IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 877/2000 Decided on:3.3.2008 Parvinder Singh … Petitioner. Versus State of H.P. and others … Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 . yes For the Petitioner: Mr. Jagdish Thakur, Advocate vice Mr. Maniktalla, Advocate. For the Respondents: Mr. R.M. Bisht, Deputy Advocate General for respondents No.1 and 2. None for respondent No.3. Rajiv Sharma, Judge. A challenge has been laid by way of this petition to the order dated 20.4.2000 passed by the H.P. State Administrative Tribunal in OA (M) No. 464/1995. The brief facts necessary for the adjudication of this petition are that the petitioner was appointed as Patwari on 21.8.1987. His name was reflected at Sr. No. 164 in the seniority list of Patwaris as it stood on 30.4.1993 and the respondent No.3 stood at Sr. No. 167. The petitioner had passed the departmental examination in February, 1994. Respondent No.2 vide order dated 16th May, 1994 promoted 7 Patwaris to the post of Kanungos including respondent 1 Whether reporters of local papers may be allowed to see the judgment? . - 2 - No.3, who according to the petitioner was junior to him. The petitioner approached the H.P. State Administrative Tribunal by way of O.A. No. 967 of 1994. The same was directed to be treated as representation by the learned Tribunal. The Divisional Commissioner considered the representation and rejected the same vide order dated 21.10.1994. The petitioner approached the learned Tribunal by way of fresh O.A. No. 464 (M) of 1995 seeking directions to the respondents to promote him as Kanungo with effect from 16.5.1994 and has also sought the reversion of respondents No.4 to 9 arrayed as respondents in the original application. The learned Tribunal vide order dated 20.4.2000 dismissed the original application. The petitioner has assailed this order dated 20.4.2000. Mr. Jagdish Thakur, Advocate had strenuously argued that his client was fully eligible and qualified for the post of Kanungo and was to be promoted with effect from 16.5.1994. He also contended that respondent No.3 has been wrongly considered by the departmental promotion committee in its meeting held on 28.1.1994 to the post of Kanungo. His further contention is that the services rendered by respondent of settlement department could not be counted for considering him to the post of Kanungo. Mr. R.M. Bisht, learned Deputy Advocate General has supported the order dated 20.4.2000. He had strongly contended that respondent No.3 was considered against roster point No. 14 which was reserved for scheduled caste category. We have heard the learned counsel for the parties and perused the record. - 3 - The petitioner was appointed as a Patwari with effect from 21.8.1987. Respondent No.3 was appointed as a Patwari as is evident from the final seniority list of Patwaris as it stood on 30.4.1993 on 1.7.1982. The post of Patwari is in feeder category for the post of Kanungo. The State has framed the recruitment and promotion rules for the post of Kanungo, Mohal under the Land Records for H.P. Revenue Department. Rule 11 and 17 being relevant for adjudication of this petition are reproduced as under: “11. In case of recruitment by promotion, deputation/transfer grades from which promotion/deputation/transfer is to be made. By promotion from amongst the Patwaris who have qualified the Departmental Examination of Kanungos as prescribed under Col. 17 infra with at least six years regular service or regular combined with continuous adhoc service (rendered upto 31.3.1991), if any, in the grade of Patwari in the respective cadre. Note: 1. In all cases of promotion, the adhoc service rendered in the feeder post upto 31.3.1991, if any, prior to regular appointment to the post shall be taken into account towards the length of service as prescribed in these rules for promotion subject to the condition. (a) That in all cases where a junior person becomes eligible for consideration by virtue of his total length of service (including the service rendered on adhoc basis upto 31.3.1991) in the feeder post in view of the provisions referred in above, all persons senior to him in the respective category/post/cadre shall be deemed to be eligible for consideration and placed above the junior person in the field of consideration: Provided that all incumbents to be considered for promotion shall possess the minimum qualifying service of at least three years or that prescribed in the - 4 - Recruitment and Promotion Rules for the post, whichever is less. Provided further that where a person becomes ineligible to be considered for promotion on account of the requirements of the preceding proviso, the person (s) junior to him shall also be deemed to be ineligible for consideration for such promotion. Explanation: The last proviso shall not render the junior incumbents ineligible for consideration for promotion if the senior ineligible persons happened to be Ex.-servicemen recruited under the provisions of Rule-3 of Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal State Non- Technical Service) Rules, 1972 and having been given the benefit of seniority there-under or recruited under the provisions of Rule -3 of Ex-Servicemen (Reservation of Vacancies in Himachal Pradesh Technical Services) Rules, 1985 and having been given the benefit of seniority there-under. (b) Similarly, in all cases of confirmation, adhoc service rendered on the feeder post upto 31.3.1991, if any, prior to the regular appointment against such post shall be taken into account towards the length of service. Provided that inter-se-seniority as a result of confirmation after taking into account adhoc service rendered upto 31.3.1991 shall remain unchanged. Note: 2. Provisions of Rules 10 and 11 are to be revised by the Government in consultation with the H.P. Public Service Commission as and when the number of posts under Rule 2 are increased. 17. Departmental Examination: (1) A Patwari shall be eligible to appear in Kanungo examination after putting in 4 years service as Patwari. (2) The Patwari shall be required to pass the Kanungo examination in three chances. However, after - 5 - availing three chances one additional chance can be given by the Government after due consideration of the case.\ (3) The syllabus for the Kanungo examination will be as prescribed in the H.P. Land Records Manual by the Government. (4) Notwithstanding any thing contained in sub-rule (1) to (3) supra, a Kanungo candidate whose name has been entered in the Kanungo candidates Register maintained by the Collector concerned under the old Rules upto the date of publication of these rules in the Rajpatra, but has not passed the Kanungo Examination and has not undergone settlement training shall have to pass the Departmental Kanungo Examination within two chances and to undergo Settlement training within a period of two years failing which their candidature will be struck down from the Kanungo Candidate Register. For this purpose, a limited Departmental Kanungo Examination will be held for them and the concerned Collector shall deputy the candidate for Settlement training well within time so as to afford him opportunity to complete the training in time.” It is evident from the language employed in rules 11 and 17 that passing of departmental examination is a condition precedent for considering a Patwari to the post of Kanungo. In the present case, the petitioner had qualified the departmental examination on 28.2.1994 though the DPC had met on 28th January, 1994. The petitioner in the absence of passing the departmental examination at the relevant time has rightly been ignored by the DPC for promotion to the post of Kanungo. It is not in dispute that respondent No.3 belongs to scheduled caste category. The Tribunal has gone through the proceedings of the DPC convened on 28th January, 1994 and had come to a just conclusion that respondent No.3 has been considered against roster point No.14 reserved for scheduled caste category. - 6 - The contention of Mr. Jagdish Thakur that the period which respondent No.3 has served in the department of settlement cannot be taken into consideration also merits rejection. It is evident from the seniority list itself as discussed hereinabove that the date of appointment of respondent No.3 is 1.7.1982 and the petitioner was appointed as Patwari on 21.8.1987. Respondent No.3 had the requisite service as required under the rules for being considered for the post of Kanungu. The Hon’ble Supreme Court has held in State of Maharashtra and others versus Uttam Vishnu Pawar, JT 2008 (2) SC 81 that the service rendered in previous department is to be counted for promotion or other benefits. Their Lordships have held as under: “Learned counsel for the State of Maharashtra submitted that since the incumbent was at zero seniority in the Kolhapur Zone ther4efore his services rendered in the Mumbai Zone cannot be counted for computing the period of 12 years so as to give him the benefit of Time Bound Promotion Scheme as per Resolution dated 8.6.1995. As against this, learned counsel for the respondent submitted that the incumbent has already lost his seniority and as per the transfer order he has been placed at the zero seniority level but it does not mean that he will lose the service put in by him in the Mumbai Zone. Learned counsel for the respondent has invited our attention to a series of cases of this Court where a view has been taken that if an incumbent is transferred to another zone either by way of public interest or on his own request in either situation the incumbent will get the benefit of past service without getting any benefit of seniority. In this connection our attention was invited to the case of Dwijen Chandra Sarkar and another versus Union of India and others (JT 1998 (8) SC 575; 1992 (2) SCC 119). In that case the incumbent was - 7 - transferred from Rehabilitation Department to P&T Department in public interest at Zero level seniority in the P&T Department but his past services were counted for giving him the benefit of the Scheme on completion of 16 years of service. In the said case the Court relied on an earlier decision of this Court in the case of Renu Mullick versus Union of India [ JT 1993 (6) SC 527; 1994 (1) SCC 373] wherein identical situation the transferee was not permitted to count her service rendered in former Collectorate for the purpose of seniority in the new charge but she was permitted to count the service rendered by her in earlier Collectorate for other purposes except seniority. Similarly, in the case of Scientific Advisor to Raksha Mantri versus V.M. Joseph [JT 1998 (4) SC 20: 1998 (5) SCC 305] it was held by this Court that the service rendered in another department which helps for determination of eligibility for promotion will be counted but not for seniority. Again, in the case of A.P. State Electricity Board versus R. Parthasarthi [JT 1998 (8) SC 238; 1998 (9) SCC 425], the government servant was transferred and absorbed in the Electricity Board. It was held that the services rendered in the previous department could be counted towards requisite experience of 10 years for eligibility for promotion. Our attention was also invited to the case of Union of India versus V.N. Bhat [2004 AIR SCW 1399]. In that case also in identical situation the incumbent was transferred from one department to another. He lost his seniority in the new department but his service was counted fork purposes of promotion. Therefore, in view of the consistent approach of this court, it is no more res integra that the incumbent on transfer to the new department may not get the seniority but his experience of the past service rendered will be counted for the purpose of other benefits like promotion or for the higher pay scale as per the Scheme of the government.” - 8 - Consequently there is no merit in the petition and the same is dismissed with no order as to costs. (Rajiv Sharma), (Deepak Gupta), March 3, 2008 Judge. Judge. *Awasthi*