IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. CWP NO. 288 of 2001 Date of Decision: 6.5.2008 Karam Chand & Ors. ……Petitioners Versus Union of India & Anr. …. Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Kuldip Singh,Judge Whether approved for reporting? No For the Petitioners: Mr. Anil Chauhan, Advocate. For the respondents : Mr. Sandeep Sharma, Assistant Solicitor General of India. Deepak Gupta, J( Oral) This writ petition is directed against the order of the learned Central Administrative Tribunal, Chandigarh Bench (Circuit at Shimla), rejecting the Original Application filed by the petitioners. 2. The petitioners filed an Original Application before the learned Tribunal claiming that in view of the circular dated 27.4.1992 they were entitled to be promoted as Clerks from the date when their juniors were promoted. 3. Briefly stated the facts of the case are that the petitioners were initially employed as peons in the office of the Accountant General, Shimla. Petitioner No.1 Karam Chand was appointed as such on 29.11.1995, petitioner No.2 Sant Ram was appointed on 20.10.1967 and ______________________________________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 petitioner No.3 Daya Ram was appointed on 1.8.1969. It is undisputed before us that initially there was a scheme known as the 12 years scheme in existence under which the candidates who had passed the departmental examination, for Group ‘D’ employees with 10 years service would be eligible for promotion to the post of Clerk. The petitioners passed the said examination in September, 1979, September 1980 and September 1981 respectively. 4. On 16.12.1983 the Controller & Auditor General of India issued Circular No.3945-N.2/74-83 in respect of the Cadre Review of Group ‘D’ posts including those of peons. Promotional avenues of Group ‘D’ were changed and a new cadre of record sorters was created. According to this circular the existing scheme of promotion of Group ‘D’ with 12 years service as Clerks on qualifying in a departmental examination had been found to be unworkable and was found to have benefited very limited number of Group ‘D’ employees. Therefore, the department decided that a cadre of record sorters in Group ‘C’ would be created w.e.f. 1.3.1984. 15% of the posts of Group ‘D’ were to be upgraded to Group ‘C’ as record sorters. Further any Group ‘D’ employee with minimum educational qualification of middle pass and 7 years of service as regular Group ‘D’ employee would be eligible for appointment as of record sorter. No examination was required to be passed for appointment to the post of record sorter. Group ‘D’ employees were given an option to either opt for appointment as record sorter or to remain in the line for promotion as clerks. These options once exercised could not be revised. The option was final. All the petitioners expressed their options to become record sorters. The arguments raised on behalf of the petitioners that they were coerced or misled to give this option, is without any force and is rejected. 3 5. However, the Department on its own issued fresh instructions on 27.4.1992. This circular again changed the system of promotion. The earlier directions were reconsidered and it was decided as follows:- “The matter has been reconsidered and it has been decided that the non-matriculate Record Keepers who have completed 12 years service as group ‘D’/Record Keepers as on 1.7.1992 may also be allowed to appear at the above examination to be held in July, 1992. On passing the above examination they will be empanalled for promotion as if they are Non- matriculate group ‘D’. When their turn comes for promotion as Clerk as per their position in the panel, they will be required to seek reversion as group ‘D’ if they desire promotion as Clerk. On reversion they, they will sever connection with the Record Keepers stream. In other words, the promotion to Clerks grade will take place from the level of group ‘D’ and for this purpose the concerned officials would have to formally advised to seek reversion just before their turn comes for promotion to Clerk grade. Their pay on promotion as Clerks will have to be fixed with reference to their pay as group ‘D’ which they would have drawn had they not been promoted as Record Keepers. Non- matriculate Record Keepers who were not allowed to appear in the above examination held in December, 1991 will be given another special chance after July, 1992”. 6. According to the circular quoted hereinabove all non- matriculate Record Keepers who had completed 12 years service on 1.7.1992 and had not appeared in the departmental examination prior to the said date were given a special chance to appear in the departmental examination in July 1992. As stated above, the petitioners had already clear this departmental examination. An important aspect of the matter 4 is that all the persons covered under the scheme were non-matriculate and employees holding Class-IV posts and therefore, the circular clearly stated when their turn comes for promotion as clerk they will be required to seek reversion as group ‘D’, if they desire promotion as Clerk. It was further stated that ‘concerned officials would have to formally advised to seek reversion just before their turn comes for promotion to Clerk grade’. The language of the circular indicates that a communication was required to be sent to employees that when their turn comes for promotion as Clerk as per their position in the panel, they would be required to seek reversion from the post of Record Keepers to group ‘D’. Admittedly, this has not been done in the present case. 7. The learned Central Administrative Tribunal rejected the case of the petitioners mainly on the assumption that the petitioners had not cleared the departmental examination. It was also urged before us that the petitioners did not appear in the departmental examination held in July 1992 in terms of letter dated 27.4.1992. The circulars dated 16.12.1983 and 27.4.1992 makes it clear that the departmental examination referred to is the same. The letter dated 27.4.1992 would show that special chance was given to non-matriculate Record Keepers who had not cleared the above examination. The fact that the petitioners have cleared the departmental examination is apparent from the letter dated 18.3.1996 issued by the Senior Deputy Accountant General ( A&E) H.P. Shimla to the Senior Audit Officer, Estt-II Section, O/O the A.G. (Audit), H.P. Shimla wherein it has been mentioned as follows:- “I am to invite a reference to your section’s letter No.Estt-II/Misc./Audit/94-96/164-68 dated 4.3.96 on the subject cited above. From the scrutiny of the relevant 5 record it has been revealed that the following Group ‘D’ employees have passed the departmental examination for promotion to clerical grade/Record Keepers during the year shown against each under 12 years scheme:- Sr. No. Name of the Employee Year of passing the Departmental examination For promotion from Group ‘D’ to Clerks under 12 years scheme. _________________________________________________________ 1. Sihnoo Ram September 1979 2. Karam Chand -do- 3. Jeet Ram-II -do- 4. Sant Ram Sharma September, 1980 5. Shamshere Singh -do- 6. Daya Ram September 1981 7. Parma Nand -do- 8. Sahi Ram-II December, 1982 9. Sahi Ram-III -do- 10. Tara Chand -do- Sd/- Senior Accounts Officer( Estt-I)” 8. Therefore, we are of the opinion that the learned Central Administrative Tribunal has gravely erred in holding that the petitioners have not cleared the departmental examination. Since the petitioners had cleared the departmental examination, they were not required to appear in the departmental examination again. We therefore, set aside the order of the learned Central Administrative Tribunal and allow the petition filed by the petitioners and direct that the respondents that each of the petitioners shall be deemed to be promoted as Clerk with effect from the date when the immediate junior to each of the petitioners were appointed as Clerks. They shall be entitled to count this period for all purposes including pension and gratuity. However, monetary benefits in respect of arrears of pay only, payable in terms of this judgment, shall be restricted to a period of three 6 years prior to the date of filing of the Original Application before the learned Central Administrative Tribunal. 9. The writ petition is disposed of in the aforesaid terms. No order as to costs. ( Deepak Gupta) Judge ( Kuldip Singh) May 6, 2008 Judge (sks)