IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP 540 of 2000. Judgment Reserved on May 12, 2008. Date of decision 24.6.2008. Girdhari Lal & others ….Petitioners. Versus H.P.Vidhan Sabha and another ….Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the petitioners Ms. Ranjana Parmar, Advocate. For respondent No. 1 Mr. K.D.Sood, Advocate. For respondent No. 2 Mr. Shrawan Dogra, Advocate. Dev Darshan Sud, J. The petitioners have challenged Annexure P-7, which is an order promoting respondent No. 2 as Senior Assistant, on adhoc / stop gap arrangement. The allegations of petitioners are that petitioner No. 1, joined as a clerk in the Vidhan Sabha on 2.8.1985, was confirmed on 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - 19.5.1988. He pleads that he was promoted as Senior Clerk on 3.8.1993 and Junior Assistant on 2.8.1995. Petitioners 2 and 3 joined the H.P. Vidhan Sabha in the cadre of clerks on 1.7.1986 and 14.7.1986 respectively. All the petitioners are working as Junior Assistants in the H.P.Vidhan Sabha and respondent No. 2 was working as a Proof Reader. Their grievance is that earlier Clerks, Proof Readers and Junior Assistants were eligible for promotion to the post of Senior Assistants from amongst those who had completed 10 years service in the feeder category which was reckoned from the date of appointment in the Vidhan Sabha were further considered for promotion to the post of Senior Assistant(s). It is their allegation that in the joint Seniority List circulated, which has remained unchallenged, the respondent was shown at Sr. No. 17, whereas the petitioners were placed above in the seniority list. The tentative seniority list of Clerks/ Junior Assistants (Annexure P-3) shows petitioner No. 1 at Sr. No. 10, petitioner No. 2 at Sr. No. 12, petitioner No. 3 at Sr. No. 13, petitioner No. 4 at Sr. No. 15, petitioner No. 5 at Sr. No. 16, petitioner No. 6 - 3 - at Sr. No. 17, petitioner No. 7 at Sr. No. 18 and petitioner No. 8 at Sr. No. 19 and respondent at Sr. No. 20 below all the petitioners. Their respective dates of appointments have been shown in the seniority list. The subsequent seniority list circulated on 19.6.1998 notifying the seniority position as on 1.1.1998 assigned seniority to the petitioners at Sr. Nos. 7, 9, 10, 12, 13, 14, , 15, 16 and to respondent No. 2 at Sr. No. 17 again below the petitioners. It is undisputed before me that for promotion to the post of Senior Assistant(s), the post is a non selection post which is to be filled 100% by promotion, as is clear from the following: “Sr. No. Name of Selection or Method of Qualifications Grade from which the post Non selection recruitment for direct promotion is to be recruitment made 1 to 13 …….. 14. Senior Non selection 100% by N.A. By promotion Assistant promotion from amongst the clerical cadre of clerks / Sr. Clerks / Junior Assistants with 10 years regular service or regular combined with continuous adhoc ( rendered up to 31.3.98) service and Proof Reader with five years regular service or regular combined with continuous adhoc ( rendered up to 31.3.98) service in the grade. For the purpose of combined seniority, the Proof Reader will be equated with Junior Assistants.” - 4 - The petitioners claim that they cannot be denied promotion as they were senior to the respondents as aforesaid and that their induction in the feeder cadre was earlier than that of respondent No. 2. In reply, respondent No. 1 has contended that seniority relied upon by the petitioners is not relevant at all and by virtue of amendment which has been made in the Recruitment and Promotion Rules, (hereafter referred to as the Rules), his seniority is to be reckoned above that of the petitioners, as the rule itself provides that for the purpose of combined seniority, the Proof Readers will be equated with Junior Assistants. The Rules having not been challenged and having been framed by the competent authority, no relief can be granted to the petitioners. Similar is the reply of respondent No. 2. I have heard the learned counsel for the parties and have gone through the record. Undoubtedly, the petitioners have joined service much earlier to respondent No. 2. The post of Senior Assistant is purely a non selection post purely by promotion. There is also no - 5 - dispute regarding the eligibility criteria, that is to say, the petitioners and respondent No. 2 are eligible to be considered for the post of Senior Assistant(s). The post is non selection and therefore, the criteria would be seniority subject to an employee being otherwise fit. The record of the Departmental Promotion Committee was called for and the only criteria followed is that since the respondent has become senior to the petitioners, his case was recommended for promotion since he was found fit for promotion and as there was nothing adverse pending against him. This stand cannot be accepted. The rules do not provide for determination of interse seniority between respondent No. 2 and the petitioners. Admittedly, till the joint seniority list was being issued, he was being shown junior to the petitioners. Merely on the basis of consideration for eligibility, the respondent cannot be considered to be senior. There is nothing on record to suggest that a combined seniority list was issued showing respondent No. 2 to be senior to the petitioners which would provide them an opportunity to represent their case showing that - 6 - actual length of service rendered in a cadre /grade would constitute right place in seniority instead of being propped up by artificial fiction contrary to the principles used for determination of seniority. Merely because the cadre of Proof Readers constitutes a single man cadre cannot constitute a ground for giving him preference in seniority over the rest. True, it is for the employer to determine the conditions of service of its employees and to equate posts, but at the same time, such equation has to be in accordance with Constitutional imperatives of Article 14 of the Constitution of India. I do not find from the record any justification making the petitioners junior to respondent No. 2 who constitutes a single man cadre. In these circumstances, it cannot be said that the promotion of respondent No. 2 is in consonance with the Rules. Mere acquisition of eligibility does not guarantee promotion unless other criterion of seniority is satisfied. On the second contention that the writ petition is not maintainable as the rules have not - 7 - been challenged, all that need be said is that the rules as enacted do not provide any advantage to respondent No. 2 and, therefore, there is no necessity to challenge the rules. In these circumstances, this writ petition is accepted; order Annexure P-7 is quashed and set aside. The case of the petitioners and respondent No. 2 will be considered afresh in accordance with law and the Rules. There shall be no order as to costs. June 24, 2008 (PC). (Dev Darshan Sud), J.