Himachal Pradesh High Court
Ishwar Dass Sharma vs State Of H.P. & Another on 16 October, 2020
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPOA No. 584 of 2019 .
Reserved on: 7.10.2020 Decided on : 16.10.2020 Ishwar Dass Sharma ...Petitioner Versus State of H.P. & another ...Respondents ___________________________________________ Coram Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? Yes ________________________________________________ For the petitioner : Mr. P.P. Chauhan, Advocate.
For the respondents :Mr. J.S. Guleria, Dy.A.G., for the respondent-State.
Per Sureshwar Thakur, Judge The writ petitioner, becomes aggrieved from a notification, embodied in Annexure A-6, wherein, a mandate becomes cast, (i) against any acceptance, of, educational qualifications, reflective, of, matric pass (3rd Division) or Matric (English), rather for the afores' being considered, as, eligiblizing educational qualification(s), for promotion(s), being made, vis-à-vis, the, promotional post, of, Senior Assistant. Furthermore, a, canon is also cast ::: Downloaded on - 17/10/2020 20:18:23 :::HCHP 2 therein, vis-à-vis, since its making, in the year 1991, the aspirants concerned, who do not possess the requisite educational qualification, yet theirs being permitted to .
acquire, the, apposite educational qualification, for, theirs hence becoming validly, considered for promotion, to, the promotional post, of, Senior Assistant. The writ petitioner, who has yet not since, the, making, of, the afore Annexures, on, 27.11.1991, hence progressed, in, his educational qualification, inasmuch as, extantly also his only being a 3rd Division matriculate, nor also has extantly enhanced, the afore grading, as borne in his certificate. Consequently, the respondents became led to make Annexure A-7, where through, his candidature, vis-
à-vis, the promotional post, of, Senior Assistant, became rejected.
2. In aftermath, the writ petitioner, casts a challenge both, vis-à-vis, the notification, issued in the year 1991, hence containing the afore mandates, and also casts, a, challenge, vis-à-vis, the validity, of, making Annexure P-7,
(a) where through respondents declined to entertain, his, candidature, vis-à-vis, the promotional post, of, Senior Assistant. Though, the learned counsel for the petitioner, makes, a vociferous address before this Court, that, with 2 ::: Downloaded on - 17/10/2020 20:18:23 :::HCHP 3 rather within the Recruitment and Promotional Rules, there occurring no echoing(s), hence appertaining to the afore necessity, of, the writ petitioner, hence possessing .
the educational qualification, inasmuch as, his being either a matriculate with 2nd Division, or his holding a10+2 certificate, from any re-cognized board, hence, at the relevant time, of, his being considered, for, promotion to the promotional post, of, Senior Assistant, (i) thereupon, the afore executive instructions, as become contained, in the notification, of, the year 1991, holding no prevalence or clout, vis-à-vis, the R & P Rules (ii) thereupon, ipso-
facto, the insistences as made, through, the notification, of, the year 1991, qua possession(s), of, the apposite educational qualification, at the relevant time, by any aspirant, being beyond the realm, and, ambit, of, the Recruitment and Promotion Rules, Rules whereof, reiteratedly rather hold clout, and, sway vis-à-vis, the executive instructions.
3. In making the afore submission, the learned counsel appearing for the writ petitioner, depends upon paragraph 20 to 25, of, the Judgment, rendered by Hon'ble Supreme Court, in (2008) 3 Supreme Court Cases 641, titled as, "A. Manoharan and others versus Union of India 3 ::: Downloaded on - 17/10/2020 20:18:23 :::HCHP 4 and others", paragraphs whereof, are extracted hereinafter:
"20. Power of the Central Government to direct .
any Board to make any regulations is confined to the matters specified in Section 28 or Section 76 or Section 123 or to amend any regulation within such period as the Central Government may specify in this behalf. No regulation exists enabling the Government to issue any dierection in relation to regulation governing salaries and allowance payable to and other conditions of service of officers and employees of the authority.
In any event, in the event such a direction is not followed, the Central Government may take recourse only to the provisions of sub-section (2) of Section 124 of the 1963 Act, which reads as under:
"124. (2) No such regulation other than a regulation made under Section 28, shall be approved by the Central Government until the same has been published by the Board for two weeks successively in the Official Gazette and until fourteen days have expired from the date on which the same had been first published in that gazette."
21. Statutory regulations have not been amended by the Central Government. The Central Government, as noticed hereinbefore, does not have any power in regard thereto. Under the 1963 Act all authorities specified therein 4 ::: Downloaded on - 17/10/2020 20:18:23 :::HCHP 5 are statutory authorities. They are to act within the four corners thereof. (See Ramchandra Murarilal Bhattad v. State of Maharashtra).
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22. The legal principle that an administrative act must yield to a statute is no longer res integra. Once a regulation has been framed, in terms of the provisions of the General Clauses Act, the same must be amended in accordance with the procedures laid down under the principle enactment. Even assuming that the Central Government had the jurisdiction to direct the authority to amend the Regulations, it was required to be carried out in accordance with law, and, thus all requisite procedures laid down therefore were required to be fulfilled. (See Sant Ram Sharma v.State of Rajasthan, DDA v. Joginder S. Monga, Vasu Dev Singh v.
Union of India, Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and State of Kerala v. Unni.
23. Recently in Union of India v Central Electrical & Mechanical Engg Service (CE & MES Group 'A' (Direct Recruits) Assn., CPWD this Court held (SCC p. 358, para-10) "10. It is now a well-settled principle of law that an executive order must be passed in conformity with the rules. Power of the State Government to issue executive 5 ::: Downloaded on - 17/10/2020 20:18:23 :::HCHP 6 instructions is confined to filling up of the gaps or covering the area which otherwise has not been covered by the existing Rules. (See Sant Ram Sharma v. State of .
Rajasthan and DDA v Joginder S. Monga) Such office orders must be subservient to the statutory rules."
24. The power of the Central Government to issue directions as contained in Section 111 of the 1963 Act cannot be stretched to amend the Regulations. Power must be exercised by the Central Government only in regard to the administration of the Trust. Such a power to issue direction must be construed strictly. (See Ramana Dayaram Shetty v. International Airport Authority of India, Harjit Singh v. State of Punjab, Ashoka Smokeless Coal India (p) Ltd. V. Union of India and Poonam Verma v DDA)
25. Furthermore, the Regulations have been amended only with effect from 11.8.2004. It would have a prospective effect. It cannot be applied retrospectively. Any vacancy which has arisen prior to coming into forece of the said amended Regulations must be filled up in terms of the law as was existing prior thereto. (State of Rajasthan v. R. Dayal, SCC para 8) wherein it becomes postulated, vis-à-vis, administrative instructions, yielding to statute(s) or to the Rules and 6 ::: Downloaded on - 17/10/2020 20:18:23 :::HCHP 7 Regulations, as, made by the Executive(s), in exercise, of, its power, of, subordinate legislation. He also, in his succoring the afore espousal, makes dependence, upon a .
judgment, rendered by the Hon'ble Apex Court, in case titled as, "Jagdish Kumar and others versus State of H.P. and others", reported in (2005) 13 SCC 606 especially paragraph-15 thereof, paragraph whereof stands extracted hereinafter:
"Further question is whether any relaxation was necessary while giving promotion as Assistant Draftsman. For being eligible to be considered for appointment as Assistant Draftsman, the requirements are indicated in Rule 6(ii). Once the requirement of passing diploma of Draftsman course is relaxed in terms of Rule 6(i) for appointment as Tracer, there is no necessity for again having relaxation for being considered as Assistant Draftsman. That contingency is already taken care of when relaxation is given for appointment as Tracer. Otherwise, a person who has been found eligible to be appointed as a Tracer will not be considered for promotion as Assistant Draftsman, even though there is no illegality attached to the appointment as Tracer. Such a view would go against the logic of relaxation for appointment as Tracer."
Inasmuch as, with pari-materia therewith factual scenario also extantly prevailing inasmuch as, with the therein(s), 7 ::: Downloaded on - 17/10/2020 20:18:23 :::HCHP 8 aggrieved litigant, becoming declared suitable, for promotion, to the promotional post, of, Tracer, though requiring, the, aspirants, to, hold the diploma in .
Draftsmanship, thereupon the afore necessity, becoming thereat ipso-facto, relaxed. Concomitantly, thereupon(s), the respondent(s) being prohibited, to, thereafter, on vacancies, occurring, qua the promotional post, of, Assistant Draftsman, hence insist, vis-à-vis, the aspirants concerned, possessing, the diploma, of, Draftsmanship.
The strived for interse parity therewith, would become validly rested, (i) upon, the afore insistence(s) being evidently made, in, contemporaneity, vis-à-vis, his promotion, as, a Clerk, from the hitherto post, of, Peon, (ii) and, obviously thereupon, thereafter, the respondents, becoming, precluded to challenge the factum, of, his not possessing, the, requisite educational qualification, as become embodied in the notification, of, the year 1991,
(iii) in other words, and, emphatically in contemporaneity, vis-à-vis, the stage, of, occurrence, of, a vacancy, vis-à-vis, the further promotional post, of, a Senior Assistant.
However, this Court, cannot, agree with the afore made address, as, made by the learned counsel for the petitioner, as it emanates, from, a gross mis-reading(s), of 8 ::: Downloaded on - 17/10/2020 20:18:23 :::HCHP 9 the notification, of, 1991, which became evidently issued, prior to the subsequent thereto, coming into being, of, the apposite Recruitment and Promotional Rules, (i) as in .
contemporaneity, vis-à-vis, the writ petitioner, becoming promoted from the hitherto post, of, Peon, to, that of a Clerk, he held the requisite qualification, of, Matric, without any necessity, being cast therein, vis-à-vis, grades thereof. Since, the necessity, of, the apposite grade being, displayed in the matriculation certificate, of, the petitioner, rather for validly entitling, the petitioner, to, thereafter become fully eligible to seek a claim, for his being considered, to the next promotional post, of, Senior Assistant, became prescribed in the notification, of, 1991,
ii) besides when even since the making, of, apposite notification, in 1991, he did not upon, re-taking, of, matriculation examination, strived to improve, the, grade of, his matric certificate, (iii) nor he proceeded to enhance, his, educational qualification, upto, the prescribed level, of, 10+2, (iv) even though he had immense time, since then, upto now, (iv) thereupon the afore evident abysmal failure, of, the petitioner, wholly on account of his sheer indolence, cannot vest in him, any leverage, to contend that his submission, is, well-founded, upon the verdict(s) 9 ::: Downloaded on - 17/10/2020 20:18:23 :::HCHP 10 (supra), rendered by the Hon'ble Apex Court.
Conspicuously and reiteratedly when there is a specific mention, of, acquisition, of, educational grades, at the .
relevant time, hence in the apposite notification, and when the writ petitioner, initially, meted acquiescing(s) thereto, inasmuch as, in contemporaniety, qua his becoming promoted, to the post of Clerk, from his hitherto post, of, Peon, hence he becomes estopped to cast any valid challenge thereto. Moreover, despite immense time, elapsing since the making, of, the notification, of, 1991, upto, the occurrence, of, a vacancy, against the promotional post, of, Senior Assistant, yet the petitioner being indolent, in improving his educational qualification, hence he is to be construed to abandon, his claims, to, the promotional post, of, Senior Assistant. Significantly, since the post, of, Senior Assistant, does, necessarily, encumber(s), upon the incumbent, to, shoulder more responsibility(ies) than that, of, a Clerk(s), and, also when concomitantly, the holder thereof, is, enjoined to possess all the skill(s) and acumen(s), skill(s) whereof, can become acquired only through his possessing befitting thereto higher educational qualification, than the one appertaining to the lower thereto post(s), whereas, his 10 ::: Downloaded on - 17/10/2020 20:18:23 :::HCHP 11 being slothful, in, making acquisitions thereof. (v) Thereupon he cannot make any befitting reliance, upon, the judgment(s) supra.
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4. Be that as it may, since in the apposite Recruitment and Promotion Rules, there is no apposite clause, hence bestowing relaxation power(s), upon, the afore respondents, to dilute, the vigor, of, Annexure P-6, thereupon there is no ground for the writ petitioner, to, seek relaxation(s), in, his deficient educational qualification(s). The learned counsel for the petitioner, has though, as afore-stated, strenuously argued before this Court, that with the prevalence, of, Recruitment & Promotion Rules, vis-à-vis, executive instructions, thereupon, the instructions, notified in the year 1991, cannot, either prevail upon or reduce the vigor, of, the Recruitment and Promotion Rules, (i) however, the afore submission, would carry force and vigor, and would also obviously, incline this Court, to, accept it, only when prescription(s), of, educational qualification(s), rather became carried in the Recruitment and Promotion Rules.
However, the, hereat recruitment and promotion Rules, are totally reticent, vis-a-vis, the necessity, of, holding, hence, by the aspirant concerned, of, educational 11 ::: Downloaded on - 17/10/2020 20:18:23 :::HCHP 12 qualification(s), vis-à-vis, post(s) concerned. However, it appears that the afore reticence, is, curable, through instruction(s), being rendered, from time to time, by the .
respondents. Moreover, even if, the promulgation, of, the Recruitment & Promotional Rules, occurred, subsequent to the making(s), of, executive instructions, in the year 1991, yet with the Recruitment & Promotion Rules, neither annulling the afore instructions, appertaining to the necessity, of, possession(s), of, educational qualification, rather by the aspirants concerned, hence thereupon the hereat executive instructions rather remain alive, and continue to subsist, unless, they become validly rescinded, by, any anulling notification. However, the afore has not happened hereat, contrarily, with the Hon'ble Apex Court, in judgment(s) rendered in 1992 Supp (3) SCC, case titled as, "Indra Sawney Versus Union of India", 217 paragraphs 739 whereof, is, extracted hereinafter:
" Be that as it may, there is yet another reason, why we cannot agree that the impugned Memorandums are not effective and enforceable the moment they are issued. It is well settled by the decisions of this Court that the appropriate government 12 ::: Downloaded on - 17/10/2020 20:18:23 :::HCHP 13 is empowered to prescribe the conditions of service of its employees by an executive order in the absence of the rules madel under the proviso to Article 309. It is further .
held by this Court that even where Rules under the proviso to Article 309 are made, the Government can issue orders/instructions with respect to matters upon which the Rules are silent. (See Sant Ram Sharma v. State of Rajasthan). This view has been reiterated in a recent decision of this Court in Comptroller and Auditer-
General, v. Mohanlal Mehrotra wherein it is held:
"The High Court is not right in stating that there cannot be an administrative order directing reservation for Scheduled Castes and Scheduled Tribes as it would alter the statutory rules in force. The rules do not provide for any reservation. In fact, it is silent on the subject of reservation. The Government could direct the reservation by executive orders. The administrative orders cannot beissued in contravention of the statutory rules (See the observations in Sant Ram Sharma v.
State of Rajasthan). In fact similar
circulars were issued by the Railway
Board introducing reservations for
Scheduled Castes and Scheduled Tribes 13 ::: Downloaded on - 17/10/2020 20:18:23 :::HCHP 14 in the Railway services both for selection and non-selection categories of posts. They were issued to implement the policy of the Central Government and they have .
been upheld by this Court in Akhil Bhartiya Soshit Karamchari Sangh (Railways) v. Union of India."
hence expounding qua instructions, appertaining, to, the service conditions/matter, can be made through executive instructions, and, further when it has also become expounded therein, that, memorandum(s), containing instructions, do, in the face, of, absence, of Rules or obviously, in the face, of, reticence(s), of, Rules, qua the apposite subject matter, hence holding sanctity, given, theirs falling within the domain, of, the proviso to Article 309,of, the Constitution of India, (i) and, when, it becomes expounded therein that when, within, the ambit, of, the proviso, to, Article 309, of, the Constitution, of, India, the executive(s), can issue orders/instructions, even vis-à-vis, those matters qua wherewith, the Rules are silent, (ii) thereupon, as aforestated, with, the apposite Recruitment and Promotion Rules, being reticent, and, silent, vis-à-vis, the desired educational qualification, as, are necessarily, required to be possessed, by the aspirant(s) concerned, 14 ::: Downloaded on - 17/10/2020 20:18:23 :::HCHP 15 for theirs being considered, for being promoted, to, the post of Senior Assistant, and, also, when the executive instructions, of, 1991, remained un-annuled, through .
subsequent thereto, instructions, being issued by the Government, (iii) thereupon, the instructions, of, 1991, fall within the ambit, of, the proviso, to, Article 309 of Constitution of India, and hold the apposite aura, of, vindicability.
5. Consequently, there is no merit in the petition and the same is dismissed. However, liberty is reserved, to, the writ petitioner to enhance, his educational qualification, from matric to 10+2, and, upon his enhancing his educational qualification, thereupon, it is open for the respondents to consider him, for promotion, to the post of Senior Assistant, subject to his also thereat holding all other eligibility criteria(s). All the pending application(s), if any, are also disposed of. No costs.
(Sureshwar Thakur) Judge 16.10.2020 kalpana 15 ::: Downloaded on - 17/10/2020 20:18:23 :::HCHP 16 .
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