HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 8475 of 2008 Date of Decision: May 23, 2011 Om Parkash Gupta ……. Petitioner Versus H.R.T.C. & Ors. ….. Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? No For the petitioner : Mr. Jeevesh Sharma, Advocate. For respondents 1 to 3: Mr. Adarsh Sharma, Advocate. Sanjay Karol, J. (Oral) Petitioner has prayed mainly for the following reliefs:- “(i) To set aside and quash the orders, dated 22-1-2001 as contained at Annexure P-1 supra and also set aside and quash the orders, dated 7-10-2005 as contained at Annexure P-10 supra; (ii) To direct the respondents No. 1 to 3 to promote the applicant to the post of Cashier with effect from 22-1-2001 in the pay scale of Rs.4020- 6200 with all consequential benefits and place him senior to the respondent No.4 in the category of the Cashier and further to promote the applicant to the post of the Junior Auditor with effect from 7-10-2005 with all consequential benefits. (iii) To direct the respondents No. 1 to 3 to grant proper place in the seniority list as contained at Annexure P-2 supra at Sr. No. 48 on the basis of the total length of service.” 2 2. Annexure P-1 is the order dated 22.1.2001 promoting private respondent Raj Kumar as a Cashier on regular basis and Annexure P-10 is his further order of promotion as a consequence to Annexure P-1. 3. The challenge is on the ground that as per the seniority list (Annexure P-2), petitioner is senior to Raj Kumar and the post of Cashier being a non-selection post, in terms of the R&P Rules (Annexure P-3), without ignoring the claim of the petitioner, private respondent Raj Kumar could not have been appointed as a Cashier. 4. Recruitment and Promotion Rules for the post of Cashier in the Himachal Road Transport Corporation clearly provides that the post of Cashier is a non-selection post and 50% of the posts are to be filled-up by promotion from amongst the Booking Clerks with atleast three years of service. It is not in dispute that petitioner and Raj Kumar were working as Booking Clerks and Raj Kumar was junior to the petitioner. However, in the year 1990, an intervening development took place due to which Raj Kumar came to be appointed as a Cashier on adhoc basis. The issue is related to such appointment. It is not in dispute that till the year 1990, both the petitioner and the private respondent were working as Booking Clerks and that petitioner was senior to the private respondent. 5. On 23.7.1990, the respondents-Corporation issued the following circular:- “To The General Manager, Himachal Road Transport Corporation, Dharamshala. The Divisional Manager, Himachal Road Transport Corporation, Shimla/Mandi. 3 All the Heads of Offices/Sub-Offices in Himachal Road Transport Corporation. Dated Shimla -1, the 23rd July, 1990. Subject: OPTION FOR THE APPOINTMENT AS CASHIER. Memo:- Some posts of Cashiers are lying vacant which are required to be filled in. As per R&P Regulations, the procedure to fill in the posts of Cashier is as under:- “By way of promotion from amongst the Booking Clerks with atleast 3 years service as such on the basis of seniority, subject to rejection of unfit, failing which by direct recruitment.” Presently orders of some of the Booking Clerks for their promotion to the post of Cashier were issued but they have refused to accept the promotion. Therefore in order to finalize the issue early, it has been decided to take options from the existing Booking Clerks (List enclosed). You are, therefore, requested to please obtain the written consent/option from the Booking Clerks who were willing for their promotion as Cashier. Before taking this written options it may also be made clear to them that the Apptt. Will have to be accepted at the stations where the post will be vacant. Further in case of refusal by any one he will have no claim in this behalf with relation to his junior who may opt for his promotion/Apptt. as such. The requisite information together with the options (in original) should be furnished to this office so as to reach this office on or before 8-8-90 . Sd/- Dy. General Manager (Admn.), Himachal Road Transport Corporation, Shimla- 171 001.” 6. Evidently vacancies of Cashiers were lying vacant which were required to be filled-up on administrative grades. There was pressing 4 urgency. Options from all the Booking Clerks, including the petitioner and private respondent Raj Kumar were sought. Undisputedly, petitioner did not exercise his option in terms of this letter. According to the petitioner, it was for the reason that the same was not circulated. The contention needs to be rejected for various reasons. The letter was circulated to the General Manager, Divisional Manager and all the Heads of Offices/Sub- Offices of the respondent-Corporation. There was no reason for the Corporation not to have circulated the same, as is so alleged. Significantly, pursuant to the said circular, private respondent Raj Kumar was given appointment as a Cashier on adhoc basis in the year 1991 itself. Importantly, petitioner did not make any grievance about the same till the year 1997 when he made a representation to the respondent-Corporation. Even this representation was rejected by the respondent-Corporation, which order was also not challenged by him. 7. Letter dated 23.7.1990 evidently makes it clear that such of those persons who refuse to exercise their option for promotion as a Clerk would not make any claim in relation to their juniors who may opt for such promotion. Accordingly, petitioner give up his right for promotion to the post of Cashier/Clerk. True it is that Raj Kumar was appointed on adhoc basis but nonetheless his appointment as a Cashier was on the basis of the process initiated for selection/promotion pursuant to the letter dated 23.7.1990. Sh. Raj Kumar continued to work as such till his appointment on regular basis in the year 2001. It was open for Raj Kumar to have sought appointment/promotion on regular basis in the year 1991 itself. But however in this case, rights/claims of his regular appointment 5 are not being adjudicated. The fact of the matter is that petitioner forego his right for promotion on regular basis in the year 1990 itself. 8. It is noticed that now petitioner stands promoted as a Cashier in terms of office order dated 10.02.2006 (Annexure A-2). 9. Learned counsel for the petitioner has relied upon the following decisions rendered by the Apex Court:- 1. Harbans Misra vs. Railway Board & Ors, 1989 (1) SLR 546. 2. Dr. Surinder Singh Jamwal vs. State of J&K & Ors. (1996) 9 SCC 619. The ratio of law laid down therein does not apply to the facts of the instant case. The Apex Court was dealing with the case where an employee was seeking regularisation over a post where he was appointed purely on adhoc basis. In this background the Court held that the same would not confer any right for regularisation to the said post. In the instant case, as has already been noticed earlier, the appointment of Raj Kumar was pursuant to and after calling option from all the employees, including the petitioner who chose not to exercise the same. Further, Raj Kumar was selected in accordance with the Rules after fully complying with the procedure prescribed. He was also otherwise fully eligible to be promoted for the post of Cashier. 10. Consequently, petitioner’s prayers (i) & (ii) cannot be allowed. 11. With regard to prayer (iii), seniority list (Annexure P-2) shows that Ludar Singh, respondent No.5 and Dhani Ram, respondent No.6 were appointed in the grade of Booking Clerks on 14.9.1986 and 25.2.1987 respectively. The very same seniority list indicates petitioner’s appointment in the said grade to be on 5.9.1986. In this background, the 6 submission made by Sh. Adarsh Sharma, learned counsel for the respondents-Corporation, that Ludar Singh (respondent No.5) and Dhani Ram (respondent No.6) were given appointment prior to Om Parkash Gupta (petitioner) in the said grade is factually incorrect and untenable in law. Consequently, seniority list qua respondent No.5 and respondent No.6 needs to be interfered with. Respondents No. 5 & 6 have chosen not to appear before this Court. Therefore, respondent No.1 shall make correction in the seniority list after issuing notices and hearing respondents No. 5 & 6. Needful shall be done within a period of four months from the date of receipt of the certified copy of the order. All consequences to follow. 12. With the aforesaid observations, present petition stands disposed of. ( Sanjay Karol ), Judge. May 23, 2011 (rana)