Sharma Vs. High Court of H.P. at Shimla  INSC 79 (2 February 1994)
P.B. Sawant, P.B. Singh N.P. (J)
1994 SCR (1) 523 1994 SCC (2) 411 JT 1994 (1) 335 1994 SCALE (1)350
Judgment of the Court was delivered by SAWANT, J.- Leave granted.
the establishment of the respondent-High Court there are two sets of equivalent
hierarchical posts, viz., Clerks, Translators and Revisors on the one hand and
Clerks, Senior Assistants and Deputy Superintendents on the 413 other. Above
the posts of Revisors and Deputy Superintendents is the post of Superintendent
which is common promotional post to both the sets.
appellant was appointed as a Clerk on July 24, 1972 and was promoted as Translator on July 30, 1979. The pay scale of the Translator at
the relevant time was Rs 600- 1120. It was revised to Rs 1800-3200 w.e.f. January 1, 1986. Thereafter she was promoted to the
post of Revisor on February
26, 1992 which carried
the pay scale of Rs 2000- 3500.
this, Respondent 2 was appointed as a Clerk on January 7, 1974. He was promoted to the post of Senior Assistant on August 14, 1986. The post of Senior Assistant
earlier carried the pay scale of Rs 600-1120 and w.e.f.
1, 1986 the pay scale was
revised to Rs 1800-3200.
is thus apparent that the post of Translator and the post of Senior Assistant
were on a par. There is also no dispute that the post of Revisor is on a par
with the post of Deputy Superintendent which carried the same pay scale as that
of the Revisor, viz., Rs 2000-3500.
as Clerk 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 post is equivalent to the
post of Deputy Superintendent), Respondent 2 was not promoted to the post of
Deputy Superintendent in that line of promotion. There is no dispute that there
was a combined seniority list maintained and the appellant stood at SI. No. 13
whereas Respondent 2, at SI. No. 17. It is also not in dispute that the post of
Superintendent is the next promotional post available both to Revisors and
7.On December 3, 1992 overlooking the claim of the
appellant, Respondent 2 was promoted as Superintendent which post carries the
pay scale of Rs 2200-4000. The High Court relied upon 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 follows:
promotion from amongst graduate Deputy Superintendents/ Revisors with minimum 3
years of service as such in the ratio of 4:1, failing which by promotion from
amongst Sr. Assistants/Translators with minimum 6 years' service as such in the
After promoting 4 Deputy Superintendents/Senior Assistants as Superintendents
from general category. One Revisor/ Translator shall be promoted as
Superintendent from amongst Revisors/ Translators' category." 8.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 from Revisors. The appointment from Revisor to
the post of the Superintendent is to be made only after four from Deputy
are promoted to the said post. If none from the Deputy Superintendents and Revisors
with the minimum of three years' service is available, the appointment is to be
made from amongst the Senior Assistants and Translators with minimum service of
six years in the said posts.
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 Superintendent. The
position further was that on the relevant date, i.e., December 3, 1992, there was no Deputy Superintendent
or Revisor with minimum three years' service in the respective posts. Hence the
post was given to Respondent 2, as he was Senior Assistant with more than six
years' service. The consequence 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 two
events, viz., her promotion to the post of Revisor and that of Respondent 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.
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 held that Rule 10 of the 1992 Rules was valid and dismissed the
petition. It is aggrieved by the said decision that the present appeal has been
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 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 1 1 of the 1990 Rules was almost on
the same pattern. In fact, by the said earlier rule, all graduate court
employees who 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
Superintendent. 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 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, were 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 considered
for the said post.
Secondly, a proportion between Deputy Superintendents and Revisors was laid
down for promotion to the post of the Superintendent.
this case, it is not necessary for us to go into the question whether Rule 11
of 1990 Rules which provided for the promotion to the 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.
basic weakness in the present Rule 10 is that it places two unequal sets of
posts on a par with each other and also prescribes qualifying service for the
higher post as well.
posts of Deputy Superintendents and Revisors admittedly 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 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 Translators 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 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 of 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 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.
therefore, strike down Rule 10 of the 1992 Rules and direct the High Court to
frame an equitable rule for promotion to the post of Superintendent in place of
the said rule.
have no doubt that whatever the anxiety of the High Court to provide
promotional avenues to those who are stagnated, the promotion rule will not be
made in a manner which would deny to the incumbents of the higher posts
promotion while giving unmerited advantage over them to those holding lower
posts. The necessary consequence is that the promotion given to Respondent 2
appeal is allowed accordingly.- In the facts and circumstances of the case,
however, there will be no order as to costs.
Advocates who appeared in this case: K.R. Nagaraja, Advocate, for the
Appellant; Ms K. Amreshwari, Senior Advocate (A.K. Srivastava and Ms Sushma Suri,
Advocates, with him) for the Respondents.