JBT To TGT Case Decided Without Tet and Percentage

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
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. Meenakshi
Sharma, Additional Advocate Generals
and Ms. Parul Negi, Deputy Advocate
General.

2. CWP No. 6615 of 2013-B

Rakesh & ors. Petitioners

Vs.



General.

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.


General.

4. CWP No. 9040 of 2013-D

Shiv Kumar & ors. Petitioners

Vs.


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

General, for respondents No. 1 to 3.

Mr. Lovneesh Kanwar, Adevocate, for
respondent No.4.

Mr. Sanjeev Bhushan, Advocate, for
respondent No.5.

Mr. Pankaj Negi, Advocate vice Mr.
Sandeep Sharma, ASGI, for respondent
No.6.

Mr. Dilip Sharma, Senior Advocate with
Mr. Manish Sharma, Advocate, for
respondents No. 7 to 42.

5. CWP No. 9041 of 2013-E

Arun Kumar & ors. Petitioners

Vs.


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respondent No.4.

respondent No.5.

No.6.

6. CWP No. 9342 of 2013-E

Bhartendu Sharma & ors. Petitioners

Vs.




respondent No.4.

respondent No.5.

No.6.


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7. CWP No. 9434 of 2013-D

Smt. Tarun Bala Petitioner

Vs.



General.

8. CWP No. 9739 of 2013-D

Gopal Singh & ors. Petitioners

Vs.


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

General.

9. CWP No. 397 of 2014.

Parma Nand & ors. Petitioners

Vs.




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General, for respondents No. 1 and 2.

respondent No.3.

10. CWP No. 660 of 2014-F

Smt. Karuna Kaushal Petitioner

Vs.



General.

11. CWP No. 944 of 2014-E

Amar Dev Sharma & ors. Petitioners

Vs.




respondent No.3

12. CWP No. 1460 of 2014-F

Smt. Rekha Kumari & anr. Petitioners

Vs.


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General.

13. CWP No. 1919 of 2014-B.

Dila Ram & anr. Petitioners

Vs.



General.

14. CWP No. 1920 of 2014-B

Sachin Thakur & ors. Petitioners

Vs.




respondent No.3.


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15. CWP No. 3327 of 2014-C

Sunder Lal Petitioner

Vs.


General.

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 the
petitioners 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 JBT
Teachers 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 on
backlog 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

9
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 framed
by 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

10
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 vacancies
were 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 res
integra 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 the
materials on record came to the conclusion that the
vacancies that arose between the preparation of the
panels in December, 1975 and April, 1977 were eight,
and that there was no reason why panel for that period
should not have been drawn up at all. It is true that after
18th of October, 1975 the zones came into existence and,
therefore, promotions to the grade of SubRegistrar
were required to be made on zonal basis, but after the
personnel had been allocated to various zones, the task
of preparing the annual panel with reference to the
vacancies arising during the period 197677 should have
been taken up on the basis of the seniority list for Zone
IV. Had such a list been prepared according to the
Andhra Pradesh Registration and Subordinate Service
Rules, the eligibility of the candidates would naturally
have been considered without reference. to the
amendment issued in March, 1977. On these findings the
Tribunal held that the action taken by the Inspector
General of Registration and Stamps to make
appointments against vacancies arising during the

11
period 197677 from amongst the 'left overs' of the
panels drawn up in April, 1975 and to dispense with the
preparation of panel for 197677 was in violation of the
rules and thus liable to be set aside, and it directed the
State of Andhra Pradesh and the InspectorGeneral of
Registration and Stamps to draw up a fresh panel for the
year 1976 77 with reference to the vacancies that arose
during that period, strictly in accordance with the rules
as they existed at the time and the vacancies pertaining
to that period should be filled on the basis of such a
panel. Since the amendment to the rules was made in
March, 1977, it follows that for vacancies relating to the
panel year 197778 and subsequent year the panels will
have to be prepared in accordance with the rules as they
were amended by G. O. Ms. No. 265Revenue (UI) dated
22nd 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 in
1978, the vacancies had to be filled only according to the
said Rules. The Rules of 1995 have been held to be
prospective by the High court and in our opinion this
was the correct conclusion. This being so, the question
which arises is whether the vacancies which had arisen
earlier than 1995 can be filled as per the 1995 Rules. Our
attention has been drawn by Mr Mehta to a decision of
this court in the case of N.T. Devin Katti v. Karnataka
public service commission. In that case after referring to
the earlier decisions in the cases of Y.V. Rangaiah v. J.
Sreenivasa Rao, P. Ganeshwar Rao v. State of A.P. and
A.A. Calton v. Director of Education it was held by this
court that the vacancies which had occurred prior to the
amendment of the Rules would be governed by the old
Rules and not by the amended Rules. Though the High
court has referred to these judgments, but for the
reasons which are not easily decipherable its
applicability was only restricted to 79 and not 171
vacancies, which admittedly existed. This being the
correct legal position, the High court ought to have
directed the respondent to declare the results for 171
posts of Assistant Accountants and not 79 which it had
done.
10. We are unable to agree with Shri Sanghi that by
virtue of their length of service while holding current
duty charge as Assistant Accountants, his clients should
be regularised in the said posts. Merely because the
same posts have been upgraded from Senior Clerks to
Assistant Accountants, it would not mean that persons
who were given the current duty charge could be

12
regularised without any selection. The clients of Mr
Sanghi presumably hold lien in the posts of Senior
Clerks. If they were to be regularised as Assistant
Accountants, the effect would be that they would be
promoted to the said posts. The Rules of 1978 prescribe
the mode in which the promotions can be made. This
mode has to be followed before the appointments could
be made. If no statutory rules had existed, it may have
been possible, though we express no opinion on it, that
the existing incumbents may have been regularised.
Where, however, statutory rules exist, the appointments
and promotions have to be made in accordance with the
statutory rules specially where it has not been shown to
us that the Rules gave the power to the appointing
authority of relaxing the said Rules. In the absence of any
such power of relaxation, the appointment as Assistant
Accountant could only be made by requiring the
candidates to take the examination which was the
method which was prescribed by the 1978 Rules.
11. We are informed at the Bar by Dr Singhvi, on the
basis of instructions received by him, that now there are
about 323 posts of Assistant Accountants. Out of these
about 80 have been filled on the basis of the December
1973 examination. The respondents are directed to fill
91 more vacancies on the basis of December 1993
examination which they have already conducted. This
will leave a balance of 152 vacancies. The number of
persons who are holding these posts on current duty
charge appears to be less than the number of vacancies
so available. Therefore, there will be no immediate
danger of Mr Sanghi's clients being reverted to the post
of Senior Clerks. The respondents will be at liberty to
continue to retain them in the higher post, but it is made
clear that the vacancies which had arisen prior to
amendment of the Rules in 1995 can only be filled in
accordance with the 1978 Rules, which means that if Mr
Sanghi's clients want to be regularly appointed as
Assistant Accountants, they will have to compete with
and take the examination under the 1978 Rules. This is
with regard to the vacancies which remain and are
required to be filled under the 1978 Rules. Any vacancies
which arise after 1995 will have to be filled as per the
amended Rules. It is but obvious that the seniority in all
these cases will have to be fixed according to the
seniority rules which are applicable.

16. Similarly, their Lordships of the Honble Supreme Court
in 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:

13
`5. Mr. Calla, the learned senior counsel for
appellants has argued that the matter was fully covered
by the judgment of this Court in State of Rajasthan vs.
R.Dayal 1997(10)SCC 419 wherein it had been held that
the vacancies to be filled by promotion were to be filed
under the rules which were in operation on the date
when the vacancies had occurred. Relying on and
referring to an earlier judgment in the case of
Y.V.Rangaiah vs. J.Sreenivasa Rao (1983) 3 SCC 284 it
was opined as under:
`"This Court has specifically laid (sic) that the
vacancies which occurred prior to the amendment of the
Rules would be governed by the original Rules and not
by the amended Rules. Accordingly, this Court had held
that the posts which fell vacant prior to the amendment
of the Rules would be governed by the original Rules and
not the amended Rules. As a necessary corollary, the
vacancies that arose subsequent to the amendment of
the Rules are required to be filled in accordance with the
law existing as on the date when the vacancies arose."

6 The above legal position has not been seriously
disputed 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 the
Rules of 1998 had to be filled in under the Rules of 1988
and as per the procedure laid down therein. We are
therefore of the opinion that the judgment of the learned
Single Judge needs to be restored. We order
accordingly.

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

14
case (supra) lays down any particular time frame within which the
selection process is to be completed the rules in operation at the time of
consideration 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 seen
that 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 that
the 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

15
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 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.
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 Kumar
Choudha & 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 be
considered, except as to transactions past and closed, as
if it had never existed. The effect thereof is to obliterate
the Act completely from the record of the Parliament as if
it had never been passed it, (sic) it never existed except
for the purpose of those actions which were commenced,

16
prosecuted and concluded while it was existing law.
Legal fiction is one which is not an actual reality and
which the law recognises and the court accepts as a
reality. Therefore, in case of legal fiction the court
believes something to exist which in reality does not
exist. It is nothing but a presumption of the existence of
the state of affairs which in actuality is nonexistent. The
effect of such a legal fiction is that a position which
otherwise could not obtain is deemed to obtain under the
circumstances. Therefore, when Section 217(1) of the Act
repealed Act 4 of 1939 w.e.f July 1, 1989, the law in Act 4
of 1939 in effect came to be nonexistent except as
regards 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 appellants
have 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

17
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 prevailing
rules 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 a
decision 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

18
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 the
decision 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 the
observations 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:

19
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

20
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 far
as 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

21
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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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No. 1436 of 2014-D with CWP Nos.

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