Himachal Pradesh High Court
Reserved On : 05.07.2024 vs State Of H.P. And Others on 19 July, 2024
2024:HHC:5530
IN THE HIGH COURT OF HIMACHA PRADESH, SHIMLA
CWPOA No. : 6548 of 2020
.
Reserved on : 05.07.2024
Decided on : 19.07.2024
Sh. Rakesh Kumar. ....Petitioner.
Versus
State of H.P. and others ...Respondents.
Coram
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 No
For the petitioner : Mr. Arun Raj, Advocate.
For the respondents : Mr. Anup Rattan, Advocate
General with Mr. Pranay Pratap
Singh, Additional Advocate
General.
Satyen Vaidya, Judge
By way of instant petition, petitioner has
prayed for following substantive reliefs:-
i) That the order dated 27.01.2018 (Annexure A-5)
passed by respondent No.3, may kindly be
quashed and set-aside forthwith.
ii) That the order of recovery dated 15.11.2018
(Annexure A-7) passed by respondent No.4 may
kindly be quashed and set-aside forthwith.
iii) That the order dated 15.11.2016 (Annexure A-2)
in recasting, changing and withdrawing the
1 Whether reporters of the local papers may be allowed to see the judgment?
promotion given as a Senior Scale Stenographer
from 11.4.2012 to 30.03.2016 by applying the
Amended Rules of 2016 (Annexure A-10)
.
illegally, may kindly be quashed and set-aside
forthwith.
iv) That the respondents may kindly be directed to
restore the basic pay given and drawn by the
applicant (as in Annexure A-5, dated
27.01.2018) as a Steno Typist and to restore the
promotion and pay given as Senior Scale
Stenographer with all consequential benefits
forthwith.
v) That the R & P Rules of 2011 vide Annexure A-9,
r may kindly be held inapplicable qua the
applicant; or /and the provision in these Rules
(qua qualification) being illegal, arbitrary,
malafide, discriminatory and violative of Articles
14 & 16 of the Constitution of India, may kindly
be quashed and set-aside forthwith.
vi) That the respondents may kindly be directed to
consider his case for next promotion to the post
of Personal Assistant by considering his regular
service of six years on the post of Sr. Scale
Stenographer i.e. from 11.5.2012 to 11.5.2018.
vii) That the provision in the R & P Rules of 2016 vide
Annexure A-10, which creates an anomaly
based on the date of retirement or period left for
retirement; by giving annual increments without
reversion to non-graduates juniors but in
denying the annual increments with reversion to
the applicant-senior; being illegal, arbitrary,
malafide, discriminatory and violative of Articles
14 & 16 of the Constitution of India; may kindly
be quashed and set-aside forthwith."
.
2. Petitioner was appointed as Steno-Typist on
regular basis in the establishment of Deputy
Commissioner, Kangra at Dharamshala, H.P., vide office
order dated 31.05.1988. The post of Steno-Typist was
re-designated as Steno-Typist Grade-I in the higher pay
scale w.e.f. 08.06.1993.
3. Petitioner was promoted to the post of Senior
Scale Stenographer, vide office order dated 11.05.2012.
The order promoting petitioner to the post of Senior Scale
Stenographer was subsequently withdrawn as a result of
review DPC convened on 09.11.2016 and the petitioner
was ordered to be promoted as Senior Scale
Stenographer w.e.f. 30.03.2016, subject to the condition
that the petitioner would acquire the qualification of
graduation within six years and would be eligible to draw
the annual increments from the due dates only on
acquiring qualification of graduation, failing which he
would be reverted to the post of Steno-Typist.
4. The re-fixation of the pay of petitioner was also
ordered and recovery of overpaid amount was
.
contemplated.
5. The State Government, vide Department of
Personnel, notification dated 14.02.2011, had notified
Himachal Pradesh, Department of Personnel, Junior
Scale Stenographer/Senior Scale Stenographer, Class-III
(Non-Gazetted) Common Direct Recruitment and
Promotion Rules, 2011 (for short '2011 Rules'). As per
these rules, the feeder category to the post of Senior
Scale Stenographer was Junior Scale Stenographer. The
essential qualification was Bachelor Decree or its
equivalent from University recognized by the Himachal
Pradesh Government. The 2011 Rules had repealed
Himachal Pradesh, Class-III Service (Junior Scale
Stenographer/Senior Scale Stenographer) Direct
Recruitment Rules, 1991.
6. The 2011 Rules were further amended vide
notification dated 30.03.2016, whereby the category of
Steno-Typist was also included in the feeder category for
promotional post of Senior Scale Stenographer. The
Steno-Typist having ten years' service with graduation
was eligible for being considered for the post of Senior
.
Scale Stenographer. It was also provided that those
Stenographers who did not possess the graduation
degree were liable to acquire such degree within six years
from the commencement of 2016 Rules.
7. The impugned office order dated 15.11.2016
was issued in consequence of 2016 rules as the
petitioner was not found eligible for being promoted as
Senior Scale Stenographer under 2011 Rules, wherein
the feeder category for promotion to the post of Senior
Scale Stenographer was the cadre of Junior Scale
Stenographer. Under 2011 Rules, Junior Scale
Stenographer was the promotional post for the cadre of
Steno-Typist.
8. The review DPC was conducted in aforesaid
backdrop after affording the petitioner an opportunity of
being heard.
9. Aggrieved against the action of the
respondents in reviewing the date of promotion of
petitioner from 11.05.2012 to 30.03.2016 and its
consequences, petitioner has filed the instant petition
seeking reliefs, as noticed above.
.
10. I have heard learned counsel for the parties
and have also gone through the record of the case
carefully.
11. It is contended on behalf of the petitioner that
2011 Rules were not attracted in his case as there was
no feeder post of Steno-Typist for promotion to the post
of Senior Scale Stenographer in such rules and petitioner
had been rightly promoted as Senior Scale Stenographer,
vide office order dated 11.05.2012, as per method of
promotion which was continuing and operational under
R&P Rules of the Department of Revenue. It has also
been submitted that since, the petitioner had already
been promoted, the 2011 and 2016 Rules denying
crystalized benefits of promotion, seniority etc. to the
petitioner were wrong, illegal, unjust and violative of
Articles 14 and 16 of the Constitution. As per petitioner,
since there was no post of Junior Scale Stenographer in
the department of petitioner, 2011 Rules could not be
made applicable to him. It has further been contended
that the petitioner had served as Steno-Typist for about
twenty-five years with 10+2 as educational qualification
.
and since there was no post of Junior Scale Stenographer
in the parent department of the petitioner, his length of
service was sufficient to substitute the qualification
criteria fixed under 2011 Rules. The provision of 2016
Rules, whereby petitioner was required to acquire
qualification of graduation within six years has also been
assailed as possible clog on the promotional prospect of
the petitioner, in case, he failed to acquire the
qualification of graduation within six years.
12. In response, respondents have filed their reply
justifying the action impugned in the petition. It has been
submitted that the petitioner was not eligible to be
promoted as Senior Scale Stenographer under 2011 Rule
as he did not possess the essential qualification. The
2011 Rules were further amended by 2016 Rules,
whereby relaxation was provided enabling the
incumbents without graduation degree to acquire such
degree within prescribed period. Petitioner was served
with a notice dated 28.07.2016, seeking his
representation against convention of review DPC as a
consequence of amended R&P Rules. Petitioner
.
submitted his reply dated 01.08.2016. No substance was
found in the objection raised by the petitioner and review
DPC was convened on 09.11.2016 and thereafter, the
impugned office order dated 15.11.2016, was issued.
13. It has also been submitted by the respondents
that the State Government, vide office order dated
24.09.2018, has waived off the amount of recovery to the
tune of Rs. 2,35,244/- proposed against petitioner as the
petitioner had already worked on higher post w.e.f.
11.05.2012 to 29.03.2016.
14. Petitioner was promoted to the post of Senior
Scale Stenographer on 11.05.2012, when 2011 Rules
were in vogue. Petitioner has not been able to show that
he was governed by some other set of rules. That being
so, 2011 Rules will be applicable to the petitioner with all
force.
15. As per 2011 Rules, petitioner was not eligible
for being promoted as Senior Scale Stenographer as he
was neither a Junior Scale Stenographer nor had
graduation degree. The 2011 Rules governed two
categories that is of Junior Scale Stenographer and
.
Senior Scale Sonographer. As per these rules, the post of
Steno-Typist was in the feeder category for promotional
post of Junior Scale Stenographer. In this view of the
matter, petitioner was wrongly promoted as Senior Scale
Stenographer w.e.f. 11.05.2012.
16. The contention of the petitioner that some
rights have crystalized in his favour by promotion as
Senior Scale Stenographer w.e.f. 11.05.2012, needs to
be rejected for the reason that the right of employer to
correct the mistake committed by it is unquestionable.
Petitioner had no right to be promoted as Senior Scale
Stenographer under 2011 Rules and the benefit of
promotion granted to him de hors rules could not be
sustained. In Union of India and Anr. Vs. Narendra
Singh, (2008) 2 SCC 750, dealing with an identical fact
situation, Hon'ble Supreme Court has observed as
under:-
"32. It is true that the mistake was of the Department
and the respondent was promoted though he was not
eligible and qualified. But, we cannot countenance the
submission of the respondent that the mistake cannot
be corrected. Mistakes are mistakes and they can
always be corrected by following due process of law. In
.
Indian Council of Agricultural Research & Anr. v. T.K.
Suryanarayan & Ors., (1997) 6 SCC 766, it was held
that if erroneous promotion is given by wrongly
interpreting the rules, the employer cannot be prevented
from applying the rules rightly and in correcting the
mistake. It may cause hardship to the employees but a
court of law cannot ignore Statutory Rules."
17.
Thus, no fault can be found with the action of
respondents, whereby the promotion granted to the
petitioner as Senior Scale Stenographer was reviewed. As
regards the recovery of amount, the grievance of the
petitioner does not survive any more as the State has
already waived the same.
18. The issue with respect to the necessity for
petitioner to acquire qualification of graduation within six
years from coming into force of 2016 Rules also require
no adjudication on account of the subseqeuent events
that have taken place. During hearing of the case, a copy
of notification dated 26.02.2022, issued by the
Department of Personnel, H.P., has been placed on
record, whereby an amendment has been carried in the
R&P rules for the post of Senior Scale Stenographer and
by way of such amendment the requirement of
.
acquisition of graduation as educational qualification for
promotion to the post of Senior Scale Stenographer has
been omitted. The aforesaid amendment was notified in
the Rajpatra on 04.03.2022, meaning thereby that on the
date of coming into force of such amending provision, the
period of six years for acquisition of qualification
available to the petitioner in terms of 2016 Rules had not
expired and for such reason, the said requirement having
been omitted from the rules cannot be an impediment
for grant of benefit of annual increments as also other
consequential service benefits to the petitioner in
absence of acquisition of higher qualification.
19. In result, it is held that the respondents were
within their right to issue office order dated 15.11.2016
(Annexure A-2), however, the condition of acquiring
qualification of graduation will neither be applicable in
the case of petitioner nor shall non-acquisition of higher
qualification be an impediment in grant of all service
benefits including annual increments to the petitioner in
pursuance to his promotion as Senior Scale
Stenographer w.e.f. 30.03.2016. Ordered accordingly.
.
20. The petition is, accordingly, disposed of, in
aforesaid terms. No order as to costs.
21. Pending miscellaneous application(s), if any,
shall also stand disposed of.
(Satyen Vaidya)
19th July, 2024 Judge
(sushma) r
