IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P.(T) No. 5813 of 2008. Reserved on: 05.10.2010. Decided on: 19.10.2010. _____________________________________________________ Krishna Devi. …Petitioner. -Versus- State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mrs. Ranjana Parmar, Advocate. For the respondents. : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Petitioner was working as Class-IV employee. The District Education Officer has informed the Principals/Headmasters of the Schools to give details of the persons who were eligible for appointment to the post of Laboratory Attendant. The petitioner was matriculate. The Principal of the concerned School sent the information to the District Education Officer on 18.11.1993. The name of the petitioner was also mentioned in the communication. Petitioner gave the option that her case be not considered for the post of Laboratory Attendant, rather her case should be considered for the post of Clerk. However, fact of the matter is that the petitioner was promoted to the post of Laboratory Attendant on 26.03.1995. She made several representations bringing to the notice of the 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. authorities concerned that she should not have been promoted to the post of Laboratory Attendant, rather her case ought to have been considered for the post of Clerk. The representations made by the petitioner were acceded to by the competent authority and the promotion order dated 26.03.1995 was withdrawn vide office order dated 03.08.1998. Thereafter, the petitioner made a representation on 07.08.1998 and consequently, the petitioner was promoted to the post of Clerk on 18.12.1998. 2. Mrs. Ranjana Parmar, learned counsel for the petitioner has strenuously argued that the case of the petitioner ought to have been considered for the post of Clerk and not to the post of Laboratory Attendant on the basis of option exercised by her on 18.11.1993. She then contended that the petitioner should have been considered for promotion to the post of Clerk from the date her juniors were promoted. 3. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that once the petitioner had been promoted to the post of Laboratory Attendant vide letter dated 26.03.1995, she at this belated stage cannot be considered for promotion to the post of Clerk from the date her juniors were promoted. 4. I have heard the learned counsel for the parties and gone through the records carefully. 5. As per the Recruitment and Promotion Rules, the petitioner was eligible against 10% quota for promotion to the post of Laboratory Attendant as well as to the post of Clerk. She exercised her option to be appointed as Clerk on 18.11.1993. Despite expressed option exercised by the petitioner, she had been promoted to the post of Laboratory Attendant on 26.03.1995. However, on the basis of the representation made by the petitioner, the order dated 26.03.1995 was withdrawn and she was promoted to the post of Clerk on 18.12.1998. The fact of the matter is that the persons junior to the petitioner had been promoted to the post of Clerk and now, they rank senior to the petitioner in this category. The Court is of the considered opinion that once the petitioner had exercised her option for being considered for promotion to the post of Clerk, she ought to have not been promoted as Laboratory Attendant. Moreover, the request of the petitioner to be considered for the post of Clerk has been acceded to, which led to the withdrawal of the promotion order of the petitioner to the post of Laboratory Attendant, dated 03.08.1998 and thereafter, she had been promoted as Clerk on 18.12.1998. Since the request of the petitioner had been acceded to, she ought to have been considered for promotion to the post of Clerk from the date her juniors had been promoted. In case the petitioner is not considered for promotion to the post of Clerk from the date her juniors have been promoted, the services rendered by her as Laboratory Attendant w.e.f. 26.03.1995 to 03.08.1998 will be rendered otiose. 6. Mr. P.M. Negi, learned Deputy Advocate General has argued that the petitioner is estopped from assailing her promotion order dated 26.03.1995 to the post of Laboratory Attendant. There cannot be any estoppel to the fundamental rights. Petitioner had given expressed option only to be considered for the post of Clerk. However, the petitioner has been promoted as Laboratory Attendant, which letter was withdrawn on 03.08.1998. 7. Consequently, in view of the observations made hereinabove, the petition is allowed. The respondents are directed to consider the case of the petitioner for promotion to the post of Clerk from the date her juniors were promoted with all the consequential benefits, within a period of three months from the date of production of a certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma) Judge October 19, 2010. (bhupender)