IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 6310 of 2008 Decided on : 23.11.2010 Smt. Himachali Devi and others ..…Petitioners. Versus State of Himachal Pradesh and others …… Respondents. Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the Petitioners : None. For respondents : Mr. Anil Jaswal, Dy. Advocate General, for respondents No. 1 and 2. None for respondent No.3. V.K. Sharma, Judge (Oral) The petition has been filed for grant of the following substantive reliefs vide para 7 (a) to (d) and (f):- “a) The impugned notification annexure ‘PN’ may kindly be set aside and quashed; b) the respondents be directed to promote the applicant as Secretary/Executive Officer from the date the post of Secretary, Municipal Committee Sundernagar fell vacant on regular basis or from the date respondent No.3 has been promoted. c) the respondents be also directed to pay the wages/salary for the intervening period in the higher scale; d) the respondents be also directed to maintain the seniority of the applicant at his proper place as Secretary. f) Any clause in the R & P Rules, 1994, contrary to the benefits of the applicant be also struck down.” 1 Whether reporters of the local papers may be allowed to see the judgment? No, 2 2. In reply on behalf of respondents No. 1 and 2, the following averments have been set up vide paras 3 and 4 of preliminary submissions and paras 6(i) and (vii) on merits:- “3. That the applicant is not educationally qualified to hold the post of Secretary as per the provisions of the H.P. Municipalities Executive Officers/Secretaries (Recruitment, Promotion and other conditions of Services) Rules, 1997, notified by the Government on 19.08.1997 and published in H.P. Government Rajpatra on 01.09.1997, a photocopy of which is being annexed as Annexure : R-I to the reply. The minimum qualification for the post of Secretary is B.A. with Diploma in LSG whereas the applicant is only Matriculate with Diploma in LSG, therefore, he can not be promoted to the post of Secretary and thus this O.A. is not maintainable against the Replying Respondents. 4. That although the applicant is eligible for promotion to the post of Superintendent Grade-II as per the H.P. Ministerial/Non-Ministerial State Municipal Services (Recruitment, Promotion and Other Conditions of Services) Rules, 1997 notified by the Government on 20.08.1997 and published in H.P. Government Rajpatra on 01.09.1997. a photocopy of which is being annexed as Annexure R-2 to this reply, but the Respondents could not resort to his promotion on account of interim stay granted by this Hon’ble Tribunal on 13.07.1998 in O.A. No. 1072 /98 titled as The Municipal Employees Union (Regd.) through its President Shri M.R. Bhardwaj VS State of H.P. & others in the following terms:- “In the meanwhile no transfer be made on the basis of integrated seniority list dated 16.08.1997 (Annexure:A-10) till further orders”. With the integration of Municipal cadres of Senior Assistants/Accountants into a common State level 3 municipal cadre of Senior Assistants/Accountants, the applicant name appears at Sr. No. 1 in the Seniority list of Senior Assistants/Accountants and being fit for promotion as Superintendent Grade-II can be promoted to the said post but in view of the above interim stay orders of this Hon’ble Tribunal, the applicant can not be promoted and further transferred against the vacant post which is available in another municipality of the State. Thus such type of promotions are in abeyance for the last more than one and half years, therefore, in order to allow some relief to the applicant and to other similarly situated municipal employees of the State Cadre it is necessary that the above interim stay orders are ordered to be vacated by the this Hon’ble Tribunal in the interest of the municipal employees of the State. 6(i) The contents of this para relate to the employer of the applicant i.e Municipal Council Sundernagar who has not been impleaded as necessary party to this O.A, therefore not maintainable against the Replying Respondents, hence no comments. However, it will reveal from the perusal of Annexures: PA, PB, PC, PD and PE annexed by the applicant to this O.A. that Shri Shiv Kumar –applicant was never ordered to officiate as Secretary of M.C. Sundernagar on regular basis but he officiated for short spells during the leave or absence of the then Secretary M.C.Sundernagar. Later on the then Secretary Shri Dhyan Singh Chandel retired on 28.02.1991 and the post of Secretary fell vacant and in order to fill up the said post a Selection Committee of three members was constituted under the chairmanship of D.C. Mandi to hold open interviews and to select a candidate for the appointment of Secretary at M.C. Sundernagar. The administrator M.C. Sundernagar invited applications from the desirous candidates during Oct., 1991 and interviews were fixed for 21.10.1991 as per Annexure R-III being 4 annexed to this reply. According to this advertisement, the essential qualification was B.A with LSG diploma or for in-service candidates it was only diploma in LSG with service of 15 years in the capacity of Clerk/Accountants. The interviews were held and selection process competed but the proceeding of the said selection process was never made available to the Government by the D.C. Mandi for approval under section 37 of the old H.P. Municipal Act, 1968. Thus in the absence of any proceedings of the said selection committee it can not be presumed that Shri Shiv Kumar was ever recommended for appointment as Secretary in M.C. Sundrnagar by the said selection ;committee. Moreover, the applicant was not having the requisite qualification of Diploma in LSG at the relevant time i.e October/November, 1991 which he only obtained during the year 1992 a would reveal from Annexure P-1 annexed by the applicant, therefore, the question of his name appearing in the selection list does not arise at all. (vii) The contents of this para are admitted to the extent of issuing seniority list of the Senior Assistants/Accountants. It is a fact that the name of the applicant appea5s at Sr. No.1 and that of the Respondent No.3 at Sr. No. 34. According to the provisions of the new H.P. Municipal Services Act, 1994 and R & P Rules made thereunder as per Annexure: R-1. The R & P Rules for the posts of Executive Officers/Secretaries were notified by the Govt. on 19.08.1997 which prescribes minimum qualification to the post of Secretary as B.A. with diploma in LSG, therefore, while filling up the posts of Secretaries by promotions the applicant was not found eligible for promotion as Secretary due to his qualification being Matric with LSG Diploma. The applicant is not educationally qualified to hold the post of Secretary, therefore, he ahs no claim for the said post. However, 5 under the H.P. Ministerial/Non-Ministerial State Municipal Services (Recruitment, Promotion and other Conditions) Rules, 1997 notified on 20.8.1997,t he applicant is eligible for promotion as Superintendent G-II on the basis of above seniority list but due to stay granted by the Hon’ble Tribunal on 13.07.1998 in O.A No. 1072/98 titled as the Municipal Employees Union (Regd.) through its President Shri M.R. . Bhardwaj Vs State of H.P. & others the Respondents are not in a position to order his promotion and posting which shall involve his transfer to another municipality where the post of Superintendent G-II is lying vacant. As a result of these interim stay orders of the Hon’ble Tribunal, the promotions to other posts of state level municipal services have also been held up because on promotion the employee of one municipality have to move to another municipality where the vacancy of higher post will exist and that will involve transfer and posting. The Hon’ble Tribunal may like to vacant its interim stay orders dated 13.07.1998 in the interest of the municipal employees of the state including that of the applicant.” 3. The original petitioner, Shri Shiv Kumar, who died during pendency of the petition is represented by his legal representatives. 4. In view of the above reply, in case the petitioners still have any surviving grievance with regard to the factual and legal position, it will be open to them to approach respondents No. 1 and 2/competent authority, who will look into the matter and take appropriate action in accordance with law and justice and appropriate orders thereon shall be passed within four months from the date of production of copy of this judgment within one month from today. 6 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*