jbt to tgt case decided without tet and percentage

8/12/2019 Jbt to Tgt Case Decided Without Tet and Percentage

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CWP No. 1436 of 2014-D with CWP Nos.6615, 6650, 9040, 9041, 9342, 9434,9739 of 2013, CWP Nos. 397, 660, 944,1460, 1919, 1920 and 3327 of 2014.

Judgement reserved on: 29.5.2014.

Date of decision: 16.6.2014.

1. CWP No. 1436 of 2014-D.

Jai Singh Petitioner

Vs.

State of H.P. & ors. .. Respondents

For the petitioner(s): Mr. S.C. Sharma, Advocate. For the Respondent(s) : Mr. Shrawan Dogra, Advocate General

with Mr. V.K. Verma, Ms. MeenakshiSharma, Additional Advocate Generalsand Ms. Parul Negi, Deputy AdvocateGeneral .

2. CWP No. 6615 of 2013-B

Rakesh & ors. PetitionersVs.


For the petitioner(s): Mr. S.C. Sharma, Advocate.

For the Respondent(s) : Mr. Shrawan Dogra, Advocate Generalwith Mr. V.K. Verma, Ms. MeenakshiSharma, Additional Advocate Generalsand Ms. Parul Negi, Deputy AdvocateGeneral .

3. CWP No. 6650 of 2013-E

Ishwar Chand & ors. Petitioners

::: Downloaded on - 18/06/2014 18:23:39 :::HCHP


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Vs.State of H.P. & ors. .. Respondents


For the Respondent(s) : Mr. Shrawan Dogra, Advocate Generalwith Mr. V.K. Verma, Ms. MeenakshiSharma, Additional Advocate Generalsand Ms. Parul Negi, Deputy AdvocateGeneral .

4. CWP No. 9040 of 2013-DShiv Kumar & ors. Petitioners

Vs.


For the petitioner(s): Mr. Avneesh Bhardwaj, Advocate.

For the Respondent(s) : Mr. Shrawan Dogra, Advocate Generalwith Mr. V.K. Verma, Ms. MeenakshiSharma, Additional Advocate Generalsand Ms. Parul Negi, Deputy AdvocateGeneral , for respondents No. 1 to 3.

Mr. Lovneesh Kanwar, Adevocate, forrespondent No.4.

Mr. Sanjeev Bhushan, Advocate, forrespondent No.5.

Mr. Pankaj Negi, Advocate vice Mr.Sandeep Sharma, ASGI, for respondentNo.6.

Mr. Dilip Sharma, Senior Advocate withMr. Manish Sharma, Advocate, forrespondents No. 7 to 42.

5. CWP No. 9041 of 2013-E

Arun Kumar & ors. Petitioners

Vs.




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Mr. Lovneesh Kanwar, Adevocate, for

respondent No.4.Mr. Sanjeev Bhushan, Advocate, forrespondent No.5.


6. CWP No. 9342 of 2013-E

Bhartendu Sharma & ors. Petitioners

Vs.




Mr. Lovneesh Kanwar, Adevocate, forrespondent No.4.





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7. CWP No. 9434 of 2013-D

Smt. Tarun Bala Petitioner

Vs.



For the Respondent(s) : Mr. Shrawan Dogra, Advocate Generalwith Mr. V.K. Verma, Ms. MeenakshiSharma, Additional Advocate Generalsand Ms. Parul Negi, Deputy AdvocateGeneral.

8. CWP No. 9739 of 2013-D

Gopal Singh & ors. Petitioners

Vs.State of H.P. & ors. .. Respondents

For the petitioner(s): Mr. Rajender Thakur and Mr. RajeshKumar, Advocates.


9. CWP No. 397 of 2014.

Parma Nand & ors. Petitioners

Vs.



For the Respondent(s) : Mr. Shrawan Dogra, Advocate Generalwith Mr. V.K. Verma, Ms. MeenakshiSharma, Additional Advocate Generals



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and Ms. Parul Negi, Deputy AdvocateGeneral , for respondents No. 1 and 2.


10. CWP No. 660 of 2014-F

Smt. Karuna Kaushal Petitioner

Vs.




11. CWP No. 944 of 2014-E

Amar Dev Sharma & ors. Petitioners

Vs.



For the Respondent(s) : Mr. Shrawan Dogra, Advocate Generalwith Mr. V.K. Verma, Ms. MeenakshiSharma, Additional Advocate Generalsand Ms. Parul Negi, Deputy AdvocateGeneral , for respondents No. 1 and 2.

Mr. Sanjeev Bhushan, Advocate, forrespondent No.3

12. CWP No. 1460 of 2014-F

Smt. Rekha Kumari & anr. Petitioners

Vs.




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For the petitioner(s): Mr. S.C. Sharma, Advocate. For the Respondent(s) : Mr. Shrawan Dogra, Advocate General

with Mr. V.K. Verma, Ms. MeenakshiSharma, Additional Advocate Generalsand Ms. Parul Negi, Deputy AdvocateGeneral.

13. CWP No. 1919 of 2014-B.

Dila Ram & anr. PetitionersVs.




14. CWP No. 1920 of 2014-B

Sachin Thakur & ors. Petitioners

Vs.



For the Respondent(s) : Mr. Shrawan Dogra, Advocate Generalwith Mr. V.K. Verma, Ms. MeenakshiSharma, Additional Advocate Generalsand Ms. Parul Negi, Deputy AdvocateGeneral , for respondents No. 1 and 2.




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15. CWP No. 3327 of 2014-C

Sunder Lal PetitionerVs.

State of H.P. & ors. .. RespondentsFor the petitioner(s): Mr. S.C. Sharma, Advocate.

For the Respondent(s) : Mr. Shrawan Dogra, Advocate Generalwith Mr. V.K. Verma, Ms. MeenakshiSharma, Additional Advocate Generals

and Ms. Parul Negi, Deputy AdvocateGeneral.

Coram

The Honble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting? 1 Yes

Tarlok Singh Chauhan, Judge.

In this batch of petitions common question of fact and law

arises and therefore, the same are taken up together for disposal.

2. The facts, in brief, may be noticed. The petitioners have

claimed that on 28.12.1973, the Himachal Pradesh Education

Department Service Rules, 1973 came into existence and dealt with the

recruitment and promotion rules for Trained Graduate Teachers (TGT).

The petitioners were appointed as Vidya Upasak and regularized as JBT

Teachers. It has not been disputed that all the petitioners were

regularised as JBT Teachers and fulfilled the criteria of two years regular

service for being considered as TGT as on 21.10.2009. It is claimed that

that respondents conducted a D.P.C. in July 2009 on the basis of two

years criteria of regular service as JBT Teacher for promotion as TGT

teacher and accordingly made promotions of those JBT (Medical)

Whether the reporters of the local papers may be allowed to see the Judgment? Yes



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teachers who were regularized in 2007 and JBT (nonmedical) teachers,

who regularized in January 2006. It is the specific case of thepetitioners that they were regularized in 2007 and were eligible for the

post of TGT, yet the respondents did not consider the names of the

petitioners in spite of the fact that posts were available with them.

3. On 22.10.2009, the Himachal Pradesh Education Service

Rules, 1973 were amended and the condition for promoting the JBTTeachers as TGT was extended from two years to five years. On

16.7.2011, the rules were further amended and a condition of minimum

50% marks in graduation was inserted. Yet again, on 31.5.2012, the

rules were amended, wherein the condition of Teacher Eligibility Test

(TET) has been made compulsory for promotion as TGT (Medical).

4. The respondents State to counter the claim of the

petitioners have made the following averments:

That firstly, claims of the petitioners that while

conducting DPC during the year 2009 they have not been

promoted as TGT whereas they were eligible as per Old

Recruitment and Promotion Rules. Secondly, promotion onbacklog posts be made as per Old Recruitment and Promotion

Rules and they be considered in the DPC.

It is submitted that the services of the petitioners have

been regularized w.e.f. 01.10.2007 as JBT teacher and on

20.07.2009 promotion from JBT to TGT were made on routine

basis, however, as per Old Recruitment and Promotion Rules,

two years minimum regular service condition is applied for

being considered for the post of TGT from the feeder cadre of

JBT in that event the petitioners are not eligible for promotion

as they had not completed two years regular services at the time

of DPC i.e. on 20.07.2009. It is submitted that this Honble Court

while deciding similar situated cases i.e. the CWP No.

4039/2011 alongwith connected matters on 03.01.2012 has



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pleased to decide the same that all the candidates, who were

eligible up to 22.10.2009 (i.e. formulation of New

Recruitment

and Promotion Rules) were to be considered as per old rules

since the vacancies were available.

It is further submitted that at present no DPC is being

convened as there is ban on promotions. However, DPC will be

convened strictly as per amended Recruitment and Promotion

Rules i.e. eligibility criteria of 50% marks in B.A./B.Sc., having

five years regular services and qualification of Teacher

Eligibility Test (TET) in accordance with the guidelines framedby the NCTE which is mandatory. Moreover, as and when

process of promotion is started, the candidatures of the

petitioners will be provisionally considered subject to the final

outcome of the present writ petition as per interim order

22.08.2013 passed by this Honble Court. Hence, the present

writ petition filed by the petitioners deserves to be dismissed.

5. It is not disputed that there is backlog of 359 posts of

teachers lying vacant with the respondent department, therefore, the

only question required to be determined in this background is as to

what would be the criteria of filling up these vacant posts between July

2009 till 22.10.2009 i.e. the vacancies which have accrued after the last

D.P.C. and before the amendment in the rules. The legal issue thus

involved in the present cases is as to whether a vacancy which arose

prior to the amendment of the rules is to be filled up as per the rules

existing at that time or as per the rules existing at the time of the

consideration for promotion.

6. It is by now settled proposition of law that ordinarily a

candidate has a right to be considered for promotion in light of the

existing rules when the vacancy arose. It is further a settled principle of

service jurisprudence old vacancy old rules and this principle has



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been consistently reiterated and reaffirmed by the Honble Supreme

Court .7. It is not disputed (rather admitted) by the respondent

State that a coordinate Bench of this court (Justice Rajiv Sharma,J.) while

deciding CWP No. 4039 of 2011 alongwith connected matter on

3.1.2012 has decided that all the candidates who were eligible up to

22.10.2009 are to be considered as per old rules since the vacancieswere available. The law on the subject has been succinctly dealt with in

the aforesaid judgement in the following terms:

14. 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 resintegra in view of the law laid down by their Lordships of the

Honble Supreme Court in Y.V. Rangaiah and others versus J.

Sreenivasa Rao and others , (1983) 3 SCC 284. 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 unamended rules. Their Lordships have held as under:

6. The Tribunal on consideration of thematerials on record came to the conclusion that thevacancies that arose between the preparation of thepanels in December, 1975 and April, 1977 were eight,and that there was no reason why panel for that periodshould not have been drawn up at all. It is true that after18th of October, 1975 the zones came into existence and,therefore, promotions to the grade of SubRegistrarwere required to be made on zonal basis, but after thepersonnel had been allocated to various zones, the taskof preparing the annual panel with reference to thevacancies arising during the period 197677 should havebeen taken up on the basis of the seniority list for ZoneIV. Had such a list been prepared according to theAndhra Pradesh Registration and Subordinate ServiceRules, the eligibility of the candidates would naturallyhave been considered without reference. to theamendment issued in March, 1977. On these findings theTribunal held that the action taken by the InspectorGeneral of Registration and Stamps to makeappointments against vacancies arising during the



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period 197677 from amongst the 'left overs' of thepanels drawn up in April, 1975 and to dispense with thepreparation of panel for 197677 was in violation of therules and thus liable to be set aside, and it directed theState of Andhra Pradesh and the InspectorGeneral ofRegistration and Stamps to draw up a fresh panel for theyear 1976 77 with reference to the vacancies that aroseduring that period, strictly in accordance with the rulesas they existed at the time and the vacancies pertainingto that period should be filled on the basis of such apanel. Since the amendment to the rules was made inMarch, 1977, it follows that for vacancies relating to thepanel year 197778 and subsequent year the panels willhave to be prepared in accordance with the rules as theywere amended by G. O. Ms. No. 265Revenue (UI) dated22nd March, 1977.

15. Their Lordships of the Honble Supreme Court in B.L.

Gupta and another versus M.C.D. , (1998) 9 SCC 223 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:

`9. When the statutory rules had been framed in1978, the vacancies had to be filled only according to thesaid Rules. The Rules of 1995 have been held to beprospective by the High court and in our opinion thiswas the correct conclusion. This being so, the questionwhich arises is whether the vacancies which had arisenearlier than 1995 can be filled as per the 1995 Rules. Ourattention has been drawn by Mr Mehta to a decision ofthis court in the case of N.T. Devin Katti v. Karnatakapublic service commission. In that case after referring tothe earlier decisions in the cases of Y.V. Rangaiah v. J.Sreenivasa Rao, P. Ganeshwar Rao v. State of A.P. andA.A. Calton v. Director of Education it was held by thiscourt that the vacancies which had occurred prior to theamendment of the Rules would be governed by the oldRules and not by the amended Rules. Though the Highcourt has referred to these judgments, but for thereasons which are not easily decipherable itsapplicability was only restricted to 79 and not 171vacancies, which admittedly existed. This being thecorrect legal position, the High court ought to havedirected the respondent to declare the results for 171posts of Assistant Accountants and not 79 which it haddone.10. We are unable to agree with Shri Sanghi that byvirtue of their length of service while holding currentduty charge as Assistant Accountants, his clients shouldbe regularised in the said posts. Merely because thesame posts have been upgraded from Senior Clerks toAssistant Accountants, it would not mean that personswho were given the current duty charge could be



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regularised without any selection. The clients of MrSanghi presumably hold lien in the posts of SeniorClerks. If they were to be regularised as AssistantAccountants, the effect would be that they would bepromoted to the said posts. The Rules of 1978 prescribethe mode in which the promotions can be made. Thismode has to be followed before the appointments couldbe made. If no statutory rules had existed, it may havebeen possible, though we express no opinion on it, thatthe existing incumbents may have been regularised.Where, however, statutory rules exist, the appointmentsand promotions have to be made in accordance with thestatutory rules specially where it has not been shown tous that the Rules gave the power to the appointingauthority of relaxing the said Rules. In the absence of anysuch power of relaxation, the appointment as AssistantAccountant could only be made by requiring thecandidates to take the examination which was themethod which was prescribed by the 1978 Rules.11. We are informed at the Bar by Dr Singhvi, on thebasis of instructions received by him, that now there areabout 323 posts of Assistant Accountants. Out of theseabout 80 have been filled on the basis of the December1973 examination. The respondents are directed to fill

91 more vacancies on the basis of December 1993examination which they have already conducted. Thiswill leave a balance of 152 vacancies. The number ofpersons who are holding these posts on current dutycharge appears to be less than the number of vacanciesso available. Therefore, there will be no immediatedanger of Mr Sanghi's clients being reverted to the postof Senior Clerks. The respondents will be at liberty tocontinue to retain them in the higher post, but it is madeclear that the vacancies which had arisen prior toamendment of the Rules in 1995 can only be filled in

accordance with the 1978 Rules, which means that if MrSanghi's clients want to be regularly appointed asAssistant Accountants, they will have to compete withand take the examination under the 1978 Rules. This iswith regard to the vacancies which remain and arerequired to be filled under the 1978 Rules. Any vacancieswhich arise after 1995 will have to be filled as per theamended Rules. It is but obvious that the seniority in allthese cases will have to be fixed according to theseniority rules which are applicable.

16. Similarly, their Lordships of the Honble Supreme Courtin Arjun Singh Rathore and others versus B.N. Chaturvedi

and others , (2007) 11 SCC 605 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:



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`5. Mr. Calla, the learned senior counsel forappellants has argued that the matter was fully coveredby the judgment of this Court in State of Rajasthan vs.R.Dayal 1997(10)SCC 419 wherein it had been held thatthe vacancies to be filled by promotion were to be filedunder the rules which were in operation on the datewhen the vacancies had occurred. Relying on andreferring to an earlier judgment in the case ofY.V.Rangaiah vs. J.Sreenivasa Rao (1983) 3 SCC 284 itwas opined as under:

`"This Court has specifically laid (sic) that thevacancies which occurred prior to the amendment of theRules would be governed by the original Rules and notby the amended Rules. Accordingly, this Court had heldthat the posts which fell vacant prior to the amendmentof the Rules would be governed by the original Rules andnot the amended Rules. As a necessary corollary, thevacancies that arose subsequent to the amendment ofthe Rules are required to be filled in accordance with thelaw existing as on the date when the vacancies arose."

6 The above legal position has not been seriouslydisputed 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 theRules of 1998 had to be filled in under the Rules of 1988and as per the procedure laid down therein. We aretherefore of the opinion that the judgment of the learnedSingle Judge needs to be restored. We orderaccordingly.

8. Ordinarily in view of exposition of law by a coordinate

Bench of this court, no further discussion in the matter would have been

required. However, respondents No. 7 to 42 in CWP No. 9040 of 2013

have opposed the claim of the petitioners on the ground that old

vacancies old rule is not rule of universal or absolute application and

that the right to be considered in the light of existing rules would mean

the rule in force on the date on which consideration takes place. The

requirement of filling up old vacancies under old rule is interlinked with

the candidate having acquired a right to be considered for promotion. It

is further contended that the right to be considered for promotion

accrues on the date of consideration of eligible candidates. He further

contends that until and unless the applicable rule, as in Y.V.Rangaiah



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case (supra) lays down any particular time frame within which the

selection process is to be completed the rules in operation at the time ofconsideration would prevail. According to him, the consideration for

promotion is yet to take place and vacancies now shall have to be

essentially made in accordance with the rules in operation.

9. In support of his contention, Sh. Dilip Sharma, learned

Senior counsel for the respondents has relied upon Dr. K. Ramulu and

another vs. Dr. S. Suryaprakash Rao and others (1997) 3 SCC 59,

wherein the ratio in Y.V.Rangaiah case was distinguished by the

Honble Supreme Court in the following manner:

12. The same ratio was reiterated in Union of India vs. K.V.

Vijeesh [(1996) 3 SCC 139, paras 5 and 7]. Thus, it could be seenthat for reasons germane to the decision, the Government is

entitled to take a decision not to fill up the existing vacancies as

on the relevant date. Shri H. S. Guraraja Rao, contends that this

Court in Y.V. Rangaiah & Ors. v. J. Sreenivasa Rao & Ors. [(1983)

3 SCC 284] had held that the existing vacancies were required to

be filled up as per law prior to the date of the amended Rules.

The mere fact that Rules came to be amended subsequently does

not empower the Government not to consider the persons who

are eligible prior to the date of appointment. It is sen that the

case related to the amendment of the Rules prior to the

amendment of the Rules. Two sources were available for

appointment as subRegistrar, namely, UDCs and LDCs.

Subsequently, Rules came to be amended taking away the right

of the LDCs for appointment as subRegistrar. When the

vacancies were not being filled up in accordance with the

existing Rules, this court had pointed out that prior to the

amendment of the Rules, the vacancies were existing and thatthe eligible candidates were required to be considered in

accordance with the prevailing Rules. Therefore, the mere fact of

subsequent amendment does not take away the right to be

considered in accordance with the existing Rules. As proposition

of law, there is no dispute and cannot be disputed. But the

question is: whether the ratio in Rangaiah's case would apply to

the facts of this case? The Government therein merely amended



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the Rules, applied amended Rules without taking any conscious

decision not to fill up the existing vacancies pending amendment

of the Rules on the date the new Rules came into force. It is true,as contended by Mr. H.S. Gururaja Rao, that this Court has

followed the ratio therein in many a decision and those cited by

him are P. Ganeshwar Rao & Ors. v. State of A.P. & Ors. [(1988)

Supp. SCC 740], P. Mahendranath v. State of Karnataka [(1990) 1

SCC 411], A.A. Caljon v. Director of Education [(1983) 3 SCC 33],

N.T. Dev v. Karnataka Public Service Commission [(1990) 3 SCC

157, Ramesh Kumar Choudha & Ors. v. State of M.P. & Ors.

[(1996) 11 SCC 242]. In none of these decisions, situation whichhas arisen in the present case had come up for consideration.

Even Rule 3 of the General Rules is not of any help to the

respondent for the reason that Rule 3 contemplates making of

an appointment in accordance with the existing Rules.

13. It is seen that since the Government have taken a

conscious decision not to make any appointment till the

amendment of the rules, Rule 3 of the General Rules is not of any

help to the appellant. The ratio in the case of Ramesh KumarChoudha & Ors. v. State of M.P. & Ors. [(1996) 11 SCC 242] is

also not of any help to the respondent. Therein, this Court had

pointed out that the panel requires to be made in accordance

with the existing Rules and operated upon. There cannot be any

dispute on that proposition or direction issued by this Court. As

stated earlier, the Government was right in taking a decision not

to operate Rule 4 of the General Rules due to their policy

decision to amend the Rules. He then relies on paragraph 14 of

the unreported judgment of this Court made in Union of India

V/s. S.S. Uppal & Anr. [ (1996) 2 SCC 168]. Even that decision is

not of any help to him. He then relies upon the judgment of this

Court in Gajraj Singh etc. v. STAT [(1997) 1 SCC 650] wherein it

was held that the existing rights saved by the repealed Act

would be considered in accordance with the Rules. The ratio

therein is not applicable because the existing Rules do not save

any of the rights acquired or accruing under the Rules. On the

other hand, this court had pointed out in paragraph 23 thus:(SCC pp. 66465, para22)

"Whenever an Act is repealed it must beconsidered, except as to transactions past and closed, asif it had never existed. The effect thereof is to obliteratethe Act completely from the record of the Parliament as ifit had never been passed it, (sic) it never existed exceptfor the purpose of those actions which were commenced,



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prosecuted and concluded while it was existing law.Legal fiction is one which is not an actual reality andwhich the law recognises and the court accepts as areality. Therefore, in case of legal fiction the courtbelieves something to exist which in reality does notexist. It is nothing but a presumption of the existence ofthe state of affairs which in actuality is nonexistent. Theeffect of such a legal fiction is that a position whichotherwise could not obtain is deemed to obtain under thecircumstances. Therefore, when Section 217(1) of the Actrepealed Act 4 of 1939 w.e.f July 1, 1989, the law in Act 4of 1939 in effect came to be nonexistent except asregards the transactions, past and closed or saved."

10. The learned Senior counsel has further sought support of

and relied upon the judgement in Deepak Agarwal and another vs.

State of Uttar Pradesh and others (2011) 6 SCC 725 wherein the

judgement in Y.V. Rangaiahs case (supra) has again been

distinguished, while the judgement in Dr. K. Ramulus case (supra) has

been relied upon in the following manner:

26 . It is by now a settled proposition of law that a candidate

has the right to be considered in the light of the existing rules,

which implies the `rule in force' on the date the consideration took

place. There is no rule of universal or absolute application that

vacancies are to be filled invariably by the law existing on the date

when the vacancy arises. The requirement of filling up old

vacancies under the old rules is interlinked with the candidate

having acquired a right to be considered for promotion. The right

to be considered for promotion accrues on the date of

consideration of the eligible candidates. Unless, of course, the

applicable rule, as in Y.V. Rangaiah's case (supra) lays down any

particular time frame, within which the selection process is to be

completed. In the present case, consideration for promotion took

place after the amendment came into operation. Thus, it can not

be accepted that any accrued or vested right of the appellantshave been taken away by the amendment.

27 The judgments cited by learned counsel for the appellants

namely B.L. Gupta Vs. MCD (supra), P. Ganeshwar Rao Vs. State of

Andhra Pradesh (supra) and N.T. Devin Katti & Ors. Vs. Karnataka

Public Service Commission & Ors (supra) are reiterations of a

principle laid down in Y.V. Rangaiah's case (supra). All these



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judgments have been considered by this Court in the case of

Rajasthan Public Service Commission Vs. Chanan Ram & Anr.

(supra). In our opinion, the observations made by this Court in paragraphs 14 and 15 of the judgment are a complete answer to

the submissions made by Dr. Rajiv Dhawan. In that case, this Court

was considering the abolition of the post of Assistant Director

(Junior) which was substituted by the post of Marketing Officer.

Thus the post of Assistant Director (Junior) was no longer eligible

for promotion, as the post of Assistant Director had to be 26 filled

by 100% promotion from the post of Marketing Officer. It was,

therefore, held that the post had to be filled under the prevailingrules and not the old rules.

28 In our opinion, the matter is squarely covered by the ratio

of the judgment of this Court in the case of Dr. K. Ramulu (supra).

In the aforesaid case, this Court considered all the judgments cited

by the learned senior counsel for the appellant and held that Y.V.

Rangaiah's case (supra) would not be applicable in the facts and

circumstances of that case. It was observed that for reasons

germane to the decision, the Government is entitled to take adecision not to fill up the existing vacancies as on the relevant

date. It was also held that when the Government takes a conscious

decision and amends the Rules, the promotions have to be made in

accordance with the rules prevalent at the time when the

consideration takes place.

11. There is no quarrel with the legal proposition as

expounded in the cases of Dr. K. Ramulu and Deepak Agarwal

(supra) but the moot question is regarding its applicability to the fact

situation obtaining in these cases. It is neither desirable nor permissible

to pick out a word or a sentence from the judgement, divorced from the

context of the question under consideration and treat it to be the

complete `law declared by the Court. The judgement must be read as a

whole and the observations from the judgement have to be considered

in the light of the questions which were before the Court. A decision of

the Court takes its colour from the questions involved in the case in



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which it is rendered and while applying the decision to a later case, the

courts must carefully try to ascertain the true principle laid down by thedecision of the Court and not to pick out words or sentences from the

judgement, divorced from the context of the questions under

consideration by the Court, to support their reasoning. (See:

Commissioner of Income Tax vs. Sun Engineering Works (P) Ltd.

(1992) 4 SCC 363. Likewise, it is also to be borne in mind that theobservations in the judgement cannot be read like a text of a statute or

out of context. (See: Hindustan Steel Works Construction Ltd. Vs.

Tarapore & Co. and another (1996) 5 SCC 34.) .

12. In Dr. K. Ramulus case (supra), the specific stand of the

State Government was that it did not intend to fill up the posts as per the

existing rules and contemplated to fill up all the posts in terms of its

revised policy of appointment. However, the Tribunal still gave

directions contrary to the policy decision taken by the government

necessitating the exposition of law by the Honble Supreme Court in this

factual backdrop of the case. This is not the fact situation obtaining in

the present case, as it is nowhere the case of the State respondent that

it proposes to fill up the posts between July 2009 to 22.10.2009 on the

basis of the amended rules or does not propose to fill up the same at all.

Moreover, as would be clear from a bare reading of paragraph12 of the

judgement in Dr. K. Ramulus case (supra), the legal position laid

down in Y.V. Rangaiah's case has not been doubted and the only reason

for its nonapplicability has been given in later part of paragraph12 in

the following terms:



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In none of these decisions, a situation which has

arisen in the present case had come up for consideration.

Even Rule 3 of the General Rules is not of any help to the

respondent for the reason that Rule 3 contemplates making

of an appointment in accordance with the existing Rules.

It is also clear from paragraph 13 of the judgement in Dr.

K. Ramulus case that government therein had taken a conscious

decision not to make any appointment till the amendment of the Rules.

13. Now, in so far as the judgement in Deepak Agarwals case

(supra), is concerned the ratio laid down in Y.V. Rangaiahs case was

distinguished only on the ground that there was no statutory duty cast

upon the respondent therein to prepare yearwise panel of the eligible

candidates or of the selected candidates for promotion and therefore, it

was concluded that in no event had, any accrued or vested right of the

appellants therein, been taken away by the amendment.

14. In none of the judgements relied upon by Sh. Dilip Sharma,

learned Senior Counsel, was ever the ratio of Y.V. Rangaiahs

judgement doubted and the judgements have been rendered in the

peculiar facts of those cases. While, in the present case the

respondent State has not taken any decision either not to fill up the

posts in accordance with the old rules or taken a positive decision to fill

up the posts on the basis of the amended rules. Rather tone and tenor of

reply suggests that the State has chosen to abide by the directions

passed in CWP No.4039 of 2011 (supra). Therefore, present cases are

fully covered by the ratio of Y.V. Rangaiah's case (supra) and the



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decisions relied upon by Sh. Dilip Sharma, learned Senior Counsel have

no application to the fact situation obtaining in the present case.15. It would be fruitful here to notice the instructions issued

by the State respondent, whereby a D.P.C. is required to be held every

year as would be clear from paragraph 16.7 of Hand Book on

Personnel Matters, Volume-1 (Second Edition) , which reads as

under: 16.7 Time schedule for holding meetings of D.P.C.

The instructions contained in H.P. Govt. Deptt. of Personnel

letter No.1- 13/73- DP(A- II) dated 27- 4-1983 (Annexure

6.18)provide that the time schedule for holding of regular

Departmental Promotion Committee will be during the month of

April -May. The subsequent instructions issued vide letter No.1 -

13/75-DP (AP-II) dated14-2-1984(Annexure 16.22) provided that

meeting of the Departmental Promotion Committee may be held

once a year in the month of April every year as far as possible. The

latest instructions contained in letter No.1-13/75-DP (A-II) dated

6-9-1984 and letter No. Per(AP-II) B(3)-1/94dated 16-11-1994

(Annexures 16.25 and 16.55) provide that meetings of the

Departmental Promotion Committees for making promotions

should be held during the first quarter of the financial year as faras possible for all the existing and anticipated vacancies. For

unanticipated vacancies , fresh meetings of the Departmental

Promotion Committees for making promotions should be held

during the course of the year within three months from the date

of creation of the posts.

Once the instructions clearly provide for holding of the D.P.C. every

year, which essentially will consider filling up of clear as also

anticipated vacancies therefore, it is obligatory upon the government to

fill up the vacancies in terms of the rules prevailing at the time when the



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vacancies arose, unless and until a conscious decision to the contrary is

taken by the government.16. Above all, as per doctrine of precedence, this court is

bound by the judgement passed by a coordinate Bench of this court in

CWP No. 4039 of 2011 titled Smt. Chander Kanta vs. State of H.P. &

ors. decided on 3.1.2012 and even otherwise I have not been

persuaded or convinced to take a contrary view. 17. In view of above discussion and for the reasons stated

above, all the petitions are allowed and it is directed that in the event of

filling up the backlog vacancies, particularly the vacancies which have

arisen between July 2009 to October 2009 shall be filled up on the

basis of rules prevalent at that time. i.e. the Himachal Pradesh Education

Department Service Rules, 1973 Rules and it is specifically made clear

that the rules as amended on 22.10.2009 and thereafter on 16.7.2011 or

any other subsequent rules shall not be taken into consideration while

making the appointments to the post of TGTs (Medical/ Nonmedical).

No costs.

June 16 , 2014. ( Tarlok Singh Chauhan ),(Hem ) Judge.

jbt to tgt case decided without tet and percentage

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