Bhupindar Singh vs The Transport Secretary And Ors.
1967 Latest Caselaw 86 Del

JUDGMENT

S.K. kapur, J.

(1) The petitioner joined the Transport Department as Senior Clerk in February, 1957, and was promtoed as Accountant in 1958. In September, 1960, M.L. Sood, third respondent, joined the service in the Transport Department of Himachal Pradesh as Accountant.

(2) By order dated May 31, 1961, consequent upon the decision of the Departmental Promtoion and Selection Committee buth the petitioner and the third respondent were promtoed to officiate as Superintendents in the scale of pay of Rs. 160-10-330. The third respondent was placed at number I and the petitioner at number 2.

(3) By office order dated January 29, 1963 passed, again upon the recommendations of the Departmental Promtoion Committee, the officiating promtoions as Office and C. & S. Superintendents were ordered to have effect from January 5, 1963, and in the said order the petitioner was placed at No. 1 while the third respondent at No. 4. In the said order it was further provided that- Each promntee will be on trial for a period of one year." In January, ]966, the petitioner was confirmed to the post of C. & S. Superintendent in the scale of pay of Rs. 250-20-350 with effect from January 18, 1966. This confirmation was also made upon the recommendations of the Departmental Promtoion Committee. The third respondent was, however, nto confirmed as Superintendent.

(4) In May 1964 the post of Personal Assistant to the General Manager Transport was created and by ntoification dated May 1, 1964, the Lieutenant Governor Himachal Pradesh, on the recommendation of Departmental Promtoion Committee, appointed M L. Sood, third respondent to the said post in the scale of pay of Rs. 250-25-550 plus usual allowances. He was to be on trial for aperiod of two years, in the first instance.

(5) It is nto disputed by the parties that at the time of selection to the said post of Personal Assistant the petitioner was also considered by the Departmental Promtoion Committee but found unfit. The learned counsel for the petitioner stated at the Bar that he did nto challenge this order.

(6) By ntoification dated January 21, 1965, the third respondent, M.L. Sood, who was then working as Personal Assistant to the General Manager, Himachal Government Transport, was appointed to the post of Manager Head. Office in the scale of Rs. 250-20-550, "by transfer with effect from November 30, 1964 (A.N.)". Shri Sood was also to hold full charge of the post of Personal Assistant to General Manager in addition to his own duties till ordered toherwise. On January 20, 1966, consequent upon the recommendations of the Departmental Promtoion Committee, the third respondent was confirmed against the permanent post of the Manager Head-Office with effect from January 13, 1966. The petitioner's grievance is against the said two orders dated January 21, 1965 and January 20, 1966

(7) That the petitioner was nto considered by the Departmental Promtoion Committee in appointing the third respondent as Manager Head-Office is nto denied by the respondents.

(8) The learned counsel for the petitioner contended that when the third respondent was appointed to the post of Manager-Head-Office, he was only holding the substantive post of an Accountant while the petitioner was a confirmed Superintendent and, therefore, he should have been preferred over the third respondent and in any case considered for the appointment of the Manager. The learned counsel also raised the following contentions:-

(1)The post of Manager Head-Office could nto, because of the office Memorandum dated September 22, 1958, be 6Ued without the recommendation of the Departmental Promtoion Committee with the result that the appointment of the third respondent made on January 21,1965, was illegaL.

(2)Similarly the appointment of the third respondent against the permanent post of the Manager Head-0ffice made on January 20, 1966, was illegal because the petitioner who held a higher sub-stantive rank was nto considered by the Departmental Promtoion Committee.

(3)The appointment of the third respondent to the aforementioned post was in substance a promtoion and it had been wrongly stated in the order dated January 1965 that the appointment was by transfer. This was done only to deprive the petitioner of his rights.

(4)(a) Under clause 7(1) of the Himachal Government Transport Class Iii (Gazetted) Service (Recruitment, Promtoion and certain conditions of service) Rule, l960, the post of Manager Head-Office could be fiiled by selection out of the office Superintendents or by transfer or by taking officials on deputation and since the petitioner was holding the substantive post of a Superintendent he was eligible for promtoion; and

(5)In view of clause 6-A added in rule 7 of the said Rules on February 25, 1963, 50 per cent of the posts were to be filled by promtoion and 50 per cent by direct recruitment and on that basis also the present vacancy should have been filled by promtoion. This was necessary because the appointment of Shri Gopi Nath as Store Purchase Officer in May 1964 and the appointment of the third respondent as Personal Assistant to the General Manager was made by direct recruitment.

(9) Besides toher pleas on merits, the learned counsel for the respondents contended that the petitioner, who is nto a Graduate of a recognized University as required by rule 6 of the said Rules, was nto qualified for the appointment of Manager Head-0ffice and, therefore, he has no locus standi to challenge the appointment of the third respondent. That the petitioner is nto a Graduate is nto denied, his contention being that the qualification prescribed by rule 6 is nto applicable to persons appointed by promtoion.

(10) Since I am in agreement with the contention of the learned counsel for the respondents that the petitioner did nto hold the requisite qualifications it is unnecessary to pronounce on toher contentions. It is necessary to read the relevant parts of rules 6 and 7. They are :-

6.Educational and Technical qualifications of candidates. No person shall be appointed to the service unless in the case of appointment to the post of:- 1. Ministerial Posts Category-1

(1)Manager (Head Office). He is a Graduate of a recognised University with at least 10 years experience of ofEce and executive work in a Government Department or in a commercial concern prefeiably of Mtoor Transport undertakings.

(2)Regional Manager.-He is a Graduate of a recognised University prefeiably with Mathematics or Economics as one of his subjects; preference being also given to the persons having training in Automobile Engineering and having experience in Administrative or Operational capacity of managing a sizeable flect of vehicles. (3) Accounts Officer.-He is a Graduate preferably B. Coca. of a recognized University with practical experience for at least 5 years in (commercial Accounts and knowledge of rules and regulations applicable to Government Departments or intermediate or equivalent examination for 10 years similar experience.

(4)Store Purchase Officer.-He is a Graduate preferably B. Com., of a recognized University: having at least 5 years of experience of managing and organising Stores Department or commercial undertakings dealing in Automobile parts or having worked as Manager of a Transport undertakings and controlled stores for sizeable Beet for 5 years.

(11) Method of recruitment.-Post in the service shall be filled either by promtoion or by direct appointment in the following manner or by having persons on deputation :- Category-1

(1)Manager (head Office).- By selection from amongst Office Superintendent and C. & S. Superintendents or by transfer or on deputation of an official already in the service of a Department of the Administration or Union Government.

(2)Regional Manager.-By selection from amongst the Assistant Manager, Chief Inspector, Superintendent and C. & S. superintendents already in service possessing requisite qualifications.

(3)Accounts Officer.- By selection from amongst Suprintendents (including C & S Superintendents) and accounts possessing the requisite qualifications.

(4)Store Purchase Officer.-(i) By selection from amongst Chief Store-Keeper, and Superintendents (including C.&S Superintendents) already in service and possessing the requiste qualifications and (ii) by direct appointment."

(12) The learned counsel for the petitioner contended.that the absence of the words 'possessing requisite qualifications', as appearing in sub-rules (2) to (4) of rule 7, in sub-rule (1) of rule 7, clearly showed that in case of appointment by selection from amongst Office Superintendants etc. the said qualification prescribed by rule 6(1) was nto required and sub-rule (1) of rule 7 provided a clear mandate in case of appoiatment by promtoion to select p(r)rsons from amongst 0ffice Superintendants etc. irrespective of their academic and toher qualifications. The learned counsel further said that sub-rule (1) of rule 6 applied only to cases of appointment by direct recruitment. He relied on the words 'no person shall be appointed.........' which according to the learned counsel meant appointed by direct recruitment particularly because in rule 7 the word 'appointed'had pto been used in relation to appointment by promtoion. That the word 'appointed' in the Rules has been used buth in reference to,"direct appointment and appointment by promtoion clearly appears from rule 8, the relevant part of which reads: '8.Probation of Members of Service.-(i) Members of the service who are appointed against permanent vacancies shall, on appointment to any post in the service, remain on probation for a period of two years in the case of direct recruitment and on trial for a period of one year in the case of promtoion."

(13) In the qualification prescribed by rule 6 applied only to direct recruits, the words 'requisite qualifications in sub-rules 2, 3 and 4 of rule 7 would be inappropriate. Sub-rules 2, 3 and 4 in rule 7 deal with promtoions and the said words indicate that even for promtoees some qualification has been prescribed somewhere and that appears to be the meaning of the words 'requisite qualifications'. Consequently, it must be assumed that there are requisite qualifications prescribed in the Rules for the promtoees and the prescription of that qualification is in rule 6 alone. Moreover, in case of Regional Managers, Accounts Officers and Store Purchase Officers as covered by sub-rules 2, 3 and 4 of rule 6, there are certain preferences indicated even regarding academic qualifications. For instance, in case of Regional Managers the minimum academic qualification is that he should be a Gradu ate of a recognized University. In sub-rule (2) of Rule 6 it is provided that for such appointment a Graduate with Mathematics or Economics should be preferred The words 'requisite qualifications' in sub-rules 2, 3 and 4 in rule 7 appear to have been introduced out of abundant caution to obviate the possibility of the choice being limited to preferred categories in sub-rules 2, 3 and 4 of rule 6. In toher words, in the absence of the words 'requisite qualifications' in sub rule 2 of rule 7 for instance the authorities may have felt bound to select a Regional Manager only of the Graduates with Mathematics or Economics By addition of these words, it has been provided that the choice should be made out of all persons who possess the minimum qualification prescribed in rule 6. On the toher hand, there is no such preference indicated in the case of Manager Head-Office in the matter of academic qualifications. It appears to be for this reason that the words 'requisite qualifications' does nto occur in sub-rule (1) of rule 7. Though I have nto felt happy about the drafting of the Rules, but the above conclusion appears inescapable from the use of the word 'requisite' in sub-rules 2 to 4 of rule 7. The use of the word as I have already said shows that sub-rules 2 to 4 of rule 6 prescribe the requisite qualifications even for promtoees to the posts mentioned therein. In that situation it is difficult to perform a surgical operation on rule 6 and limit sub-rule I thereof to persons appointed directly but extend the prescription of sub-rules 2 to 4 to promtoees as well as direct recruits.

(14) The above discussion leads to the conclusion that the petitoioner was nto qualified for the post of Manager Head-Office with the result that he has no locus standi to challenge the appointment of the third respondent. The petition is, therefore, dismissed with no order as to costs.