CWP(T) No. 7468/2008 07.04.2011 Present: Mr. Ranjan Sharma, Advocate, for the petitioner. Mr. R. M. Bisht, Dy. A.G with Mr. Vinod Thakur, Dy. A.G. for the respondents/state Ms. Uma Manta, Advocate, for respondent No.4 Mr. P.P. Chauhan, Advocate, for respondent No.5 Petitioner has prayed mainly for the following relief:- “i). That the action of the Respondent No.1 in deciding to hold the DPC in Nov. 2001 or thereafter, after the enforcement of the new R&P Rules of 2000 (A-7) but by applying the old R&P Rules of 1991(A-2) may be declared illegal, arbitrary and unconstitutional. ii) That the executive orders dt. 5.7.1991 as mentioned in ground (f), may be held to be illegal, arbitrary and unconstitutional. iii). That the respondents may be directed to fill up the available 7 posts of DEO’s, by applying the new R&P Rules forthwith. iv) The respondents may be directed to consider the applicant for promotion as DEO, from the cadre of Statistical Assistant as Sh. P.N. Gupta and J.S. Chandel were promoted (though working as Employment Officers) and without applying the office memorandum dated 16.6.1994 to the case of the applicant when the aforesaid memorandum dated 16.6.1994 being contrary to the Rules of 1991 (A-2), by considering and promoting the applicant for promotion to the higher post of Distt. Employment Officer under the old R&P Rules from the cadre of Statistical Assistant in the DPC to be held in Nov. 2001 or any time thereafter forthwith. v) That the respondents may be directed to consider and promote the applicant to the higher post of Distt. Employment Officer from the cadre of Statistical Assistant as per the old Rules of 1991 (A-2) in the DPC to be held in Nov. 2001 or thereafter with all consequential benefits like seniority and arrears of salary as Distt. Employment Officer forthwith. vi) That the action of the respondents in considering and proposing to promote the respondents 3 to 5 to the higher post of DEO’s in the DPC which is scheduled for last week of Nov., 2001 or thereafter i.e. after the issuance of the new Rules of 2000 (A-7) but by applying the old Rules and by determining the eligibility by adopting the criteria of year wise vacancy and year wise eligible officers and by determining the eligibility of the date of occurrence of vacancy, instead of eligibility on the date of DPC, may be held to be malafide, illegal and unconstitutional.” 2. Facts are not in dispute. Petitioner was appointed as a Statistical Assistant in the year 1988 . However he was given the benefit of his prior approved military service and the year of his induction into the service was taken to be 1982. It is also not in dispute that some time in the month of February 1995, petitioner was promoted as a Employment Officer. However controversy in the instant case is with regard to the next promotional post i.e. the District Employment Officer (Class-II Gazetted). 3. Post of District Employment Officer is to be filled-up in accordance with Rules framed by the Government known as “H.P. Labour and Employment Department Class-II (Gazetted) Services R&P (3rd Amendment) Rules, 1991 (for short the “Rules”). 4. For such of those posts which are to be filled-up by way of promotion, relevant Rules provide for as under:- “By promotion from amongst the following with five years regular or regular combined with adhoc (rendered upto 31.3.91) service, in the respective grades: 1. Assistant Employment Officer 2. Head Assistant (Supdt. Grade-III), 3. Assistants/Head Clerks (Supdt. Grade-IV) and 4. Statistical Assistant. The roster will be as under:- 1st post- Assistant Employment Officer 2nd post - Head Assistant (Supdt. Grade-III), 3rd post- Assistant/Head Clerk (Supdt. Grade-IV) 4th post –Direct Recruitment. 5th post - Assistant/Head Clerk (Supdt. Grade-IV) 6th post- Statistical Assistant. 7th post - Statistical Assistant. 8th post – Direct Recruitment. (The above roster will be repeated after every 8th post). In case, no official is found fit to fill in a vacancy set a side in the roster for a particular category of officials that vacancy will be diverted to the category of officials who under the roster, have a right to the next vacancy. i) In all cases of promotion, the adhoc service rendered in the feeder post upto 31.3.91, if any, prior to regular appointment to the post shall be taken into account towards the length of service as prescribed in the 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 31.3.91) in the feeder post in view of the provisions referred to 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 of that prescribed in the 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 Pradesh 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.” 5. It cannot be disputed that the post in question pertains to the period prior to the year 2000. Undisputedly, the date on which the posts fell vacant, and were required to be filled-up in accordance with the Rules, petitioner had not completed 5 years of regular/adhoc service as an Employment Officer. 6. Rules are unambiguously clear. The Employment Officer (formerly known as Assistant Employment Officer), Head Assistant Supdt. Grade- III, Assistant/Head Clerk Supdt. Grade-IV and Statistical Assistant, form feeder category to the post of DEO. Thus, petitioner was not eligible for being considered for appointment to the post of Employment Officer. Reliance upon Rule 1-A (Annexure A-2) is misconceived, as the same would be applicable with respect to the respective category/post/grade. True it is that petitioner was appointed as a Statistical Assistant and had completed more than 5 years of regular service. But then as on the date when the post fell vacant, he already stood promoted and confirmed as a Employment Officer and, as such his case for promotion had to be considered from the category of Employment Officers and not Statistical Assistants. It cannot be said that after confirmation petitioner had any lien on the post of a Statistical Assistant. To this effect my attention has been invited by Mr. P.P. Chauhan, learned counsel for respondent No.5, to the FR 14-A Sub Clause (d) which reads as under:- “(d) A Government servant’s lien on a post shall stand terminated on his acquiring a lien on another post (whether under the Central Government or State Government) outside the cadre on which he is borne.” 7. In light of the same, decisions rendered by the Apex Court in Shakuntala Sharma vs. High Court of H.P. & Anr. (1994) 2 SCC 411 and State of Punjab & Anr. vs. Teja Singh & Ors. (2007) 3 SCC 153. which do not even deal with the controversy in issue, are inapplicable and the contention that petitioner had a lien on the post of Statistical Assistant needs to be rejected. 8. With the aforesaid observations, petition stands disposed of. April 07, 2011 ( Sanjay Karol ), (rana) Judge.