Back
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Jyotsna Rewal Dua, J.
Mohan Singh Thakur - Petitioner
Versus
State of H.P. and others - Respondents
CWP No.3258 of 2020
Decided On : 09-12-2022
Recruitment & Promotion Rules, 2012 - Rule 11 - Constitution of India, 1950 - Articles 14, 16, 309 - Recruitment - Promoting to Post - Seeks writ of mandamus for promoting him to post of Assistant Director - Prayed for direction to respondents not to promote private respondents No.3 and 4 as Assistant Director - Lacking eligibility for post cannot be cured at any stage and appointing such a person would amount to serious illegibility and not mere irregularity - Para 14.
Finding of the Court:
In matter of appointments, authority concerned has unfettered powers so far as procedural aspects are concerned, but it must meet requirement of eligibility etc - Court should therefore, refrain from interfering, unless appointments so made, or rejection of a candidature is found to have been done at cost of ‘fair play’, ‘good conscious’ and ‘equity’- A person who does not possess requisite qualification cannot even apply for recruitment for reason that his appointment would be contrary to statutory rules is, and would therefore, be void in law - Lacking eligibility for post cannot be cured at any stage and appointing such a person would amount to serious illegibility and not mere irregularity - Such a person cannot approach court for any relief for reason that he does not have a right which can be enforced through court - It is case of petitioner Parkash Chand himself that he is simply matriculate and has not acquired 10+2 qualification within three years or upto cut of date and is therefore not entitled to be considered much less promoted to post of Forest Guard - In view of aforesaid discussions and for reasons stated hereinabove, Court find no merit in petitions filed by petitioner.
Result: Petition dismissed.
JUDGMENT :
The petitioner seeks writ of mandamus for promoting him to the post of Assistant Director (Archives). He has also prayed for direction to the respondents not to promote private respondents No.3 and 4 as Assistant Director (Archives). Another relief prayed for is that Clause 7(a)(ii) of the Recruitment & Promotion Rules, 2012 for the post of Assistant Director (Archives) be declared null and void.
2. Admitted factual position is that:-
2(i). The petitioner was appointed as Junior Technical Assistant in the year 1998. He was promoted to the post of Technical Assistant (Archives) in the year 2015. Further promotion from the post of Technical Assistant (Archives) is to the post of Assistant Director (Archives).
2(ii). Recruitment & Promotion Rules for the post of Assistant Director (Archives), Class-I (Gazetted) (in short ‘2007 R&P Rules’) in the Department of Language, Art & Culture, Himachal Pradesh were framed vide notification dated 15.01.2007 (Annexure P-1). As per Clause 10 of these rules, the single cadre post of Assistant Director (Archives) was to be filled-up 100% by promotion, failing which by direct recruitment or on contract basis. In terms of Clause 7 of these R&P Rules, essential educational qualifications for direct recruits were (i) M.A. Second division in Modern History from recognized University; and (ii) Diploma in Archives. In terms of Clause 8 of these rules, the educational qualifications required for direct recruits were not applicable in case of promotees. Clause 11 of the Rules mandated that promotion to the post of Assistant Director (Archives) could be made from amongst the Technical Assistant (Archives) having nine years’ regular service or regular combined with continuous ad hoc service rendered, if any, in the grade, failing which by promotion from amongst the Technical Assistant (Archives) with 12 years regular service or regular combined with continuous ad hoc service combined as Technical Assistant (Archives) and Junior Technical Assistant (Archives).
2(iii). 2007 R&P Rules were repealed in the year 2012. Vide notification dated 24.08.2012, new R&P Rules for the post of Assistant Director (Archives) came into force. In terms of these 2012 R&P Rules, the single cadre post of Assistant Director (Archives) was to be filled up 100% by promotion, failing which by direct recruitment on regular basis or by direct recruitment on contract basis, failing both on secondment basis. The minimum essential qualifications required for direct recruits remained the same as were under the 2007 R&P Rules, i.e. M.A. Second Division in Modern History and Diploma in Archives. As per Clause 8 of these rules, the educational qualifications prescribed for the direct recruits were also applicable in the case of promotees.
2(iv). 2012 R&P Rules for the post of Assistant Director (Archives) were repealed vide notification dated 07.04.2017 and new rules were promulgated. In terms of the 2017 R&P Rules, the single cadre post of Assistant Director (Archives) was to be filled-up 100% by promotion, failing which by direct recruitment on regular basis or by recruitment on contract basis. In terms of Clauses 7 and 8 of these rules, the educational qualifications prescribed for direct recruitment were to apply in case of promotees also.
2(v). The petitioner has Degree of M.A. in Modern History with second division. While working as Junior Technical Assistant, the petitioner attended one and a half month training course (w.e.f. 16.02.2009 to 31.03.2009) in Archives Management from School of Archival Studies, National Archives of India, New Delhi. The training certificate dated 11.06.2009 has been placed on record as Annexure P-5.
3. The grievance of the petitioner is that even though he had completed requisite number of years of service as Technical Assistant (Archives), yet his case had not been considered for promotion to the post of Assistant Director (Archives) by the respondents. That short term training in the field of Archiv
Fixing eligibility for a particular post or even for admission to a course falls within exclusive domain of legislature/executive and cannot be subject matter of judicial review.
The DPC's adoption of the office memorandum, dated 29.08.2019, without formal adoption by APEDA, and the recommendation of the respondent No. 4, who had not completed the requisite qualifying years, ....
The amendment mandating a Bachelor's Degree for certain promotions was constitutionally valid, emphasizing the employer's prerogative to set qualification standards related to job responsibilities.
The power of relaxation of recruitment rules can be invoked to meet a particular hardship even in an individual case, provided it is exercised for justifiable reasons and not arbitrarily, and the cou....
The court established that the right to promotion is determined by the rules in force at the time of consideration, and the Service Rules of 2020 do not permit promotion from Grade-IV to Junior Assis....
Classification based on educational qualifications for promotion is a valid exercise of administrative authority that does not violate constitutional equality protections. Financial career progressio....
when a new post is created, the concept of Rules obtaining when the vacancies arose is inappiicable as what is created is a new post on account of re-structuring of the cadre.
The court established that the petitioner, as the only case of ineligibility due to subsequent amendment of the Rules, constituted a class in herself and was entitled to be considered for relaxation ....
Statutory provisions of Recruitment Rules cannot be overridden by executive or administrative instructions.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
