IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 4768 of 2008 Date of decision: 27.9.2010 Smt. Kaushyala Devi and ors. …Petitioner. Versus The State of H.P. and anr. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : None. For the Respondents : Ms. Ruma Kaushik, Addl. A.G. for the respondents. Kuldip Singh , Judge (Oral) The petitioner has prayed mainly following reliefs in the petition:- (1) That the respondents be directed to count the services of applicant in education department from the date of his regular appointment as Teacher in Primary School Rajri, Teh. Solan Distt. Mahasu from 4th April, 1959 and further they may be directed to give seniority from the year 1959 and applicant be given promotions from date of his juniors were promoted. 1 Whether reporters of Local Papers may be allowed to see the Judgment ?. Yes. 2 (2) That all consequential benefits, pension, gratuity etc. accruing to the applicant from his service should be ordered to be calculated from 4th April, 1959 and further respondent- department be directed to count the arrears of the applicant on the basis of the promotion, he would have got by virtue of his original seniority from the year 1959. (3) That the applicant may be allowed or given seniority from 4th April, 1959 instead of 1971, for the purposes of promotion and other benefits. (4) That the respondents be directed to calculate and pay the arrears which has accrued to applicant during his service (1959 to 1971) which has been illegally with-held by the respondents by not counting the 13 years service from the year 1959 to 1971 for the purposes of promotion. 2. The facts, in brief, are that Vijay Kumar had filed original application in the erstwhile Tribunal on 17.12.1997 with main prayers, as noticed above. It was alleged that on 22.4.1959, he was offered the post of teacher in Primary School, Rajri. He joined as such and, thereafter, he worked in different schools. In the year 1971, he was transferred and posted in the then Tehsil Hamirpur, District Kangra on his option. Later on, Hamirpur was made a separate District. In the year 1984, the cadre of primary teachers was bifurcated under a separate Directorate of Primary Education. This resulted many promotions of primary teachers. But, the petitioner was not promoted as his service rendered from the years 1959 to 1971 was not taken into consideration while considering the promotions of primary teachers. The petitioner was assigned seniority from the year 1971. The petitioner submitted representation, but to no 3 effect. The petitioner vide letter, dated 24.12.1988, Annexure A-2 was asked to supply an attested copy of transfer/allocation order vide which he was transferred/allocated to District Hamirpur. The petitioner despite his best efforts could not supply the transfer/allocation order as demanded from him vide Annexure A-2. The petitioner made many representations regarding his grievance, but Department did not take any action. 3. The petitioner retired from service on 31.3.1993. The petitioner filed original application No. 1514/95 in the erstwhile Tribunal, which was decided on 1.4.1997, whereby services of the petitioner from the year 1959 were ordered to be counted for the purpose of pensionary benefits, however the Tribunal has not said anything regarding counting of service of the petitioner from the year 1959 for the purpose of promotion. 4. It has been alleged that service of the petitioner from 1959 to 1971 was ignored by the Department, he was entitled to promotion from the date of his juniors were promoted. In these circumstances, the petitioner had filed another original application, which was transferred to this Court on abolition of Tribunal. 5. The petition has been contested by the respondents by filing reply. It has been stated that the petition is not maintainable inasmuch as the petitioner had earlier filed original application No. 1514/95, which was decided by erstwhile Tribunal on 1.4.1997. 6. It has been submitted that earlier original application was filed by the petitioner on similar facts and, therefore, the petition is not 4 maintainable. The petitioner died on 11.1.1999 during the pendency of the petition and his legal representatives were brought on record. 7. The earlier petition was filed by the petitioner in the year 1995. The perusal of order, dated 1.4.1997 in O.A. No. 1514 of 1995 indicates that in the earlier petition, the petitioner had sought directions against the respondents to count District Board service rendered by him prior to 1.10.1957 towards qualifying service for pension and other pensionary benefits. A direction was also sought that the pension, gratuity and commutation etc. be also ordered to be re-fixed after counting the aforesaid service and arrears be also ordered to be released to the petitioner. The Tribunal directed the respondents to count the service of the petitioner rendered prior to 1.10.1957 and re-fix the pension and pensionary benefits of the petitioner within three months from the date of order. The petitioner in the present petition has again prayed for counting of service in Education Department from 4.4.1959 and seniority as well as promotion from the date of his juniors were promoted and also prayed for consequential benefits, pension, gratuity, arrears etc. from the said date. 8. The present petition cannot be allowed for more than one reason. The petitioner had earlier filed original application after his retirement, in which he had prayed for counting of his service from 1.10.1957 for the purpose of promotion. In any case, alleged cause of action for claiming promotion was available to the petitioner, when he filed the earlier petition, but he did not claim promotion in the earlier petition. Therefore, in the second petition, he cannot be permitted to claim promotion. The petitioner in the present petition has claimed promotion 5 from the date of his juniors were promoted. In the petition, no particulars of such juniors have been given nor it has been stated on what post the petitioner has claimed promotion. In absence of material particulars, the petitioner cannot be granted the relief of promotion. There is no merit in the petition, which is accordingly dismissed with no order as to costs. September 27, 2010. (Kuldip Singh) (pankaj) Judge.