IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 2787 of 2010 Date of Decision: 27.8.2011. Dr. Pritam Chand Rana petitioner Versus State of HP & others. Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Dilip Sharma, Advocate. For the respondents : Mr. R.M Bisht, Dy. A.G with Mr. Vinod Thakur, Dy. A.G for respondents. Justice Sanjay Karol, J. (Oral) Petitioner was appointed as an Ayurvedic Compounder in the year 21.2.1980. He joined on 7.3.1980. With the completion of five years service period, petitioner was eligible for being considered for promotion, against 25% quota, to the post of Ayurvedic Chikitsa Adhikari. His name was not being considered for promotion, for the reason that he did not possess the requisite professional qualification required for appointment to the post of Ayurvedic compunder, which fact was disputed by the petitioner in view of his practical experience as also the fact that he was possessing a higher qualification entitling him for appointment even to the post of Ayurvedic Chiktsa Adhikari. Petitioner requested for Whether reports of Local Papers may be allowed to see the judgment? 2 promotion but respondents did not accede to his request. Hence, he was constrained to file petition (OA No. 242 of 1988) before the erstwhile Himachal Pradesh Administrative Tribunal which stood decided on 16.6.1989, wherein following directions were issued: “ In view of what has been stated above, we hold that the applicant is eligible for promotion as Ayurvedic Chiktsa Adhikari, and direct that he be considered for promotion to the said post against the promotion quota in accordance with the seniority. The application is allowed to this extent. “ 2. It is not in dispute that the same has attained finality. 3. It is true that this order does not specify the date from which petitioner was held entitled to be considered for promotion to the post in question. However, the fact of the matter is that the petitioner was entitled to be considered for promotion to the post which fell vacant after 1985, the time when he became eligible for consideration. By this time he had completed his five years of service. 4. Respondent however, promoted the petitioner, in terms of order dated 3.4.1991 (Annexure P-6), from a prospective date in the year 1991. Vacancies which had fallen vacant between 1985 and 1991 were not considered while according such promotion. Aggrieved thereof, petitioner again approached the erstwhile Himachal Pradesh administrative Tribunal by filing OA No. 1892/1993 which stood transferred to this Court by virtue of 3 provisions of the Himachal Pradesh Administrative Tribunal (Transfer of decided and pending cases and applications) Act, 2008. The said petition was renumbered as CWP(T) No. 2189 of 2008 and in terms of judgment dated 24.2.2009 this court directed the respondents to pass a speaking order after taking into account the material placed on record by the parties and also earlier order dated 16.6.1989 passed by the Tribunal. 5. Pursuant thereto, respondent No.2 passed a fresh order dated 2.6.2009 (Annexure P-12) holding the petitioner entitled to benefit of pay fixation w.e.f 7.3.1985, the date on which seniority was assigned to him, by taking into account vacancies available between the years March 1985 and April 1990. Surprisingly, this order was withdrawn vide order dated 9.11.2009 (Annexure P-14) and a fresh order dated 25.3.2010 (Annexure P-15), which in effect reviews the earlier order dated 3.4.1991 (Annexure P-6), was passed. 6. Order dated 2.6.2009 is withdrawn on the asking of the Government, on the ground that rules do not provide for retrospective promotion. In this regard Chapter 16 of the Hand Book on Personal Matters, pressed by the respondents against the petitioner, in my considered view does not apply to the instant facts. Chapter 16.25 only provides that promotion shall be made with prospective vacancy relating to an earlier year. This would come into play where the Government itself decide to take action based on administrative considerations. However while passing the impugned 4 orders, respondents forgot that petitioner had been litigating for his rights all through out since beginning. 7. The fact that petitioner was otherwise eligible for being considered for promotion is neither in dispute nor can be disputed in view of earlier judicial pronouncements. The fact that post had fallen vacant and vacancies were in existence between the year 1985 and 1990, against which the petitioner could have been considered for promotion is also not in dispute. In terms of order dated 16.6.1989, petitioner’s right and entitlement for being considered for promotion already stood adjudicated. Valuable right of the petitioner of being considered for promotion was being perpetually denied by the respondents due to erroneous interpretation and incorrect application of provisions of law. Petitioner was forced to litigate not once but thrice. While passing order dated 2.6.2009 respondent No.2 was fully aware of the provisions contained in the Hand Book of Personal Matters and no such plea was either taken or considered at that particular point of time. On the asking of respondent No.1, the said order was reviewed and benefits of promotion duly accorded, in accordance with law, were wrongfully denied to the petitioner without any justification or legally enforceable grounds. 8. Hence, the impugned orders dated 9.11.2009 (Annexure P-14) and 25.3.2011 (Annexure P-15) are quashed. The order dated 2.6.2009 (Annexure P-12) is upheld. Petitioner is held entitled to all consequential benefits flowing therefrom. Monetary 5 benefits, due and admissible, if any, shall positively be released in favour of the petitioner within a period of two months from the date of receipt of certified copy of the judgment, failing which, thereafter petitioner shall be entitled to interest @ 9% per annum which shall be recovered personally from the erring official(s), which shall be ensured by respondent No. 1. With the aforesaid observations, present petition is disposed of. (Sanjay Karol), Judge. August 27, 2011 (Priti)