Keerti Kumari vs State Of Haryana & Ors.

HARPREET SINGH BRAR, J.HARPREET SINGH BRAR, J.

The present Civil Writ Petition has been filed under Article 226/227 of the Constitution of India seeking issuance of an appropriate writ, order or direction, particularly in the nature of mandamus, directing the respondents to consider the candidature of the petitioner for promotion to the post of Programmer from the date she became eligible, i.e. 30.07.2012. The petitioner further seeks a direction to the respondents not to fill up the post of Programmer by any mode other than promotion, in view of the instructions dated 14.03.2008 (Annexure P-6), which stipulate that where a single post is available, the same is required to be filled up by promotion in the first instance and, only in the absence of an eligible candidate, by direct recruitment. A further prayer has been made to restrain the respondents from taking any action pursuant to the approval/sanction dated 12.12.2013 (Annexure P-4), otherwise than in accordance with the aforesaid instructions.

Learned counsel for the petitioner, inter alia, contends that the petitioner was appointed as Junior Programmer with respondent No.3-College, which is an aided college, and is aggrieved by the action of the respondents in seeking to fill up the next higher post of Programmer by way of direct recruitment, despite the availability of an avenue of promotion under the applicable Rules. He submits that the posts of Lecturer in Computer Engineering, Programmer and System Analyst constitute a common cadre and draws attention to Rule 15 of the Haryana Technical Education Department (Group B) Service Rules, 2001 (hereinafter referred to as the “Rules of 2001”), which provides that 85% of the posts in the common cadre are to be filled by direct recruitment and 15% by promotion from amongst Junior Programmers/Laboratory Technicians/Computer Operators of the relevant discipline, or by transfer/deputation in the manner prescribed therein.

He further refers to the instructions dated 14.03.2008 (Annexure P-6) issued by the Director, Technical Education, Haryana, whereby it was clarified that where the prescribed percentage results in a single post being available in a cadre, such post is to be filled by promotion in the first instance and, only where no eligible person is available, the same may be filled by direct recruitment in accordance with the prescribed procedure. He submits that respondent Nos.1 and 2, in their written statement, have themselves admitted that the posts of Lecturer in Computer Engineering, Programmer and System Analyst constitute a common cadre. He submits that although six posts are sanctioned in the cadre, the respondents cannot disregard the promotional quota prescribed under Rule 15 of the Rules of 2001 merely on the ground that the first six posts are required to be filled by direct recruitment and the seventh post would thereafter fall to the promotional quota.

It is further submitted that the affidavit dated 28.02.2020 filed by the petitioner demonstrates that, since 1995, the promotional quota has virtually not been operated, except in the case of one incumbent, namely, Ravinder Rathee, who was promoted on 19.09.1997. According to learned counsel, as many as thirteen incumbents have been appointed by way of direct recruitment during the period from 1995 to 2014, whereas the petitioner, despite being in the feeder cadre and possessing the requisite qualifications, has not been considered for promotion.

Per contra, learned counsel appearing for respondents No.3 and 4 submits that the post of Programmer is a single post and the petitioner seeks its filling up by promotion. It is argued that the service conditions governing the post are prescribed by statutory Rules framed under Article 309 of the Constitution of India and, therefore, the executive instructions dated 14.03.2008 cannot override or modify the statutory Rules. It is further contended that since Rule 15 ibid prescribes 85% posts for direct recruitment and only 15% for promotion, a single post cannot be treated as falling within the promotional quota and the respondents were, therefore, justified in proceeding with direct recruitment. He further relies upon the judgment of the Division Bench of this Court in Ramesh Chand Yadhuwanshi v. SandeepRamesh Chand Yadhuwanshi v. Sandeep Kharab and others, LPA No.960 of 2013Kharab and others, LPA No.960 of 2013, and submits that the right of a candidate to be considered for promotion has to be examined in accordance with the Rules applicable at the relevant point of time. It is contended that the applicable Rules were subsequently amended in the year 2019 and, in view thereof, the petitioner cannot claim promotion under the amended statutory regime.

In rebuttal, learned counsel for the petitioner submits that the aforesaid plea regarding amendment of the Rules was neither pleaded nor specifically raised in the reply filed on behalf of respondents No.3 and 4. It is further submitted that the rights of the petitioner are required to be examined with reference to the Rules and the eligibility conditions prevailing when the vacancy was sought to be filled and when the selection process was initiated.

After hearing learned counsel for the parties and perusing the record, it transpires that the petitioner was initially appointed as Junior Programmer with respondent No.3-Chhotu Ram Polytechnic College, Rohtak (hereinafter referred to as the “College”) on 30.07.2009. The post of Lecturer in Computer Engineering/Programmer/System Analyst is governed by the Rules of 2001. Rule 15 thereof reads as under:

It is not in dispute that respondent No.3-College sought administrative approval from the Director General, Technical Education Department, Haryana for recruitment against sanctioned vacant posts and that approval was granted in respect of one post of Programmer. The grievance of the petitioner is that the said post was sought to be filled by direct recruitment without first examining the availability of an eligible candidate from the promotional quota.

The instructions dated 14.03.2008 (Annexure P-6), issued by the Director, Technical Education, Haryana, are also relevant. The said instructions clarify that where, on account of the prescribed percentage, only a single post is available in the cadre, the first mode to be adopted is promotion and, in the event that no eligible person is available, the post may thereafter be filled by direct recruitment. The eligibility conditions prescribed for the post under the respective modes of recruitment are reproduced below:

A perusal of the aforesaid qualifications makes it clear that the petitioner, being a Junior Programmer and possessing a first-class Master’s Degree in Computer Application, fulfilled the prescribed eligibility conditions for consideration against the promotional quota. Thus, the issue is not one of absence of an eligible candidate. Rather, the material on record indicates that the petitioner was available in the feeder cadre and possessed the requisite qualifications and experience. The stand taken by respondents No.1 and 2 is that six sanctioned posts constitute a common cadre of Lecturer in Computer Engineering/Programmer/System Analyst and, therefore, all the first six posts are required to be filled by direct recruitment, with the seventh post falling to the promotional quota. This interpretation, however, does not appear to be borne out from a plain reading of Rule 15 ibid.

Rule 15 ibid specifically reserves 15% of the posts for promotion. The existence of six sanctioned posts in the common cadre cannot, by itself, have the effect of extinguishing the promotional quota. If such an interpretation were accepted, the promotional avenue of the feeder cadre could effectively remain unoperated indefinitely, notwithstanding the specific statutory prescription reserving a percentage of posts for promotion. The factual position emerging from the record assumes considerable significance in this regard. The details furnished by the Principal of respondent No.3-College in the affidavit dated 28.02.2020 demonstrate that, over a considerable period, appointments against the posts constituting the common cadre were overwhelmingly made by direct recruitment. The relevant details are as follows:

The aforesaid tabular statement reveals that, except for Ravinder Rathee, who was promoted on 19.09.1997, the posts forming part of the common cadre have consistently been filled by direct recruitment. This factual position lends considerable support to the petitioner’s contention that the promotional quota prescribed under Rule 15 has not been given its intended effect. The respondents cannot be permitted to interpret a quota prescribed by statutory Rules in a manner which renders one of the modes of recruitment practically otiose. The 85:15 ratio prescribed under Rule 15 has to be given meaningful effect. The respondents are required to maintain the prescribed proportion between direct recruitment and promotion rather than treating the promotional quota as becoming operative only after six posts have been filled by direct recruitment. It is also relevant that the Director, Technical Education, Haryana, while issuing the clarification dated 14.03.2008, specifically addressed the situation where the application of the prescribed percentage resulted in a single post being available. The clarification provides that promotion should be resorted to in the first instance and direct recruitment can be undertaken only if no suitable/eligible candidate is available.

In the present case, the petitioner was admittedly working as a Junior Programmer and, as noticed hereinabove, possessed the requisite qualification and experience for consideration against the promotional quota. Therefore, the very contingency contemplated in the clarification dated 14.03.2008, namely, absence of an eligible person, did not arise. The contention of respondents No.3 and 4 that the executive instructions dated 14.03.2008 cannot override the statutory Rules is, in principle, unexceptionable. However, the petitioner does not seek modification of Rule 15 through the executive instructions. Rather, the clarification is being relied upon for understanding and implementing the prescribed recruitment ratio in a situation where application of the percentage results in a single post. The clarification, therefore, cannot be said to have the effect of amending the statutory Rule. The respondents’ own pleadings further disclose that the posts of Lecturer in Computer Engineering, Programmer and System Analyst constitute a common cadre. Once that position is accepted, the respondents are required to apply the recruitment ratio prescribed for the common cadre as a whole. The post cannot be treated in isolation merely because the designation of the particular vacancy is “Programmer”.

This Court is also conscious of the fact that the petitioner cannot claim promotion as a matter of right merely by satisfying the eligibility conditions. However, the petitioner certainly has a right to be considered for promotion in accordance with the applicable Rules and the quota prescribed therein. The respondents cannot deny such consideration by filling the post through another mode in disregard of the promotional quota. The reliance placed by learned counsel for respondents No.3 and 4 upon RamRamesh Chand Yadhuwanshi v. Sandeep Kharabesh Chand Yadhuwanshi v. Sandeep Kharab and others, LPA No.960 of 2013and others, LPA No.960 of 2013, does not advance their case. The principle that promotion has to be considered with reference to the Rules applicable at the relevant time is not in dispute. In the present case, the advertisement was issued on 10.06.2014 and the petitioner admittedly participated in the selection process and appeared for interview on 22.07.2014. Therefore, the rights of the parties have to be examined with reference to the Rules applicable when the recruitment process was initiated. A subsequent amendment of the Rules in the year 2019 cannot retrospectively govern a selection process which had already commenced in the year 2014, in the absence of any provision giving such amendment retrospective operation.

It is significant that respondents No.1 and 2 have admitted that the petitioner applied for the post of Programmer pursuant to the advertisement dated 10.06.2014 and appeared for interview on 22.07.2014. Thus, the petitioner cannot now be deprived of consideration by applying a subsequent amendment which was not in existence when the recruitment process was initiated. On a cumulative consideration of the pleadings, the statutory Rules, the clarification dated 14.03.2008 and the factual position emerging from the affidavit dated 28.02.2020, this Court is of the considered view that the petitioner was entitled to consideration against the promotional quota in accordance with Rule 15 of the Rules of 2001. The respondents were not justified in proceeding on the assumption that all six sanctioned posts in the common cadre were necessarily required to be filled by direct recruitment before the promotional quota could be operated.

At the same time, having regard to the fact that the recruitment process was initiated in the year 2014 and the present petition has remained pending for a considerable period, it would not be appropriate for this Court to straightaway direct the appointment of the petitioner. The appropriate course would be to direct the competent respondents to ascertain the vacancy position and determine whether a post falling within the promotional quota became available on account of resignation, retirement or any other reason.

In view of the foregoing discussion, the present petition is disposed of with a direction to respondents No.1 to 3 to undertake an exercise for identifying the post falling within the promotional quota under Rule 15 of the Rules of 2001 and to ascertain whether the post earlier occupied by Ravinder Rathee, who was promoted on 19.09.1997, or any other post forming part of the promotional quota became vacant on account of resignation, retirement or any other reason. In case any such vacancy is found to have arisen and the petitioner was eligible for consideration against the same in terms of the Rules applicable to the recruitment process initiated vide advertisement dated 10.06.2014, her candidature shall be considered in accordance with law and the applicable selection process. Needless to say, the claim of the petitioner shall be considered objectively and strictly in accordance with the Rules, without applying the subsequent amendment of the year 2019 retrospectively to the selection process initiated in 2014.

The aforesaid exercise shall be completed by the competent respondents within a period of eight weeks from the date of receipt of a certified copy of this order. A reasoned and speaking order shall thereafter be passed and communicated to the petitioner.

The present petition is accordingly disposed of in the aforesaid terms.

Pending miscellaneous application(s), if any, shall also stand disposed of.