____________________________________________________________ vs State Of Himachal Pradesh & Ors
2025 Latest Caselaw 6116 HP

Himachal Pradesh High Court

____________________________________________________________ vs State Of Himachal Pradesh & Ors on 28 May, 2025

Author: Vivek Singh Thakur

Bench: Vivek Singh Thakur

( 2024:HHC:17027 )

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPOA No.6072 of 2020 Announced on:28.05.2025 ____________________________________________________________ Surinder Kumar Sharma ...Petitioner Versus

State of Himachal Pradesh & Ors. ...Respondents

Coram:

Hon'ble Mr. Justice Vivek Singh Thakur, Judge Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? Yes.

For the petitioner: Mr. Vishwa Bhushan, Advocate, and Ms. Anuja Mehta, Advocate.

For the respondents: Mr. Baldev Singh Negi and Mr. Vishav Deep Sharma, Additional Advocate General with Ms. Seema Sharma, Deputy Advocate General for respondent Nos.1 and 2.

Mr. Vikrant Thakur and Mr. Shubham Singh Guleria, Advocates, for respondent No.3.

Ranjan Sharma, Judge

Petitioner, Surinder Kumar Sharma, working

as Computer Operator in Regional Training Centre,

Himachal Pradesh Institute of Public Administration

has come up before this Court seeking the following

Whether reporters of Local Papers may be allowed to see the judgment?

                                    -2-              ( 2024:HHC:17027 )

reliefs:-

                   "(i)    That proposed/draft R&P Rules for the post

of Manager (IT) Class-II (Non-Gazetted) Annexure-A/7 and letter dated 19.04.2018 (Annexure-A/13) issued by the respondent No.2 may kindly be quashed.

(ii) That the respondents may kindly be directed to finalize the proposed/draft R&P Rules for the post of Manager (IT) Class-II (Non- Gazetted) Annexure-A/5 whereby the post of Manager (IT) Class-II (Non-Gazetted) has been proposed to be filled up 100% by promotion from amongst the Computer Operator forthwith.

(iii) That the respondents may kindly be directed to promote the applicant to the post of Manager (IT) Class-II (Non-Gazetted), along with all consequential benefits."

FACTUAL MATRIX

2. Case as set up by Learned Counsel is

that after passing his 10+2 and Diploma in Computer

Application [DCA] the petitioner was appointed as

a Computer Operator at Regional Training Centre

at Dharamshala on adhoc basis on 21.08.1990

[Annexure A-1], in pay scale of Rs.1,500-2640, initially

for a period of six months but this appointment

continued and later in terms of the policy issued

by the State Government, the respondents on the

-3- ( 2024:HHC:17027 )

recommendations of Screening Committee regularized

the petitioner as a Computer Operator on 13.03.2003

[Annexure A-2] w.e.f. 30.11.1996. While working as

such, the petitioner improved his qualification and

he passed Masters [M.A.] in Public Administration

in the year 2000 and then passed M.Sc. in Computer

Science in the year 2006.

2(i). While the petitioner was working as a

Computer Operator on regular basis, the respondent

No.1 issued a communication dated 05.08.2006 vide

Annexure A-3, creating one post of Manager [IT]

on regular basis in pay scale of Rs 6400-10640 in

Himachal Pradesh Institute of Public Administration

for strengthening its IT Centre. While creating the

aforesaid post of Manager [IT], the respondent No. 1

directed the Respondent No.2-Director, HIPA, Shimla,

to prepare the Recruitment and Promotion Rules

[R&P Rules], for the post of Manager [IT] immediately

and also to furnish a report to Principal Secretary

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[Training] within 10 days.

2(ii). As a sequel to creation of the post of

Manager [IT] on 05.08.2006, Respondents No.1 and

2 initiated the process for framing the R&P Rules

for the post of Manager [IT] [Non-Gazetted]. Notably,

the Draft R&P Rules dated 25.03.2007 {Annexure R-IV}

{referred to as Draft Rules} for post of Manager [IT]

were forwarded by Respondent No. 2 to Respondent

No.1. As per the Draft Rules the respondent No.2

addressed a communication to respondent No.1 on

28.02.2008 [Annexure A-4], that in view of the

Draft Rules, the present incumbent-petitioner may be

considered for promotion to the post of Manager [IT]

on adhoc basis till Draft Rules were finalized by

the respondents.

2(iii). Though the Draft Rules dated 25.03.2007

[Annexure R-4], were duly furnished to respondent

No.1 on 28.02.2008 [Annexure A-4], with the request

to consider the petitioner for adhoc promotion as

-5- ( 2024:HHC:17027 )

per Draft Rules till these Rules were finalized but

some observations were made inter-se. After addressing

the observations made by the Respondent No 1 on

02.01.2009 [Annexure R-VI] respondent No. 2 forwarded

Revised Draft R&P Rules dated 1.8.2009 {Annexure

A-6 & A-7/Annexure R-VIII} {referred to as Revised

Draft Rules} vide communication dated 18.02.2009

[Annexure R-VII], for the post of Manager [IT] to

respondent No.1, whereby the Draft Rules dated

25.03.2007 [Annexure R-4], which provided for filling

the post of Manager [IT] 100% by way of promotion

from amongst the Computer Operators having three

years of regular service failing which by secondment

was altogether charged/modified in Revised Draft

Rules dated 01.08.2009 [Annexure A-6 & 7/Annexure

R-VIII] leading to an ambiguous situation for the

reason that though on one hand as per Rule 10,

this post was to be filled 100% by direct recruitment

but on the other hand, as per Rule 11 the post

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of Manager [IT] was sought to filled by promotion from

amongst Computer Operators who possess five years

regular service or regular combined with continuous

adhoc service.

2(iv). Even the Draft Rules dated 01.08.2009

were sent by Respondent No.1 to Respondent No.

3-Commission on which, the Respondent-Commission,

addressed a communication dated 24.08.2010 directing

respondents to give reasons, as to why, the post of

Manager [IT], was not proposed to be filled up 100%

by promotion when, the post of Computer Operator

existed in the department. In view of the anomaly

and the ambiguity in Rule 10 and 11 of Revised

Draft Rules dated 01.08.2009 [Annexure A-6/Annexure

R-VIII], the petitioner submitted a representation

on 02.09.2011 [Annexure A-9], then, on 11.05.2012

[Annexure A-10], then on 02.04.2013 [Annexure A-11],

and on 10.01.2018 [Annexure A-12], requesting the

respondents to consider the case of the petitioner

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for adhoc promotion, till the Draft Rules were finalized.

In response to the representations submitted by

the petitioner, Respondent No.2-Director of Himachal

Pradesh Institute of Public Administration, Shimla, has

rejected the claim of the petitioner on 19.04.2018

[Annexure A-13/Annexure R-XII], on the ground that

there is no provision in Draft Rules for filling the

post of Manager [IT] on adhoc basis and therefore,

the request of petitioner for promotion cannot be

considered.

In the background of the above facts, the

petitioner has assailed Draft Rules dated 01.08.2009

[Annexure A-7/Annexure R-VIII] and has prayed for

a direction to the respondents to finalize the Draft

Rules [Annexure A-5/Annexure R-IV] dated 25.03.2007

and to consider the petitioner for promotion to post

of Computer Operator thereafter, in view of the fact

that petitioner is stagnating on same post of Computer

Operator since 1990 i.e. for last more than 34 years

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now.

PROCEEDINGS BEFORE STATE ADMINISTRATIVE TRIBUNAL AND THEN BEFORE THIS COURT

3. The petitioner filed the Original Application

i.e. OAD No.121 of 2018 on 21.05.2018. On abolition

of State Administrative Tribunal, the Original Application

was transferred to this Court and was registered as

CWPOA No. 6072 of 2020.

4. The case records reveal that the matter

was listed before the Learned State Administrative

Tribunal on 22.05.2018 and respondents were directed

to file reply. Accordingly, respondents filed the reply

on 05.07.2018. Thereafter, the matter was listed from

24.07.2018 to 23.07.2019 before State Administrative

Tribunal, enabling petitioner to file rejoinder which

was accordingly filed.

5. Consequent upon the transfer of Original

Application to this Court as CWPOA No. 6072 of

2020, the matter was taken up on 13.09.2023, when

this Court observed that the pleadings are complete

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and matter was directed to be listed for consideration

on various dates, when, the Learned State Counsel

prayed for time to file a Supplementary Affidavit in

support of its contentions. Accordingly, State Authorities

filed Supplementary Affidavit on 2.1.2024 and the

petitioner filed a Counter to aforesaid Supplementary

Affidavit on 29.04.2024.

STAND OF STATE AUTHORITIES IN REPLY-AFFIDAVIT:

6. Respondents No.1 and 2 have filed a joint

reply on the affidavit of Director Institute of Public

Administration, sworn on 29.06.2018. A perusal of

reply reveals that the respondents have admitted

that the petitioner being eligible was appointed as

Computer Operator on adhoc basis on 21.08.1990

[Annexure R-1], in pay scale of Rs. 1500-2640. It is

also admitted that the petitioner was regularized

as Computer Operator as per orders dated 13.03.2003

[Annexure R-II], w.e.f. 30.11.1996 as he fulfilled

all conditions of appointment as Computer Operator

- 10 - ( 2024:HHC:17027 )

in accordance with the Rules.

6(i). Reply-Affidavit admits in clear terms that

Principal Secretary [Training], after due concurrence

of Finance Department created one post of Manager

[IT] Class-II [Non-Gazetted], in pay scale of Rs 6400

-10640 on 05.08.2006, as per Annexure R-III. Reply

further admits that as a sequel to the directions

contained in the sanctioned order dated 05.08.2006

[Annexure R-III], Respondent No.2 prepared the Draft

Rules for post of Manager [IT] on 25.03.2007, as

per Annexure R-IV, whereby, the post of Manager

[IT] was proposed to be filled up 100% by way

of promotion from amongst the Computer Operators

working in pay scale of Rs.5,000-8,100 with at

least three years of regular service in the cadre.

6(ii). Though Draft Rules dated 25.03.2007 were

prepared and sent by the Respondent No. 2 to

Respondent No. 1 on 25.03.2007 [Annexure R-IV] yet,

respondent No.1-Additional Chief Secretary [Training]

- 11 - ( 2024:HHC:17027 )

addressed a communication on 02.01.2009 [Annexure

R-6], directing the petitioner to furnish the Revised-

Draft Rules for post of Manager [IT]. Accordingly, the

Revised Draft Rules dated 1.8.2009 {Annexure A-6

& A-7/Annexure R-VIII} were sent by Respondent No.

2-Director HIPA, Shimla to Principal Secretary [Trg].

Perusal of Rule 10 of Revised Draft Rules for post

of Manager [IT] reveals that though on one hand

this post was intended to be filled up 100% by

direct recruitment but on the other hand as per

Rule 11, the post of Manager [IT] was sought to be

filled by promotion from amongst Computer Operators,

who possess five years regular service or regular

combined with continuous adhoc service in the grade,

failing which, by secondment basis, from amongst

incumbents of this post working in the similar pay

scale from other Government Departments/Autonomous

Bodies. However, in the reply, respondents averred that

the petitioner is fulfilling all eligibility conditions for

- 12 - ( 2024:HHC:17027 )

post of Manager [IT]; and as soon as the Draft

Rules are approved from the State Government, the

candidature of the petitioner will be considered as per

the provision in the Rules.

In the above background, the case of

the respondents, in brief is, that Draft Rules dated

25.03.2007 [Annexure R-IV], have been re-carved

by Revised Draft Rules dated 01.08.2009 [Annexure

A-6 and Annexure A-7/Annexure R-VIII with reply],

whereby, the post of Manager [IT] is to be filled 100%

by direct recruitment instead of 100% by promotion

as provided in Earlier Draft Rules and therefore,

the claim of petitioner was rejected on 19.04.2018

[Annexure A-13/Annexure R-XII], on the ground, that

there is no provision in the Draft Rules, that the

post of Manager [IT] is to be filled by promotion,

therefore, the claim of the petitioner was turned

down.

REBUTTAL BY WAY OF REJOINDER

7. Petitioner filed a rejoinder, controverting

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the averments made in Reply-Affidavit and by stating

that Revised Draft Rules dated 1.8.2009 were illegal,

arbitrary and unconstitutional and the Respondents

could not sit over the Draft Rules indefinitely, which

has resulted in making the petitioner to stagnate on

the same post for last 34 years, adversely affecting the

service career of petitioner vis-vis his counterparts

who have been granted alleast 2-3 promotions during

this period. In this background, petitioner has reiterated

his claim made in the writ petition.

SUPPLEMENTARY AFFIDAVIT BY RESPONDENTS

8. In terms of the orders dated 18.12.2023,

the State Authorities have filed a Supplementary

Affidavit, with the averments that Draft Rules for

post of Manager [IT] were sent by Respondent No.2-

Director, HIPA, Shimla, to Respondent No.1-Principal

Secretary [Training] on 25.03.2007 [Annexure R-IV],

proposing that post of Manager [IT] was to be filled

by promotion from amongst the Computer Operators

- 14 - ( 2024:HHC:17027 )

working in pay scale of Rs.5000-8100 with at least

three years of regular service in the cadre but

these Draft Rules of 2007 have been modified and

the Revised Draft Rules dated 01.08.2009 [Annexure R-

VIII] [Annexure A-6 and Annexure A-7 proposing in

Rule 10 that the post of Manager [IT] was to be

filled 100% by direct recruitment on regular basis

or on contract basis and the case was rightly

rejected.

8(i). Based on the Counter to Supplementary

Affidavit it was asserted by the petitioner that the

averments-stand in the Supplementary Affidavit was

contrary to Revised Draft Rules of 2009 and the

Rule 11 thereof and therefore, the rejection was

untenable.

9. Heard, Mr. Vishwa Bhushan, Advocate,

assisted by Ms. Anuja Mehta, Advocate, for the

petitioner, Mr. Baldev Singh Negi and Mr. Vishav

Deep Sharma, Learned Additional Advocate General,

- 15 - ( 2024:HHC:17027 )

for Respondent Nos.1 and 2 and Mr. Vikrant Thakur

and Mr. Shubham Singh Guleria, Advocates, for

Respondent No.3.

ANALYSIS:

10. In background of factual matrix as borne

out from the Writ Petition; and the stand of official

Respondents in Reply-Affidavits and the Supplementary

Affidavit; and Counter filed thereto ; this Court is of

the considered view that the rejection orders dated

19.04.2018 [Annexure A-13/Annexure R-XII] and the

action of the Respondents in denying consideration

of the case of petitioner for promotion as Manager [IT]

on the basis of Revised Draft Rules dated 01.08.2009

[Annexure R-VIII/Annexures A-6 and A-7] cannot

pass the test of judicial scrutiny, for the following

reasons:-

10(i). Respondents-State Authorities created one

post of Manager [IT] in pay scale of Rs 6400-10640

on regular basis after concurrence of the Finance

- 16 - ( 2024:HHC:17027 )

Department on 05.08.2006 [Annexure A-3]. In order

to fill up this post, the Respondent No.1-Principal

Secretary [Training] directed Respondent No.2 to start

the process for framing the R&P Rules. Consequently,

Respondent No.2-Director, HIPPA, Shimla, prepared the

Draft R&P Rules for post of Manager [IT] on 25.03.2007

[Annexure R-IV], which reads as under :-

"No. HIPA (Estt.)-12/2006 Government of Himachal Pradesh Institute of Public Administration Fairlawns, Shimla-171012, Dated 25.3.2007

From The Director II.P. Institute of Public Administration.

To The Principal Secretary (Training) to the Government of Himachal Pradesh Shimla-171002

Subject:- R&P Rules for the post of Manager (IT) (Non-Gazetted) Class-II in the Department of Himachal Pradesh Institute of Public Administration.

Madam, Kindly refer to your letter No.Per (Trg.)A(3)-1/2006 dated 7.2.2007 on the subject cited above. The Draft R&P Rules for the post of Manager (IT) (Non-Gazetted) of this Institute is enclosed herewith for further necessary action at your end, please.

Yours faithfully.

-sd-

Joint Director (Admn.), HP Institute of Public Administration, Fairlawns, Shimla-171012"

- 17 - ( 2024:HHC:17027 )

RECRUITMENT AND PROMOTION RULES FOR THE POST OF MANAGER (IT) (NON-GAZETTED) IN THE H.P. INSTITUTE OF PUBLIC ADMINISTRATION

1. Name of the post Manager (IT)

2. Number of posts 1(One)

3. Classification: Class-II [Non Gazetted]

4. Scale of pay: 6400-200-7000-220-8100-275- 10300-340-10640

5. Whether selection post Non-Selection or non-selection post

7. Minimum Education & 1. Essential Qualifications:

other qualifications The candidate should possess required for direct Degree/Diploma from an recruits University /Institute recognized by H.P. Government in any of the following:

Master Degree in Computer Application Or Master Degree in Information Technology Or Degree in B.Tech (Computer Science/IT/E&C) Or Graduate in Computer Science/ Computer Application/ Infor-

mation Technology Or Graduate in any discipline with one year Diploma in Computer Science/Application/Programming with at least 5 years experience in the line from a university / Institute recognized by the HP Government

2. Desirable Qualifications:

Knowledge of customs, manner and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.

8. Whether age and other Age: Not applicable qualifications prescribed Educational Qualifications: Yes for direct recruits will apply in the case of the promotes

- 18 - ( 2024:HHC:17027 )

9. Period of probation, if Two years subject to further any. extension for a period not exceeding one year as may be ordered by the competent authority in special circumstances and reasons to be recorded in writing.

10. Method of recruitment, 100% by promotion failing whether by direct recr- which by secondment failing uitment or by which by direct recruitment on promotion deputation, regular basis.

                transfer      and      the
                percentage of vacancies
                to be filled in by various
                method
          11.   In case of recruitment          (i) By promotion from amongst
                by    promotion,     depu       the officials working in the pay
                tation, tra grade from          scale of Rs.5000-8100 with at
                which promotion/ depu-          least 3 years regular service at
                tation/transfer is to be        their cadre
                made.                           (ii)   By    Deputation/Transfer
                                                on Secondment basis from HP
                                                Government          Departments/
                                                Autonomous Bodies holding a
                                                post on regular basis and

possessing requisite essential as well as Desirable qualifications and experience as prescribed.

Column No.12 to 18 not relevant.

10(ii). Though the Draft Rules dated 25.03.2007

[Annexure R-IV] [supra] were prepared yet on the

direction of higher authorities, the Revised Draft

Rules for the post of Manager [IT] were furnished by

Respondent No.2-Director, HIPPA, Shimla to Respondent

No.1-Principal Secretary [Trg] on 01.08.2009 [Annexure

R-VIII], which reads as under :-

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"No. HIPA (Estt.)-12/2006 Government of Himachal Pradesh Institute of Public Administration Fairlawns, Shimla-171012, Dated 01.08.2009

From The Director, II.P. Institute of Public Administration.

To The Principal Secretary (Training) to the Government of Himachal Pradesh Shimla-171002

Subject:- R&P Rules for the post of Manager (IT) (Non-Gazetted), Class-II in the Department of H.P. Institute of Public Administration.

Sir, Kindly refer to your letter No. Per (Training)A(3)-1/2006 dated 21.4.2009 and 18.7.2009 on the subject cited above.

The R&P Rules for the post of Manager (IT) (Non-Gazetted), Class-II of this Institute as per latest instructions received from the Department of Personnel, government of Himachal Pradesh vide their letter No. Per(AP)- C-B-(2)-1/99-Vol.-I dated 5th March, 2009 is enclosed herewith for further necessary action at your end, please.

Yours faithfully.

Sd/-

Additional Director H.P. Institute of Public Administration, Fairlawns, Shimla-171012"

RECRUITMENT AND PROMOTION RULES FOR THE POST OF MANAGER (IT) (NON-GAZETTED) IN THE H.P. INSTITUTE OF PUBLIC ADMINISTRATION

1. Name of the post Manager (IT)

2. Number of posts 1(One)

3. Classification Class-II [Non-Gazetted]

4. Scale of pay i) Pay scale of regular incumbents:

6400-200-7000-220-8100-275-

                                  10300-340-10640
                       - 20 -                 ( 2024:HHC:17027 )

                               ii) Emoluments for Contract
                               employees:-
                               Rs.9600/- as per details given in
                               Col 15-A
5.   Whether selection post    Selection
     or non-selection post
7.   Minimum Educational       1. Essential Qualifications:
     & other qualifications    The candidate should possess
     required for    direct    Degree/Diploma        from      an
     recruits                  University/Institute recognized by
                               H.P. Government in any of the
                               following:

                               Master    Degree    in   Computer
                               Application
                               Or
                               Master Degree in Information
                               Technology
                               Or
                               Degree in B.Tech (Computer
                               Science/IT/E&C)
                               Or
                               Graduate in Computer Science/
                               Computer Application/ Inform-
                               ation Technology
                               Or
                               Graduate in any discipline with
                               one year Diploma in Computer

Science/Application/Programming with at least 5 years experience in the line from a University/ Institute recognized by the HP Government

2. Desirable Qualifications:

Knowledge of customs, manner and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.

8. Whether age and other Age: Not applicable qualifications Educational Qualifications: Yes prescribed for direct recruits will apply in the case of the promotes

9. Period of probation, if Two years subject to further

- 21 - ( 2024:HHC:17027 )

any. extension for a period not exceeding one year as may be ordered by the competent authority in special circumstances and reasons to be recorded in writing.

10. Method of 100% by direct recruitment recruitment, whether on a regular basis or by by direct recr-uitment recruitment on contract basis or by promotion as the case may be. The contract deputation, transfer employees will get emoluments and the percentage of as given in Col.15-A and will vacancies to be filled in be governed by service conditions by various method as specified in the said column.

11. In case of recruitment By promotion from amongst by promotion, depu- the Computer Operator who tation, tra grade from possess 5 years regular service or which promotion/ regular combined with continuous depu-tation/transfer is adhoc service rendered if any, to be made. in the grade failing which by secondment basis from amongst the incumbents of this post working in the similar pay scale from other H.P. Government departments/Autonomous Bodies.

Column No.12 to 18 not relevant.

11. A comparative analysis of Draft Rules dated

25.03.2007 [Annexure R-IV] provides that the post

of Manager [IT] was to be filled 100% by promotion

from amongst Computer Operators-Officials working

in pay scale of Rs.5,000-8,100 with at least three

years of regular service in the cadre, failing which

by secondment, but a perusal of Revised Draft Rules

dated 01.08.2009 [Annexure A-6-A-7/Annexure R-VIII],

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reveals that though in Rule 10 of proposed Rules of

2009 it has been provided that post of Manager

[IT] would be filled 100% by direct recruitment on

regular basis or on contract basis yet, in Rule 11 of

these Revised Draft Rules, it is provided that the

post of Manager [IT] is to be filled up by promotion

from amongst the Computer Operators, who possess

five years regular service or regular combined with

continuous adhoc service, if any, in the grade, failing

which on secondment basis from amongst incumbents

of this post working in similar pay scale from other

H.P. Government Departments/Autonomous Bodies.

11(i). A bare reading of Rule 10 and Rule 11

of Revised-Draft Rules dated 01.08.2009 has certainly

resulted in an ambiguous situation, whereby, though

Rule 10 provides that post is to be filled 100%

by direct recruitment yet, in Rule 11, the feeder

category incumbents i.e. Computer Operators with

five years of regular service have also been expressly

- 23 - ( 2024:HHC:17027 )

made eligible and were included to be a feeder

category for promotion. Once the Rules conferred

eligibility for promotion in Rule 11 to the Computer

Operators i.e. the petitioner, then, there was no

occasion to prescribe the mode of filling up the

post by direct recruitment. Both the situations as

contained in Rule 10 and Rule 11 leads to absurdity

and ambiguous situation resulting in anomaly also.

Further, once a post is intended to be filled by

promotion from feeder category Computer Operators,

then, the Revised Draft Rules prescribing that the

post is to be filled up 100% by direct recruitment,

shall definitely result in rendering these Rules as

incapable of implementation in the present form.

The anomaly, absurdity, ambiguity in the Revised

Draft Rules dated 01.08.2009, as discussed above,

has rendered these Rules incapable of implementation

and unenforceability in the present form rendering

it arbitrary; and therefore, these Revised Draft Rules

- 24 - ( 2024:HHC:17027 )

cannot be permitted to operate in the present form;

and accordingly, Revised Draft Rules dated 01.08.2009

are declared inoperative and are quashed and set-

aside.

EMPLOYERS DISCRETION TO FRAME RULES IS NOT UNFETTERED :

12. It is trite that prescription of eligibility,

qualifications and mode and manner of recruitment

for a post by way of direct recruitment or promotion

and the prescription of other conditions of service

normally falls within the domain of an employer.

This Court is cautious of the fact that though

no specific mandate can be issued directing the

Respondents-Employer to formulate and finalize the

R & P Rules for a post in a specific manner. However,

this Court cannot shut its eyes, so as to permit

unfettered, unrestricted and uncanalized discretion

on the State Authorities in not to preparing and

finalizing the R&P Rules for the post of Manager

[IT] endlessly. In the instant case, though the post

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of Manager [IT] was sanctioned by State Government

on 05.08.2006 [Annexure A-3] yet, the respondents

have failed to finalize the R&P Rules for this post

[since 2007 onwards] for the last more than 18

years now certainly speaks volumes of unfairness,

unreasonableness, non-performance and arbitrariness

in State action. In these circumstances, this Court

mandates the State Authorities to finalize the R&P

Rules for the post of Manager [IT] after completing all

codal formalities not later than 31.07.2025.

FAILURE TO FINALIZE RULES SHALL RESULT IN RESTORATION-FINALISATION OF DRAFT RULES DATED 25.03.2007 [ANNEXURE R-IV] :

13. At the sake of repetition, it is important

to note that the State Authorities-Respondent No. 1

created one post of Manager [IT] in the pay scale

of Rs 6400-10640 on regular basis on 05.08.2006

[Annexure A-3]. While creating this post, it was

mandated that the Rules be finalized at the earliest.

As a sequel to this, Draft Rules dated 25.03.2007

- 26 - ( 2024:HHC:17027 )

[Annexure R-IV], were framed, providing for filling

the post of Manager [IT], 100% by promotion from

amongst the Officials-Computer Operators working in

Department, in pay scale of Rs.5000 - 8100 having

three years of regular service as such.

13(i). Though the Draft Rules dated 25.03.2007

[Annexure R-IV] intended to fill up the post of

Manager [IT] 100% by promotion and even Respondent

No.2 has addressed a communication to Respondent

No.1 on 28.02.2008 [Annexure A-4] that once the

petitioner was eligible and had been working in the

feeder category of Computer Operator for the last

18 years, therefore, his case for promotion may be

considered on adhoc basis. In addition to this, on

18.2.2009 [Annexure R-7], State Authorities inter-se

proposed that the posy of Manager [IT] may be filled

by promotion, so that the petitioner, who is a

Computer Operator is given promotional avenue and

this post may be filled by direct recruitment in case

- 27 - ( 2024:HHC:17027 )

the available incumbent was not eligible. Even the

Reply-Affidavit filed by State Authorities admit that

the petitioner is eligible for the post of Manager [IT]

as per the Existing Draft Rules also.

Thus, in the above background, once the

petitioner is educationally qualified for the post of

Manager [IT], in accordance with Draft Rules coupled

with the fact that the Respondents intended to

fill up the post of Manager [IT] then, the Respondents

are bound to follow the Draft Rules for making

promotion. The only caveat in not following the Draft

Rules is when the R&P Rules notified under the

proviso to Article 309 already occupied the field. In

instant case, once no R&P Rules under the proviso

to Article 309 of the Constitution of India either

existed or occupied the field as on day, therefore,

the Draft Rules can be followed by the respondents.

Besides this, the respondents had clear intention to

enforce the Draft Rules, but the inaction or lethargy

- 28 - ( 2024:HHC:17027 )

of respondents has resulted in not giving effect to

the Draft Rules, then, the claim of the petitioner

for being considered for promotion on the basis of

Draft Rules dated 25.03.2007 [Annexure R-IV] has

force, in view of the fact, that the Revised-Proposed

Rules dated 01.08.2009 [Annexure A-7/Annexure R-VIII],

revealed patent absurdity, ambiguity rendering these

Revised Draft Rules incapable of implementation and

enforceable in present form, and therefore the same

have already been quashed and set aside by this

Court [supra].

14. Notably, the Hon'ble Supreme Court has

held that the Draft Rules can be followed for making

promotion, except in case where the Rules notified

under Proviso 309 do not exist. While dealing with

an eventuality, where Draft Rules were not finalized

from 1969 to 1975, coupled with the fact that no

Rules were notified under Proviso to Article 309,

therefore, the promotions made on the basis of

- 29 - ( 2024:HHC:17027 )

Draft Rules was held to be permissible and valid

by the Hon'ble Supreme Court in I.K. Sukhija and

Others vs Union of India and Others, AIR 1997

SC 2714, in following terms :-

"14. What emerges from the above discussion is that the promotion of the appellants as A.Es. (E) were not contrary to any statutory recruitment rules. Even if we proceed on the basis that in absence of statutory rules the draft recruitment rules of 1969 were applicable, what we find is that the appellants were eligible for promotion and their cases were duly considered by the D.P.C. They were promoted after they were found suitable by the D.P.C. and their promotions were made according to their placement in the merit list and not according to their seniority. When the appellants were promoted, though on ad hoc basis, clear vacancies were available in the promotion quota. The only reason for making their appointments as temporary and ad hoc was that the draft recruitment rules could not be finalised till 1975. There was no unusual spurt in the construction activity between 1970 and 1977 which necessitated giving of urgent temporary promotions. For all the reason stated above, it is not possible to accept that the appointments of the appellants as A.Es., though temporary and ad hoc, were by way of stop-gap arrangements only."

14(i). While dealing with a situation, where, the

Draft Rules were not finalized from 1969 to 1976,

the promotions intended to be made and in fact

made on the basis of Draft Rules were held to be

- 30 - ( 2024:HHC:17027 )

valid by the Hon'ble Supreme Court in Abraham

Jacob and Others vs Union of India (1998) 4 SCC

65, in the following terms :-

"4. Having heard the learned counsel for the parties it appears to us that the only question for consideration is on what principle the inter se seniority between the direct recruits and promotee Assistant Engineers will have to be determined for the period 1969 till 1976 i.e. the period from which 50 per cent of the posts were filled up by promotion till the enforcement of the statutory recruitment rules? It is undisputed that prior to 1969 no Junior Engineer was being promoted to the post of Assistant Engineer. From 1969 after formulation of set of draft rules promotion was being given to the Junior Engineers to the post of Assistant Engineer in accordance with the provisions contained in the draft rules even before such draft rules were approved by the governmental authority and became a statutory rule, by virtue of an administrative decision of the Government. It is too well settled that the service conditions of employes, in the absence of a statutory rule could be governed by administrative instructions. There was, therefore, no illegality in giving promotion to the Junior Engineers to the post of Assistant Engineer because of the aforesaid administrative decision of the Government. It is also conceded that in the statutory rules the principle of determination of inter se seniority between the direct recruits and promotees has not been indicated. It is in this context the Government of India followed the general principles for determining the seniority enunciated in the order of Ministry of Home Affairs dated 22.12.1959. Clause (6) of the aforesaid Memorandum which deals with relative seniority of direct recruits and promotees

- 31 - ( 2024:HHC:17027 )

stipulates that the relative seniority shall be determined according to the rotation of vacancies between the direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruits and promotees respectively. Since the statutory rule had not come into force and yet promotion could be given on the basis of the provisions contained in the draft rule by virtue of an administrative order of the Government such promotees cannot claim a greater advantage than the direct recruits having come into the cadre on the basis of the aforesaid draft rules. Further, the inter se seniority of such direct recruits and promotees has to be determined by taking recourse to the aforesaid office memorandum dated 22.12.1959 issued by the Government of India in the Ministry of Home Affairs. Needless to mention the at this principle has to be invoked for determination of inter se seniority of the appointees bother direct recruits and promotees during the period 1969 till 9.9.1976 and in fact the Government has drawn up the seniority list on following the said principle. In the aforesaid premises, the direction of the Tribunal in the impugned judgment to re-draw the seniority list without importing any quota/rota rule for the period prior to 9.9.1976 is unsustainable in law and we accordingly quash the said direction. Necessarily, therefore, the inter se seniority of the direct recruits and promotees in the cadre of Assistant Engineers for the period 1969 till 9.9.1976 has to be determined in accordance with the Government Order dated 22.12.1959 issued by the Ministry of Home Affairs."

14(ii). Likewise, while dealing with a similar fact-

situation where, though Draft Rules were prepared

in 1983 and promotions were made during the

- 32 - ( 2024:HHC:17027 )

finalization thereof, on the basis of seniority, the

Hon'ble Supreme Court has outlined that such

promotions are valid, in Vimal Kumari vs State

of Haryana and Others, (1998) 4 SCC 114, reads

as under :-

"8. In the absence of any decision of the State Government that so long as the Draft Rules were not notified, the service conditions of the appellant or the respondent and their other colleagues would be regulated by the "Draft Rules" prepared in 1983, it was not open either to the Government or to any other authority, nor was it open to the High Court, while disposing of the writ petition, to invoke any of the provisions of those Rules particularly as the Government has not come out with any explanation why the Rules, thought prepared in 1983, have not been notified for the long period of more than a decade. The delay, or, rather inaction, is startling.

9. On facts also, there is a strong case in favour of the appellant. She was appointed originally on the post of Tailoring Instructor in 1983. After having put in eight years of service, she was promoted on ad hoc basis to the post of Superintendent on the basis of seniority, as she was, by all reckonings, senor to other eligible candidates, including respondents 3 and 4 who were appointed in 1986. If the question of promotion is considered in the background of the fact that the Draft Rules, which were lying in a frozen state, could not have been utilised for regulating the services of the employees working in the department in question, the appellant's promotion, which

- 33 - ( 2024:HHC:17027 )

was made on the basis of seniority could not have been legally disturbed. Moreover, she was appointed on the post of Tailoring Technician which is the feeder post for making promotion to the post of Cutter Master and then to the post of Manager and ultimately to the post of Superintendent. It will be noticed that the State Govt. had not disputed before the High Court that the appellant was senior to respondents 3 and 4.

10. Since the appellant's reversion has been brought about only because of the promotion of respondent No. 3 on the post of Superintendent in terms of the order passed by the High Court and since we have found that the order passed by the High Court is not correct, we allow this appeal and set aside the impugned judgment dated 25.41994 and quash the order dated 1.7.1994 by which the appellant was reverted to the post of Tailoring Instructor. The appellant shall be allowed to continue on the post of Superintendent and shall be paid all consequential benefits, including the arrears of salary. There shall, however, be no order as to costs."

14(iii). The sanctity of Rules made under proviso

to Article 309 vis-à-vis the Draft Rules has been

outlined by reiterating that the Draft Rules cannot

operate in an eventuality where the Rules made

under Proviso to Article 309, are holding the field

in Union of India through Govt. of Pondicherry

and Another vs V. Ramakrishnan and Others

- 34 - ( 2024:HHC:17027 )

(2005) 8 SCC 394, in the following terms:-

"26. The rules did not become inoperative only because the two scales of pay of the Superintending Engineer and the Chief Engineer became same in terms of revised pay scales. A rule does not become inoperative only because the UPSC says so. A rule validly made even if it has become unworkable unless repealed or replaced by another rule or amended, continue to be in force. As regard, scale of pay, the matter should have been referred to the anomaly removal committee. In terms of the new rules, the criteria prescribed under the old rules were modified. Thus, till the new rules were given effect to, no promotion to the post of Chief Engineer could be effected in derogation to the criteria prescribed under the existing rules.

28. Valid rules made under proviso appended to Article 309 of the Constitution of India operates so long the said rules are not repealed and replaced. The draft rules, therefore, could not form the basis for grant of promotion, when Rules to the contrary is holding the field. It can safely be assumed that the principle in Abraham Jacob (supra), Vimal Kumari (supra) and Gujarat Kisan Mazdoor Panchayat (supra) that draft Rules can be acted upon, will apply where there are no rules governing the matter and where recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution of India."

14(iv). While dealing with the scope of Draft

- 35 - ( 2024:HHC:17027 )

Rules, the Hon'ble Supreme Court has held in D.

Raghu and Others vs R. Basaveswarudu and

Others, (2020) 18 SCC 01, by mandating that the

Draft Rules can be acted upon in cases where, there

are no rules governing the matter, in the following

terms :-

"109. If so, the question would be the effect of promotion already made as noted by the Tribunal itself. As on 05.11.2002, the 1979 Rules governed promotions. The status of the draft Recruitment Rules is no longer res integra. While, promotion can be based on draft Recruitment Rules, it cannot be done, if the draft Rules are in the teeth of existing Statutory Rules.

110. In this regard, we may notice the following discussion in Union of India through Govt. of Pondicherry and another v. V. Ramakrishnan and others:

"28. Valid rules made under proviso appended to Article 309 of the Constitution operate so long the said rules are not repealed and replaced. The draft rules, therefore, could not form the basis for grant of promotion, when Rules to the contrary are holding the field. It can safely be assumed that the principle in Abraham Jacob; (1998) 4 SCC 65 : 1998 SCC (L&S) 995, Vimal Kumari; (1998) 4 SCC 114:

1998 SCC (L&S) 1018 and Gujarat Kishan Mazdoor Panchayat; (2003) 4 SCC 712 : 2003 SCC (L&S) 565 that

- 36 - ( 2024:HHC:17027 )

draft rules can be acted upon, will apply where there are no rules governing the matter and where recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution."

In the backdrop of the facts of instant

case and the mandate of law, as referred to above,

once the Revised Draft Rules dated 01.08.2009

[Annexure A-7/Annexure R-VIII] have already been

quashed by this Court, as discussed hereinabove,

with directions to the respondents to finalize the

Existing Draft R&P Rules dated 25.03.2007 [Annexure

R-IV/Annexure A-5], in its own wisdom on or

before 31.07.2025, but with the further caveat that,

while finalizing the Rules, the rights and interests

of the petitioner and other eligibles, if any, be

kept in view, who had been stagnating on same

post for last 34 years vis-à-vis his counterparts who

have been granted at least 2-3 promotions and thus

unbridled and uncanalized discretion being exercised

by the respondents in not finalizing the Rules since

- 37 - ( 2024:HHC:17027 )

the date of creation of the post of Manager [IT]

on 05.08.2006 [Annexure A-3] for the last 18 years

now, then, in such a situation, the Earlier Draft

Rules dated 25.03.2007 [Annexure R-IV] shall stand

restored, so that the petitioner and other eligible

incumbents are considered for promotion to the post

of Manager [IT], in facts of instant case.

NON FINALIZING OF RULES SINCE CREATION OF POST ON 05.08.2006 [ANNEXURE A-3] RESULTED IN PROLONGED STAGNATION OF PETITIONER FOR 24 YEARS NOW:

15. The petitioner joined service as Computer

Operator on 21.08.1990 and was regularized on

13.03.2003 [Annexure A-2] w.e.f. 30.11.1996 and

since then, the petitioner is stagnating on the same

post of Computer Operator for the last 34 years.

Though the respondents have created the post

of Manager [IT] on 05.08.2006 [Annexure A-3] but

respondents have failed to finalize the R & P Rules

{since 2007} for the last more than 18 years now.

The non-finalization of the Rules coupled with the

- 38 - ( 2024:HHC:17027 )

fact that the petitioner is stagnating for the last

34 years, reveals that the State Authorities have

acted in negation of being a welfare State. Ensuring

security of tenure and just service conditions for an

employee are paramount consideration(s) for achieving

the goals of an effective and vibrant civil service

in the society. Inaction of the Government in not

providing promotional avenues by not finalizing the

Rules admittedly amounts to putting the petitioner

to a disadvantageous position in service vis-à-vis

to other incumbents in the same department i.e.

Himachal Institute of Public Administration, where,

the incumbents who were appointed on adhoc basis

or regular basis on 21.08.1990/30.11.1996 later

to petitioner have been granted promotion upto 2-3

hierarchical promotional posts; whereas, the petitioner

has been made to stagnate on same post of Computer

Operator for last 34 years. In these circumstances,

the discrimination meted to the petitioner vis-à-vis

- 39 - ( 2024:HHC:17027 )

other counterparts by making him to stagnate has

been deprecated by the Hon'ble Supreme Court in

Union of India and Others versus Anil Kumar and

Others, (1999) 5 SCC 743, in the following terms :-

"26. This view is strengthened more on account of the dismissal of the claim of the SSAs praying for their placement in the senior pay-scale, There is no denial of the fact that before and after the recommendations of the various Pay Commission the Assistant Foremen had been in the higher pay-scale as compared to the SSAs and Draughtsman Grade I. For a Welfare State the healthy and energetic civil services is a guarantee for good administrative system entrusted with the governance for the establishment of a rule of law. Security of tenure and the service conditions of the employees is of paramount consideration to achieve the goals for having an effective and vibrant civil service in the society. No government can resort to actions depriving the benefits to a section of the service enbloc which admittedly is to their disadvantage. Such enbloc deprivation of the promotional avenues and service benefits cannot be sustained when on cogent reasons are assigned by the administrative set up. Resort to differential treatment in the service can be had only for achieving the efficiency in the service or any other specified objective declared to be attained. No discrimination can be permitted only at the whims of the administration or to satisfy another section of the civil service. The Union of India in this case has not

- 40 - ( 2024:HHC:17027 )

been in a position to justify the differential treatment made to the Assistant Foremen by putting them en bloc junior to the Senior Scientific Assistants particularly when they have all along been found to be enjoying better position and higher grade as compared to the SSAs in the junior pay scale."

15(i). While dealing with rights of an employee

who was made to stagnating for years together, the

importance of providing channel of promotion has

been outlined by the Hon'ble Supreme Court in V.

Jagannadha Rao and Others versus State of

Andhra Pradesh and Others, (2001) 10 SCC 401,

in the following terms :-

"22. Notwithstanding our aforesaid conclusion, it would be in the interest of the Administration to have a channel of promotion for every service, so as to avoid stagnation at a particular level, subject however to the condition that the incumbents of a service are otherwise qualified to shoulder the responsibilities of the higher promotional post. The appropriate authority of the Government, therefore, should bear this in mind and consider the feasibility and desirability of continuing the supernumerary posts already created in the Boilers and Factories Department on a permanent basis, so that the employees from the lower echelon in the said Department have a promotional channel or to make suitable

- 41 - ( 2024:HHC:17027 )

promotional avenue at least upto some level, so that there would not be any discontentment amongst the employees in the concerned Department."

NON-FINALIZATION OF RULES SINCE 2007 TILL DAY ARBITRARY:

16. In instant case, respondent No 1 created

one post of Manager [IT] on regular basis on 5.8.2006

[Annexure A-3]. The process for framing the Rules

was undertaken. Accordingly, the respondent No 2-

Director, HIPA, Shimla, framed the Draft Rules on

25.03.2007 [Annexure R-IV]. These Draft Rules were

modified by issuing the Revised Draft Rules dated

01.08.2009 [Annexure A-7/Annexure R-VIII], which

being ambiguous, anomalous, absurd and incapable

of being implemented in current form, has already

been quashed and set aside by this Court. In this

backdrop, this Court deprecates that the State

Authorities have failed to perform its bounden

statutory obligations by not finalizing the Rules since

2006 till today. This unfettered, unrestricted and

uncanalized discretion exercised by State Authorities,

- 42 - ( 2024:HHC:17027 )

in sitting over the matter and in not finalizing

the Rules [since 2007 onwards]. Non-finalization of

Service Rules, has prejudiced the petitioner by the

depriving him of the conditions of service including

promotion and promotional avenues vis-à-vis his

counterpart employees in the same department, who

were appointed on analogous posts/cadre and thus

non-finalization of Service Rules is not in spirit

of good administration when, the State Authorities

have prescribed-outlined the procedure for framing

Rules on 07.07.2008, which reads as under :-

"(H.P. Govt. Deptt. of Personnel letter No. Per(AP-C)-A-4(1)/95-Loose, dated the 7th July, 2008 addressed to all the Pr. Secretaries/Secretaries, all Divisional Commissioners, Heads of Department and Deputy Commissioners, in HP) Subject: Amendment in the Rules of Business of the Government of H.P.- Instructions regarding framing/amending the Recruitment and Promotion Rules.

I am directed to refer to this Department letter No. PER(AP)-C-B(19)-2/98 dated the 22nd April, 1999 on the subject cited above and to say that presently in accordance with Rules-14 of the Rules of Business of the Government of Himachal Pradesh, 1971, the Recruitment and

- 43 - ( 2024:HHC:17027 )

Promotion Rules framed under provisos to Article 309 of the Constitution of India, and the Recruitment and Promotion Rules requiring substantive amendments in case of Class-I & II Posts/Services are taken to Cabinet for their approval. However, in case of minor amendments like change of nomenclature of post, increase or decrease of number of posts and change of pay scales, as per delegation made by the Cabinet, such amendments are not required to be taken to the cabinet for approval. Besides, the Recruitment and Promotion Rules in respect of Class III & IV posts are also not taken to the Cabinet for approval and such Rules whether framing of new Rules or carrying out of amendments in these Rules, are notified by the concerned Administrative Departments after having obtained the approval of the Hon'ble Chief Minister and Minister-in-charge concerned respectively.

2. The matter regarding delegation of powers for framing/amendment of Recruitment and Promotion Rules of Class-II posts was under consideration of the Government for quite some time. Now the Government after taking into consideration all aspects, have amended Clause 2(c) of the Schedule under Rule-14 of the Rules of Business in the following manner:-

"(c) Persons appointed to the Public Service and posts (Excepting Class-II, III & IV post(s) in connection with the Affairs of State:

"Provided that minor amendments in the service rules of Class-I posts like change of Pay scales, nomenclature of posts, number of posts and age limit for direct

- 44 - ( 2024:HHC:17027 )

recruitment pursuant to the notification /instructions of the Department of Personnel shall be made by the concerned Administrative Department with the approval of the Minister-in-charge.

Provided further that the cases of Class-II & III posts involving difference of opinion with the Himachal Pradesh Public Service Commission and where there is departure from common rules shall be brought to the Council of Ministers. (Proviso to Article-

309)"

3. In view of the aforesaid amendments in the Rules of Business of the Government of Himachal Pradesh, the following procedure should now be adopted for framing of Recruitment & Promotion Rules in future:-

1) The formal prescribed procedure for framing of Recruitment & promotion Rules for the present is that the Administrative Departments first of all obtain the clearance of the Department of Personnel and thereafter they seek clearance from the Law & Finance Departments.

2) In case all these Consulting Departments clear the cases of Recruitment & Promotion Rules, the Administrative Department are not required to come to the Rules Committee for their approval as was the practice in the past. As such they go to the H.P. Public Service Commission for obtaining their consent before taking the proposal to the Cabinet for their approval.

3) But, in case, if there is a difference of opinion of the Administrative Department either with any of the Consulting Departments or with the H.P. Public

- 45 - ( 2024:HHC:17027 )

Service Commission, only in that case the Rules are taken to the Rules Committee to sort out the difference of opinion.

4) All Recruitment & Promotion Rules in respect of Class-I posts or amendments thereto should continue to be brought before the Council of Ministers for their approval after following the existing procedure. However, minor amendments in the Recruitment & Promotion Rules of Class-I posts like change of Scale, nomenclature of posts, number of posts and age limits or direct recruitment in pursuance of Department of Personnel's notifications/ instructions issued, shall be made by the Administrative Departments with the approval of the Minister-in-

charge concerned.

5) All Recruitment & Promotion Rules in respect of Class-II & III posts whether framing of new Rules or amendments thereto should not go the Council of Ministers. The Administrative Departments should notify these Recruitment & Promotion Rules after having obtained the approval of the Hon'ble Chief Minister through the Minister-in-charge concerned. However, in cases where there is a difference of opinion with the H.P. Public service Commission and where there is departure from common Rules, only such matter shall be brought before the Council of Ministers after having the approval of the Rules Committee in the matter.

6) All Recruitment & Promotion Rules in respect of Class-IV posts together with substantial changes/amendments thereto shall continue to be notified by the Administrative Department after having the

- 46 - ( 2024:HHC:17027 )

approval of the Minister-in-Charge concerned, as heretofore.

4. These instructions may be brought to the notice of all concerned for strict compliance."

16(i). In above backdrop, the inaction of the

State Authorities in neither finalizing the Rules nor

in providing promotional avenues, but in forcing the

petitioner to stagnate on the same post of Computer

Operator since his initial appointment on adhoc

basis on 21.08.1990 and since regularization on

30.11.1996 and thereafter vis-à-vis his counterparts

who were given atleast 2-3 promotions amounts to

an unfair treatment resulting in malice vis-à-vis the

petitioner. In view of the discussion in preceding

paras and in fact-situation of instant case, the

denial of consideration and resultant promotion to

the petitioner either to post of Manager [IT] or to

any other promotional hierarchy is solicited in order

to remove prolonged stagnation and to avoid the

charge of discrimination qua other counterparts in

- 47 - ( 2024:HHC:17027 )

the same department who have been granted atleast

2-3 promotions in last 34 years whereas petitioner

has been isolated/singled out.

CONCLUSION

17. Based on pleadings and contentions raised

and the mandate of law, as referred to above, this

Court is of the considered view, that the Revised

Draft Rules dated 01.08.2009 [Annexure A-7/Annexure

R-VIII] and Rule 10 and 11 results in absurdity

and these provisions creates an anomalous situation

rendering them incapable of implementation and

impossible of being enforced, even if it is finalized

in present form, in view of overlapping prescriptions

provisions of Rule 10 and 11 in Revised Draft

Rules dated 01.08.2009 being inter-se contradictory.

Thus, these Revised Draft Rules are arbitrary, illegal,

unreasonable and the same are declared inoperative

and are quashed and set aside. Consequent upon,

the quashing of the Revised Draft Rules dated

01.08.2009, this Court leaves it open for the State

- 48 - ( 2024:HHC:17027 )

Authorities, to finalize Draft Rules dated 25.03.2007

[Annexure R-IV] for the post of Manager [IT] in

extant form or in modified form in accordance

with law and while doing so, the State Authorities

are mandated to consider and bear in mind the

prolonged stagnation of the petitioner vis-à-vis his

counterpart employees in the same department who

have been granted atleast 2-3 promotions during

a span of 34 years whereas as per the material

on record, the petitioner has been made to stagnate

on the same post since 1990.

Accordingly, in fact situation of instant

case and the discussion made here-in-above, the

State Authorities-Respondents are mandated to finalize

the Draft Rules dated 25.03.2007 [Annexure R-IV]

latest by 31.07.2025. Failure to finalize the Rules

on or before the date fixed hereinabove shall result

in deemed restoration and finalization of the Draft

Rules dated 25.03.2007 [Annexure R-IV] for all intents

- 49 - ( 2024:HHC:17027 )

and purposes, by mandating the Respondents-State

Authorities to mandatorily consider the petitioner

and other eligibles for promotion against the post

of Manager [IT] or any other equivalent post thereto

so as to provide promotional avenues to petitioner,

who has been made to stagnate on the same post

of Computer Operator for the last 34 years in

any appropriate manner, so as to provide parity

and to avoid the charge of discrimination vis-à-vis

his counterparts, who have been given promotion

on 2-3 hierarchical posts in the same department.

The entire exercise cannot be permitted to operate

endlessly and accordingly, this Court mandates that

the State Authorities to complete the entire process in

aforesaid terms.

DIRECTIONS:

18. In view of the above discussion and for

the reasons stated here-in-above, the instant petition

is allowed, in the following terms :-

(i) The Revised Draft R & P Rules for the

- 50 - ( 2024:HHC:17027 )

post of Manager [IT] dated 01.08.2009 [Annexure A-7/Annexure R-VIII] and Rule 10 and 11 being arbitrary, illegal and violative of Article 14 and 16 of the Constitution of India are struck down and declared inoperative ;

(ii) State Authorities are mandated to finalize the Draft R & P Rules dated 25.03.2007 [Annexure R-IV/A-5 & A-6] for post of Manager [IT] on or before 31.07.2025;

(iii) Failure to finalize Rules as per direction no (ii) above; shall result in deemed finalization of the Draft Rules dated 25.03.2007 [Annexure R-IV], entitling the petitioner and other eligible to be considered for promotion to the post of Manager [IT] thereunder ;

(iv) While finalizing Rules are directed to consider and bear in mind prolonged stagnation of petitioner on same post for 34 years vis-à-vis his counterpart incumbents who were promoted on 2-3 hierarchical post during this period, so as to ensure parity and to avoid charge of discrimination;

(v). Parties to bear respective costs.

In aforesaid terms, the petition is disposed of

- 51 - ( 2024:HHC:17027 )

and all pending application(s), if any, shall also stand

disposed of.

(Vivek Singh Thakur) Judge

(Ranjan Sharma) Judge 28th May, 2025 (Chiranjeev/tm)