IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 14537 of 2008 Reserved on : 23.6.2011 Decided on : 14.07.2011 Sunita Rani ……….. Petitioner vs. The State of Himachal Pradesh and others …Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Sharma, Judge. For the petitioner : Mr. Ranjan Sharma, Advocate For the respondents : Mr. R.K. Bawa Advocate General with Mr. J.K. Verma, Dy. A.G Justice V.K. Sharma, Judge The petition has been filed on the following prayers:- “i) That the respondents may be directed to consider and give resultant promotion to the applicant to the post of Lecturer in History w.e.f. the date the junior TGT’s-Reserved SC candidates were promoted on 27.5.2006 vide A-4, with all consequential benefits, forthwith. ii) That the respondents may be directed to give the benefit of seniority and arrears of pay and allowances w.e.f. the date the immediate junior TGT’s-SC-Reserved candidate was promoted as Lecturer for all intends and purposes, forthwith. 2 iii) That the action of the respondents in promoting the juniors and in ignoring the applicant due to administrative lapses not attributable to the applicant, may kindly be declared as illegal, malafide and unconstitutional.” 2. In reply the respondents have taken the following stand vide paras 3, 6(v), (vi-vii) and (xi):- “3. That the applicant has no cause of action to maintain the present O.A. before this Hon’ble Tribunal as no injustice has been caused to the applicant. The applicant submitted his representation with regard to acquiring of post graduation degree in History on 28.11.2005 whereas the last cut of date was 31.3.2005 for making the seniority list of PGT final. The Department Promotion Committee convened its meeting on 27.5.2006 and the name of the applicant was not considered for promotion as the applicant submitted his case after the seniority list was made final. Therefore, the applicant has no right to allege that her juniors have been promoted ignoring her claim or promotion. Hence the present Original application is liable to be dismissed. 6(v) That in reply to this para it is submitted that no doubt the applicant has acquired her qualification of post graduation in the year September, 2003 but she has failed to submit her case with regard to qualification acquired within stipulated period and has submitted her case after the seniority was made final. Therefore, the applicant was 3 not considered for promotion for the post of Lecturer. (vi-vii) That in reply to averments made in these paras it is submitted that the respondent department maintains the seniority list of Trained Graduate Teachers who have acquired post graduation in different subjects and teachers concerned are required to submit their certificates etc. to respondent department for inclusion of their names in seniority list of PGTs. After making the seniority of PGTs the same is circulated to the field offices for raising objections for those teachers whose name are not included in the list. The respondent Department on the receipt of objections make the list final and on the basis of final seniority the promotion to the post of Lecturer subject wise are made as per Rules. In the instant case the applicant has failed to submit her case before the cut of date i.e 31.3.2005 whereas she has submitted her case to Dy. Director on 28.11.2005. Therefore, her name was not considered for promotion. (xi) That in reply to this para it is submitted that the applicant has no plausible reasons to file the present Original Application as the applicant herself has failed to submit documents before the Respondent Department before the cut of date. The applicant has filed the present Original Application without ascertaining the factual position, therefore the same is liable to be dismissed on the following grounds:- 4 (a-m) That since the applicant has not submitted his documents with regard to acquiring the qualification of post graduation in History within the cut of date before 31.3.2005 vide which the final seniority list was issued after calling objections, therefore, the applicant cannot claim the benefit for promotion claiming that her juniors have been promoted depriving the applicant. The applicant should have submitted her claim within the period fixed, therefore, the allegations of arbitrariness and malafide against the respondent department are not tenable. The name of the applicant has been included in the fresh seniority maintained by the respondent department, hence the applicant will be promoted to the post of lecturer as and when the departmental promotion committee for the same is convened as per provisions of R & P Rules have been considered. The Original application in view of the detailed submissions as explained here-in-above is liable to be dismissed.” 3. A rejoinder refuting the stand on behalf of the respondents and reiterating the averments set up in the petition has been filed. 4. Admittedly, the petitioner belongs to a Scheduled Caste. She had joined employment of the respondent-department as TGT (Arts) in Govt. High School, Behin, District Kangra on 3.2.1996. It is also not in dispute that while the petitioner was working as 5 TGT (Arts), she passed M.A. (History) from H.P. University, Shimla, in the month of September, 2003. It is also admitted that promotion to the post of Lecturer is made as per the Recruitment and Promotion Rules (R & P Rules), Annexure A-1, framed by the respondent- department under Article 309 of the constitution of India, as per which 50% of vacancies are to be filled in by direct recruitment and the remaining 50% by way of promotion from amongst Trd. graduate teacher/Home Science/Mistresses/Commerce teachers/Agril., who possess Master’s degree in the subject concerned from a recognized university or its equivalent. According to the petitioner after acquiring Master’s degree in History in September, 2003, she became eligible to be considered for promotion to the post of Lecturer in History on the basis of seniority-cum-fitness and reservation policy. The Principal. Govt. Girls Senior Secondary School (in fact Head Master, Govt. Girls High School), Dehra, District Kangra, forwarded her case to respondent No.3, Deputy Director, Secondary Education, Kangra at Dharamshala, for inclusion of her name in the list of eligible candidates for promotion from Trained Graduate Teachers to the post of Lecturer in History vide Annexure A-2, on 18.12.2004, who in turn further forwarded the same vide letter dated 28.11.2005. The further case of the petitioner is that as per final seniority list of Trained Graduate Teachers, 6 Annexure A-3, issued on 31.12.2003,her name figures at Sr. No. 5635. She being eligible was legitimately expecting that the respondent would consider and promote her as Lecturer in History on the basis of length of service and reservation being scheduled caste candidate, but to her utter dismay respondent No.2 issued an order dated 27.5.2006, Annexure A-4, ignoring her claim and instead promoting the junior incumbents-Trained Graduate Teachers, namely S/Shri Parkash Chand, Lokesh Kumar, Amrit Pal Singh and Surinder Singh, who had joined service as TGT on 3.2.1996, 1.1.1996, 10.3.1996 and 7.3.1996, respectively and whose names figure at Sr. Nos. 5729, 5752, 5777 and 5779, respectively. Being aggrieved, she submitted representation dated 13.7.2006, Annexure A-5 to respondent No.2, Director, Secondary Education, Himachal Pradesh, but to no avail. 5. The claim of the petitioner is disputed by the respondents on the sole ground that whereas the cut of date for submission of intimation with regard to acquisition of post graduate degree in the concerned subject was 31.3.2005, she submitted her case to the Dy. Director after the due date on 28.11.2005 and as such her name could not be considered by the Departmental Promotion Committee in its meeting held on 27.5.2006. However, her name has since been included in the fresh seniority list maintained by the respondent-department and she 7 would be promoted to the post of Lecturer as and when DPC is convened for the same as per provisions of the R & P Rules. 6. The petitioner has specifically pleaded vide para 6 (vi) of the petition that the Principal, Govt. Girls Senior Secondary School (in fact Head Master, Govt. Girls High School), Dehra, Distt. Kangra) had forwarded her case for inclusion in the list of eligible candidates for promotion from TGTs to the post of Lecturer (History) vide memorandum dated 18.12.2004, Annexure A-2, to respondent No.3, Dy. Director, Kangra at Dharamshala, well before the cut of date, i.e 31.3.2005. The averments to this effect have not been specifically denied by the respondents in the corresponding para of their reply and instead it is stated that she had “failed to submit her case before the cut of date i.e 31.3.2005 whereas she has submitted her case to Dy. Director on 28.11.2005.” However, the fact remains that the respondents have not specifically disputed the correctness of memo dated 18.12.2004, Annexure A-2, vide which the Head Master, Govt. Girls High School, Dehra, had forwarded the case of the petitioner for inclusion in the list of eligible candidates for promotion from TGTs to the post of Lecturer in History to respondent No.3, Dy. Director, Secondary Education, Kangra at Dharamshala, well within the cut off date. It is another matter that the case was 8 delayed at the end of respondent No.3, Dy. Director, who forwarded the same further to the higher authorities only on 28.11.2005, i.e after the cut of date. The petitioner cannot be allowed to suffer for the delay caused at the level of respondent No.3, for which the department may initiate appropriate action against him in accordance with law. 7. In view of the above, the petition is allowed with a direction to the respondents/competent authority to consider the case of the petitioner for promotion to the post of Lecturer in History from due date, I,.e the date from which her juniors namely, Parkash Chand, Lokesh Kumar, Amrit Pal Signh and Surinder Singh, as aforesaid were promoted as Lecturers History vide office order dated 27.5.2006, Annexure A-4, along with consequential benefits, if any, within three months from the date of production of copy of this judgment by the petitioner, failing which interest @ 9% per annum shall also be payable. The pending application(s), if any, also stands disposed of. (Justice Kurian Joseph), Chief Justice (Justice V.K. Sharma) Judge. 14th July , 2011 (LSP)