Madhu Verma vs Government Of Himachal Pradesh. ...
2021 Latest Caselaw 5800 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                       ON THE 18th DAY OF DECEMBER, 2021
                                          BEFORE
                HON'BLE MR. JUSTICE SANDEEP SHARMA
                     CIVIL WRIT PETITION NO.4069 of 2019




                                                            .

    Between:-

    MADHU VERMA
    DAUGHTER OF SRI HARI RAM VERMA,





    WIFE OF SHRI SURESH KUMAR,
    AGED 55 YEARS,
    RESIDENT OF VILLAGE BHAWANIPUR,
    TEHSIL KASAULI, DISTRICT SOLAN,
    HIMACHAL PRADESH,





    PRESENTLY WORKING AS STATISTICAL ASSISTANT
    IN TH EDIRECTORATE HIGHER EDUCATION,
    SHIMLA, DISTRICT SHIMLA, HIMACHAL PRADESH
                                                               PETITIONER


    (BY MR. AJEET SINGH SAKLANI, ADVOCATE)


    AND



    1.    STATE OF HIMACHAL PRADESH
          THROUGH SECRETARY (EDUCATION) TO THE
          GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2




    2.    DIRECTOR HIGHER EDUCATION,





          HIMACHAL PRADESH, SHIMLA
                                                           RESPONDENTS





    (BY MR. SUDHIR BHATNAGAR AND
    MR. DESH RAJ THAKUR,
    ADDITIONAL ADVOCATES GENERAL WITH
    MR. NARINDER THAKUR, MR. GAURAV SHARMA
    AND MR. KAMAL KISHORE,
    DEPUTY ADVOCATES GENERAL)

    Whether approved for reporting? Yes.


                 This petition coming on for orders this day, the Court
    passed the following:




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                                               2



                              ORDER

By way of instant petition filed under Art. 226 of the

.

Constitution of India, petitioner has prayed for the following main

relief(s):

i) That a writ in the nature of certiorari may very kindly be issued thereby quashing and sting aside Annexure P-9, i.e. Recruitment and Promotion Rules, for the post of Statistician, to the extent , in clause 7, qualification of

M.A. Public Administration has been removed and also to the extent whereby in Clause-8, educational qualification has been made applicable in the case of promotees.

ii) That a writ in the nature of mandamus may very kindly be issued thereby

directing the respondents to promote the petitioner to the post of Statistician

from the year 1999, when she was eligible as per proposed Recruitment and Promotion Rules (Annexure P-4) with all consequential benefits of pay fixation, arrears, seniority etc. etc.

iii) That the respondents may very kindly be directed to assign correct seniority

to the petitioner, after promoting her as Statistician from the date other Statistical Assistants were promoted vide Annexure P-8.

iv) In the meantime, if aforesaid prayers do not find favour with this Hon'ble

Court, it is prayed that respondents may be directed to consider the case of the petitioner for promotion to the post of Statistician by relaxing the

Recruitment and Promotion Rules (hereinafter, 'proposed Rules') in her case, keeping in view the fact that she would retire in three years, without getting even a single promotion.

2. Precisely, the facts as emerge from the record are that on

18.8.1988, petitioner was appointed as Statistical Assistant in the

Directorate of Education (HP) in the pay scale of Rs. 570-1080 and

was posted in the office of District Education Officer, Solan. In January,

1996 and July, 1997, respondent-department proposed to fill up six

posts of Statistician on deputation basis from other departments and

one more post of Statistician in the pay scale of Rs.2,000-3500/-.

3. Being aggrieved and dissatisfied with the afore decision of the

respondent-State, one Naresh Kumar, Statistical Assistant, approached

.

erstwhile Administration Tribunal by way of OA No. 142 of 1996, which

was disposed of vide order dated 16.10.1996, (Annexure P-5).

Erstwhile Tribunal vide aforesaid order, directed the respondents to fill

up the posts of Statisticians by way of promotions of Statistical

Assistants working in the Education Department, on the basis of

proposed draft Rules, because at the relevant time, Rules for the post

of Statistician had not been framed. In the aforesaid order, erstwhile

Tribunal observed that, "In the light of all this, it seems reasonable that

the post should be filled up from the departmental candidates on the

proposed draft R&P Rules as they are in conformity with the Rules of

Statistical Officers of the Education Department which carries the scale

of Rs.2200-4000 and it is to be filled up from the eligible Statistical

Assistants having five years of service."

4. On 6.2.1996, proposed Rules for the post of Statistician were

sent by the Education Department for approval, wherein clause 7

provided as under: "Minimum Educational and Other qualifications,

required for direct recruits" Master's Degree in Economics /Statistics/

Mathematics/ Commerce/ Public Administration. Vide communication

No. EDN-H(PRY)-4-4-335-97 dated 9.7.1997 and 25.7.1997, Director

Primary Education sponsored names of Statistical Assistants for

promotion as Statistician as per proposed/ draft Rules in terms of the

order dated 16.10.1996 passed by erstwhile Tribunal in OA No. 142 of

1996. Vide notification dated 25.5.1999, respondents promoted the

Statistical Assistants to the post of Statistician in the pay scale of

.

Rs.6400-10640 on ad hoc basis but the petitioner, who at the relevant

time was also eligible, was ignored. Petitioner alongwith similarly

situate persons filed O.A. No. 1684 of 2002, laying therein challenge to

the action of the respondents, inasmuch as they ignored him/them, for

promotion to the post of Statistician. On account of abolishment of

Tribunal, afore case came to be transferred to this Court and was re-

registered as CWP(T) No 6262 of 2008. Before aforesaid case could

be heard and decided, Government of Himachal Pradesh vide

Notifiction dated 18.06.2002, framed Rules for the post of Statistician

thereby removing the subject of Public Administration from the

educational qualification. On 2.8.2010, aforesaid petition was

dismissed (Annexure P-13). Against the aforesaid order, petitioner filed

review petition No. 146 of 2012, which was also dismissed vide

judgment dated 8.8.2012 (Annexure P-15).

5. Being aggrieved and dissatisfied with the order dated 8.8.2012,

petitioner alongwith other persons filed LPA No. 494 of 2012 alongwith

CWP(T) No. 8530 of 2008 (Annexure P-16), which was dismissed vide

judgment dated 12.12.2012(Annexure P-16). Vide aforesaid judgment,

Division Bench of this Court held that, "in any event, we are of the

considered opinion that it is for the employer to decide what

qualifications should be prescribed for a particular post and unless it is

shown that such qualifications have no concern with the job, the Court

would normally not interfere in such matters." Lastly, in the aforesaid

judgment, Division Bench of this Court held that the employer has only

provided that for the higher post of Statistician the persons falling in the

.

feeder category must have a master degree. This directly relates to

the job and cannot be said to be arbitrary rule. However, careful

perusal of aforesaid judgment rendered by Division Bench of this Court

nowhere suggests that qualification possessed by the petitioner I.e. MA

Public Administration was not held to be a qualification required to be

possessed by an employee, to be promoted against the post in

question. r

6. Being aggrieved and dissatisfied with the aforesaid action of the

respondents, petitioner filed an OA No. 1684 of 2002 in the erstwhile

H.P. State Administrative Tribunal, laying therein challenge to aforesaid

Rules, especially educational qualification. However, aforesaid original

application was transferred on account of abolition of tribunal and was

re-registered as CWP(T) No. 8530 of 2008, which came to be decided

with LPA No. 494 of 2012 decided on 12.12.2012, details whereof have

been given in para supra. Subsequent to passing of aforesaid

judgments, petitioner received information under Right to Information

Act (Annexure P-, page 290), wherein it came to be disclosed that

Madhu Verma, petitioner herein (Statistical Assistant) was fully eligible

for promotion to the post of Statistician as per proposed Rules at the

relevant time. Precisely the grouse of the petitioner at this stage is that

when respondents pursuant to directions issued by erstwhile Tribunal

in OA NO. 142 of 1996, Rakesh Sharma vs. State of Himachal

Pradesh, promoted certain Statistical Assistants to the post of

Statistician on the basis of proposed/draft Rules and her case was also

recommended alongwith other eligible candidates, she could not have

.

been ignored for promotion, especially when in proposed/draft Rules,

Master's in (Public Administration) was one of the prescribed

qualifications. Information obtained under Right to Information Act,

available at Page 292 of paper book, further reveals that petitioner

was similarly situate to those persons, who were promoted in 1999 and

her case was also recommended at Sr. No. 7 by the Director, to the

Government of Himachal Pradesh. Though, after promotion of similarly

situate person in the year 1999, much water has flown because

thereafter respondents framed Rules for the post of Statistician in the

year 2002, thereby removing subject of MA in Public Administration but

precise question which needs to be determined in the present case is,

"whether the petitioner could be ignored in the year1999 when other

Statistical Assistant were considered for the post of Statistician on the

basis of draft Rules, wherein admittedly person having master degree

in public administration was eligible to be promoted to the post

Statistician?"

7. Reply filed by the respondents is silent qua aforesaid aspect of

the matter, rather, it has been categorically stated that pursuant to

decision dated 16.10.1996 rendered by erstwhile Tribunal, Director

Primary Education sponsored the names of Statistical Assistant

including petitioner for promotion to the post of Statistician.

8. True, it is that after 18.6.2002, when respondents framed Rules

for the post of Statistician, petitioner herein was not eligible for

promotion to the post of Statistician on account of her qualification

.

because admittedly in the aforesaid Rules, person having master

degree in public administration is not entitled for promotion to the post

of Statistician but in the case at hand, case of the petitioner for

promotion to the post of Statistician was required to be considered in

the year 1999, when respondents in compliance to order dated

16.10.1996 passed in OA No. 142 of 1996, Naresh SHARMA vs. State

of Himachal Pradesh considered other persons for promotion to the

post of statistician in terms of proposed /draft Rules, wherein

admittedly persons having qualification of Master's degree in Public

Administration was eligible for promotion to the post of Statistician.

Since the petitioner was fully eligible to be considered for promotion to

the post Statistician in the year 1999, when promotions were made or

were being made on the basis of draft Rules, respondents at this stage,

cannot be permitted to defeat the claim of the petitioner on the ground

that in the Rules framed in the year 2002, persons having master's

degree in public administration are not eligible to be promoted to the

post of Statistician.

9. Since it is quite apparent from the reply filed by the respondents,

wherein they have admitted that Director Primary Education had

sponsored name of the petitioner to the government for promotion to

the post of Statistician in terms of draft Rules, pursuant to decision

dated 16.10.1996, rendered by erstwhile Tribunal in OA No. 142 of

1996, this Court has a reason to believe and presume that at that relevant

time, petitioner was fully eligible to be promoted as Statistician but for no

fault of hers, she was not promoted.

.

10. Mr. Narinder Thakur, learned Deputy Advocate General vehemently

argued that since there is inordinate delay in filing the petition at hand,

reliefs, as prayed for, in the instant petition, cannot be granted at this

belated stage.

11. However, having taken note of the fact that petitioner had been

fighting for her rightful claim since the year1999 and in this regard, she

repeatedly approached competent court of law, this Court finds no merit in

the aforesaid objection and same is accordingly dismissed. Otherwise

also, petitioner on account of her being not promoted despite her being

eligible in the year 1999, is suffering continuously and as such, petition

being filed by her, cannot be rejected on the ground of limitation.

12. Consequently, in view of above, this court finds merit in the present

petition and accordingly, same is allowed and respondents are directed to

promote the petitioner to the post of Statistician from the date, other

persons, i.e. Naresh Kumar's & Ors. were given such benefit of promotion

on the basis of draft Rules, in terms of order rendered by erstwhile

Tribunal in OA No. 142 of 1996, alongwith consequential benefits.

13. Petition stands disposed of in the afore terms alongwith all pending

applications.

(Sandeep Sharma) Judge

18th December, 2021 (reena)