Point of Law: Section 33 provides for reservation of posts and Section 36 thereof provides that in case a vacancy is not filled up due to non-availability of a suitable person with disability, in any recruitment year such vacancy is to be carried forward in the succeeding recruitment year.

ORDER :

1. By way of instant petition, petitioner has prayed for the following substantive reliefs:

“(b) That respondents be directed to treat the appointment of the petitioner as appointment on regular establish from the date of his appointment i.e. with effect from November, 2006.

(c) That the respondents be directed to release all consequential benefits to the petitioner in view of his regularization with effect from November, 2006 i.e. increments, regular pay scale and all other benefits which are available to regular employees etc.”

2. Brief facts necessary for adjudication of the instant petition are that petitioner was appointed on the post of Peon in the office of Child Development Project Officer, Una, District Una, H.P. vide order dated 6.11.2006, on contract basis. Petitioner is a specially abled person, having 90% permanent disability on account of hearing impairment. The appointment of petitioner was made against the post, reserved for persons with disability. The precise grievance of the petitioner is that his appointment on contract basis was improper. As per petitioner, at the time of his appointment, there was no provision in the then existing Recruitment & Promotion Rules for the post of Peon in the Department of Social and Women Welfare, where under the appointment could be made on contract basis. The said rules provided only for the regular appointments.

3. In response, the stand taken by the respondents is that the appointment of petitioner was made in pursuance to approval of the Government, conveyed vide letter dated 28.4.2006 (Annexure R-1). Further the case of respondents is that the Recruitment and Promotion Rules for the post of Peons were amended vide notification dated 19.4.2007 and the mode of appointment was prescribed as contract basis. It has also been maintained by the respondents that though the appointment of petitioner was prior to the issuance of notification dated 19.4.2007, yet the amended Recruitment and Promotion Rules would apply to the case of petitioner, as amendment of such rules was already in process since 2004. Even in the approval letter, issued by the State Government on 28.4.2006, there were directions to carry out amendments in Recruitment and Promotion Rules, if needed.

4. I have heard Mr. Ankush Dass Sood, learned Senior Advocate for the petitioner and Mr. Bharat Bhushan, learned Additional Advocate General for the respondents and have also gone through the records carefully.

5. The Recruitment & Promotion Rules for the post of Peons, issued by Social and Women Welfare Department, Government of Himachal Pradesh were notified on 20.5.1998 (for short ‘1998 Rules’). As per these rules, there were 124 sanctioned posts of Peons. The prescribed mode of recruitment was 100% by transfer, failing which, by direct recruitment. These rules came to be amended vide notification dated 19.4.2007 (for short ‘2007 Rules’). Clause 10 of 1998 rules was also amended, whereby the mode of recruitment was prescribed as 100% by transfer, failing which, by direct recruitment or on contract basis.

6. It is not in dispute that the petitioner was appointed on the post of Peon vide order dated 6.11.2006. At the time of appointment of the petitioner, the 1998 Rules were in force. Since, these rules did not prescribe contract appointment as one of the modes of recruitment, appointment of petitioner made on contract basis cannot be upheld Petitioner had a right to be appointed strictly in accordance with 1998 Rules, which prescribed recruitment on regular basis only. All 124 posts of Peons were regular sanctioned posts. Merely, because the Government had issued communication dated 28.4.2006, conveying its approval for filling up of four vacant posts of Peons, reserved for physically handicapped persons on contract basis, 1998 Rules were not obliterated. 1998 Rules were framed under Article 309 of the Constitution of India and it is more than settled that the statutory rules cannot be superseded by administrative