IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP (T) No.2433 of 2008 Date of Decision: 21st May, 2010 Mohan Singh Petitioner Versus State of H.P. and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the petitioner: Ms. Ranjana Parmar, Advocate. For respondents No.1 & 2: Mr. R.M.Bisht, Dy. Advocate General. For respondent No.3: Mr.D.P.Gupta, Advocate, vice counsel. Sanjay Karol, J. (Oral) 1. In this petition, the petitioner has prayed as under:- “In view of submissions made hereinabove, the applicant prays for the following relief: A. That the impugned order Annexure A/10 issued by respondent No.1 dated 8.3.1995 may kindly be set aside and quashed; B. That the respondents may be directed to allow the applicant to continue against the post of Technical Assistant pursuant to his promotion vide Annexure A/5. C. The promotion of the applicant vide Annexure A/5 may kindly be held legal, valid and proper. D. Respondents may be directed to produce the entire relevant record before this Hon’ble Tribunal. E. Respondents be directed to pay the cost of this O.A. to the applicant. Whether the reporters of Local Papers are allowed to see the Judgment? 2 F. Any other order which this Hon’ble Tribunal may deem fit may also kindly be passed.” 2. On 18.8.1993 the post of Technical Assistant fell vacant in the office of respondent No.2. There is no doubt about the same. Vide orders dated 29.10.1993 (Annexure A-5), petitioner who was working as Statistical Assistant was promoted as Technical Assistant in the pay scale of Rs.1300- 3200 on temporary basis. Private respondent No.3 made a grievance about the same in his representation to the respondent-State. The State decided to favourably consider the same, hence, petitioner approached the erstwhile H.P. Administrative Tribunal by filing Original Application No. 1048/94, which in terms of order dated 12.8.1994 was directed to be treated as a representation. The order passed by the Tribunal was duly complied with and in terms of order dated 8.3.1995 (Annexure A-10) petitioner’s representation was rejected by a speaking order. Consequently, the State initiated action to promote the private respondent. 3. In the meanwhile, petitioner filed the instant petition and on 22.3.1995 the following order was passed:- “Admit. Shri P.M.Negi, the learned Assistant Advocate General waives service of notice on behalf of respondents 1 and 2. Shri Dharam Chand, the learned counsel for the applicant submits at bar that out of 8 posts of Technical Assistant only one post i.e. the applicant is the Technical Assistant who belongs to Schedule Caste category. The respondents are directed not to revert the applicant from the post of Technical Assistant in the meanwhile.” 4. There is no dispute that the State took steps for getting this order vacated. It is not in dispute that during the pendency of the present petition both the petitioner as also the private respondent stands further promoted to the 3 next higher post. They have also drawn consequential benefits. The facts are also not in dispute. The question, however, which needs to be considered in the present petition is as to whether the petitioner’s promotion in terms of Anenxure A-5 is in accordance with law or not. 5. The post in question fell vacant on 18.8.1993. In the Directorate there were just 8 posts of Technical Assistants and undisputedly 40% roster was to be applied. The rules prescribe for reservation of 15% to Schedule Caste category. Now as per the roster point, the 1st, 8th, 14th, 22nd, 28th and 36th post was to be reserved for this category. As per the recommendation made by the Departmental Promotion Committee, the post falling to each reserved category and the persons appointed against the same, as disclosed by the respondents in the reply is as under:- Roster and points Un-reserved or reserved for SC/ST Name of the candidates Whether S/ST if not say neither Remarks 1. Reserved for Scheduled Caste Sh.R.R.Sandhu Schedule Caste - 2. General Category Sh.Santosh Raj Neither - 3. -do- Sh.Lekh Chander -do- - 4. Reserved for Schedule Caste Sh.Ram Rattan Gupta -do- - 5. General Category Sh.K.L.Negi Schedule Tribe The post filled up against point-4 6. -do- Sh.Rajinder Pal Neither - 7. -do- Sh.Sewak Ram -do- - 8. Reserved for Schedule Caste Sh.O.P.Banyal -do- - 9. Open for General Category Sh.Uttam Chand Schedule Caste This post filled up against Roster point-8 10. -do- Sh.Chaman Modgil Neither - 11. -do- Sh.Mohan Singh Schedule Caste Wrongly filled in against point No.11 4 6. Now there is also no dispute that as on the date when the post in question fell vacant both Uttam Chand and Rikhi Ram were no more in service. 7. The Commissioner-cum-Secretary (Personnel), Government of Himachal Pradesh issued a letter dated 31.1.1989 to all the heads of the departments and other persons. This pertains to clarification regarding maintenance of rosters for the reserved category of posts. The same reads as under:- “I am directed to invite your attention to this Department letter No.8-34/73-DP(A-II), dated 8th Sept.,1981 on the above subject and to say that the roster points circulated under both set of model Rosters, i.e. under 100 Points and 40 Points are with reference to direct recruitment posts. There should be no confusion with regard to 40-Point Roster, as apart from promotions, this roster is also applied in case of all Class I and II posts which are filled by way of direct recruitments. 2. in case of promotions, reservation roster is applied only to Sch.Castes-15%, Sch.Tribes-7 ½% and Backward Class-2%. The backward classes who satisfy the two conditions of income ceilings prescribed by the Government from time to time, come in the purview of above promotions. The Roster points for Sch.Castes and Sch.Tribes in case of their promotions, are however, the same as given under 40-Point Roster circulated vide letter referred to above, whereas in case of Backward Classes, roster points already stand prescribed by the Government vide letter No.Per (AP-II) (sic)-2/75 (Kha), dated 2.11.1979 which is available at Page-10 of the Booklet on Reservation instructions published and circulated to al concerned by this Department. 3. A chart giving the details of the reservation percentage in direct recruitments as well as in promotion posts is also being sent to you for ready reference and future guidance.” 5 8. Based on the same, 11th post which had fallen vacant was not to be filled up by a person belonging to a reserved category for the reason that as per the roster point the 1st and the 8th posts already stood filled up by candidates belonging to Scheduled Caste Category. 9. In this background, the review Departmental Promotion Committee meeting held on 5.8.1994, recommending the name of the private respondent for the 11th post cannot be said to be illegal or their recommendation contrary to law. In the earlier DPC the roster point had been wrongly applied which necessitated the review of DPC subsequently. Importantly with the issuance of order dated 29.10.1993 (Annexure A-5) the promotion percentage for the reserved category of candidates had gone up by more than 15%. As per the roster point 11th post was to be filled up by a candidate belonging to general category and not a reserved category. Hence, it cannot be said that the order passed by the authorities is bad in law. 10. The petitioner had no legally enforceable right to continue to hold the post of Technical Assistant pursuant to his promotion in terms of Annexure A-5. The promotion is clearly dehors the rules. No fault can be found with the order passed by the authorities rejecting the petitioner’s representation. 11. For the aforesaid reasons, the present petition is dismissed. Interim order is vacated. 21st May, 2010 (Sanjay Karol) (C) Judge.