Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DAILYLAW 3800 (HP)

Rakesh Kumar v. State of H. P.

2025-09-01

Sushil Kukreja, Vivek Singh Thakur

body2025
JUDGMENT : VIVEK SINGH THAKUR, J. 1. Petitioner had approached the erstwhile H.P. State Administrative Tribunal by filing Original Application No. 2869 of 2017 being aggrieved by amendment in Recruitment and Promotion Rules (for short R&P Rules) for the post of Senior Scale Stenographer, vide Notification dated 14.2.2011 (Annexure A-1), whereby Bachelor’s Degree was prescribed as essential qualification for promotion from Junior Scale Stenographer to Senior Scale Stenographer and also against rejection of representation of the petitioner, conveyed to the petitioner vide communication dated 16.3.2017 (Annexure A-6). Petitioner was also aggrieved by condition contained in relaxation provided in R&P Rules vide amendment by Notification dated 30.3.2016 (Annexure A-3), whereby time, to acquire essential qualification for promotion, was granted only up to 30.6.2017. It was also grievance of the petitioner that appeal dated 23.3.2017 (Annexure A-7) preferred by petitioner against rejection of his representation was not decided till filing of the petition. 2. On abolition of H.P. State Administrative Tribunal Original Application was transferred to this High Court and registered as present CWPOA No. 2205 of 2020. 3. During pendency of petition, appeal preferred by the petitioner was rejected and it was communicated by the Government to the Director General of Police vide communication dated 4.2.2019. 4. Initially petitioner was appointed on regular basis as Steno typist on 20.12.1988. At that time minimum educational qualification for appointment to the post of Steno Typist/Junior Scale Stenographer/Senior Scale Stenographer and even to the post of Private Secretary was only Matriculation. 5. Petitioner was promoted to the post of Junior Scale Stenographer on 28.6.2010. 6. Vide Notification dated 14.2.2011 (Annexure A-1) minimum education qualification to the post of Junior Scale Stenographer/Senior Scale Stenographer was provided as Bachelor’s Degree. 7. Vide Notification dated 30.3.2016, R&P Rules were further amended providing that Junior Scale Stenographer, not possessing Degree of Graduation, but otherwise eligible to be considered for promotion to the post of Senior Scale Stenographer, was to be permitted to be promoted as Senior Scale Stenographer, but subject to condition to acquire qualification of graduation by 30.6.2017 and annual increment was liable to be payable from the due date only after acquiring qualification of graduation and failing which incumbent was to be reverted to the post of Junior Scale Stenographer and was to be reconsidered for promotion in future after acquiring the requisite qualification. 8. 8. Vide Office Order dated 22.10.2016 (Annexure A-4), petitioner was promoted as Senior Scale Stenographer, however, with condition that he will have to acquire qualification of graduation by 30.6.2017 and increment shall be payable to him, though from due date, but only after acquiring the qualification of graduation and failing which he shall be reverted back to the post of Junior Scale Stenographer and shall be considered for promotion in future only after acquiring requisite qualification. 9. In aforesaid circumstances vide communication dated 21.11.2016 (Annexure A-5) petitioner made a representation to Director General of Police with request to drop the condition of acquiring qualification of graduation by giving reference of other four persons, who were also not graduate, but had already been promoted even after issuance of Notification dated 14.2.2011, whereby minimum educational qualification of graduation was prescribed to the post of Senior Scale Stenographer. 10. Petitioner is seeking direction to the respondents to allow him to continue as Senior Scale Stenographer on the ground that minimum qualification of graduation to the post of Senior Scale Stenographer was incorporated on 14.2.2011, but even thereafter 4 persons having education qualification of Matriculation, namely, Sher Singh, Pradeep Kumar, Jasmer Singh and Sharmil Lata were promoted as Senior Scale Stenographers on 12.7.2012, 12.7.2012, 19.6.2014 and 12.6.2015, respectively and were never reverted back, rather were allowed to continue as such, irrespective of the fact that they were not graduate, but only matriculate. To substantiate this plea, petitioner has placed on record final seniority list of Senior Scale Stenographers notified vide memorandum dated 28.3.2016 (Annexure A-2). 11. Another ground taken by the petitioner is that condition imposed vide Notification dated 30.6.2016 (Annexure A-3) for relaxation for the promotion to the post of Senior Scale Stenographer of incumbents not having graduation, but subject to acquiring qualification of graduation by 30.6.2017, is arbitrary and impossible and, therefore, such condition requiring to acquire graduation on or before 30.6.2017, being arbitrary and impossible was not required to be complied with and thus petitioner was entitled to continue as Senior Scale Stenographer without reverting him to the post of Junior Scale Stenographer. 12. In reply to the petition, there is no response to the plea taken with respect to promotion and thereafter continuation of 4 above referred persons to the post of Senior Scale Stenographer having qualification of matriculation only, but not of graduation. 13. 12. In reply to the petition, there is no response to the plea taken with respect to promotion and thereafter continuation of 4 above referred persons to the post of Senior Scale Stenographer having qualification of matriculation only, but not of graduation. 13. The plea taken in reply is that petitioner was not graduate and thus was liable to be reverted, and in order to implement judgment dated 10.5.2023 passed in CWP No. 8718 of 2022, titled as Jai Pal Singh Vs. State of H.P. & others, respondents-Department was bound to revert the petitioner for finalizing seniority list. Submission/prayer of the petitioner to drop the condition of acquiring qualification of graduation on or before 30.6.2017, submitted to the respondents in representation and in appeal, has been rejected with the observation that provision providing to acquire higher education was not a bad idea. 14. In support of the claim of the petitioner, reliance has been placed on judgment of the Supreme Court in Vinod Krishna Kaul, Indian Police Service (Retired) Vs. Union of India and others, (1996) 1 SCC 41 , wherein it has been observed that keeping in view the legal maxim lex non cogit ad impossibilia, i.e. the law does not compel a person to do the impossible, the condition/requirement imposed by the State of such nature has to be considered to be unjustified and relief has to be granted to the petitioner, ignoring such condition. 15. Learned counsel for the petitioner has also placed reliance on judgment dated 26.7.2023 passed in CWP No. 4304 of 2023, titled as Sandeep Kaur Vs. State of H.P. & others, 2023 SCC OnLine HP 866, by referring following paras thereof:- “16. According to the petitioner, her father, due to his low salary, could not construct or buy a house in the State of Himachal Pradesh, that her permanent residence is at her native place at Bharatgarh, Post Office, Tehsil and District Ropar, Punjab, and Character Certificate can be issued by the authorities where she is residing. According to the petitioner, her father, due to his low salary, could not construct or buy a house in the State of Himachal Pradesh, that her permanent residence is at her native place at Bharatgarh, Post Office, Tehsil and District Ropar, Punjab, and Character Certificate can be issued by the authorities where she is residing. Since her village is in the State of Punjab and in that State, Character Certificates are issued only by the Police Department, and since the petitioner had produced such certificate from the Senior Superintendent of Police, we are of the opinion that the action of the respondents in insisting the petitioner to produce a Character Certificate issued by Executive Magistrate or Tehsildar has no legs to stand because the petitioner cannot be compelled to comply with what is not possible. 17. There is a maxim in law by name ‘Lex non cogit ad impossibilia’ which means that the law does not compel a man to do what is not possible for him to perform. 18. This principle has been followed and re-iterated by the Hon’ble Supreme Court in Chandra Kishore Jha vs. Mahavir Prasad and others, (1999) 8 SCC 266 ; Mohammed Gazi Vs. State of M.P. & others, (2000) 4 SCC 342 ; and Industrial Finance Corporation of India Ltd. Vs. Cannanore Spinning and Weaving Mills Ltd. & others, (2002) 5 SCC 54 .” 16. Learned counsel for the petitioner has also placed reliance on the judgment dated 18.11.2014, passed by Division Bench of this High Court in CWP No. 3588 of 2012, titled as Raj Kumar-II & others Vs. The State of H.P. and others and connected matters, wherein in similar facts and circumstances relief was granted to the petitioners. In that case for promotion to the post of Block Development Officer amongst Superintendent Grade-II minimum education qualification was substituted from matriculation to graduation. In that case also after such substitution certain matriculate Superintendents Grade-II were promoted to the post of Block Development Officers and were permitted to continue as such irrespective of the fact that they were not graduate. 17. In CWP No. 3588 of 2012, referring judgments passed by the Supreme Court in T.K. Kapur and others Vs. State of Haryana and others, 1986 (Supp.) SCC 584 ; T.N. Document Writers’ Association Vs. State of T.N. and another, 1995 (Supp.) 4 SCC 415; A. Satyanarayana & others Vs. 17. In CWP No. 3588 of 2012, referring judgments passed by the Supreme Court in T.K. Kapur and others Vs. State of Haryana and others, 1986 (Supp.) SCC 584 ; T.N. Document Writers’ Association Vs. State of T.N. and another, 1995 (Supp.) 4 SCC 415; A. Satyanarayana & others Vs. S.S. Purshotam & others, (2008) 5 SCC 416 ; B.N. Saxena Vs. New Delhi Municipal Committee and others, (1990) 4 SCC 205 ; Deepak Agarwal and Another Vs. State of Uttar Pradesh and others, (2011) 6 SCC 725 ; Rajni Sharma Vs. State of H.P. & Another; B. Manmad Reddy & others Vs. Chandra Prakash Reddy & others, (2010) 3 SCC 314 ; In Re: The Special Courts Bill, 1978, (1979) 1 SCC 380 ; A.S. Parmar and others vs. State of Haryana and others, 1984 (Supp.) 1 SCC 1; Dr. (Mrs) Sushma Sharma and others vs. State of Rajasthan and others, 1985 (Supp.) SCC 45 ; M.P. Singh, Deputy Superintendent of Police, C.B.I. and others vs. Union of India and others, (1987) 1 SCC 592 ; Inder Singh and others vs. State of U.P. and others, 1987 (Supp.) SCC 257 ; Punjab Higher Qualified Teachers, Union vs. State of Punjab and others, (1988) 2 SCC 407 and Union of India and others vs. Anil Kumar and others, (1999) 5 SCC 743 , in similar circumstances, respondents-State was directed to consider the case of the petitioners for relaxation. It was observed that matriculate Superintendents Grade-II were having same experience like graduate Superintendents Grade-II and certain matriculate Superintendents Grade-II were promoted to the post of Block Development Officers, despite the amendment, but petitioners were deprived from the same. 18. It is apt to record that now petitioner has acquired education qualification of Beecher's of Arts from Indira Gandhi National Open University with 57.7% (second division) in December, 2023. 19. It is also relevant to notice that before filing of the petition, petitioner was promoted as Senior Scale Stenographer on 22.10.2016 and vide order dated 28.6.2017 passed in Original Application No. 2869 of 2017, condition in order dated 22.10.2016 (Annexure A-4) was stayed till further orders and as on date petitioner is serving as Senior Scale Stenographer. 20. In present case in pursuance to amendment dated 30.3.2016, condition to acquire qualification of graduation by 30.6.2017 was imposed upon the petitioner. 20. In present case in pursuance to amendment dated 30.3.2016, condition to acquire qualification of graduation by 30.6.2017 was imposed upon the petitioner. By no means, in present setup a matriculate person can acquire qualification of graduation within 15 months. In case of petitioner, after promotion by imposing the condition on 22.10.2016, petitioner was having only 8 months to acquire the qualification of graduation which was impossible. Therefore, condition requiring completion of graduation by 30.6.2017 has to be ignored, particularly when petitioner has acquired qualification of Bachelor’s of Arts during pendency of petition, before his reversion to the post of Junior Scale Stenographer. Even if petitioner is reverted to Junior Scale Stenographer, then also as provided in amendment dated 30.3.2016, petitioner is entitled to be considered for promotion again to the post of Senior Scale Stenographer. 21. From the material on record, it is apparent that on date of acquiring qualification of graduation, petitioner would have been Senior Most Junior Scale Stenographer for consideration to be promoted as Senior Scale Stenographer. In aforesaid peculiar facts and circumstances, no fruitful purpose is going to be achieved by allowing the respondents to revert the petitioner to the post of Junior Scale Stenographer and, therefore, respondents are directed to continue petitioner as Senior Scale Stenographer by considering him as such w.e.f. 22.10.2016 with all consequential benefits. 22. In peculiar given facts and circumstances petition is allowed in favour of petitioner in aforesaid terms. The petition stands disposed of alongwith pending application(s), if any, in aforesaid terms.