IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 7877 of 2008 Judgment reserved on: 15.12.2010 Date of decision: 21.2.2011 Inder Singh Rahal …Petitioner. Versus State of H.P. and others. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Mr. P.C.Sharma, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. A.G. for respondents No.1 to 4 Mr. K.B.Khajuria, Advocate for respondent No.6. Kuldip Singh, Judge The petitioner has prayed for quashing of Annexure A-4 dated 21.6.2001 vide which the Government has sanctioned upgradation of 130 posts of Clerks/Junior Assistants(Auditors) in the pay scale of ` 3120-5160/4400 – 7000 in H.P.P.W.D. Divisional Offices (Accounts Branches) to the posts of Senior Assistants in the pay scale of ` 5800 – 9200 and abolition of the same number of posts of Clerks / Junior Assistants in HPPWD, with immediate effect. The petitioner has also prayed that a direction may be given to respondents 1 to 4 to promote the petitioner from the date Ram 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Dass and Mohinder Kumar serial Nos. 15 and 26 in the seniority list respectively were promoted with all consequential benefits. 2. That the petitioner joined as Peon in the respondent- HPPWD on 22.11.1982, he was matriculate at that time. It is the case of the petitioner that in the seniority list of Class-IV regular employees in HPPWD, who are matriculate as on 31.12.1997, the petitioner is placed at serial No. 61, his date of joining has been shown as 22.11.1982 with matriculation qualification in March 1980. In the seniority list, Mohinder Kumar has been shown at serial No. 26 and he was under matric at the time of his appointment in March, 1981. Ram Dass has been shown at serial No. 15 in the seniority list. He passed Prabhakar examination in September, 1996. It has been alleged that there are many instances in the seniority list whereby some of the persons who were not eligible to be considered for appointment as Clerk prior to September, 1996. 3. The petitioner became eligible to be appointed as Clerk after he had completed three years of service as Peon which was initial requirement of rules. It has been alleged that if a right has accrued to a person earlier at any point of time, than a person who became eligible subsequently although, being senior to the earlier one, the claim of that junior person cannot be ignored. The right to get appointment accrued only when the person is holding minimum eligible qualification to that post. Ram Dass has joined as Peon in January, 1981 but he acquired eligibility in September, 1996. Mohinder Kumar was not matriculate till September, 1996 and, therefore, right from 1981 to September, 1996 Ram Dass and 3 Mohinder Kumar could not be considered for promotion to the post of Clerk. 4. It has been alleged that as per Rules the promotions are to be made on the basis of seniority. In the year 1989 as many as 100 posts of Clerks were up-graded and similar number of posts were abolished. Out of total cadre strength of 1069 posts, 130 posts of Clerks have been up-graded. The petitioner after serving 19 years was still holding the post of Peon. The practice of abolition of posts and up-gradation has resulted hardships to the Class-IV employees. As per Annexure A-4, 130 posts of Clerks were upgraded and similar number of posts of Clerks were abolished. The perusal of Annexure A-4 indicates that no reasons have been given for abolition of 130 posts of Clerks. The action of Government is without jurisdiction and Annexure A-4 is liable to be quashed and set-aside. The valuable right of the petitioner to get promotion after rendering 19 years of service as Clerk has been taken away without assigning any reason. 5. The petitioner is entitled to notional promotion from the date Ram Dass and Mohinder Kumar were promoted as Clerks. Beli Ram was appointed as Peon in February, 1974, he was promoted as Clerk in March, 1989, although, he had passed his matriculation examination in March, 1988. The petitioner was eligible to be promoted as Clerk against 10% vacancies after completion of 10 years of service as Peon. The learned counsel for the petitioner during the hearing of the petition has submitted that the petitioner has been promoted as Clerk on 26.5.2004. Ms. Nitu 4 was appointed as Peon on compassionate grounds. She was promoted as Clerk out of turn. A holder of a post claiming compassionate appointment cannot claim precedent in promotion. 6. The petition has been contested by respondents No.1 to 4 by filing joint reply, in which several preliminary objections have been taken including mis-joinder and non-joinder of necessary parties. It has been stated that the petitioner is placed at serial No. 61 in the seniority list and there are 12 persons senior to the petitioner who are matriculate and were still to be promoted as Clerks under 10% quota to the posts of Clerks. The said 12 persons have not been impleaded as parties and in their absence the petition is not maintainable. 7. The claim of petitioner for promotion to the post of Clerk prior to the promotions of Mohinder Kumar, Ram Dass, Balwant Singh, Surat Singh, Prithvi Chand and Kanta Gupta is not based on facts. All the aforesaid officials have been promoted in accordance with Recruitment and Promotion Rules and seniority. The petitioner has no cause of action after a period of 4 years simply under the garb of letter dated 21.6.2001 Annexure A-4. 8. The claim of the petitioner that he is matriculate and thus entitled to the post of Clerk prior to the persons who have acquired the said qualification subsequently is not sustainable in the eyes of law as per Recruitment and Promotion Rules and seniority of the feeder post to the post of Clerk. 9. It has been stated that 130 posts of Clerks were upgraded to the post of Senior Assistant on the ground that in Sub 5 Division Senior Assistants were working as S.D.C. and their work was being audited by a LDC and, therefore, the post of Auditor by whom the work of SDC (Senior Assistant) was required to be audited in Divisional Office. This was otherwise the demand of the association. The cadre strength of Clerks in respondent- Department by upgradation of 130 posts of Clerks to the post of Senior Assistant is now 939 against the earlier cadre strength of 1069. Roshan Lal in the seniority list of Peon was senior to the petitioner and while working as Peon, he gained higher education. He was rightly promoted as Clerk earlier to petitioner under 10% quota provided to Class-IV employees. Ms. Nitu was earlier engaged on compassionate grounds as Peon as per Government letter dated 31.10.1996 but subsequently the Government conveyed its sanction vide letter dated 18.8.1998 to engage her as Clerk on regular basis. She is matriculate prior to her joining as such. The claim of the petitioner of discrimination is wrong and denied. The respondents No.1 to 4 have prayed for dismissal of the petition. The petitioner has filed the rejoinder and re-asserted his case. 10. I have heard the learned counsel for the parties. In the petition, the petitioner has prayed two reliefs. The relief No.1 regarding upgradation of 130 posts vide Annexure A-4 dated 21.6.2001 cannot be allowed on the ground that by virtue of Annexure A-4 130 posts of Clerks have been upgraded as Senior Assistants and equal number of posts of Clerks have been abolished. The upgradation of 130 posts of Clerks has created a 6 right in favour of incumbents holding those posts but those incumbents have not been impleaded as parties in the petition. The said 130 persons have vested right in view of upgradation of 130 posts of Clerks as Senior Assistants. In absence of said 130 persons, Annexure A-4 dated 21.6.2001 cannot be quashed. 11. The learned counsel for the petitioner in support of the second relief prayed in the petition has submitted that petitioner was matriculate and fully eligible for promotion from the post of Peon to Clerk prior to Ram Dass and Mohinder Kumar. It has been submitted that Ram Dass and Mohinder Kumar acquired educational qualification for promotion to the post of Clerk during service but since they have acquired such qualification after petitioner, therefore, they are not entitled to promotion to the post of Clerk prior to petitioner. It has been submitted that in any case the petitioner is entitled to promotion from the date Ram Dass and Mohinder Kumar were promoted as Clerks. 12. The stand of the respondents 1 to 4 is that no doubt, Ram Dass and Mohinder Kumar have acquired educational qualification for promotion to the post of Clerk during service and after petitioner but as Class-IV employees both Ram Dass and Mohinder Kumar were senior to petitioner. It has been stated that as per Annexure A-1 seniority list, the petitioner is placed at serial No. 61, Ram Dass at serial No. 15 and Mohinder Kumar at serial No. 26. It is also the case of the respondents No.1 to 4 that as many as 12 eligible, qualified persons are above petitioner in the seniority list Annexure A-1 and petitioner cannot be promoted as Clerk by 7 superseding those 12 persons. The petitioner in the petition has not explained how he is entitled to promotion as Clerk by superseding 12 persons who are senior to him in seniority list and otherwise eligible for promotion as Clerks. 13. The petitioner otherwise also legally has no claim for promotion as Clerk prior to Ram Dass and Mohinder Kumar. It is not the case of the petitioner that on the date of promotion Ram Dass and Mohinder Kumar were not having requisite educational qualification for promotion to the post of Clerks. The simple case of the petitioner is that since he was having matriculation qualification prior to Ram Dass and Mohinder Kumar, which qualification is required for promotion to the post of Clerk, therefore, even if Ram Dass and Mohinder Kumar were senior to petitioner as Class-IV employee still petitioner has preferential right for promotion to the posts of Clerk prior to Ram Dass and Mohinder Kumar. The learned counsel for the petitioner has cited some judgments while arguing the case but it is not necessary to refer to those judgments in view of the judgment dated 3.12.2009 in CWP No. 446 of 2003 Shiv Kanta Vs. Kashmir Singh Rana and others in which Division Bench has held as follows:- “After analyzing the above paragraphs, it appears unless the Rules specifically provide to the contrary, acquisition of eligibility by a junior earlier to the senior cannot give any advantage to the junior in the matter of his placement in the zone of consideration for further promotion, if at the time when avenue for promotion to the higher cadre opens, both junior as also senior have acquired eligibility. In such a situation, the senior has to be placed above the junior 8 in the list of eligible candidates while considering them for promotion to the next higher post.” 14. It is not the case of the petitioner that rules specifically provide that Class-IV, who will acquire educational qualification prior in time shall be entitled to promotion in case his senior will acquire educational qualification lateron. The eligibility for promotion is to be considered on the date of availability of promotional posts of Clerk. It is not the case of the petitioner that on the date of availability of promotional posts against which Ram Dass and Mohinder Kumar were promoted, they were not eligible having requisite educational qualification. The petitioner has failed to make out a case that petitioner is entitled to promotion as Clerk prior to Ram Dass and Mohinder Kumar. In the petition, no specific prayer has been made against respondents No.5 and 6. The petitioner has failed to make out any case for grant of reliefs as prayed in the petition. 15. In view of the above discussion, the petition fails and is accordingly dismissed. ( Kuldip Singh ), February 21, 2011 Judge. (GR)