IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:2474/2008 Decided on: 19.3.2009 Bal Krishan Chopra. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No For the petitioner : Mr. Bimal Gupta, Advocate. For the Respondents : Mr.R.K. Sharma, Sr. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Dy. Advocate General Rajiv Sharma, J. (Oral) The petitioner was appointed as a Clerk in the Nahan Foundry Limited at Nahan on 12.6.1961. The Nahan Foundry Limited, Nahan was merged with the Himachal Pradesh Public Works Department and Irrigation and Public Health vide notification dated 23/27.12.1989. He was assigned Sr. No.3 in the seniority list of the Senior Clerks as it stood on 1.10.1988. He was promoted to the post of Assistant vide office order dated 20.10.1987 alongwith one Sh. Rajinder Prasad and Sukhvir Singh. He made a representation to the Managing Director of the Nahan Foundry Limited on 21.10.1987 to the effect that due to family circumstances, he 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 was not in a position to leave Nahan, therefore, he be promoted with headquarters at Nahan as Assistant. Similar request was made by Sh. Rajinder Prasad on 26.10.1987. The promotion orders made in favour of Rajinder Prasad were cancelled by the Managing Director on 10.11.1987. Sh. Rajinder Prasad filed an original application bearing OA No. 297/91 before the Himachal Pradesh Administrative Tribunal. The learned Himachal Pradesh Administrative Tribunal directed the Commissioner- cum-Secretary (PW) to decide the representation. The representation made by Sh. Rajinder Prasad was decided by the Commissioner-cum- Secretary (PW) in his favour on 19.9.1991. The operative portion of order dated 19.9.1991 reads thus: “I, therefore, hold that the cancellation of the promotion of Shri Rajinder Prashad Vishnoi is void and he should be treated as having been promoted from the date on which he was originally promoted as if the cancellation orders did not exist at all. The actual deployment of Shri Rajinder Prashad Vishnoi now may be decided by the Chief Engineer, Nahan Foundry on the basis of the proposed study. Shri Rajinder Prasahd Vishnoi will get all consequential benefits. The Chief Engineer, Nahan Foundry is to submit his report regarding this within a period of two months.” In sequel to order dated 19.9.1991, Sh. Rajinder Prasad was promoted to the post of Assistant and was assigned seniority in the cadre of Assistants with effect from 28.7.1987. The petitioner made a representation to the Executive Engineer (Mechanical) on 24.9.1991 after the decision on representation of Sh. Rajinder Prasad. The gist of the representation was that a person junior to him though similarly situate has been promoted after the acceptance of his representation, however, no decision was taken qua the petitioner. He also approached the learned Himachal Pradesh Administrative Tribunal by way of OA No. 952/1994. 3 The learned Himachal Pradesh Administrative Tribunal disposed of the original application directing the Secretary (PW) to decide the case of the petitioner on merit in accordance with law in the light of office order dated 19.9.1991. The same was rejected by the Secretary (PW) on 7.12.1994. It is in these circumstances that the present petition has been filed. Mr. Bimal Gupta, Advocate has strenuously argued that the case of the petitioner ought to have been decided at part with Sh. Rajinder Prasad as per decision dated 19.9.1991. His further submission is that the petitioner has been discriminated against by the respondents. He lastly contended that the representation has been rejected by the Secretary (PW) without taking into consideration the letter and spirit of order dated 19.9.1991. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the order dated 7.12.1994. I have heard the learned counsel for the parties and perused the record carefully. It is not disputed by the learned Senior Additional Advocate General that the petitioner ranked senior to Sh. Rajinder Prasad Vishnoi. He was at Sr. No.3 of the seniority list and Sh. Rajinder Prasad Vishnoi figured at Sr. No.4 as it stood on 1.10.1988. He alongwith Sh. Rajinder Prasad Vishnoi was promoted vide office order dated 20.10.1987. He and Sh. Rajinder Prasad had given the circumstances under which it was not possible for them to leave Nahan. Primarily, the petitioner and Sh. Rajinder Prasad had given the domestic circumstances as ground for not being posted outside Nahan. Sh. Rajinder Prasad has also specifically mentioned in his representation dated 26.10.1987 that in case his representation was not accepted, he had no option but to forgo his chance of promotion. The representation made by the petitioner on 21.10.1987 4 was also conditional. He had also prayed that he be promoted as Assistant with headquarters at Nahan and if it was not possible he would forgo his promotion as Assistant. The decision was required to be taken on the representations of the petitioner and Sh. Rajinder Prasad, more particularly, when the same were conditional. However, the respondents without taking into consideration the letter and spirit of the representation cancelled their promotion orders on 10.11.1987. Sh. Rajinder Prasad assailed this order before the learned Himachal Pradesh Administrative Tribunal by way of OA No. 297/1991. In sequel to the order of the learned Himachal Pradesh Administrative Tribunal, the representation of Rajinder Prasad was allowed as noticed above on 19.9.1991. He was promoted and was also assigned due seniority to the post of Assistant with effect from 28.7.1987. The petitioner also filed original application bearing OA No. 952/1994 before the learned Himachal Pradesh Administrative Tribunal to treat his case at part with Sh. Rajinder Prasad Vishnoi. The learned Himachal Pradesh Administrative Tribunal directed the Secretary (PW) to decide the representation of the petitioner on the analogy of order dated 19.9.1991. The representation made by the petitioner was rejected on 7.12.1994. It is evident from the pleadings of the parties that the circumstances of the petitioner and Rajinder Prasad Vishnoi were same and similar. They have cited family circumstances as the ground for being posted at Nahan on their promotion. The representation of Sh. Rajinder Prasad has been accepted, however, on the same and similar facts the representation made by the petitioner has been rejected arbitrarily by the Secretary (PW) on 7.12.1994. The petitioner and Sh. Rajinder Prasad have made representations that they be posted at Nahan on their promotion. The representations made by these two persons were 5 required to be considered in right earnest, however, without taking into consideration their condition, their promotion orders were cancelled on 10.11.1987. The findings recorded by the Secretary (PW) in memorandum dated 7.12.1994 are contrary to record. Sh. Rajinder Prasad had also made it clear in his representation that if he is not posted at Nahan, he will forgo his promotion. To similar effect was the representation of the petitioner. He was agitating the matter continuously as per the material produced on record. He immediately made representation on 24.9.1991 after passing of order dated 19.9.1991. The Secretary (PW) has further erred in law by taking into consideration the penalty of censure imposed upon the petitioner in September, 1988. He was promoted on 20.10.1987. The penalty was imposed in the year 1988 and the same could not be taken into consideration by the Secretary (PW). The Secretary (PW) has made the following observations: “he is not fit for promotion to the higher grade during the period”. On what basis he has come to this conclusion is not spelt out from the record. His further observation that the petitioner deliberately refused to carry out the work assigned to him is also not supported by any document on record. These observations made by the Secretary (PW) were not necessary since he was only required to go through the case of the petitioner vis-à-vis Sh. Rajinder Prasad Vishnoi. It is a case of invidious discrimination. The respondents could not treat equals as unequals. The petitioner ranked senior to Sh. Rajinder Prasad Vishnoi as per the seniority list vide Annexure A-1. It would not be fair if the person junior to the petitioner is promoted and the senior is left out. This aspect has not been looked into by the Secretary (PW) while deciding the representation of the petitioner. Accordingly, the petition is allowed. The impugned order Annexure A-12 dated 7.12.1994 is quashed and set aside. The respondents are 6 directed to consider the case of the petitioner for promotion to the post of Assistant/Inspector from the date Sh. Rajinder Prasad Vishnoi was promoted as Assistant with all the consequential benefits. The entire exercise be undertaken by the respondents within a period of six weeks from today. There will, however, be no order as to costs. 19.3.2009 (Rajiv Sharma ), J. *awasthi*