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SUPREME COURT OF INDIA
(Himachal Pradesh High Court)
N.P. Singh, P.B. Sawant
SHAKUNTALA SHARMA (MRS), APPELLANT
Versus
HIGH COURT OF H. P. AT SHIMLA AND ANOTHER, RESPONDENTS.
Civil Appeal No. 532 of 1994
decided on February 2, 1994.
Post of Deputy Superintendent in that line of promotion - Failing the availability of the eligible candidates – Circumstances evidence - Both a Clerk and as Translator appellant was senior to Respondent 2 - Further, although the appellant was promoted to the post of Reviser - Respondent 2 was not promoted to post of Deputy Superintendent in that line of promotion - There is no dispute that there was a combined seniority list maintained and the appellant stood at whereas Respondent 2 - It is also not in dispute that the post of Superintendent is the next promotional post available both to Devisors and Deputy Superintendents – Held, In this case it is not necessary for us to go into the question whether Rule 11 of Rules which provided for the promotion to the post of the Superintendent was valid or not. Even assuming that the validity of Rule was not challenged that fact by itself would not validate the present Rule if it suffers from an inherent infirmity - Basic weakness in present Rule 10 is that it places two unequal sets of posts on a par with each other and also prescribes qualifying service for higher post as well - Posts of Deputy Superintendents and Devisors admittedly are posts higher than those of Senior Assistants and Translators respectively - If incumbents of both the sets of posts are to be made eligible for promotion to the post of Superintendent, no qualifying period of service can be prescribed for the incumbents of the posts of Deputy Superintendents and Revisers - If Senior Assistants and Translators are to be provided with promotional avenue, more posts of Deputy Superintendents and Revisers which are above posts of Senior Assistants and Translators respectively, should be created, and first the Senior Assistants and Translators have to be promoted to the said posts. In fact, the appellant who was a Translator was first promoted to the post – Court are informed that no eligible Deputy Superintendent was available for being considered to the post of Superintendent and hence Respondent 2 who was holding post of Senior Assistant had to be promoted to said post as he had put in six years service as required by the said Rule 10. Rule 10 of Rules is thus iniquitous and indefensibly unjust - It violates Articles 14 of Constitution since it treats unequal’s as equals and what is more gives unwarranted advantage to the incumbents of the lower posts over the incumbents of the higher posts - We, therefore, strike down Rule 10 Rules and direct the High Court to frame an equitable rule for promotion to the post of Superintendent in place of the said rule -We have no doubt that whatever the anxiety of the High Court to provide promotional avenues to those who are stagnated, the promotion rule will not be made in a manner which would deny to the incumbents of the higher posts promotion while giving unmerited advantage over them to those holding lower posts. The necessary consequence is that the promotion given to Respondent 2 stands quashed - Appeal is allowed
JUDGMENT
SAWANT, J. - Leave granted.
2. In the establishment of the respondent-High Court there are two sets of equivalent hierarchical posts, viz., Clerks, Translators and Revisors on the one hand and Clerks, Senior Assistants and Deputy Superintendents on the other. Above the posts of Revisors and Deputy Superintendents is the post of Superintendent which is common promotional post to both the sets.
3. The appellant was appointed as a Clerk on July 24, 1972 and was promoted as Translator on July 30, 1979. The pay scale of the Translator at the relevant time was Rs. 600-1120. It was revised to Rs. 1800-3200 w.e.f. January 1, 1986. Thereafter she was promoted to the post of Revisor on February 26, 1992 which carried the pay scale of Rs. 2000-3500.
4. As against this, Respondent 2 was appointed as a Clerk on January 7, 1974. He was promoted to the post of Senior Assistant on August 14, 1986. The post of Senior Assistant earlier carried the pay scale of Rs. 600-1120 and w.e.f. January 1, 1986 the pay scale was revised to Rs. 1800-3200.
5. It is thus apparent that the post of Translator and the post of Senior Assistant were on a par. There is also no dispute that the post of Revisor is on a par with the post of Deputy Superintendent which carried the same pay scale as that of the Revisor, viz., Rs. 2000-3500.
6. Both a Clerk and as Translator (which is the post equivalent to that of Senior Assistant), the appellant was senior to Respondent 2. Further, although the appellant was promoted to the post of Revisor (which post is equivalent to the post of Deputy Superintendent), Respondent 2 was not promoted to the post of Deputy Superintendent in that line of promotion. There is no dispute that there was a combined seniority list maintained and the appellant stood at Sl. No. 13 whereas Respondent 2, at Sl. No. 17. It is also not in dispute that the post of Superintendent is the next promotional post available both to Revisors and Deputy Superintendents.
7. On December 3, 1992 overlooking the claim of the appellant Respondent 2 was promoted as Superintendent which post carries the pay scale of Rs. 2200-4000. The High Court relied upon the High Court of Himachal Pradesh Recruitment (Conditions of Service) Rules, 1992 (the 1992 Rules) for effecting the said promotion. Rule 10 of the 1992 Rules which provides for the appointment to the post of Superintendent reads as follows :
"By promotion from amongst graduate Deputy Superintendents/Revisors with minimum 3 years of service as such in the ratio of 4:1, failing which by promotion from amongst Sr. Assistants/Translators with minimum 6 years service as such in the same ratio.
Explanation. - After promoting 4 Deputy Superintendents/Senior Assistants as Superintendents from general category .... One Revisor/Translator shall be promoted as Superintendent from amongst Revisors/Translators category."
8. The substance of the rule is that the appointment to the post of Superintendent is to be made by promotion from amongst the graduate Deputy Superintendents and Revisors with a minimum of three years of service, in the ration of 4:1, i.e., four from Deputy Superintendents and one from Revisors. The appointment from Revisor to the post of the Superintendent is to be made only after four from Deputy Superintendents are promoted to the said post. If none from the Deputy Superintendents and Revisors with the minimum of three years service is available, the appointment is to be made from amongst the Senior Assistants and Translators with minimum service of six years in the said posts.
9. The result of the rule was that since the appellant had not put in three years service as Revisor, she was disentitled to the post of Superintendent. The position further was that on the relevant date, i.e., December 3, 1992, there was no Deputy Superintendent or Revisor with minimum three years service in the respective posts. Hence the post was given to Respondent 2, as he was Senior Assistant with more than six year
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