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Judgment
Rajiv Sharma, J.—Since common questions of law are involved and the facts are also almost the same in all these petitions, the same were directed to be heard together vide order dated 9.12.2011 and are being disposed of by a common judgment. However, in order to maintain clarity, the facts of CWP No. 7662 of 2011 have been taken into consideration.
CWP No. 7662 of 2011.
Petitioners are working as Assistant Librarians in the respondent-department. They are holding Bachelor and Master�s Degrees in Library and Information Science. The respondent-State has framed the rules under Article 309 of the Constitution of India, called "the Himachal Pradesh Education Department Class-III (Technical) Service (Recruitment, Promotion and certain conditions of Service) Rules, 1971. These Rules have come into force with effect from 24th December, 1973. According to these rules, the mode of recruitment for the post of District Librarian/College Librarian/Junior Librarian (Central State Library, Solan) was 75% by way of promotion from amongst the Assistant Librarians/College/School/Public and Community Centre Librarians on the basis of seniority-cum-merit, subject to the fulfillment of minimum educational qualifications prescribed and 25% by direct recruitment. The relevant Rules 6 and 7 of the said Rules are reproduced as under:-
Educational and technical qualification of Candidates- No person shall be appointed to the service unless in the case of appointment to the post of:-
(ii) District Librarian/College Librarian/Junior Librarian (Central State Library, Solan) � He is graduate of a recognized University with diploma in Library Science from a recognized institution.
(iii) Assistant Librarians (College/School/Public and community Central Libraries � He has passed at least Matriculation or its equivalent examination of any recognized University/Board with certificate in Library Science from a recognized institution.
Method of Recruitment: Post in the service shall be filled either by promotion or direct appointment in the following manner:-
(b) 25% by direct recruitment.
(ii) District Librarian/College Librarian/Junior Librarian (Rs. 220-500) �(a) 75% by promotion from amongst assistant Librarians (125-300) College, School Public and Community Centre Libraries on the basis of seniority-cum-merit: provided they fulfill minimum prescribed qualifications, failing which by direct recruitment.
According to the University Grants Commission, the following is the minimum educational qualification prescribed for the posts of Assistant University Librarian/College Librarian/Documentation Officer:-
Assistant University Librarian/College Librarian/ Documentation Officer:
i. Qualifying the national level test conducted for the purpose by the UGC or any other agency approved by the UGC.
ii. Master�s Degree in Library Science/ Information Science/Documentation or an equivalent professional degree with at least fifty five percent marks or its equivalent grade plus a consistently good academic record
OR
Master�s degree in Arts/ Science/ Commerce or equivalent degree with at least fifty five percent marks or its equivalent grade with Bachelor�s degree in Library Science/ Information Science/Documentation or an equivalent professional degree with at least fifty five percent marks or its equivalent grade plus a consistently good academic record; Minimum qualifications for appointment to the posts of Librarian, Dy. Librarian, Assistant Librarian/College Librarian & Documentation officer. (Rs. 4500-150-5700-200-7300).
The respondent-State has decided vide notification dated 16th August, 2011 to bifurcate the cadre of District Librarians/College Librarians/Junior Librarians (Central State Library, Solan) into following two cadres:-
65 posts of Librarian (College Cadre) Class-I, Gazetted and contract in the Pay scale of Rs. 15,600-39,100+6,000/- G.P. for regular incumbent and Rs. 21,600/- for Librarian on Contract appointee (100% by Direct Recruitment).
16 posts of Librarian (State Cadre) Class-III, Non-Gazetted in the Pay scale of Rs. 10,300-34,800+3600/- G.P. (100% by promotion).
Thereafter the respondent-State has issued notification dated 19th August, 2011, framing the Rules called "The Himachal Pradesh, Higher Education Department, Librarian (State Cadre) (Class-III) (Non-Gazetted) Recruitment and Promotion Rules, 2011." The respondent-State has also framed the Rules called "The Himachal Pradesh, Higher Education Department, Librarian (College Cadre) Class-I (Gazetted) and contract Recruitment and Promotion Rules, 2011", on 19th August, 2011. The rules framed on 24th December, 1973 were repealed to the extent these pertain to the post of Librarians (College Cadre).
The case of the petitioners, in a nutshell, is that 18 posts of Librarians were lying vacant at the time, the cadre was bifurcated vide notification dated 16th August, 2011 and these poses are required to be filled-up according to the Rules notified on 24th December, 1973 read with Annexure P-5, dated 20th February, 1990.
The respondent-State has filed the reply. It is admitted by the respondent-State that 18 posts of Librarians were lying vacant at the time of bifurcation of the cadre.
CWP-T No. 1917 of 2008-G.
The petitioner has approached the erstwhile learned Himachal Pradesh Administrative Tribunal by way of O.A. No. 1343 of 2007. The case of the petitioner, in a nutshell, is that he is fully eligible and qualified to be considered for the post of Librarian as per UGC Guidelines read with Recruitment and Promotion Rules. The petitioner has also assailed the appointment of private respondents to the post of Librarian.
CWP No. 1445 of 2009-C.
The case of the petitioners, in a nutshell, is that they are fully eligible and qualified to be considered for the post of Librarian as per University Grants Commission norms and the action of the respondents of not considering them for the post of District Librarian, College Librarian, Junior Librarian (Central State Library, Solan) by convening the Departmental Promotion Committee is illegal, arbitrary and thus violative of Articles 14 and 16 of the Constitution of India.
Ms. Ranjana Parmar, Mr. Dushyant Dadwal and Ms. Sunita Sharma, learned counsel for the petitioners have vehemently argued that the old vacancies are required to be filled-up according to the Rules notified on 24th December, 1973 and the action of the respondent-State to fill-up these posts on the basis of new Recruitment and Promotion Rules, notified on 19th August, 2011 is illegal and arbitrary.
Mr. Vikas Rathore, learned Deputy Advocate General has strenuously argued that since the new Recruitment and Promotion Rules have been promulgated on 19th August, 2011, these posts are required to be filled-up as per new Rules.
I have heard learned counsel for the parties and gone through the pleadings and record carefully.
The respondent-State has framed the Rules, as noticed above, on 24th December, 1973 for filling up the posts of District Librarians, College Librarians, Junior Librarians. The minimum educational qualifications prescribed in the Rules was Graduate of a recognized University with diploma in Library Science from a recognized Institution. However, later on when the State decided to give the pay-scale on UGC pattern, the qualifications were revised as stated hereinabove. The petitioners in CWP No. 7662 of 2011 have sought information from the respondent-State how many posts of Librarians were lying vacant throughout the State of Himachal Pradesh. The petitioners were informed vide Annexure P-12B that 18 posts of Librarian were lying vacant throughout the State of Himachal Pradesh. This fact has not been denied by the respondent-State in its reply. The decision to bifurcate the cadre into two cadres has only been taken on 16th August, 2011, i.e. 65 posts of Librarian (College Cadre) Class-I Gazetted and 16 posts of Librarian (State Cadre) Class-III, Non-Gazetted. The Rules have been framed after the bifurcation of cadre and notified on 19th August, 2011 for the posts called The Himachal Pradesh, Higher Education Department, Librarian (State Cadre) Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2011 and The Himachal Pradesh, Higher Education Department, Librarian (College Cadre) Class-I (Gazetted) and contract Recruitment and Promotion Rules, 2011.
It is settled law that the old vacancies are to be filled-up as per old Rules and the new vacancies according to the new Rules. The petitioners have a right to be considered for promotion to the posts of District Librarians, Librarian (College Cadre), Junior Librarians (Central State Library, Solan) as per the Rules notified on 24th December, 1973 read with the norms prescribed by the UGC Guidelines and adopted by the State of Himachal Pradesh whereby the educational qualification has been increased. The petitioners are possessing the minimum educational qualification prescribed under the Recruitment and Promotion Rules read in conjunction with the norms prescribed by the UGC on 20th February, 1990. The petitioners have been legitimately expecting that their case shall be considered for promotion by convening the Departmental Promotion Committee to the higher post. It is well settled that the incumbents do not have a right to be promoted, but they have a right to be considered for promotion in a just and fair manner.
The question whether the vacancies occurring before the amendment to the Recruitment and Promotion Rules are to be filled up as per the old Recruitment and Promotion Rules or by way of new Recruitment and Promotion Rules is no more res integra in view of the law laid down by their Lordships of the Hon�ble Supreme Court in Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, . Their Lordships have held that the vacancies in the promotional posts occurring prior to the amendment have to be filled up in accordance with the un-amended rules. Their Lordships have held as under:
The Tribunal on consideration of the materials on record came to the conclusion that the vacancies that arose between the preparation of the panels in December, 1975 and April, 1977 were eight, and that there was no reason why panel for that period should not have been drawn up at all. It is true that after 18th of October, 1975 the zones came into existence and, therefore, promotions to the grade of Sub-Registrar were required to be made on zonal basis, but after the personnel had been allocated to various zones, the task of preparing the annual panel with reference to the vacancies arising during the period 1976-77 should have been taken up on the basis of the seniority list for Zone IV. Had such a list been prepared according to the Andhra Pradesh Registration and Subordinate Service Rules, the eligibility of the candidates would naturally have been considered without reference to the amendment issued in March, 1977. On these findings the Tribunal held that the action taken by the Inspector-General of Registration and Stamps to make appointments against vacancies arising during the period 1976-77 from amongst the ''left-overs'' of the panels drawn up in April, 1975 and to dispense with the preparation of panel for 1976-77 was in violation of the rules and thus liable to be set aside, and it directed the State of Andhra Pradesh and the Inspector-General of Registration and Stamps to draw up a fresh panel for the year 1976-77 with reference to the vacancies that arose during that period, strictly in accordance with the rules as they existed at the time and the vacancies pertaining to that period should be filled on the basis of such a panel. Since the amendment to the rules was made in March, 1977, it follows that for vacancies relating to the panel year 1977-78 and subsequent year the panels will have to be prepared in accordance with the rules as they were amended by G. O. Ms. No. 265-Revenue (UI) dated 22nd March, 1977.
Their Lordships of the Hon�ble Supreme Court in B.L. Gupta and Another Vs. M.C.D., have held that the vacancies which have arisen prior to 1995 should have been filled up according to old rules. Their Lordships have held as under:
When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been held to be prospective by the High court and in our opinion this was the correct conclusion. This being so, the question which arises is whether the vacancies which had arisen earlier than 1995 can be filled as per the 1995 Rules. Our attention has been drawn by Mr. Mehta to a decision of this court in the case of N.T. Devin Katti v. Karnataka public service commission. In that case after referring to the earlier decisions in the cases of Y.V. Rangaiah v. J. Sreenivasa Rao, P. Ganeshwar Rao v. State of A.P. and A.A. Calton v. Director of Education it was held by this court that the vacancies which had occurred prior to the amendment of the Rules would be governed by the old Rules and not by the amended Rules. Though the High court has referred to these judgments, but for the reasons which are not easily decipherable its applicability was only restricted to 79 and not 171 vacancies, which admittedly existed. This being the correct legal position, the High court ought to have directed the respondent to declare the results for 171 posts of Assistant Accountants and not 79 which it had done. 10. We are unable to agree with Shri Sanghi that by virtue of their length of service while holding current duty charge as Assistant Accountants, his clients should be regularised in the said posts. Merely because the same posts have been upgraded from Senior Clerks to Assistant Accountants, it would not mean that persons who were given the current duty charge could be regularised without any selection. The clients of Mr. Sanghi presumably hold lien in the posts of Senior Clerks. If they were to be regularised as Assistant Accountants, the effect would be that they would be promoted to the said posts. The Rules of 1978 prescribe the mode in which the promotions can be made. This mode has to be followed before the appointments could be made. If no statutory rules had existed, it may have been possible, though we express no opinion on it, that the existing incumbents may have been regularised. Where, however, statutory rules exist, the appointments and promotions have to be made in accordance with the statutory rules specially where it has not been shown to us that the Rules gave the power to the appointing authority of relaxing the said Rules. In the absence of any such power of relaxation, the appointment as Assistant Accountant could only be made by requiring the candidates to take the examination which was the method which was prescribed by the 1978 Rules.
We are informed at the Bar by Dr Singhvi, on the basis of instructions received by him, that now there are about 323 posts of Assistant Accountants. Out of these about 80 have been filled on the basis of the December 1973 examination. The respondents are directed to fill 91 more vacancies on the basis of December 1993 examination which they have already conducted. This will leave a balance of 152 vacancies. The number of persons who are holding these posts on current duty charge appears to be less than the number of vacancies so available. Therefore, there will be no immediate danger of Mr. Sanghi''s clients being reverted to the post of Senior Clerks. The respondents will be at liberty to continue to retain them in the higher post, but it is made clear that the vacancies which had arisen prior to amendment of the Rules in 1995 can only be filled in accordance with the 1978 Rules, which means that if Mr. Sanghi''s clients want to be regularly appointed as Assistant Accountants, they will have to compete with and take the examination under the 1978 Rules. This is with regard to the vacancies which remain and are required to be filled under the 1978 Rules. Any vacancies which arise after 1995 will have to be filled as per the amended Rules. It is but obvious that the seniority in all these cases will have to be fixed according to the seniority rules which are applicable.
Similarly, their Lordships of the Hon�ble Supreme Court in Arjun Singh Rathore and Others Vs. B.N. Chaturvedi and Others, have held that vacancies occurring prior to promulgation of the Recruitment and Promotion Rules were to be filled up according to the old Rules even though interview was held in 2000 when the new rules had already been notified. Their Lordships have held as under:
Mr. Calla, the learned senior counsel for appellants has argued that the matter was fully covered by the judgment of this Court in State of Rajasthan Vs. R. Dayal and Others, wherein it had been held that the vacancies to be filled by promotion were to be filed under the rules which were in operation on the date when the vacancies had occurred. Relying on and referring to an earlier judgment in the case of Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, it was opined as under:
This Court has specifically laid (sic) that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in accordance with the law existing as on the date when the vacancies arose.
The above legal position has not been seriously disputed by the learned counsel for respondent Nos.6 &7. We are therefore of the opinion that the vacancies which had occurred prior to the enforcement of the Rules of 1998 had to be filled in under the Rules of 1988 and as per the procedure laid down therein. We are therefore of the opinion that the judgment of the learned Single Judge needs to be restored. We order accordingly.
The contention of Mr. Vikas Rathore, learned Deputy Advocate General that as the Government has notified the new Recruitment and Promotion Rules in the year 2011, the case of the petitioners could not be considered under the old Rules, cannot be accepted in view of the observations made hereinabove since the case of the petitioners is required to be considered against the old vacancies as per old Rules.
Accordingly, in view of the observations and discussions made hereinabove, the writ petitions are allowed. Respondents No. 1 and 2 are directed to consider the case of the petitioners for promotion according to the Rules notified vide notification dated 24th December, 1973 read in conjunction with letter dated 20th February, 1990 against the posts of Librarian/College Cadre Librarians, Junior Librarians (Central State Library, Solan), lying vacant on or before the date of bifurcation of the cadre vide notification dated 16th August, 2011, within a period of eight weeks after the production of certified copy of this judgment by the petitioner(s). The pending application(s), if any, also stands disposed of. No costs.