IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 2103 of 2008 (OA No.1843 of 1992 Judgment reserved on: 23.2.2010 Decided of decision: 2.3.2010 Dharam Pal Dogra ….. Petitioner. Vs. State of H.P.& Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. Sunil Chaudhary, Advocate vice Mr. Anand Sharma, Advocate. For the Respondents : Mr. P.M. Negi with Mrs. Shubh Mahajan, Deputy Advocate Generals, for respondents No.1& 2. Mr. K.C. Sankhayan, Advocate vice Mr. Rajesh Kumar, Advocate, for respondent No.3. Kuldip Singh, Judge. The petitioner in the petition has prayed that respondents No.1 and 2 may be directed to consider the case of the petitioner for promotion w.e.f. 4.9.1990, on which date respondent No.3 who was junior to petitioner was promoted illegally to the post of Senior Assistant, with all consequential benefits. It has also been prayed that respondents No.1 and 2 may be directed to follow the instructions ( Annexures A-1 and A-2) issued by the Government and promote the petitioner in accordance with those instructions. Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… 2. The case of the petitioner is that he was initially appointed as Clerk in the Directorate of Land Records on 28.2.1981 and was designated as Senior Clerk from July, 1982. In the seniority list dated 16.2.1992, the petitioner was placed at serial No.6. The persons at serial Nos.1 to 5 have already been either promoted or got themselves absorbed in other departments. Thus, petitioner is the senior most entitled to promotion in view of seniority list dated 16.2.1992. 3. It has been alleged that two posts of Senior Assistants fell vacant and those were to be filled in from the feeder cadre. As per roster, one post was of Scheduled Tribe candidate and other post was of open category. As per instructions dated 11.2.1991 (Annexure A-2), the aforesaid posts were to be filled in only upto 23.7.1990. In case, any post fell vacant after 23.7.1990 that post was to be filled up as per Recruitment and Promotion Rules which were to be amended after 23.7.1990. It has been alleged that second post fell vacant on 30.8.1990, thus this post could not have been filled up as per rules applicable before 23.7.1990. 4. In the teeth of aforesaid instructions, the respondent No.3 was promoted on 4.9.1990. It has been alleged that respondent No.3 was promoted on 4.9.1990 as per instructions applicable before 23.7.1990, which were not applicable on the date of promotion of respondent No.3 on 4.9.1990. The promotion of respondent No.3 is wrong, illegal and arbitrary and in violation of the instructions issued by the department. …3… 5. The petitioner against the promotion of respondent No.3 filed representation dated 5.11.1990 to respondent No.2 which was rejected on 23.1.1991. The appeal dated 22.3.1991 (Annexure A-6) filed by petitioner before Financial Commissioner-cum-Secretary (Revenue) was rejected on 24.7.1992 vide Annexure A-9. The Financial Commissioner found Annual Confidential Reports for the years 1985-86, 1987-88 and 1989-90 of respondent No.3 better then the petitioner. In the year 1985-86, the petitioner was advised to put hard work. The adverse remarks conveyed to the petitioner for the year 1987-88 were expunged vide order dated 28.3.1989. In so far as the period of 1989-90 is concerned, the petitioner was only advised to put hard work and remain in discipline. 6. The petitioner ultimately had alleged that actions of respondents No.1 and 2 were illegal, arbitrary, unconstitutional and discriminatory. The petitioner being the senior most was entitled to the post in the open category. The Annual Confidential Reports which were considered by respondents No.1 and 2 were not considered properly. The post in question is non-selection and unless the petitioner was rejected as unfit, he could not be superseded by a person alleged to be of better merit. 7. The respondents No.1 and 2 had filed reply. It has been alleged that final seniority list was circulated vide memo dated 8.5.1991 and not vide memo dated 16.2.1992. It has however, been admitted that the petitioner was the senior most Clerk according to the seniority list. It has been contended that Clerks having at least five years regular service or regular combined with ad-hoc service …4… upto 31.12.1983 in the grade are eligible to be promoted as Senior Assistant strictly on the basis of seniority subject to rejection of unfit. The Finance Department vide letter dated 3.12.1990 had issued instructions that the old rules may be amended suitably. The amendment was proposed and sent to the Deputy Secretary (Revenue) vide office letter dated 24.4.1991. Again a reference was received from Commissioner-cum-Secretary(Personnel) vide letter dated 16.10.1992 to fix the time period of ten years for promotion as Senior Assistant and Recruitment and Promotion Rules of Clerical cadre in three parts may be amended. The promotion of Molak Ram was made rightly in accordance with the statutory provision of the old rules framed under Article 309 of the constitution of India. It has been alleged that unless the Recruitment and Promotion Rules were suitably amended the promotion made under old rules cannot be construed as void. The Annual Confidential Reports of respondent No.3 were better then petitioner, even though the petitioner was senior to respondent No.3 yet he was not fit for promotion, therefore, promotion of Molak Ram cannot be said to be irregular. 8. The precise case of the petitioner is that respondents No.1 and 2 may be directed to follow the instructions given by the Government Annexures A-1 and A-2 and promote the petitioner w.e.f. 4.9.1990, on which date respondent No.3 was promoted. The instructions Annexure A-1 with respect to clarification regarding revision of pay scales were issued on 11.2.1991 whereas respondent No.3 was promoted on 4.9.1990 as per petitioner. The instructions …5… Annexure A-1 for purposes of promotion of respondent No.3 cannot be applied retrospectively. There is substance in the stand of respondents No.1 and 2 that promotion of respondent No.3 was made rightly in accordance with the statutory provision of the old rules framed under Article 309 of the Constitution of India. The old rules cannot be construed as void till they are suitably amended. The learned counsel for the petitioner has failed to point out that promotion of respondent No.3 made on 4.9.1990 was in contravention of rules framed under Articles 309 of the Constitution of India. The respondents No.1 and 2 have taken a stand in the reply that on comparative appraisal of Annual Confidential Reports of petitioner and respondent No.3, the respondent No.3 was found better in merit, the petitioner was not found fit for promotion. The petitioner has tried to explain that the remarks in Annual Confidential Report for the year 1985 to 1990 were advisory in nature so far petitioner is concerned. The learned counsel for the petitioner has failed to make out a case that the appraisal of Annual Confidential Reports of petitioner and respondent No.3 was made incorrectly. 9. There is another flaw in the petition. The petitioner has filed representation and appeal against the promotion of respondent No.3 which were rejected by the Authorities. The petitioner has not prayed for quashing of orders passed by the Authorities on representation and appeal. The petitioner has also not prayed for quashing of promotion of respondent No.3 made on 4.9.1990. Therefore, unless the promotion of respondent No.3 made on 4.9.1990 is quashed, the petitioner cannot be promoted against …6… the promotion post which has already been occupied by respondent No.3. Thus taken from any angle, there is no merit in the petition. 10. No other point was urged. 11. The result of the above discussion, the petition fails and is accordingly dismissed. March 2, 2010 (Kuldip Singh), (sks) Judge.