IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 6474 of 2008 Date of decision: 20.09.2010 Raj Kumar …Petitioner. Versus State of H.P. & others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Ranjan Sharma, Advocate. For respondents No. 1 & 2: Mr. Vivek Thakur, Additional Advocate General. For respondents No. 3 & 4: Ms. Anjula Khajuria, Advocate. Deepak Gupta, J. (Oral) 1. The short point involved in this petition is whether the instructions issued by the Government whereby no upper age limit is fixed for employment of the persons already in employment is only applicable in case of promotion and in case of direct recruitment made on merit ad is not applicable in case of direct recruitment on batch-wise basis. 2. The undisputed facts are that the petitioner qualified his diploma in Electrical Engineering in the year 1982. In the State of Himachal Pradesh, especially in the respondent-Board, Junior 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 Engineers are appointed by two modes, one by direct recruitment and second by promotion. Direct recruitment is also made by two modes: one direct recruitment on the basis of selection and second batch-wise direct recruitment, whereby keeping in view the age of the batch, certain persons who have passed in that batch, are granted employment in accordance with their seniority. 3. It is also not disputed that the petitioner joined his services as Sub Station Attendant, which is a post in the feeder category for promotion to the post of Junior Engineer. The case of the petitioner is that though persons, who have qualified diploma in Engineering in the year 1983, 1984 and 1985 and were junior to him, have been appointed on batch-wise basis, he has been denied the benefit of such appointment. 4. The stand of the respondent-Board is that the petitioner, on the date when the others were appointed on batch- wise basis, was already more than 38 years old and was, therefore, over age and as such, not considered for promotion. Reference may be made to two documents relied upon by the petitioner. The first is a copy of letter issued by the Department of Personnel on 3rd August, 1985, addressed to all Heads of Departments in the State of Himachal Pradesh, which reads as follows: “Foot Note No. 2: The upper age limit for direct recruits will not be applicable to the candidates already in service of the Govt. including those who have been appointed on adhoc or on contract basis. Provided that if a candidate appointed on adhoc basis had become over age on the date when he was appointed as such he shall not be eligible for any 3 relaxation in the prescribed age limit by virtue of his such adhoc or contract appointment.” This was followed by another letter of 12.04.1988, which reads as follows: “Provided that upper age limit for direct recruits will not be applicable to the candidates already in the service of the Government including those who have been appointed on adhoc or on contract basis.” 5. Relying upon these two letters, the petitioner urges that upper age limit was not applicable to those direct recruits, who were already in service, whether on ad hoc or contract basis. The stand of the Board is that such benefit is only available in case of promotion and direct recruitments on merit basis, but not when appointments are made on batch-wise basis. I am unable to accept this stand of the Boards. The two letters, quoted hereinabove, make no distinction between the modes of appointment. In fact, normally in case of promotion, there is no upper age limit. When direct recruitment is made under the one rule, then the foot note thus added to the Rule has to be read as part of the either rule and cannot be restricted to direct recruitment or merit and such benefit cannot be denied to persons claiming promotion on batch-wise basis. 6. In view of the above discussions, the petition is allowed and it is directed that the petitioner, if otherwise found suitable, be granted appointment as Junior Engineer (Electrical) from the date his immediate junior was granted such appointment on batch-wise basis. As a result of such appointment, the 4 petitioner shall definitely be entitled to consequential benefits including monetary benefits. The monetary benefits be worked out and paid to the petitioner on or before 30th April, 2011 alongwith interest @ 6 per cent per annum, failing which the petitioner shall be entitled to the interest @ 12 per cent per annum. It is also made clear that in case, the petitioner is entitled to other benefits, such as promotion etc, those shall also be granted to him on or before the said date. (Deepak Gupta) Judge September 20, 2010 (rajni)