IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 4048 of 2008 Decided on : 23.11.2010 Parkash Chand Sharma ..…Petitioner. Versus State of Himachal Pradesh and others …… Respondents. Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Dilip Sharma, Advocate, Amicus Curiae. For respondents : Mr. Anil Jaswal, Dy. Advocate General, for respondents No. 1 and 2. None for other respondents. V.K. Sharma, Judge (Oral) The petition has been filed for grant of the following substantive relief vide para 7 (i):- “That the application may kindly be accepted and the respondents No. 1 & 2 may kindly be directed to promote the applicant as Senior Assistant from the date of issuance of the promotion orders dt. 18 May, 1996, shown as Annexure A-I with all consequential benefits. 2. In reply on behalf of respondents No. 1 and 2, the following averments have been set up vide para (II) of the preliminary submissions and para 6 (v) on merits:- “That the Applicant being an ex-serviceman was appointed as clerk in the department of Cooperation on 16.11.1991. The applicant was given benefit of approved 1 Whether reporters of the local papers may be allowed to see the judgment? No, 2 military service in the fixation of his pay and seniority as per provision of the Demobilized Armed Forces Personal (Reservation of vacancies in Himachal State Non-Technical Services) Rules, 1972. Accordingly, he was placed at serial No. 55 of the seniority list as it stood on 22.09.1995 and respondent No.3 to 5 have been placed at serial No. 90 and 94 of the seniority list. The Respondents No. 3 to 5 were appointed as clerk in the department on 13.03.79, 06.02.79 and 24.02.79 respectively. After completion of five years service, the respondents were placed in the higher scale w.e.f 1.1.86 as senior clerks. They were further placed as Junior Assistants in the scale of Rs. 1500-2700 after rendering 10 years combined service as clerk/Senior Clerks w.e.f 23.03.89, 06.02.1989 and 24.02.1989. As already submitted, the Applicant was appointed as Clerk on 16.11.91 when the respondents had already completed two years service as Junior Assistant. The Applicant was however placed in the higher scale (1200-2130) w.e.f 16.11.1994. As per Recruitment and Promotion Rules for filling up the posts of Senior Assistants, the following criteria has been provided for making recruitment by promotion:- “By promotion from amongst the common clerical cadre of clerk/Senior Clerk/Junior Assistant with 10 years combined regular service or regular combined with continuous adhoc (rendered upto 31.03.1991) service in the grade.” Since the applicant does not fulfil the above criteria prescribed for promotion to the posts of Senior Assistant and has only rendered 6 years service as Clerk/Senior Clerk in the department, hence the applicant is not entitled for any relief and the present O.A deserve to be dismissed with cost.” 6(v) As already submitted against preceding paras, the applicant was due for placement as senior clerk after 3 rendering three years service as clerk w.e.f 16.11.94 which benefit was allowed to the applicant from due date. It may, however, be submitted that in case of other clerks five years service is required for granting such benefit. An ex- serviceman clerk is, however required to put in at least ten years service as clerk/Sr.Clerk for placement as Jr.Assistant and also for promotion to the post of Sr.Assistant. The applicant has so far only rendered six years service as Clerk/Sr.Clerk. As such he is not yet eligible for placement as Jr. Assistant and also for promotion as Sr. Assistant. The promotion orders have been issued by the respondent No.2 as per Govt. instructions issued from time to time and the same are legal and valid and deserve to be upheld by this Hon’ble Tribunal.” 3. A copy of the Rules governing the service to which the petitioner and the private respondents No. 3 to 5 belong, known as “the Himachal Pradesh, Cooperative Department, Senior Assistant Class-III (Non-Gazetted) Ministerial Services Recruitment and Promotion Rules, 1997” (in short ‘the Rules’), has been produced by the learned Deputy Advocate General which is taken on record. 4. Though the stand on behalf of the respondents is that since the petitioner was not having 10 years qualifying service in the common clerical cadre of Clerk/Sr. Clerk/Junior Assistant, he was not eligible for promotion as Senior Assistant, yet in view of Rule 11 of the Rules governing promotion to the post of Senior Assistant, which is extracted below, it is apparent that on a plain reading of the proviso to the said Rule the requirement is that “all incumbents to be considered for promotion shall possess 4 the minimum qualifying service of at least three years or that prescribed in the recruitment and promotion Rules for the post, whichever is less”, meaning thereby that though the Rules provide for minimum qualifying service of 10 years, yet the first proviso to Note (1) to Rule 11, supra, when read in conjunction with Rule 11, it is more than clear that an incumbent possessing three years qualifying service such as the petitioner, would also be equally eligible for promotion to the higher post of Senior Assistant in case persons junior to him become eligible for consideration by virtue of their total length of service ( including service rendered on ad hoc basis upto 31.3.1991):- 11. In case of recruitment by promotion, deputation, transfer, grades from which promotion/deputation/transfer is to be made. By promotion from amongst the common clerical cadre of Clerk/Senior Clerk/Junior assistant with 10 years combined regular service or regular combined with continuous adhoc (rendered upto 31.3.1991) service if any, in the grade. Note:-(1) In all cases of promotion, the adhoc service rendered in the feeder post upto 31.3.1991, if any, prior to regular appointment to the post shall be taken into account towards the length of service as prescribed in these rules for promotion subject to the condition that in all cases where a junior person becomes eligible for consideration by virtue of his total length of service (including the 5 service rendered on adhoc basis upto 31.3.1991) 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 or 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 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 6 State Non-Technical services) Rules, 1972 and having been given the benefit of seniority thereunder or recruited under the provisions of Rule-3 of Ex-Servicemen (Reservation of Vacancies in the Himachal Pradesh Technical Services) Rules, 1985 and having been given the benefit of seniority thereunder. (2) 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. The record reveals that the petitioner, who is an Ex- Serviceman, was appointed as Clerk in the respondent- department on 4.11.1991 and he had joined as such on 16.11.1991. He was designated as Senior Clerk w.e.f 16.11.1994. The DPC was held on 15.5.1996. Thus, he had already put in more than three years service as required 7 under the first proviso to note (1) of Rule 11 supra, in the common clerical cadre of Clerk/Sr. Clerk/Junior Assistant. 5. It is not in dispute that the persons junior to the petitioner have since been promoted, as is apparent from the Office Order dated 18.5.1996, Annexure A-2 and he has been ignored only on the ground that he was not having 10 years service in utter disregard of the Rule quoted above. 6. In view of the above, the petition is allowed and the respondents are directed to consider the case of the petitioner for promotion as Senior Assistant on and with effect from 18.5.1996, when persons junior to him namely respondents No. 3 to 5 were promoted, in terms of Rule 11 supra and grant all the consequential benefits to him within three months from today. 5. The writ petition stands disposed of in the above terms, so also the pending application(s), if any. (V.K. Sharma) Judge 23rd November, 2010. Lsp*