgment reserved on: 5.10.2015 Date of decision: November 3, 2015 of
1. LPA No. 133 of 2009 State of H.P. ..... Appellant.
rt Vs.
Sanjay Gupta .... Respondent.
For the Appellant : Mr. Anup Rattan, Mr.Romesh Verma,
Additional Advocate Generals with
Mr.J.K. Verma, Deputy Advocate
General.
For the Respondent : Mr. Ajay Mohan Goel, Advocate.
2. LPA No. 121 of 2009
Ram Krishan Bhardwaj .....Appellant
Vs.
State of H.P. & others ...Respondents.
For the appellant : Mr. Dilip Sharma, Senior Advocate with
Ms.Nishi Goel, Advocate.
For the respondents : Mr.Anup Rattan, Mr.Romesh Verma,
Additional Advocate Generals with
Mr.J.K. Verma, Deputy Advocate
General, for respondent No. 1.
Mr. N.S. Chandel, Advocate, for
respondents No. 2 to 5.
3. LPA No. 134 of 2009
State of H.P. .....Appellant
Vs.
Surjeet Singh Katoch & Another ...Respondents.
For the appellant : Mr.Anup Rattan, Mr.Romesh Verma,
Additional Advocate Generals with
Mr.J.K. Verma, Deputy Advocate
General.
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For the respondents : Mr.N.S. Chandel, Advocate, for
.
respondents No. 1 to 4.
Mr. Dilip Sharma, Senior Advocate with Ms.Nishi Goel, Advocate, for respondent No. 8.
4. LPA No. 135 of 2009 State of H.P. .....Appellant
of
Vs.
Amba Dutt & another. ...Respondents.
rt
For the appellant : Mr.Anup Rattan, Mr.Romesh Verma,
Additional Advocate Generals with
Mr.J.K. Verma, Deputy Advocate
General.
For the respondent : Mr.Ajay Mohan Goel, Advocate, for
respondent No. 1.
Respondent No. 2 ex parte.
5. LPA No. 136 of 2009
State of H.P. .....Appellant
Vs.
Bikram Singh Mehta & Others ...Respondents.
For the appellant : Mr.Anup Rattan, Mr.Romesh Verma,
Additional Advocate Generals with
Mr.J.K. Verma, Deputy Advocate
General.
For the respondents : Mr.S.R. Sharma, Advocate, for
respondent No. 1.
Respondents No. 2 and 3 ex parte.
6. LPA No. 77 of 2010
State of H.P. & Another .....Appellants
Vs.
Naresh Kumar Gupta & Another ...Respondents.
For the appellants : Mr.Anup Rattan, Mr.Romesh Verma,
Additional Advocate Generals with
Mr.J.K. Verma, Deputy Advocate
General.
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3
For the respondents : Ms. Ranjana Parmar, Senior Advocate
with Ms.Komal Kumari, Advocate.
.
7. CWPOA No. 7854 of 2008
Jyoti Singh Negi. .....Petitioner
Vs.
State of H.P. & Another ...Respondents.
of
For the Petitioner : Ms. Sunita Sharma, Advocate.
For the respondents : Mr..Anup Rattan, Mr.Romesh Verma,
rt Additional Advocate Generals with
Mr.J.K. Verma, Deputy Advocate
General, for respondent No. 1.
Mr. Dilip Sharma, Senior Advocate with Ms.Nishi Goel, Advocate, for respondent No. 2.
Coram The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 Yes.
Tarlok Singh Chauhan, Judge CWP Nos. 9485 of 2012 and 6870 of 2014 The issue involved in these petitions is in no way connected with the subject matter involved in these appeals, therefore, delinked and be listed separately.
LPA No. 133 of 2009 along with LPA Nos. 121, 134 to 136 of 2009, 77 of 2010 and CWPOA No. 7854 of 2008 Since common question of law and facts arise for consideration in these appeals, therefore, they are taken up together for disposal.
Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 42. The moot question involved in these appeals and writ .
petition are:
(i) Whether by conferment of the gazetted status alone, the Junior Engineers, who had put in five years of service, were required to qualify the departmental examination prescribed under the Departmental of Examination Rules, 1976 despite there being no corresponding provision or amendment carried out in the statutory service Rules framed under Article rt 309 of the Constitution of India to this effect?
3. The writ petitioners who are the private respondents in these appeals were working as Junior Engineers in the Himachal Pradesh Public Works Department (for short 'HPPWD') and had assailed the notification dated 25.4.1992 whereby the earlier notification dated 5.7.1989 confirming gazetted status on the Junior Engineers who had put in five years of service, was ordered to be withdrawn.
4. The precise case of the writ petitioners was that since they had put in more than five years of service and had even passed the departmental examination as per the Departmental Examination Rules, 1976 (for short Rules of 1976), they alone were entitled to be considered for promotion to the next higher post of Assistant Engineers which had fallen vacant between 5.6.1989 to 24.4.1992.
5. The learned writ Court on the basis of the amendment carried out in the Departmental Examination Rules on 17.8.1989 concluded that any person who had been conferred with ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 5 Gazetted status was essentially required to pass the departmental .
examination to enable him to seek promotion to the next higher post. Having held so, the petitions filed by the private respondents came to be allowed and consequently, the promotions of the appellants came to be quashed and set-aside for want of their of having passed the Departmental Examination.
6. It is vehemently argued by the learned counsel for the rt appellants that the mere conformant of "gazetted status" would not attract the applicability of the Himachal Pradesh Departmental Examination Rules, unless the service rules were amended incorporating therein the requirement of passing the departmental examination, as per the H.P. Departmental Examination Rules, in order to attain promotion to the higher post. In support of the aforesaid contention, reliance has been placed upon the following judgments of the Hon'ble Supreme Court.
State of Haryana vs. Shamsher Jang Shukla AIR 1972 SC 1546, Dr. Rajinder Singh vs. State of Punjab and others AIR 2001 SC 1769, Union of India and others vs. Sh. Somasundaram Viswanath and others AIR 1988 SC 2255, Paluru Ramkrishnaiah and others vs. Union of India and another, AIR 1990 SC 166 and Union of India and another vs. Central Electrical and Mechanical Engineering Service Group A (Direct Recruits) Association, CPWD and others AIR 2008 SC 3.
7. On the other hand, learned counsel for the respondents, would argue that a person, who has been conferred ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 6 with gazetted status is required to pass the departmental .
examination as provided for in the Himachal Pradesh Departmental Examination Rules, 1976 and mere fact that no amendment has been carried out in the statutory Rules, would have no effect, as the Departmental Examination Rules, 1976 of would apply independently. In support of the aforesaid contention, the respondents have placed reliance upon the rt following judgments of the Hon'ble Supreme Court.
Sant Ram Sharma vs. State of Rajasthan and others AIR 1967 SC 1910, Sitaram Jivyabhai Gavali vs. Ramjibhai Potiyabhai Mahala and others (1987) 2 SCC 262, State of Sikkim vs. Dorjee Tshering Bhutia and others (1991) 4 SCC 243 and Chandigarh Administration through the Director Public Instructions (colleges), Chandigarh vs. Usha Kheterpal Waie and others (2011) 9 SCC 645.
We have heard learned counsel for the parties and have gone through the records of the case.
8. Before proceeding further, we deem it proper to first discuss the judgments, as relied upon by the parties to the lis.
Judgments relied upon by the Appellants:
9. In State of Haryana vs. Shamsher Jang Shukla AIR 1972 SC 1546, the Hon'ble Supreme Court observed that where the administrative instructions issued by the Government add to the qualification already prescribed by rules relating to the promotion framed under Article 309, then the same would undoubtedly effect the promotion of the concerned officers and they would thus ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 7 relate to and impinge upon the conditions of service and in such .
situation, the respondents-State was not competent to alter by means of administrative instructions the conditions of service prescribed by the Rules. It was held:
"7. It may be noted that herein we are dealing only with those of who were promoted from the cadre of clerks in the Secretariat. The first question arising for decision is whether the Government was competent to add by means of administrative instructions to rt the qualifications prescribed under the Rules framed under, Art.
309. The High Court and the courts below have come to the conclusion that the Government was incompetent to do so. This Court has ruled in Sant Ram Sharma v. State of Rajasthan and anr.
(1) that while the Government cannot amend or supersede the statutory rules by administrative instructions, if the rules are silent on any particular point, the Government can fill. up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Hence we have to see whether the instructions with which we are concerned, so far as they relate to (1) [1968] S.C.R. 111. the clerks in the Secretariat amend or alter the conditions of service prescribed by the rules framed under Art.
309. Undoubtedly the instructions issued by the Government add to those qualifications. By adding to the qualifications already prescribed by the rules, the Government has really altered the existing conditions of service. The instructions issued by the Government undoubtedly affect the promotion of concerned officials and therefore they relate to their conditions of service. The Government is not competent to alter the rules framed under Art. 309 by means of administrative instructions. We are unable to agree with the contention of the State that by issuing the instructions in question, the Government had merely filled up a gap in the rules. The rules can be implemented without any difficulty. We see no gap in the rules.
8. There is a further difficulty in the way of the Government. The additional qualification prescribed under the administrative instructions referred to earlier undoubtedly relates to the conditions of service of the Government servants. As laid down by ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 8 this Court in Mohammad Bhakar and ors. v. Y. Krishna Reddy and Ors. (1), any rule which affects the promotion of a person relates .
to his conditions of service and therefore unless the same is approved by the Central Government in terms of proviso, to sub-s. (7) of s. 115 of the States Reorganization Act, 1956, it is invalid as it violates sub-s. (7) of s. 115 of the States Re- organization Act. Admittedly the approval of the Central Government had not been obtained for issuing those instructions. But reliance was of sought to be placed on the letter of the Central Government dated March 27, 1957 wherein the Central Government accorded rt advance approval to the State Governments regarding the change in the conditions of service obtaining immediately before November 1, 1956 in the matter of traveling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion. The scope of that letter has been considered by this Court in Mohammad Bhakar's case (supra). Therein this Court held that the letter in question cannot be considered as permitting the State Governments to alter any conditions of service relating to promotion of the affected Government servants.
10. In Dr. Rajinder Singh vs. State of Punjab and others AIR 2001 SC 1769, the Hon'ble Supreme Court observed that no government order, notification or circular can substitute the statutory rules framed with the authority of law. It was held:
"5. It has not been disputed before us that at the relevant date when the respondent No.3 was recommended for promotion, he had not completed 10 years of service within the meaning of Rule 9A read with Rule 2(2) of the PCMS Class 1 Rules. As the respondent No.3 was not possessing the requisite qualifications on the relevant date, he could not be considered for promotion to the post of Deputy Director, Health Services.
6. We do not agree with the High Court that even without amending the rules, the respondent-State could have declared the PCMS Class II as PCMS Class I. The notification dated 9th April, 1989 reads as:::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 9
"In pursuance of the recommendations of the Committee for the removal of anomalies in the Revised Scales of pay .
of Punjab Civil Medical Services, the President of India is pleased to declare the PCMS (Class II) as PCMS (Class I). There will be only one service with the nomenclature of PCMS (Class I) with effect from 1.1.1986.
The necessary amendments in the service rules of PCMS of (Class II) and PCMS (Class I) will be made separately.
This issue with the concurrence of the Finance Department rt conveyed vide their I.D. No.l0/27/89-FPI, dated 20.3.89."
(Emphasis Supplied) A perusal of the notification clearly indicates that the Government itself was aware that the two classes of service cannot be equated or treated alike without amending the rules. There is no dispute that the rules have not been amended so far. The Departmental Promotion Committee, therefore, erred in recommending the promotion of respondent No.3, ignoring the rules and only relying upon a notification.
7. The settled position of law is that no Government Order, Notification or Circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the rules, the Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a Government Order and ignoring the mandate of Article 309 of the Constitution.
8. As respondent No.3 was not eligible for consideration to the post of Deputy Director, Health Services, the Departmental Promotion Committee committed a mistake in recommending him. Consequent promotion of respondent No.3 on the basis of ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 10 recommendation of the Departmental Promotion Committee being contrary to law is liable to be set aside"
.
11. In Union of India and others vs. Sh. Somasundaram Viswanath and others AIR 1988 SC 2255, the Hon'ble Supreme Court observed that as per the settled law the law the norms of regarding recruitment and promotion of an employee can be laid down either by a law made by the appropriate Legislature or by rt rules made under the proviso to Article 309 or by means of executive instructions issued under Article 73 in the case of Civil Services under the Union of India and under Article 162 in the case of Civil Services under the State Government. If there is a conflict between the executive instructions and the rules made under proviso to Article 309, then the rules made under proviso to Article 309 would prevail, and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate Legislature the law made by the appropriate Legislature prevails.
12. In Paluru Ramkrishnaiah and others vs. Union of India and another, AIR 1990 SC 166, three Judges of Hon'ble Supreme Court held that an executive instruction could make a provision only with regard to a matter which was not covered by the Rules and that such executive instruction could not override any provision of the Rule framed under Article 309.
13. In Union of India and another vs. Central Electrical and Mechanical Engineering Service Group A (Direct Recruits) Association, CPWD and others AIR 2008 SC 3, the Hon'ble Supreme ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 11 Court held that executive instructions can only fill in gaps not .
covered by Rules, but the same cannot be in derogation of statutory rules.
Judgments relied upon by the Respondents:
14. In Sant Ram Sharma vs. State of Rajasthan and others of AIR 1967 SC 1910, the Constitution Bench of Hon'ble Supreme Court held that even in absence of statutory rules governing rt promotions framed by the Government it can always issue administrative instructions regarding the principles to be followed.
15. In Sitaram Jivyabhai Gavali vs. Ramjibhai Potiyabhai Mahala and others (1987) 2 SCC 262, it was held by the Hon'ble Supreme Court that new conditions of service can always be introduced by executive order which remain operative till its express or implied repeal by a subsequent order or regulation or statute.
16. In State of Sikkim vs. Dorjee Tshering Bhutia and others (1991) 4 SCC 243, the Hon'ble Supreme Court observed that where the statutory provision of the rule is unworkable and inoperative for the time being due to any reasons, in that event, power under Article 162 can always be invoked and exercised by the State Government.
17. In Chandigarh Administration through the Director Public Instructions (colleges), Chandigarh vs. Usha Kheterpal Waie and others (2011) 9 SCC 645, the Hon'ble Supreme Court observed ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 12 that even in absence of valid rules, executive instructions can .
always issued by the Government.
CONCLUSION:
18. From the conspectus of the case law indicated above, the following broad principles are clearly discernable:
of
(i) The executive instructions cannot override the statutory provisions.
(ii)rt If there is a statutory Rule or an Act on the matter, the executive must abide by the Act or Rule and it cannot in exercise of its executive powers ignore or act contrary to the Rule or Act.
(iii) The State cannot amend or supersede the statutory Rules or add something therein by administrative instruction, but if the Rules are silent on any particular point, the State can fill-up the gap and supplement the rule and issue instructions not inconsistent with the Rules already framed.
(iv) The State cannot issue orders/office memorandum/executive instructions in contravention of the statutory Rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions.
(v) The executive instructions are binding, provided the same are issued to fill up the gap between the statutory provisions and are not inconsistent with the said provisions.
(vi) The administrative instructions are not statutory rules nor do have any force of law, whereas the statutory rules have the force of law.::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 13
(vii) Statutory rules create an enforceable right, which cannot be taken away by executive instructions.
.
(viii) A law having occupied the field, it is not open for the State in exercise of its executive power to prescribe the same field by an executive order.
(ix) Executive power of the State cannot be of repugnant to the enactment of the legislature or the statutory rules.
(x) Subordinate legislation cannot override the rt statutory rules nor it can curtail the content and scope of the substantive provision for and under which it has been made.
19. Now in case the arguments of the respective parties are tested on the principles enunciated above, it is admitted case of both the parties that there was no provision for passing of departmental examination in the statutory Rules and what was introduced by way of executive instructions is that the post of Junior Engineers who had completed five years of service was made "gazetted".
20. The next question which, therefore, arises is as to whether in absence of any provision in the statutory Rules, could the provisions of another Rule, i.e. the Departmental Examination Rules, 1976 be resorted to, so as to make the passing of departmental examination mandatory, only because the post had been made "gazetted".
21. The learned writ Court upheld the contention of the writ petitioners by according the following reasons:
"The contention of the learned counsel appearing on behalf of the respondents that no corresponding amendment was carried ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 14 out in the Recruitment and Promotion Rules for the post of Assistant Engineer after the conferment of the Gazetted status on .
5.7.1989, merits rejection. The Departmental Examination Rules, 1976, as noticed above apply independently. These were not required to be incorporated in the Recruitment and Promotion Rules for the post of Assistant Engineer. A bare perusal of the Departmental Examination Rules, 1976 suggests that only those persons, who qualified the departmental examination, are eligible of for further promotion. The notification dated 5.7.1989 was issued with the consultation of the Finance Department. However, the same has been withdrawn on 25.4.1989 without any consultation rt with the Finance Department. There must be consistency in every administrative action of the State which has civil/administrative consequences. The consistency is one of the requisite of the principle of rule of law. The State Government cannot permit itself to be pressurized by one section of employees to reverse a particular decision. The persons who had not qualified the departmental examination though given the opportunity have succeeded in the present case to pressurize the State Government to reverse the earlier decision. The persons, who had passed the departmental examination, were on better footing vis- à-vis who had not passed the departmental examination despite repeated opportunities granted to them."
22. It would be noticed that even the H.P. Department Examination Rules, 1976 have been framed in exercise of powers conferred by mandate of Article 309 of the Constitution of India, that too in consultation with the Himachal Pradesh Public Service Commission, but then these Rules have been specifically framed for the "conduct of departmental examinations for the various categories of service in Himachal Pradesh." That being so, then the same cannot be read into the statutory service Rules, as the dominant purpose of these Rules is only to conduct the departmental examinations for various categories of service as ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 15 specified in these Rules and not to govern the conditions of service .
which are regulated and governed by the statutory service rules .
23. The gazette notification, notifying therein the Himachal Pradesh Departmental Examination Rules, 1976 reads thus:-
"No. HIPA (Exam) 12/75.--- In exercise of the powers conferred of by the In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and all other powers in this behalf, the Governor, Himachal Pradesh in consultation with the rt Himachal Pradesh Public Service Commission and with the prior approval of the Central Government as required under section 82 of the Punjab Re-organization Act, 1966, and section 42 of the State of Himachal Pradesh Act, 1970, is pleased to make the following Rules regarding conduct of Departmental Examinations for the various categories of Services in Himachal Pradesh."
It is evidently clear from the aforesaid notification that the Departmental Examination Rules were promulgated only with regard to the "conduct of the departmental examination for the various categories of service in Himachal Pradesh." This would further be evident from the perusal of Rule 7 of the Rules, which clearly stipulates that an Officer eligible in accordance with these rules and desiring to appear in the departmental examination "prescribed for his service" shall intimate on the prescribed form his intention of appearing in the departmental examination after the notification of the date of commencement of examination in the Himachal Pradesh Rajpatra. It is apt to reproduce Rule 7, which reads thus:-
"7. Applications for Departmental Examination--(1) An officer/official eligible in accordance with these rules and desiring to appear in the departmental examination prescribed for his service, ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 16 shall intimate on the prescribed form his intention of appearing in the departmental examination after the notification of the date of .
commencement of examination in the Himachal Pradesh Rajpatra.
The application should be submitted to the Secretary through the head of department concerned which should reach him before the date prescribed in this behalf.
(2) An officer who fails to intimate his intention to appear in the departmental examination in the manner mentioned in sub-rule (1) of above will not be permitted to appear in that examination. Similarly if an officer fails to include any paper of examination in the list of papers intimated in the form prescribed, he may be precluded from rt the examination in that paper even if he may subsequently desire to be examined in it:
Provided that if the facilities are available, the Secretary may permit such officer to appear in that paper as a special case."
24. Evidently, the expression used in Rule 7 supra is "prescribed for his service". Now in so far as the "service" is concerned, the same has been defined in Rule 3 ((ix) in the following terms:-
"(ix) "service" means service or services to which these rules are applicable or are made applicable from time to time."
25. A conjoint reading of the aforesaid rules clearly indicates and rather stipulates that the departmental rules must be prescribed in the service Rules and cannot be simply inferred only because the post has now been made gazetted.
26. Admittedly, these rules i.e. passing of departmental exams as per the H.P. Departmental Examination Rules were neither applicable nor till date have been made applicable to the service. As already observed earlier, the only change brought up by the respondents by introducing the notification dated 5.7.1989 was conferring the gazetted status on the Junior Engineers, who ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 17 had put in five years of service. But that itself by no means can be .
said to have made the Departmental Examination Rules applicable to the service, that too only because the gazetted officers was one of the categories which would be governed by the Departmental Examination Rules.
of
27. Even the official respondents while notifying the Himachal Pradesh Departmental Examination Rules, 1976 were well rt aware of the fact that till and so long the service Rules were not amended, the requirement of passing of departmental examination in terms of the Rules of 1976 cannot be insisted upon.
This is evidently clear from the contents of letter issued by the Department of Personnel (Training) O.M. No.: HIPA (Exam)-12/75, dated 23.3.1976 addressed to all the Secretaries, Heads of Departments etc and reads thus:-
"Subject: Departmental Examination for all gazetted services of Himachal Pradesh Amendment of Service Rules.
The question of prescribing a departmental examination for all gazetted officers of the state has been under the active consideration of Government of Himachal Pradesh for some time past. It has now been decided by the Government that every gazetted officer working in connection with the affairs of the State shall pass a departmental examination as prescribed in the Departmental Examination Rules atleast once during his service career.
2. For implementing this decision of the Government, it is essential to make necessary provision in various service rules relating to the recruitment and promotion of gazetted officers in the State, if such a provision does not already exist. The study of various service rules indicates that the provisions already contained in Himachal Pradesh Administrative Service Rules, 1973. Himachal Pradesh Tehsildari Service Rules and Himachal Pradesh ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 18 Naib Tehsildari Service Rules are adequate and change in them is called for.
.
3. With the view to have an uniform provision in various service rules, a draft rule has been prepared which is *enclosed as Annexure 'A' to this office Memorandum. The Government of Himachal Pradesh has decided that this draft rule may be incorporated in all service rules governing the recruitment and promotion of various gazetted services in the State.
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4. Normally before introducing any amendment in the service rules, the Himachal Pradesh Public Service Commission, Lawrt Department, Appointment Department and Finance Department are consulted and the matter is placed before the Council of Ministers for their approval. With a view to expedite the matter and to avoid references by each department, the draft rule (Annexure 'A') has been vetted by the Himachal Pradesh Public Service Commission and various other Government departments.
This rule has also received the approval of the Central Government as envisaged under section 82 of the Punjab Re-
organization Act, 1966 and Section 42 of the State of Himachal Pradesh Act, 1970 and finally, the same has been approved by the Council of Ministers.
5. It has accordingly been decided that the amendment to the various service rules as per Annexure 'A' be issued straightway by all Departments without observing the procedure as outlined above.
6. While issuing the aforesaid amendment to the service rules, the factum of prior approval of this rule by the Central Government and consultation of Himachal Pradesh Public Service Commission as mentioned in para-4 above may please be indicated.
7. The Departmental Examination Rules laying down the detailed procedure for the conduct of the departmental examinations including the papers and the syllabi for each category of officers are being issued separately by this Department.
Please acknowledge receipt."
"Annexure-A (To be incorporated in various Service Rules) ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 19 Even member of the service shall pass a departmental examination as prescribed in the H.P. Departmental Examination .
Rules 1976 as amended from time to time failing which he shall not be eligible to:-
(1) Cross the efficiency bar next due;
(2) Confirmation in the service; and
(3) Promotion to the next higher post.
Provided that an officer who had qualified the of departmental examination in whole or in part prescribed under any other rules, before the notification of these rules shall not be required to qualify the whole or part of the examination as the case may be. rt Provided further that an officer for whom no departmental examination was prescribed prior to the notification of these rules and who has attained the age of 45 years on the 1st of March, 1976 shall not be required to qualify the departmental examination prescribed under these rules.
Provided further that an officer for whom no departmental examinations was prescribed prior to the notification of these rules and who had not attained the age of 45 years on 1-3-1976, shall not be required to qualify the departmental examination prescribed under these rules after attaining the age of 50 years for the purposes of (i) Crossing the efficiency bar next due and
(ii) confirmation in the service after completion of probationary period.
2. An officer on promotion to a higher post in his direct line of promotion shall not be required to pass the aforesaid examination if he has already passed the same in the lower gazetted post.
3. The Government may in consultation with the Himachal Pradesh Public Service Commission, grant in exceptional circumstance and for reasons to be reduced to writing, exemption in accordance with the Departmental Examination Rules to any class or category of persons from the departmental examination in whole or in part."
28. Even after carrying out amendment in the Departmental Rules, the respondent-State was well aware that unless until the amendments were carried out in various service Rules, the amended provision of the Departmental Examination ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 20 Rules could not be implemented and that is why it again on .
17.8.1984 issued Memo No. HIPA (Exam)12/75-VII, which reads as follows:-
"Subject: Departmental Examination for all gazetted services of Himachal Pradesh- Amendment of Service Rules.
of Consequent upon certain amendments having been carried out to the Himachal Pradesh Departmental Examination Rules, 1976, it has become necessary to bring about uniformity in rt the service rules of various services/posts (except Indian Administrative Service, HP Administrative Service, Himachal Pradesh Tehsildari and Naib Tehsildari Service Rules) connected with the affairs of the State of Himachal Pradesh. Accordingly in partial modification of this department office memorandum No. HIPA (Exam)12/75, dated 23-3-1976, the Annexure 'A' attached thereto is hereby amended as per Annexure 'A' to this memorandum.
It has further been decided that amendment to the Annexure be carried out in the various service rules straightway by all the Departments without referring the matter to the Departments of Personnel, Law, Finance and H.P. Public Service Commission as well as the Council of Ministers.
While issuing the amendment to the Service rules, the factum of prior approval of this amendment by the Personnel (Appointment), Law, Finance Departments and consultation of H.P. Public Service Commission may please be indicated.
Please acknowledge receipt."
29. Now on the basis of what has been observed herein above, it can safely be concluded that the mere fact that the post was declared as gazetted would not in itself attract the applicability of the Himachal Pradesh Departmental Examination Rules, 1976, unless and until the service Rules were amended to this effect by specifically incorporating the provisions of Himachal Pradesh Departmental Rules as set out in Annexure 'A' in terms of ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 21 letters issued by the respondents dated 23.3.1976 and 17.8.1984 .
(supra).
30. Further in case the Junior Engineers were required to pass Departmental Examination in terms of the Examination Rules, 1976, then it was incumbent upon the official respondents to have of made these rules applicable to their 'service' in terms of rule 3 (ix) of the Rules, because till and so long the Departmental rt Examinations were not prescribed in the 'service', the same could not have been made applicable or enforced against the Junior Engineers that too, merely on the strength of their post having been declared gazetted on completion of five years of service. One cannot, therefore, fall back on these Rules to hold that the passing of departmental examination was mandatory for any class or category of employees, simply because the post they are holding has been declared to be gazetted, that too on the premise that these Rules even apply and govern the departmental examination in respect of all gazetted officers working in connection with the affairs of State of Himachal Pradesh.
31. The matter can be looked into from another angle. It is not in dispute that all the Junior Engineers only by virtue of having put in five years of service had become eligible for being considered for promotion to the higher post of Assistant Engineers, therefore, by declaring the post as gazetted by executive instructions and thereafter making it imperative for them to qualify the departmental examination as per the provisions of Rules of ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 22 .
1976, that too without amending the statutory service Rules, clearly amounts to substituting the statutory Rules framed under the authority of law. This would indisputably effect the promotion of the concerned officers and impinge upon the condition of service of and in such circumstances the respondents-State was not competent to alter by means of administrative instructions the rt condition of service prescribed by Rules.
32. Moreover, in absence of any amendment having been carried out in the statutory service Rules in accordance with Annexure 'A' annexed with the letters issued by the respondents-
State on 23.3.1976 and 17.8.1984 (supra), the provisions of Himachal Pradesh Departmental Examination Rules did not apply to the 'service' of Junior Engineers.
In view of the aforesaid discussion, we find merit in these appeals and resultantly all the appeals are allowed and the judgment(s) passed by the learned writ Court are ordered to be set aside and consequently the petitions filed by the writ petitioners before the learned writ Court are ordered to be dismissed, leaving the parties to bear their costs.
CWPOA No. 7854 of 200833. Since the relief claimed in this petition is the same, as was claimed by the petitioner before the learned writ Court, therefore, there is no merit in this petition and the same for the ::: Downloaded on - 15/04/2017 19:17:44 :::HCHP 23 reasons set out hereinabove is ordered to be dismissed, leaving the .
parties to bear their costs.
(Mansoor Ahmad Mir),
Chief Justice
3rd November, 2015 (Tarlok Singh Chauhan),
of
(GR/KRS) Judge
rt
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