Devi Singh vs State of Himachal Pradesh and Others

Justice Rajiv Sharma, J.—Since common questions of law and facts are involved in all these petitions, the same were taken up together for hearing and are being disposed of by a common judgment. However, in order to maintain clarity, the facts of CWP No.133 of 2010-A are being taken into consideration.

CWP No.133 of 2010-A:

Petitioner was appointed as Male Health Worker in Himachal Pradesh Health Department on 10th July, 1991. The final seniority list of Male Health Workers, as it stood on 31st January, 2008 was circulated vide Annexure P-1. The tentative seniority list of Female Health Workers, as it stood on 31st August, 2008 was circulated vide Annexure P-2. The petitioner has undergone one year Diploma in Health Education from West Bengal University of Health Sciences, Kolkata in September, 2009.

CWP No.134 of 2010-A:

Petitioner was appointed as Male Health Worker in the Himachal Pradesh Health Department on 18th July, 1991. He has undergone one year Diploma in Health Education from West Bengal University of Health Sciences, Kolkata in September, 2009.

CWP No.135 of 2010-A:

Petitioner was appointed as Male Health Worker in the Himachal Pradesh Health Department on 17th January, 1985. He has undergone one year Diploma in Health Education from West Bengal University of Health Sciences, Kolkata in September, 2009.

The Departmental Promotion Committee for promotion to the post of Health Educators was convened by the respondent-department on 30th June, 2009. The private respondents were promoted to the post of Health Educator on ad hoc basis vide office order dated 13th July, 2009.

Mr. M.L. Sharma, learned counsel for the petitioners has argued that the action of the respondent-department to convene the Departmental Promotion Committee on 30th June, 2009 without waiting for the result of the petitioner(s) from West Bengal University of Health Sciences, Kolkata is arbitrary. In other words his submission is that the convening of the Departmental Promotion Committee should have been postponed till the result of the petitioners and similarly situate persons was not declared by the respective institutions where they have undergone one year Diploma in Health Education. Mr. M.L. Sharma, learned counsel for the petitioners has also argued that as per second proviso to Rule 11 of the Recruitment and Promotion Rules, for the purpose of promotion to the post of Health Educators a combined seniority list of eligible Male Health Workers, Female Health Workers and Cinema Technicians was required to be prepared without disturbing their cadre-wise inter-se seniority. He has lastly contended that the promotion of private respondents was on ad hoc basis and the respondent department may be directed to convene the fresh Departmental Promotion Committee for making promotions to the post of Health Educators.

Mr. Vikas Rathore, learned Deputy Advocate General and Mr. Umesh Kanwar, Advocate have strenuously argued that since the petitioners were not qualified on the date of convening the Departmental Promotion Committee on 30th June, 2009, their case could not be considered for promotion to the post of Health Educators. Mr. Vikas Rathore, learned Deputy Advocate General on the basis of reply filed by respondents No.1 and 2 has argued that the combined seniority list is always prepared and in this case also, the combined seniority list was prepared on the basis of seniority list including Annexures P-1 and P-2. He also argued that all the candidates submit their applications and the department only forwards the applications to the institutions for obtaining diplomas. In other words, his submission is that the department never sponsors the names of the candidates. Mr. Umesh Kanwar, Advocate appearing on behalf of the private respondents has contended that the Departmental Promotion Committee was convened for regular promotion to the post of Health Educators and the promotions of his clients have been termed as ad hoc only due to pendency of CWP(T) No.2628 of 2008 and the SLP (Civil) No.30143 of 2009.

I have heard learned counsel for the parties and gone through the pleadings and record carefully.

Petitioners have undergone one year Diploma in Health Education from West Bengal University of Health Sciences, Kolkata in the month of September, 2009. The private respondents have obtained their one year Diploma in Health Education from Female Welfare Training and Research Centre, Khetwadi, Mumbai in the month of March, 2009. It has come in the reply filed by respondents No.1 and 2 that the department does not sponsor the names of the candidates, but only forwards the applications of those candidates who are desirous of obtaining diploma in Health Education. Besides these two institutions, Faculty of Medical Sciences, University of Delhi also awards one year Diploma in Health Education.

It will be apt at this stage to refer to the Recruitment and Promotion Rules for the post of Health Educator in the Department of Health and Family Welfare, Himachal Pradesh, called the Himachal Pradesh Department of Health and Family Welfare Health Educator, Class-III (Non- Gazetted) Recruitment and Promotion Rules, 1999. These Rules have come into force with effect from 29th October, 1999. According to the Recruitment and Promotion Rules 75% posts of Health Educators are to be filled up by way of promotion and 25% by way of direct recruitment. According to Rule 11, the promotion is to be made from amongst the Male Health Supervisors/Female Health Supervisors who possess five years regular service or regular combined with continuous ad hoc (rendered upto 31.3.1998) service, if any, in the grade, failing which by promotion from amongst the Male Health Workers/Female Health Workers/Cinema Technicians who possess Diploma in Health Education with ten years regular service or regular combined with continuous ad hoc (rendered upto 31.3.1998) service, if any, in the grade. It is further provided in second proviso to Rule 11 that for the purpose of promotion, a combined seniority list of eligible officials holding the posts of Male Health Supervisors, Female Health Supervisors and Cinema Technicians on the basis of length of service without disturbing their cadre-wise inter-se seniority is to be prepared.

In the instant case, the Departmental Promotion Committee was convened on 30th June, 1999. On this date, the petitioners were not eligible since they were not possessing one year Diploma in Health Education as their result was declared in September, 2009. The respondent department could not postpone the convening of Departmental Promotion Committee for promotion to the post of Health Educators till the declaration of the result of petitioners.

The final seniority list of Male Health Workers as it stood on 31st January, 2008 was circulated vide Annexure P-1 and that of the Female Health Workers tentative seniority list as it stood on 31st August, 2008 was circulated vide Annexure P-2.

Mr. M.L. Sharma, learned counsel for the petitioners has strenuously argued that before the convening of Departmental Promotion Committee on 30th June, 2009 no combined seniority list of Male Health Workers/Female Health Workers/Cinema Technicians was prepared. It has come in the reply that the combined inter-se seniority list of all eligible persons from the feeding categories is always prepared and in this case also, the combined seniority list was prepared and it was placed before the Departmental Promotion Committee when it met on 30th June, 2009. It has also come in the reply that the combined inter-se seniority list is internally maintained in the department for consideration of the Departmental Promotion Committee for holding the promotion to the post of Health Educator, but it is not generally circulated since the purpose is only for considering the eligible persons from all the feeder categories as required under the Recruitment and promotion Rules of Health Educators. The petitioners were required to be qualified on the date when the Departmental Promotion Committee met, i.e. 30th June, 2009. The petitioners were not duly qualified on that date since they were not possessing the essential one year diploma course in Health Education from the recognized Institution(s).

Mr. M.L. Sharma, learned counsel for the petitioners has argued that the promotions of private respondents have been made on 13th July, 2009 on ad hoc basis and the department is required to convene the Departmental Promotion Committee for regular promotion. It has come in the reply that the Departmental Promotion Committee has followed the procedure for making promotions on regular basis and it was only due to the pendency of O.A. No.19 of 2008 converted into CWP(T) No.2628 of 2008 and SLP (Civil) No.30143 of 2009 that term ad hoc has been used for promoting the private respondents to the post of Health Educators. This Court vide order dated 18th September, 2009 has quashed the instructions dated 7th September, 2007. Thereafter instructions dated 16th November, 2009 were issued by the Government giving specific directions that all the promotions made on or after 7th September, 2007 may be regulated in accordance with the provisions of the instructions/procedure as applicable prior to 7th September, 2007. However, the instructions issued by the Government vide letter dated 16th November, 2009 were withdrawn on 20th January, 2010 in view of the interim stay of the Hon''ble Supreme Court granted on 4th December, 2009 in SLP (Civil) No.30143 of 2009. However, after the disposal of SLP (Civil) No.30143 of 2009 on 26th April, 2010, fresh instructions dated 1st May, 2010 have been issued by the Government thereby making the letter of instructions dated 16th November, 2009 again operational. Thus, it is evident that only due to these developments, expression ad hoc has been used in the promotion order dated 13th July, 2009 though the procedure for regular promotions as per Recruitment and Promotion Rules has been adopted. Thus, it is made clear that the promotion of the private respondents is regular from the very beginning.

Mr. M.L. Sharma, learned counsel for the petitioners towards the end has also argued that the respondent department itself vide Annexure P-10, in response to the request of petitioner qua information under the R.T.I. Act, 2005, has disclosed that no combined/integrated seniority list in respect of MHW/FHW has been prepared/available in the department. However, the fact of the matter is that the combined/integrated seniority list was required to be prepared for the purpose of making promotions from all the feeder categories to the post of Health Educators, and this, as per the reply filed by the State, has been prepared at the time of convening of the Departmental Promotion Committee. The Departmental Promotion Committee has taken this into consideration as per submissions made by Mr. Vikas Rathore, learned Deputy Advocate General for making promotion to the posts of Health Educator. The purpose of preparing of combined seniority list as per provisos 1 and 2 of Rule 11 is to ensure that all the feeder categories get equal representation without disturbing their cadre-wise inter-se seniority. Moreover, since the petitioners were not qualified on the date of convening the Departmental Promotion Committee, they are estopped from challenging the selection/promotion of the private respondents to the post of Health Educators..

In order to see whether the averments contained in the reply filed by the State with regard to preparation of combined seniority list are factually correct or not, during the course of dictating the judgment, the office of the Director of Health Services through Mr. Vikas Rathore, learned Deputy Advocate General was directed to produce the record of the Departmental Promotion Committee. The record was produced. The department had prepared the combined seniority list on the basis of final seniority list of the Male Health Workers as it stood on 31st January, 2008 and the tentative seniority list of Female Health Workers as it stood on 31st August, 2008, before convening the Departmental Promotion Committee on 30th June, 2009.

Accordingly, in view of the observations and discussions made hereinabove, there is no merit in these petitions and the same are dismissed, so also the pending application(s), if any. No costs. (Justice Rajiv Sharma), Judge. January 09, 2012. (sck).