MRS. SHAKUNTALA SHARMAversusHIGH COURT OF HIMACHAL PRADESH AT SHIMLA AND ANR.

             MRS. SHAKUNTALA SHARl\iA                                            A
                        v.
   HIGH COURT OF HIMACHAL PRADESH AT SHIMLA AND
                       ANR.

                           FEBRUARY 2, 1994
                                                                                 B
                 [P.B. SAWANT AND N.P. SINGH, JJ.]

      Service Law: T7te High Court of Himachal Pradesh ReCTuitment(Con-
ditions of Service) Rules, 1992.
                                                                                 c
       R. l<>--Promotion-Superintendent-Appoi11tment by promotion--Eligi-
bility-Three years service as Deputy Superintendent/Revisor, failing which
persons with 6 years service as Senior Assistant/Translator-Held, r.10 is
violative of Article 14 of the Constitution-If incumbents of both sets ofposts
are to be made eligible for promotion to the post of Superintendent, no
qualifying period of service can be prescribed for incumbents of posts of        D
Deputy of Superintendents/Revisors-Directions given to frame an equitable
rule in place of r. 10.

      Constitution of India, 1950: Article 14-Rule 10 of Himachal Pradesh
Recruitment(Conditions of Service) Rules, 1992-Whether violative of.             E
      In the respondent-High Court, there were two sets of equivalent
hierarchical posts, namely, Clerks, Translators and Revisors, on the one
hand and Clerks, Senior Assistants and Deputy Superintendents, on the
other, leading to a common promotional post of Superintendent.
                                                                                 F
      The appellant, who was working as Revisor, was senior to respondent
no.2 at every stage. In the combined seniority list, the appellant stood at
serial no. 13 whereas respondent no. 2 at 17. However, since the appellant
had not completed three years' service as Revisor and there was no other
Deputy Superintendent or Revisor with a minimum three years' service in G
the respective posts, respondent no. 2, who was working on the post of
Senior Assistant • a post one grade below to that held by the appellant •
was promoted to the post of Superintendent, as envisaged by r. 10 of the
High Court of Himachal Pradesh Recruitment(Conditiolis of Service)
Rules 1992. The said Rule provided for appointment to the post of Super-
intendent by promotion from amongst graduate Deputy Superinten- H
                                   523
    524                   SUPREME COURT REPORTS                  [1994] 1 S.C.R.

A   dents/Revisor with minimum three years of service as- such in the ratio of
    4:1, failing which by promotion from amongst Senior Assistants(frans·
    lators with minimum six years service in the same ratio.

           The appellant filed a writ petition before the High Court challenging
    the validity of Rule 10 of the High Court of Himachal Pradesh Recruit-
B   ment(Conditions of Service) Rules 1992. She claimed her promotion to the
    post of Superintendent in place of respondent no. 2. The High Court held
    r.10 as.valid and dismissed the writ petition. Hence the appeal, by special
    leave.

c         Allowing the appeal, this Court

          HELD: 1.1. Rule 10 of the High Court of Himachal Pradesh Recruit-
    ment( Conditions of Service) Rules 1992 violates Article 14 of the Constitu-
    tion since it treats unequals as equals and even gives unwarranted
    advantage to the incumbents of the lower posts over the incumbents of the
D   higher posts. The Rule is inequitous, indefensibly unjust and is, therefore,
    struck down. The promotion given to respondent np. 2 stands quashed.
                                                              [528-F, H; 529-A]
          1.2. The basic weakness in r. 10 is that it places two unequal sets of .
E   posts on par with each other and also prescribes qualifying service for the
    higher posts. The posts of Deputy Superintendents and Revis ors are posts
    higher than those of Senior Assistants and Translators respectively. If the
    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
F   Revisors. [528-B, C]

           2.1. If Senior Assistants and Translators are to be provided with
    promotional avenue, more posts of Deputy Superintendents and Revisors
    which are above the posts of Senior Assistants and Translators respective-
G   ly, should be created, and first the Senior Assistants and Translators have
    to be promoted to the said posts. [528-D]

          2.2. The High Court should frame an equitable rule for promotion
    to the post of Superintendent in place of r. 10, in a manner which would
    not deny to the incumbents of the higher posts promotion and would not
H   give advantage over them to those holding lower posts. [528-H; 529-A]
           SHAKUNTALA v. HIGHCOURTOFH.P.[SAWANT,J.)                          525




       From the Judgment and Order dated 4.1.1993 of the Himachal
  Pradesh High Court in C.W.P. No. 1055 of 1993.

        Rama Jois, B. Rajani and K.R. Nagaraja for the Appellant.                  B·
        AK. Ganguli, A Mariaputham, Ms. Arona Mathur and Ranjit Kumar
  for the Respondents.

        The Judgment of the Court was delivered by ·
                                                                                   c
        SAWANT, J. 1. Leave granted. In the establishment of he respon-
  dent-High Courts there are two sets of equivalent hierarchical posts, viz.,
  derks, Translators and Revisors on the one hand and clerks, Senior
· Assistants and Deputy .Superintends on the other. Above the posts of
  Revisors and Deputy Superintendents is the post of Superintendent which          D
  is common promotional post to both the sets.

        · 2. The appellant was appointed as a derk on 24.7.1972 and was
    promoted as Translator on 30.7.1979. The pay-scale of the Translator at
    the relevant time was Rs. 600-1120. It was revised to Rs. 1800-3200 w.ei.
· · 1.1.1986. Thereafter she was promoted to the post of Revisor on 26.21992       E
  ·which ~ed the payscale of Rs. ~3500. ·

      ·· .3. As against this, respondent 2 was appointed as a derk on 7.1.1974.
   He was promoted to the p<ist of Senior Assistant on 14.8.1986. The post of·
   Senior _Assistant earlier carried the pay-scale of Rs. 600-1120 and w.el.
 · 1.1.1986 the pay,scale was revised to Rs. 1800-3200.                            F
         4. It is thus apparent that. the post of Translator and the post of
   Senior Assistant .were on par. There is also no dispute ihat tbe post of
 · Revisor is on par. with the post of Deputy Superintendent which carried
  .the same pay-scale as that of the Revisor, viz., Rs. 2000-3500.           G

         5. Both as derk 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 pest is
   equivalent to· the post of Deputy Superintendent), respondent 2 was not
; pjomoied to the post of Deputy Superintendent
                                           ',
                                                      in that .line of promotion. . 'H
    526                   SUPREME COURT REPORTS                   (1994] 1 S.C.R.

A There is no dispute that there was a combinf'd seniority list maintained and
    the appellant stood at Sl. No. 13 whereas respondent 2, at Sl. No. 17. It is I
    also not in dispute that the post of Super~tendent is the next promotional
    post available both to Revisors and Deputy Superintendents.

          6. On 3.12.1992 overlooking the claim of the appellant, respondent 2
B was promoted as Superintendent which post carries the pay-scale of Rs.
    2200-4000. The High Court relied uron 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
C   follows:

             "By promotion from amongst graduate Deputy Superinten-
             dents/Revisors with minimum 3 years of service as such in the ratio
             of 4.1., failing which by promotion from amongst Sr. Assis-
             tantsffranslators with minimum 6 years service as such in the same
D            ratio.

             Explanation: After promoting 4 Deputy Superintendents/Senior
             Assistants as Superintendents from general category... One
             Revisor(franslator shall be promoted as Superintendent from
             amongst Revisorffranslators' category."
E
          7. 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 ratio of 4:1, i.e., four from Deputy Superintendents and one
F   from Revisors. The appointment from Revisor to the post of the Superin-
    tendent 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 appoint-
    ment is to be made from amongst the Senior Assistants and Translators
G   with minimum service of six years in the said posts.

          8. 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 Superin-
    tendent. The position further was that on the relevant date, i.e., 3.12.1992,
    there was no Deputy Superintendent or Revisor with minimum three years'
H   service in the respective posts. Hence the post was given to respondent 2,
         SHAKUNTALA v. HIGH COURT OF H.P. [SAWANT,J.)                   527

as he was Senior Assistant with more than six years' service. The conse- A
quence of the Rule was that had she continued as Translator, being senior
to respondent 2, she would have got the post of the Superintendent. She
lost the same because she was promoted to the post of the Revisor only a
few days earlier to the appointment of respondent 2 to the post of the
Superintendent which in effect was a double promotion to him. Since the B
two events, viz., her promotion to the post of Revisor and that of respon-
dent 2 to the post of Superintendent were close in proximity, a legitimate
contention was advanced on her behalf that she was "kicked up" to the post
of the Revisor only to facilitate the promotion of respondent 2 to the post
of the Superintendent and thus to deny her the said post.
                                                                              c
      9. The appellant, therefore, approached the High Court by way of a
writ petition challenging the validity of the said Rule 10 and for quashing
the promotion of respondent 2, and also for her promotion in his place.
The Division Bench of the High Court Court held that Rule 10 of the 1992
Rules was valid and dismissed the petition. It is aggrieved by the said D
decision that the present appeal has been preferred.
                                                                        -
       10. What is pointed out to us on behalf of the respondent-High
Court, is that the said Rule 10 had become necessary because there were
more Deputy Superintendents than Revisors and the Senior Assistants and
Translators were stagnated for want of a promotional post. Hence the said E
Rule was framed by a Committee of Judges to provide suitable avenues of
promotion to both Deputy Superintendents and Revisors on the one hand,
and Senior Assistants and Translators on the other. It was also pointed out
that even the earlier Rule 11 of the 1990 Rules was almost on the same
pattern. In fact, by the said earlier Rule, all graduate Court employees who F
had put in minimum of six years' service in the grade of not less than Rs.
1800-3200 were eligible on merit for promotion to the post of the Super-
intendent. Under the 1990 Rules, therefore, all Senior Assistants and
Translators as well as Deputy Superintendents and Revisors were eligible
for being considered on merit for promotion to the post of Superintendent.
The only two differences which the 1992 Rules brought about in the earlier G
situation were that they provided firstly, that the Deputy Superintendents
and Revisors who carried the pay-scale of more than Rs. 1800-3200 with a
minimum of three years' service, we.re eligible to the post of Superintendent
and it is only failing the availability of the eligible candidates from the said
two categories, that the Senior Assistants and the Translators should be H
    528                   SUPREME COURT REPORTS                   [1994] 1 S.C.R.

A   considered for the said post. Secondly, a proportion between Deputy
    Superintendents and Revisors was laid down for promotion to the post of          +-
    the Superintendent.

            11. In this case, it is not necessary for us to go into the question
    whether Rule 11 of 1990 Rules which Pt:Qvided for the promotion to the
B   post of the Superintendent was valid or not. Even assuming that the validity
    of the 1990 Rules was not challenged, that fact by itself would not validate
    the present Rule 10 if it suffers from an inherent infirmity. The basic
    weakness in the present Rule 10 is that it places two unequal sets of posts
    on par with each other and also prescribes qualifying service for the higher
C   post as well. The posts of Deputy Superintendents and Revisors admittedly
    are posts higher than those of Senior Assistants and Translators respec-
    tively. If the incumbents of both the sets of post 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 Superinten-
D   dents and Revisors. If Senior Assistants and Translators are to be provided
    with promotional avenue, more posts of Deputy Superintendents and
    Revisors which are above the posts of Senior Assistants and Translators
    respectively, should be created, and first the Senior Assistants and Trans-
    lators have to be promoted to the said posts. In fact, the appellant who was
    a Translator was first promoted to the post of Revisor. We are informed
E   that no eligible Deputy Superintendent was available for being considered
    to the post of Superintendent and hence respondent 2 who was holding the
    post of Senior Assistant (post below that to Deputy Superintendent) had
    to be promoted to the said post as he had put in six years' service as
    required by the said Rule 10. Rule 10 of the 1992 Rules is thus inequitous
    and indefensibly unjust. It violates Article 14 of the Constitution since it
F
    treats unequals as equals and what is more gives unwarranted advantage
    to the incumbents of the lower posts over the incumbents of the higher
    posts.

          12. We, therefore, strike down Rule 10 of the 1992 Rules and direct
G the High Court to frame an equitable rule for promotion to the post of
    Superintendent in place of the said Rule.
                                                                                      .
          13. We have no doubt that whatever the anxiety of the High Court           ~-
    to provide promotional avenues to those who are stagnated, the promotion
H   Rule will not be made in a manner which would deny to the incumbents
                SHAKUNTALA v. HIGH COURT OF H.P. [SAWANT,J.),                    529

       of the higher posts promotion while giving unmerited auvantage over them         A
       to those holding lower posts. The m....:essary consequence is 'lhat the promo-
       tion given to respondent 2 stands quashed.

             14. The appeal is allowed accordingly. In the facts and circumstances
       of the case, however, there will be no order as to costs.

       R.P.                                                        Appeal allowed.




----