IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 8281 of 2008 Date of decision: 13.10.2011 ________________________________________________________________ Romesh Chand Nag. .....Petitioners. Versus State of H.P. & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ________________________________________________________________ For the petitioner: Ms. Sunita Sharma, Advocate. For the respondents: Mr. P.K. Sharma, Addl. AG with Mr. Anil Jaswal, Dy. AG, for respondents No. 1 & 2. None for respondent No. 3, though represented. None for respondents No. 4 to 6, though served. V.K. Sharma, J. (Oral). The petition has been filed on the following prayers vide para 7(i), (ii) and (iii): “7(i) That the respondent State may be directed to consider and promote the applicant to the post of Superintendent Grade-I from the due date with all consequential benefits like seniority and arrears of salary etc. (ii) That the respondent State may be directed to release arrears of salary pursuant to his promotion as Superintendent Grade-I alongwith interest @ 18% per annum. (iii) That the respondent State may further be directed to revise the pension and gratuity of the applicant after considering and promoting him to the post of Superintendent Grade-I w.e.f. due date and to pay arrears thereof alongwith interest @ 18% per annum.” 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ...2... 2. In reply, respondents No. 1 and 2 have taken the following state vide para 6(5): “6(5). In reply to this para, it is submitted that the applicant has been assigned notional seniority w.e.f. 23.2.1993 whereas the respondent No. 3 to 7 remained senior before the issuance of Annexure A.4 (Seniority list) and had been promoted on different dates on regular basis, on which dates the applicant did not either come within the zone of consideration or entitled for promotion on notional seniority as well as these respondents were not party in OA 234/93. Therefore he is not entitled to make any grievance against their promotion either as Supdt. Grade. II or as Supdt. Grade. I. As respondents 3 to 6 had been promoted as Supdt. Grade. I as they fulfill all the requisite conditions & qualifications of Recruitment and Promotion Rules to the post of Supdt. Grade-I. In as much as the applicant has no right to challenge the promotion of respondent No. 7 who fulfill the requisite condition of eligibility. Where as the applicant did not fulfill the criteria of 3 years active service in the feeder post as Supdt. Grade.II and could not be promoted. Hence the claim of the applicant merely on the basis of notional seniority is illegal and unjust.” 3. There is no reply on behalf of respondents No. 3 to 7. 4. Rejoinder refuting the above stand on behalf of respondents No. 1 and 2 and reiterating the averments setup in the petition has been filed. 5. The petitioner, who at the relevant time was working as Superintendent Grade-II in the respondent-department, had retired as such on 31.03.2001. He was promoted as Superintendent Grade-II with retrospective effect from 22.02.1993 vide office order dated 30.10.2000, Annexure A-1, in pursuance of decision of the erstwhile H.P. State Administrative Tribunal dated 23.05.2000 in O.A. No. 234 of 1993. Order dated 30.10.2000 (Annexure A-1) reads as under: ...3... “Directorate of Agriculture, Himachal Pradesh. No.Agr.H(I)(H)2-7/84 Dated Shimla-5, the “OFFICE ORDER” In pursuance to the decision delivered on 23.5.2000 by the Hon'ble Administrative Tribunal in the O.A. No. 234/93, filed by Shri R.C. Nag, Sr. Scale Stenographer (presently working as Personal Asstt.) andf also as per decision conveyed by the Commer-cum- Secretary (Agri) to the Govt. of Himachal Pradesh vide letter No. Agr.B(14)33/2000 dated 3.10.2000, on the recommendations of the Departmental promotion Committee, Sh. R.C. Nag is hereby promoted to the post of Supdt. Grade-II in the pre-revised scale of Rs. 2000-3500 w.e.f. 23.2.93 on regular basis and now he is posted in the O/O the Sub Divisional Soil cons. Officer, Una, H.P., against a vacant post in the public interest. He will remain on probation for a period of two years. Further, he may furnish his options for fixation of pay within one month from the date of joining the post. The said Sh. R.C. Nag is required to join the post of Supdt. Gr. II at Una within 15 days from the date of issue of these orders, failing which it will be presumed that he is not interest to get the promotion and his promotion shall stand forfeited. Sd/- Director of Agriculture, Himachal Pradesh.” The petitioner submitted representation dated 13.11.2000, Annexure A-2, to respondent No. 2 for consideration of his case for further promotion to the post of Superintendent Grade-I. 6. The tentative seniority list of Superintendents Grade-II in the department of Agriculture, H.P., as on 30.11.2000, was issued vide letter dated 19.12.2000, Annexure A-4, wherein the petitioner figures at serial No. 3 and private respondents No. 6, Shri Sarwa Ram, 7, Shri Ishwar Dass Patyal, and 5, Shri Ramesh Chand Sharma, find place at serial numbers 10, 11 and 24, respectively. The record reveals that ...4... respondent No. 5, Shri Ramesh Chand Sharma, was promoted as Superintendent Grade-I vide Notification dated 24.06.2000, Annexure A-5, respondent No. 6, Shri Sarwa Ram, vide Office Order dated 22.12.2000, Annexure A-6, and respondent No. 7, Shri Ishwar Dass Patyal, vide Notification dated 16.03.2001, Annexure A-7. 7. It was at this juncture that the petitioner submitted representation dated 22.03.2001, Annexure A-8, to respondent No. 1 seeking promotion to the post of Superintendent Grade-I at par with his junior, respondent No. 7, Shri Ishwar Dass Patyal. However, in the meantime, the petitioner retired from service on attaining the age of superannuation on 31.03.2001. 8. Thus, it is manifest that though the petitioner was senior to private respondents No. 5 to 7 by many steps, yet he was not promoted as Superintendent Grade-I at par with them. 9. The contention on behalf of respondents No. 1 and 2 that “the applicant has been assigned notional seniority w.e.f. 23.02.1993”, is not borne out of the records. A bare perusal of office order dated 30.01.2000, Annexure A-1, whereby the petitioner was promoted as Superintendent Grade-II would go to show that though the order was issued only on 30.10.2000, the promotion was with retrospective effect from 23.02.1993 on regular basis. It is nowhere recited in office order dated 30.10.2000, Annexure A-1, that the retrospective promotion of the petitioner as Superintendent Grade-II w.e.f. 23.02.1993 was either on notional basis or he was assigned seniority notionally. As already noticed, office order dated 30.10.2000, Annexure A-1, was issued in ...5... pursuance of the decision of the erstwhile H.P. State Administrative Tribunal dated 23.05.2000 in O.A. No. 234/93. The respondents have brought on record only the last page (page 8) of the order of the Tribunal dated 23.05.2000 as Annexure R/1, and have chosen not to file full text of the said order. 10. Thus, it is apparent that the de facto promotion of the petitioner as Superintendent Grade-II in terms of office order dated 30.10.2000, Annexure A-1, took effect with issuance of the said office order. However, he would be deemed to have been promoted as Superintendent Grade-II de jure w.e.f. 23.02.1993 for all intent and purposes including seniority and reckoning of the qualifying active service of three years as Superintendent Grade-II for further promotion to the post of Superintendent Grade-I. 11. In view of the above, the petition is allowed with a direction to respondents No. 1 and 2/competent authority to consider the case of the petitioner for promotion to the post of Superintendent Grade-I alongwith consequential benefits, if any, from the due date at par with respondents No. 5 to 7 in accordance with law, within three months from the date of production of copy of this judgment by the petitioner before the aforesaid respondents/competent authority. 12. The petition stands disposed of in the above terms, so also pending CMP(s), if any. (V.K. Sharma) Judge 13th October, 2011 (virender)