IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No.4333 of 2008 (OA No. 917/1997) Judgment reserved on : 3.7.2009 Date of decision : July 22, 2009. Bakshi Ram & Others …Petitioners. Versus State of H.P.& Others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Mr. H.K.Bhardwaj, Advocate. For Respondents No.1 & 2 : Mr. R.K.Sharma, Sr. Addl. A.G. with Mr. A.K.Bansal, Addl.A.G. and Mr. R.P.Singh, Asstt. A.G. For Respondent No. 3. : Mr. Vikrant Thakur, vice Mr. K.D.Shreedhar, Advocate. Kuldip Singh, Judge The petitioners had filed Original Application No. 917 of 1997 in the Himachal Pradesh Administrative Tribunal and on abolition of the Tribunal, the Original Application No. 917 of 1997 was transferred to this Court under Himachal Pradesh Administrative Tribunal (transfer of decided and pending cases and applications) Act, 2008 and thereafter, the Original Application No. 917 of 1997 has been registered in this Court as CWP(T) No.4333 of 2008. 2. The petitioners through this petition have prayed for quashing of order dated 1.5.1997 Annexure A-1 vide which 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 respondent No.3 was promoted as Kanungo, prayer has also been made for a direction to respondents No. 1 and 2 to fill up the post and all other posts of Kanungos falling vacant in future on the basis of the day the Patwari acquires the eligibility criteria of promotion and as and when the promotional post becomes available. 3. The further case of the petitioners is that they were appointed as Patwaris on different dates in the years 1981 to 1984. they had already completed 14 to 16 years of continuous service as confirmed Patwari. The Rule 17 of the Recruitment and Promotion rules for the post of Kanungo provides that Patwari shall be eligible to appear in Kanungo examination after putting four years service as Patwari. It also provides that Patwari shall require to pass the Kanungo examination in three chances. However, after availing three chances, one additional chance can be given by the Government after due consideration of the case. The petitioners cleared their departmental examination of Kanungo in the years 1987 to 1994. The respondent No.3 joined the service in the year 1974 and cleared the departmental examination of Kanungo in the year 1994. 4. The respondent No.2 used to promote Kanungo even those persons who had not passed the departmental examination. This unrestricted power was checked by the Government vide letter dated 15.12.1983 Annexure E with the direction that unqualified Kanungos candidates should be reverted back immediately when they failed to pass the examination within the prescribed period. Thereupon respondent No.2 vide order dated 3.2.1994 reverted unqualified 9 Kanungos who were promoted earlier. 3 5. The respondents vide endorsement No. 1053-63 dated 2.5.1996 promoted Raj Lal, Nanak Chand, Asha Puran and Jeet Singh, Patwaris as Kanungos immediately on their clearing the departmental examination. Raj Lal was ordered to be reverted as Patwari but he was again promoted as Kanungo when he cleared the departmental examination, thus favour was shown to Raj Lal. It is the case of the petitioners that dominant factor for promotion to the post of Kanungo is to qualify the departmental examination and not the seniority alone. The date when Patwari acquires eligibility is dominant factor. In case the senior acquires eligibility later, then the junior who has cleared the departmental examination earlier is entitled to promotion first. 6. The petitioners have contended that on the retirement of Raj Lal, Kanungo one post fell vacant, the respondent No.2 promoted respondent No.3 even though the respondent No.3 had passed examination much later than the petitioners and he became eligible for promotion subsequent to the petitioners. The respondents should have filled the post after considering the petitioners who have acquired eligibility earlier to respondent No.3. The respondents No. 1 and 2 committed an illegality by promoting respondent No.3 without considering the claim of the petitioners or other Patwaris who acquired eligibility earlier to respondent No.3. 7. The respondent No.2 contested the petition by filing the reply. It has been pleaded that the claim of the petitioners for promotion before seniors, in view of their passing the departmental Kanungo examination is not sustainable. The Patwaris and Kanungos Recruitment and Promotion Rules, 1992 do not suggest 4 non-consideration for promotion of the senior Patwaris existing in the inter-se seniority while they become qualified for promotion before filling up the promotional post of Kanungo. The Kanungo who had not qualified the departmental examination was reverted vide endorsement No. 303-06/SK dated 4.2.1994 Annexure R-I. The reverted Kanungo filed an application before the erstwhile Tribunal and his reversion order was stayed by the Tribunal. He was given one more chance by the Tribunal vide order dated 8.2.1994 to qualify the departmental examination. Raj Lal, Nanak Chand, Asha Puran and Jeet Singh have qualified the departmental Kanungo examination and they were thus regularized on 19.3.1996 vide Annexure R-3. The respondent No.3 had qualified the Kanungo’s departmental examination. The claim of the petitioners that merely the requirement of departmental examination is the dominant factor for promotion is not sustainable in the eyes of provision of relevant rules. The first and foremost factor is the seniority subject to rejection of unfit. The respondent No.3 had qualified the departmental examination before filling up the vacant post. The respondent No.2 has prayed for dismissal of the petition. 8. The respondent No.3 has also filed reply and more or less has taken the same pleas as taken by respondent No.2. 9. Heard and perused the record. 10. Mr. Bhardwaj has submitted that petitioners had cleared the departmental examination for promotion to the post of Kanungo earlier to respondent No.3, therefore, respondent No.3 was wrongly promoted by respondent No.2 as Kanungo. According to Mr. Bhardwaj there are two classes of Patwaris (i) who have passed 5 the departmental examination for promotion to the post of Kanungo and (ii) those who have not passed the departmental examination. The precise submission of the learned counsel for the petitioners is that the Patwaris who have passed departmental examination is a separate class from the Patwaris who have not passed the departmental examination for promotion to the post of Kanungo. He has submitted that promotion to the post of Kanungo is to be made in terms of date of passing of departmental examination by the Patwari. In other words, the Patwari irrespective of his seniority, who passes departmental examination first is entitled to promotion first to the post of Kanungo, in comparison to Patwari who passes departmental examination lateron even if later is senior as Patwari. Mr. Bhardwaj has not pointed out any specific rule in support of his submission that Patwari is to be promoted as Kanungo on the basis of date of passing of departmental examination for promotion to the post of Kanungo. 11. The respondent No.3 was promoted as Kanungo vide endorsement dated 1.5.1997 Annexure A. The petitioners have pleaded that respondent No.3 had qualified departmental examination on 10/11.12.1994. The respondent No.2 in his reply has admitted that the post of Kanungo fell vacant on the retirement of Raj Lal and then respondent No.3 was promoted. It is not the case of petitioners that Raj Lal had retired prior to December, 1994. In fact perusal of Annexure R-3/1 indicates that in D.P.C. held on 19.3.1996, the case of Raj Lal was recommended for promotion to the post of Kanungo. The petitioners in the petition have not pleaded when the post against which respondent No.3 was 6 promoted as Kanungo had fallen vacant. The stand of respondent No.2 as noticed above is that respondent No.3 was promoted on the vacancy which was available on the retirement of Raj Lal. It is thus clear that post fell vacant against which respondent No.3 was promoted as Kanungo somewhere in the year 1996 or 1997 and on that date the respondent No.3 had already cleared the departmental examination. 12. Mr. Bhardwaj has relied Punjab State Electricity Board, Patiala and another Vs. Ashok Kumar Sehgal and others, AIR 1990 Punjab and Haryana 117, in support of his submission that the seniority is not enough for promotion, the date when candidate acquires eligibility is dominant factor and when junior acquire eligibility earlier than his senior, he is entitled to promotion in preference to his senior as and when promotional post becomes available. In para 21 of the report ratio has been culled out which is as follows:- “(i) The fixation of quota for promotion as between Diploma-holders and non-diploma-holders Linemen, who were integrated into a common cadre by the Board, was wholly arbitrary and irrational, violating Article 14 of the Constitution ; (ii) In the promotional quota of Line Superintendents (as contrasted with direct recruits) both the diploma- holder and the non-diploma-holder, seeking promotion to the post of Line Superintendent, must first be eligible on the basis of the eligibility criteria embodied in Office Order dated December 2, 1968; (iii) The senior-most eligible Lineman, whether a diploma- holder or a non-diploma-holder, is entitled to be promoted to the post of Line Superintendent; (normally) and deducedly; 7 (iv) The relevant date for consideration for promotion shall be the date on which the promotional post fell vacant”. It has also been held in para 20 that the eligibility criteria embodied in Office order dated December 2, 1968 laying down conditions for eligibility for Linemen seeking promotion to the posts of Line Superintendents, in the nature of things, was patently accepted and latently approved as valid by the Supreme Court. The para 21 of the report further indicates that senior-most eligible Lineman, whether a diploma-holder or a non-diploma-holder, is entitled to be promoted to the post of Line Superintendent; (normally) and deducedly; the relevant date for consideration for promotion shall be the date on which the promotional post fell vacant. Mr. Bhardwaj has not pointed whether there is similar office order or provision like that of office order dated 2.12.1968 referred in Punjab State Electricity Board case (supra) in the present case. In any case in the judgment relied by Mr. Bhardwaj the senior most eligible Lineman is entitled to be promoted to the post of Line Superintendent and the relevant date for consideration for promotion shall be the date on which the promotional post fell vacant. The respondent No.3 was eligible for promotion and he had already qualified the departmental examination when post fell vacant against which he was promoted. The respondent No.3 is senior to petitioners, therefore, Punjab State Electricity Board (supra) is not applicable in the facts and circumstances of the present case. 8 13. Mr. Bhardwaj has then cited Dr. Satish Rathore Vs. State of H.P. and others, 2002 (3) S.L.C. 59. In that case, as per claim of petitioner, the respondent – State had wrongly promoted 132 members of H.P.H.S.Grade-II to H.P.H.S. Grade-I in violation of Himachal Pradesh Health Service Rules, 1974 and Himachal Pradesh Departmental Examination Rules, 1976 in the year 1983 and again in successive years 1984, 1985 and 1986 who had not passed the departmental examination, who were ineligible to be promoted to the higher post. On those facts, a Division Bench of this Court directed the State to consider the claim of petitioner for promotion from H.P.H.S. Grade-II to H.P.H.S. Grade-I against available vacancy occurring from August 1983 and thereafter when the petitioner passed departmental examination if he is otherwise found eligible on the basis of Himachal Pradesh Health Services Rules, 1974 and Himachal Pradesh Departmental Examination Rules, 1976 along with other HPHS Grade-II doctors who did not pass the departmental examination when they were promoted in the year 1983 and thereafter. However, the issue involved in the present case is to be seen from the angle that when respondent No.3 was promoted as Kanungo on that date, he was eligible or not. This is not even the case of petitioners. They are simply projecting their case that since they had qualified the departmental examination prior to respondent No.3, therefore, they are entitled to promotion earlier to respondent No.3. Satish Rathore case (supra) is also not applicable in the facts of the present case. Mr. Bhardwaj has lastly relied Union of India Vs. Sadhana Khanna (2008) 1 SCC 720. This is a case where the junior was promoted and the senior 9 was ignored. The question of passing of the departmental examination was not before the Court, therefore, Union of India (supra) is also not applicable. 14. An employee has no right for promotion, he has only right for consideration for promotion. It is also not in dispute that for promotion post should be available. The petitioners have miserably failed to establish that promotion post on which respondent No.3 was promoted was available before respondent No.3 had actually cleared the departmental examination. The petitioners have failed to make out any case that respondent No.3 was wrongly promoted. There is no merit in the petition which is accordingly dismissed with no order as to costs. ( Kuldip Singh ), July 22, 2009, Judge. (GR)