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2025 DAILYLAW 3595 (HP)

Prakash Chand v. State of H. P.

2025-11-19

Ranjan Sharma

body2025
JUDGMENT : Ranjan Sharma, Judge Petitioners, Prakash Chand and Vijay Kumar, have come up before this Court, seeking the following reliefs:- “7(A) That this Original Application may kindly be allowed and the respondent department may kindly be directed to promote the applicants to the post of lab Technician with effect from 2010 as per old R & P Rules, with all consequential benefits along with seniority and other benefits, in the interest of law and justice. 7(B) That rejection order dated 15-06-2016 Annexure A-4 may very kindly be quashed and set aside.” FACTUAL MATRIX: 2. In nutshell, the grievance of the petitioners is that they are seeking promotion of Laboratory Technician on the basis of Recruitment and Promotion Rules from 2010. Pertinently, the State Authorities have issued The Himachal Pradesh, Department of Ayurveda, Laboratory Technician, Class-III (Non-Gazetted) Recruitment & Promotion Rules, 2013, on 11.02.2013 [Annexure A-5] and as per Rules-10 and 11, promotional post of Laboratory Technician is to be filled up, 20% by promotion from amongst the Laboratory Attendants/Laboratory Assistants, subject to possessing of educational qualification prescribed in Column No.7 (i) of the Rules; i.e. 10+2 with Science or its equivalent and (ii) Diploma in Medical Laboratory Technology from an Institution duly recognized by the Himachal Pradesh/Central Government or B.Sc. Degree in Medical Laboratory Technology from a recognized University or Institution recognized by Himachal Pradesh Government/Central Government. STAND OF RESPONDENTS-STATEAUTHORITIES: 3. Pursuant to issuance of notice, the State Authorities have filed a Reply-Affidavit, stating that as per the existing Recruitment & Promotion Rules notified on 11.02.2013 [Annexure A-5], the petitioners are not eligible for want of educational and technical qualifications. It is stated that the petitioners cannot seek consideration/promotion on the basis of the old Rules when, the New Rules have been notified on 11.02.2013 [Annexure A-5]. NO REBUTTAL BY PETITIONERS: 4. Petitioners chose not to file a rejoinder. However, prayed for early hearing for which an application i.e. CMP(T) No.535 of 2022 was filed on 21.06.2022. Even thereafter, neither any prayer for rejoinder was made nor was it filed. ANALYSIS: 5. NO REBUTTAL BY PETITIONERS: 4. Petitioners chose not to file a rejoinder. However, prayed for early hearing for which an application i.e. CMP(T) No.535 of 2022 was filed on 21.06.2022. Even thereafter, neither any prayer for rejoinder was made nor was it filed. ANALYSIS: 5. Taking into account the entirety of facts and circumstances and the material on record, this Court is of the considered view, that the claim of the petitioners for promotion as Laboratory Technicians as per the Old Rules which existed prior to issuance of New Rules on 11.02.2013 [Annexure A-5], cannot pass the test of Judicial Scrutiny, for the following reasons:- 5(i). The petitioners have no vested right to seek consideration or promotion under Old Rules, which existed prior to issuance of New Rules on 11.02.2013 [Annexure A-5]. 5(ii). The petitioners cannot claim promotion under Old Rules from the year 2010, when, the petitioners have not been able to show that their juniors were promoted and petitioners were left out between 2010 till issuance of New Rules on 11.02.2013 [Annexure A-5]. Nothing has been placed on record to assert that the Recruitment and Promotion Rules notified by State Authorities provided for convening the Departmental Promotion Committee every year as per the Old Rules, which was not done. Even the promotion under Old Rules is not automatic. It is for the State Authorities to decide as to when and in what manner and to what extent any of the vacancies are to be filled up. Issuance of any mandate that the vacancies in the promotional cadre of Laboratory Technicians should have been filled up under Old Rules, is not tenable. 5(iii). Even a perusal of the Instructions dated 26.08.2025 [Taken on Record] indicates that as per Old Rules which existed as in December 2010, 20% posts in promotional cadre of Laboratory Technicians were to be filled up from amongst Laboratory Attendants, who possess Matriculation with Science and incumbents were senior to the petitioners were promoted in January 2011. Thus, the non-promotion of petitioners as Laboratory Technicians under Old Rules, due to their lower seniority placement being a non-selection post, does not suffer from any infirmity. 5(iv). Thus, the non-promotion of petitioners as Laboratory Technicians under Old Rules, due to their lower seniority placement being a non-selection post, does not suffer from any infirmity. 5(iv). The issue as to whether the feeder category employee has a right to claim consideration and promotion by seeking application of old Recruitment & Promotion Rules or is to be governed by existing Recruitment & Promotion Rules [Rules of 2013, Annexure A-5 in this case] stands adjudicated by the Hon’ble Supreme Court in State of Himachal Pradesh and others Versus Raj Kumar and others , (2023) 3 SCC 773 , in the following terms:- “80. The Court considered a large number of decisions that distinguished Rangaiah case and held as a matter of principle that rules that exist on the d date when the case for promotion was taken up would hold the field. The Court furtherobserved that there is no rule which specifically mandates that the vacancies prior to the amendment must be filled as per the rules that existed and not the new Rules. This is a complete reversal of the principle set to have been laid down in Rangaiah case. 81. Finally, D. Raghu v. R. Basaveswarudu, is yet another decision that has not followed the principle in Rangaiah case. The Court held as under: (D. Raghu case, SCC p. 68, para 129) "129.... 129.8. The High Court was in error in holding that it has to be necessarily held that the vacancies which arose prior to the revised Recruitment Rules coming into force have to be filled up f under the then existing Rules ("the 1979 Rules") relying upon case law including Rangaiah. There was a conscious decision taken to not fill up vacancies based on the restructuring, and what is more, letters dated 28-10-2002 and 14-11-2002 show that promotion to the post of Inspector was to be effected based on the new Recruitment Rules." 82. A review of the fifteen cases that have distinguished Rangaiah would a demonstrate that this Court has been consistently carving out exceptions to the broad proposition formulated in Rangaiah. The findings in these judgments, that have a direct bearing on the proposition formulated by Rangaiah are as under: 82.1. A review of the fifteen cases that have distinguished Rangaiah would a demonstrate that this Court has been consistently carving out exceptions to the broad proposition formulated in Rangaiah. The findings in these judgments, that have a direct bearing on the proposition formulated by Rangaiah are as under: 82.1. There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah case must be understood in the context of the rules involved therein. 82.2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existing rules, which implies the "rule in force" as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates. 82.3. The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the re- pealed rules in view of the policy decision taken by the Government. There is no obligation for the Government to make appointments as per the old Rules in the event of restructuring of the cadre is intended for efficient working of the unit. The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article 14. 82.4. The principle in Rangaiah need not be applied merely because posts were created, as it is not obligatory for the appointing authority to fill up the posts immediately. 82.5. When there is no statutory duty cast upon the State to consider appointments to vacancies that existed prior to the amendment, the State cannot be directed to consider the cases. 83. The above-referred observations made in the fifteen decisions that have distinguished Rangaiah case demonstrate that the wide principle enunciated therein is substantially watered-down. Almost all the decisions that distinguished Rangaiah hold that there is no rule of universal application to the effect that vacancies must necessarily be filled on the basis of law that existed on the date when they arose. This only implies that decision in Rangaiah is a confined to the facts of that case. 84. Almost all the decisions that distinguished Rangaiah hold that there is no rule of universal application to the effect that vacancies must necessarily be filled on the basis of law that existed on the date when they arose. This only implies that decision in Rangaiah is a confined to the facts of that case. 84. The decision in Deepak Agarwal is a complete departure from the principle in Rangaiah inasmuch as the Court has held that a candidate has a right to be considered in the light of the existing rule. That is the rule in force on the date the consideration takes place. This enunciation is followed in many subsequent decisions including that of Union of India v. Krishna Kumar. In fact, in Krishna Kumar Court held that there is only a "right to be considered for promotion in accordance with rules which prevail on the date on which consideration for promotion takes place". In these circumstances, the State Authorities were not bound to fill up all the vacancies; however, upon decision to fill up vacancies the Rules in force on the date of filling up of vacancies, consideration shall govern the promotion. No person has the right to seek filling up of vacancies by applying Old Rules, unless the Rules expressly mandate to fill up vacancies occurring Old Rules by applying the Old Rules. No such eventuality has been pointed out, in the instant case and, therefore, the petitioners have no right to seek promotion under Old Rules. 5(v). Learned Counsel for the petitioners has not been able to convince this Court, regarding the change in law after the declaration of the proposition in the case of Raj Kumar [supra]. In these circumstances, the claim of the petitioners is not tenable and is rejected. 6. At this stage, Learned Counsel for the petitioners states that Additional Director AYUSH, Himachal Pradesh to the Government of Himachal Pradesh has forwarded a proposal to Secretary [AYUSH] to Government of Himachal Pradesh, for one time relaxation, in DMLT Diploma for promotion to post of Laboratory Technician on 21.11.2023, as is referred to in communication dated 26.08.2025 [Taken on Record]. 7. Per Contra, Learned State Counsel, states that proposal dated 21.11.2023, referred to in communication dated 26.08.2025, is not the subject matter of the instant proceedings. 8. 7. Per Contra, Learned State Counsel, states that proposal dated 21.11.2023, referred to in communication dated 26.08.2025, is not the subject matter of the instant proceedings. 8. With reference to the proposal as in Para-6 [supra], this Court cannot issue a mandate to the State Authorities to give effect to the proposal contained in communication dated 26.08.2025. It lies within the domain of the State Authorities whether to grant or not grant approval to a proposal to examine a proposal. Hence, this Court refrains from passing a mandate, except as directed hereinafter. DIRECTIONS: 9. In view of the above discussion and for the reasons recorded hereinabove, instant petition is disposed of, in the following terms:- (i) Rejection orders dated 15.06.2016 [Annexure A-4], do not call for any interference; (ii) Claim of petitioners for promotion to post of Laboratory Technician by applying Old Recruitment & Promotion Rules is disallowed; (iii) Non-promotion of petitioners under Old Rules due to lower seniority in January 2011 [being non-selection post] does not call for interference; (iv) Action of State Authorities in granting the promotion to the post of Laboratory Technicians by New Recruitment and Promotion Rules dated 11.02.2013 [Annexure A-5] and promotion of petitioners for want of Educational and Technical Qualifications is upheld; (v) Proposal for one time relaxation in DMLT Diploma for promotional post of Laboratory Technician as referred to in communication dated 26.08.2025 [Taken on Record] is directed to be examined by State Authorities, in accordance with law, hereinafter; (vi) Needless to say that this Court has not adjudicated upon entitlement; right or non-entitlement of petitioners with respect to claim for relaxation, as in (iii) [supra; and (vii) Parties to bear their respective costs. Pending miscellaneous application(s), if any, shall also stand disposed of.