IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 5153 of 2008 (OA 1231 of 1998) Judgment reserved on : 8.3.2010 Date of decision : 29.3. 2010. Lalit Kishore and others …Petitioners. Versus H.P. University ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioners : Mr. K.C.Sankhyan, Advocate vice Mr. Bhuvnesh Sharma, Advocate. For the Respondent : Mr. Vinod Thakur, Advocate. Kuldip Singh, Judge The petitioners in the petition have prayed a direction to the respondents to count the seniority of petitioners in the cadre of Clerks from the date of their initial appointments in the University. The petitioners have also prayed that respondents may be directed to grant promotion to the petitioners with effect from the date junior persons in the clerical cadre were promoted to the next higher post with all benefits. In alternative, in case the post of Hostel Attendant is treated as Class-IV, the petitioners may be ordered to be promoted as Clerks with effect from the date the persons junior to 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 them in Class-IV category were promoted as such and they may be assigned seniority accordingly with all consequential benefits. 2. The case of the petitioners is that they are working as Clerks in the H.P.University. The University has not counted the services of the petitioners rendered by them as Hostel Attendants towards seniority as Clerks, as a result of which they have been denied further promotion. They are stagnating at the same scale right from the very beginning in the service. 3. The further case of the petitioners is that the petitioners No.1, 2,3,4, and 5 were appointed as Hostel Attendants on ad hoc basis but their services were regularized in the year 1979. The petitioner No.4 was promoted from the post of Chowkidar to the post of Hostel Attendant on 28.8. 1978. The petitioner No.6 was promoted from the post of Sweeper to the post of Hostel Attendant in the year 1982 whereas petitioner No.7 was appointed as Hostel Attendant on regular basis in the year 1984. 4. The post of Hostel Attendant is identical and similarly placed as that of Clerk. The status, nature of duties and responsibilities attached to both the posts were alike. The Clerks and Hostel Attendants constituted the promotion posts from the Class-IV/D category of the employees in the University. The petitioners No.3 and 5 were promoted as Hostel Attendants from the posts of Chowkidar and Sweeper, respectively. The pay scale of Hostel Attendants and Clerks w.e.f. 1.1.1978 is also the same. There was no separate cadre of Hostel Attendants. 5. The petitioners are stagnating for the last more than 13 to 24 years in the same scale since their initial inception in service. 3 The petitioners have been given arbitrary and discriminatory treatment due to defective service rules. The Hostel Attendants were not given placement in the seniority list maintained for the Clerks in the University nor was any separate seniority list maintained for Hostel Attendants. The petitioners had submitted several representations to the University to provide them promotion avenues but the University has not paid any heed to the requests of the petitioners. 6. On 19.11.1988 the Unviersity took a decision for conversion of the posts of Hostel Attendants into those of Clerks subject to the condition that concerned Hostel Attendant qualified the type test. Instead of treating the Hostel Attendants in the cadre of Clerks, the respondent University vide its office order dated 5.7.1988 ordered for the appointment of four petitioners to the post of Clerks with effect from the date they joined as such, but their seniority was ordered to be counted from the date of their regularization/qualifying the typing test as Clerks and not from the date of joining as such. The typing test was to be qualified within one year. The petitioners even submitted a representation on 7.2.1990 for giving them the benefit of F.R. 22-C. 7. The petitioners have not till date been assigned the seniority in the seniority list maintained for the Clerks and the respondents are making promotions amongst the Clerks to the next higher post and the persons much junior to the petitioners have been promoted to the next higher post. It has been alleged that juniors who joined the University after the above said conversion of the petitioners as Clerks have also been considered for promotion. 4 8. The petitioners had filed CWP No. 724 of 1993 for providing them with promotional avenues to the next higher posts, some other reliefs were also prayed in that petition. The writ petition was dismissed for want of jurisdiction in September, 1997. 9. The petitioners have passed the typing test. It has been submitted that even if the services of the petitioners in the cadre of Clerks is to be counted after their conversion as ordered, the same is also to be counted from the date the petitioners had joined as such and not from the date they had passed the typing test. The condition of conversion was that the same would depend upon the passing of their typing test. The petitioners’ length of service in the cadre of Clerks is to be reckoned from the date they were appointed as such irrespective of the fact that the prescribed type test was actually passed by them after their appointment to the cadre and their seniority is to be determined accordingly. The condition of typing test was arbitrary. Many Clerks working in the University have not passed such typing test, but still their seniority has been maintained as Clerks with effect from their initial appointment. 10. The petition has been contested by the respondents wherein preliminary objections of non-joinder of necessary parties and multifariousness of causes of action have been taken. It has been submitted that in case the petition is allowed, then about 100 Clerks who are already working as such will become junior to the petitioners and such Clerks are necessary parties in the petition. On merits, it has been submitted that pay scale of Hostel Attendants initially was Rs.70-95 which was later on revised to Rs. 100 – 160 5 w.e.f. 18.3.1978. The scale of Clerks was Rs. 110 – 250 from 1.1.1968 which was revised to Rs. 400 – 600 w.e.f. 1.1.1978. The post of Hostel Attendant was in ‘D’ category and the Clerks were in ‘C’ category. There are no Recruitment and Promotion Rules for Hostel Attendants. It has been denied that the status, nature of duties and responsibilities attached to the post of Hostel Attendants and Clerks were alike. The pay scale of Hostel Attendants was revised to Rs. 400 – 600 w.e.f. 18.3.1978, it was revised to Rs. 950- 1800 w.e.f. 1.1.1986. In case of Clerks it was Rs. 950 – 1800 with initial start of Rs. 1000/- per month. The Executive Council of the respondent University with a view to open promotional avenues for the Hostel Attendants took a decision on 7.10.1988 to convert nine posts of Hostel Attendants into those of Clerks who were fulfilling the minimum educational qualifications of matriculation. The petitioners submitted themselves for typing test conducted by the University and qualified the typing tests on different dates. They have been given seniority accordingly. The benefit of F.R. 22-C could not be extended to petitioners as Hostel Attendants which posts were converted in the time scale of Clerks, it was not a case of promotion in normal circumstances. On 4.6.2009 statement was made on behalf of the petitioners that petitioners No.2,5 and 6 have died but lateron names of petitioners No.2 and 5 were deleted on the basis of applications. 11. I have heard the learned counsel for the parties. The grievance of the petitioners is for counting of their seniority in the cadre of Clerks from their initial appointments in the University, granting promotion to the petitioners with effect from the date junior 6 persons in clerical cadre were promoted to the next higher post. In alternative, in case the Hostel Attendants are treated as Class-IV employees, the petitioners may be ordered to be promoted as Clerks with effect from the date persons junior to them in Class-IV category were promoted. 12. It is the case of the petitioners that petitioners No.1, 2, 3, 4, and 5 were initially appointed as Hostel Attendants on ad hoc basis in the University in the years 1973, 1976, 1977 and 1978 respectively. In fact, the petitioner No.4 was promoted from the post of Chowkidar to the post of Hostel Attendant on 28.8. 1978. The petitioner No. 6 was promoted from the post of Sweeper to the post of Hostel Attendant in the year 1982 and petitioner No.7 was appointed as Hostel Attendant on regular basis in the year 1984. The stand of the respondents is that the posts of Hostel Attendants in the University are in ‘D’ category and Clerks in ‘C’ category. The nature of duties and responsibilities attached to the posts of Hostel Attendants and Clerks are different. 13. It has come on record that the Executive Council of the University vide resolution dated 7.10.1988 took a decision to convert 9 posts of Hostel Attendants who were fulfilling the minimum educational qualifications of matriculation into those of Clerks subject to their qualifying typing test. In the resolution, it was made clear that as soon as the Hostel Attendants qualify the typing test, the post will stand converted from the date of qualifying the typing test and the seniority will be from that date. The petitioners No. 1, 3, 4, 5, 6 and 7 have qualified the typing tests on 5.9.1989, 11.1.1990, 11.4.1990, 7.3.1989, 5.6.1989 and 5.9.1989 respectively. 7 After the conversion of 9 posts of Hostel Attendants into those of Clerks on the basis of Executive Council resolution dated 7.10.1988, the petitioners qualified the typing test as stated above and they were given seniority accordingly as Clerks by the University. The petitioners have miserably failed to make out a case of counting their seniority in the cadre of Clerks from their initial appointments in the University. The resolution dated 7.10.1988 of the Executive Council is clear to the effect that the posts of Hostel Attendants will stand converted into Clerks on qualifying typing test by the incumbent and seniority will be reckoned from that date. In these circumstances, the petitioners are not entitled to counting of their seniority in the cadre of Clerks from the date of their initial appointments in the University. The petitioners have also failed to make out a case for benefit of F.R.22-C in the face of stand of the University that 9 posts of Hostel Attendants were converted in the time scale of Clerks and it was not a case of promotion. 14. The next grievance of the petitioners is for granting them promotion with effect from the date the junior persons in the clerical cadre were promoted to the next higher post with all benefits. The petition lacks material particulars as to what is the next promotion from the post of Clerk in the University and what are the rules, instructions governing such promotions. It has been vaguely stated in the petition that some of ‘D’ category employees who were appointed as such much after the appointments of the petitioners as Hostel Attendants, were promoted as Clerks and have also got further promotion as Senior Clerks and Assistants accordingly. It has not been made clear in the petition whether such Hostel 8 Attendants were promoted as Clerks from‘ D’ category employees prior to petitioners or not. It is clear from the office order dated 5.7.1988 Annexure A-3 that Lalit Kishore, Jashoda Devi, Devesh Kumar and Chander Paul, Hostel Attendants were appointed as Clerks from the date they joined their duties as Clerks. It was made clear that they shall have to qualify the typing test within a period of one year, failing which they will revert to their substantive post of Hostel Attendants and their seniority in the cadre of Clerks will be taken into count from the date of their regularization as Clerks. The petitioners have not placed the material on record to show that after their passing typing test any person junior to them as Clerk was promoted superseding them. The petitioners have thus failed to make out any case for promotion with effect from the date junior persons in the clerical cadre were promoted to the next higher post superseding the petitioners. 15. The petitioners have lastly submitted that in case Hostel Attendants are treated as Class-IV, the petitioners may be ordered to be promoted as Clerks with effect from the date the persons junior to them in Class-IV category were promoted as such with all consequential benefits. Here again, the Executive Council vide resolution dated 7.10.1988 has converted 9 posts of Hostel Attendants to Clerks and incumbents were required to pass typing test and their seniority in the cadre of Clerks was to be counted from the date of passing of the typing test. The petitioners in view of the resolution dated 7.10.1988 were offered the appointments of Clerks subject to conditions mentioned in the resolution. The petitioners accepted the offers and joined as Clerks. The petitioners were not 9 promoted from the Class-IV category as Clerks, they constitute a separate class and their posts of Hostel Attendants were converted into Clerks. The petitioners have cited example of Rajesh Kumar, who joined as Peon in the year 1978 and was promoted as Clerk in the year 1982 and one Bir Singh, who was appointed as Peon in the year 1978 and was promoted as Clerk in the year 1987. It is not the case of the petitioners that anyone of them was appointed as Peon. The petitioners have not made clear in the petition what is the criteria for promotion to the posts of Clerks from amongst different categories clubbed in category ‘D’. Therefore, the petitioners have not established their case for promotion as Clerks from the date persons junior to them in Class-IV category (D) were allegedly promoted. There is no merit in the petition. 16, No other point was urged. 17. As a result of the above discussion, the petition fails and is accordingly dismissed. ( Kuldip Singh ), March 29, 2010. Judge. (GR)