IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP.No.40/2005. Judgment reserved On: 23.6.2009. Decided on: July 1,2009. _________________________________________________________ Tula Ram. …..Petitioner. Versus State of H.P. and others. …Respondents. Coram: Hon’ble Mr. Justice Deepak Gupta,Judge. Hon’ble Mr.Justice Surinder Singh, Judge. Whether approved for reporting1? For the petitioner: :Mr. B.C.Negi, Advocate. For the respondents: Mr.R.M.Bisht,Deputy Advocate General with Mr.Rajesh Mandhotra, Dy. Advocate General. __________________________________________ SURINDER SINGH,J: By means of present Civil Writ Petition, the petitioner has challenged the order of dismissal of his O.A.No. 3088 of 1994 dated 20.8.2004 passed by the erstwhile Administrative Tribunal and also the order dated 28.11.1994 with respect to the rejection of his representation by the F.C.-cum-Secretary (Industry) to the Government of H.P. In brief the facts of the case are as under: Whether reporters of the Local papers are allowed to see the judgment?yes . 2 The petitioner was initially appointed as Extension Officer in the department of Industries and joined as such on 11.4.1977. On 30.10.1993 he was promoted as an Industry Promotion Officer (IPO). In the meantime, Recruitment and Promotion Rules for the post of Manager District Industry Centre, were notified on 11.11.1986. The educational qualification prescribed for direct recruitment was not made applicable to the promotees and Rule 10 thereof provided the ratio 50:50 for the promotion of direct and promotee. Out of 50% posts meant for promotees, 35% posts were to be filled up from amongst the Administrative Officers/Industrial Promotion Officers (IPOs) and other 15% were from the category of Superintendent Grade-IV which is now Grade-II. The said Rules also provided the requisite experience of three years service for the promotion from amongst the Administrative Officers/Industrial Promotion Officers, whereas five years for the category of Superintendents aforesaid. Further the proviso added to Rule 11 provided that the persons appointed as Manager, District Industry Centre (DIC) before the commencement of these Rules were to be appointed as such on regular basis which would constitute the initial cadre. 3 According to the petitioner, 22 persons were appointed as Managers District Industry Centre vide notification dated 5.6.1987 (Annexure:P-1). Under proviso added to Rule 11, one another person was later included in the said list vide notification dated 20.1.1988 (Annexure:P-2). Thus, in total 23 officers were appointed as regular Managers DIC, who constituted the initial cadre. The final seniority list of Extension Officers and also the IPOs, vide Annexures: P-3 and P-4 respectively, were circulated. In that list the persons appearing at serial Nos. 3,7,8,10,11,12,14,15,16,19,20,21 and 22 included in Annexure:P-1 belonged to the category of IPOs whereas the persons appearing at serial No.2 and 4 and also Sh.Jagdish Chander appearing in the list Annexure:P-5 belonged to the category of Extension Officers to which the petitioner initially belonged. The petitioner, a Scheduled Caste (S.C.) candidate, was subsequently appointed as IPOs. As such 17 out of the 23 persons including in the category of Manager DIC belonged to the category of the petitioner. Thus the case of the petitioner has been that the point No.1,8 and 14 of 40 point roster meant for S.C. category were clearly available which were not filled in while making the initial induction to the cadre in accordance with 40 point roster. It is alleged that out of 23 posts appointed to the initial cadre of Manager DIC, 4 by making the promotion, four posts were available for S.C. category, whereas only one person from such category was taken. Vide notification dated 31.7.1987 (Annexure:P-6), 11 persons were promoted as Manager District Industry Centre out of the promotion quota and persons at serial Nos. 1,2,4,5,7,8,10 and 11 were promoted out of the cadre of IPOs and whereas only the person at serial No.11 belonged to the S.C. category. It was also the case of the petitioner that subsequently, five more persons were promoted as Manager DIC, on adhoc basis vide notification dated 2.1.1988 (Annexure:P-6). Out of these persons, the person at serial No.3 belonged to the category of Superintendent whereas other four were from the category of IPOs. Thus no representation was given to the category of S.C. It is further alleged that in the year 1989, 16 posts were filled up through direct recruitment and subsequently in the year 1990, four posts were filled up by direct recruitment. Against the posts meant for promotees quota, the petitioner along with others were promoted on adhoc basis as shown in Annexure:P-7. Sh.B.C.Negi, learned counsel for the petitioner argued that against the aforesaid background the claim of the petitioner as Manager District Industry Centre, was illegally ignored for his promotion against the reservation during the years 5 1987-88 and 1989 and further that the representation made by him on 5.1.1994 was wrongly rejected by the F.C.-cum-Secretary, Industry whereby he had requested for considering his promotion and seniority from the due date and grant him all consequential relief. Sh. Negi further argued that the petitioner preferred an O.A. No. 527 of 1994 before the State Administrative Tribunal for redressal of his grievance in the year 1994 which was disposed of vide order dated 26.5.1994 with a direction to the Secretary Industry to the Government of H.P. to consider his case on merits within a period of three months. But his representation was wrongly rejected by a non-speaking and cryptic order. Thereafter the petitioner preferred O.A. No 3088/94 which was also wrongly dismissed by the then Administrative Tribunal. Hence the present writ. The respondents filed the response to the above contentions of the petitioner and submitted that the selection/regularization of 23 persons for the posts of Managers, DIC were considered at the State Level Co- ordinate Committee from the different categories of the posts as mentioned in para-4 of the reply. From the category-C of IPOs to which the petitioner belonged, only two persons namely S/Shri Panchi Ram a general candidate and Baldev Singh a S.C. candidate were selected/promoted for the post of Manager, DIC. Thus 6 the plea taken by the petitioner that no reservation was given to S.C. at the time of promotion/regularization of 23 Managers, DIC to S.C. category for the category of IPOs was factually incorrect. It was further submitted that out of 23 posts of Managers, DIC, two posts of Manager, DIC fall in the share of IPO (category-C). Accordingly one candidate namely Sh.Baldev Singh from IPO category belonged to S.C. was promoted to the post of Manager against point No.1 of the 40 point roster which came into force vide notification dated 11.11.1986 and adopted in the month of May, 1987, when a cadre of 23 Managers, DIC was formed and regularized as per the decision of the State Level Co-ordinate Committee. It was further contended that 12 persons were promoted on 31.7.1987 as Managers, DIC instead of 11 persons as indicated in Annexure P-5. Further in the month of June, 1987 for filling up 12 posts of Managers, DIC as per R&P Rules, 17 IPOs including the petitioner and 10 Superintendents Grade-II were considered. Out of these 27 persons, only 8 persons from the category of IPOs and 4 persons from the category of Superintendent Grade-II were selected/promoted as Manager, DIC against the available vacant posts of Manager, DIC. As per 40 point roster, point No.1,8 and 14 were meant for S.C. candidates/category. Since only 8 persons were to be promoted from the category of IPOs in the month of 7 June, 1987 and out of 8 posts, two posts were reserved for S.C. category against which point No.1 was already occupied by Sh. Baldev Singh S.C. category and the 2nd post i.e. point No.8 was filled up by promoting Sh. Dilbag Singh of the same category. Thus at the relevant time i.e. in the month of June, 1987 out of 8 posts, two posts were available to the S.C. category. Since Sh. Dilbag Singh and Sh.K.R.Shyam of S.C. category were senior to the petitioner, therefore, the name of the petitioner could not be recommended. Shri R.M.Bisht, learned Deputy Advocate General supported the reply filed by the State and argued that the claim of the petitioner was stale and wrong. Therefore, it was rightly rejected by the Tribunal. It is argued that 19 posts for promotion to the post of Manager, DIC were available in the year 1999. The petitioner was considered and promoted against S.C. category as per the roster. Thus his claim to promote him w.e.f. 1986-87 cannot be allowed. We have bestowed our best consideration to the rival contentions of the parties and have carefully gone through the record. In fact the R&P Rules for the post of Manager, DIC were notified in the year 1986 vide notification dated 11.11.1986. The column No.11 of the 8 said Rules aforesaid provided the ratio for promotion in the following manner: “(11) By promotion from amongst the: Category-A 1. Assistant District Industries Officer. 2.Administrative officer, (Industrial Estate). 3.Khadi Organiser, 4.Planning-cum-Survey Officer, 5.Survey Officer, 6.Office Superintendent, 7.Technical Supervisors (Wood-Grafts), 8.Superintendent, Rural Industrial Training Institute (Non-Gazetted). With three years regular or adhoc service or both as such. For the purpose of promotion a combined seniority of eligible officials will be prepared based on length or service as such, inter se seniority of each unit not to be disturbed as far possible. Category-B. 1.Extension Officer (Ind.) 2.Senior Inspector(Ind.), 3.Manager,Common Facility-cum-production- cum-Training Centre/Industrial Extension Centres/ Industrial Estates, 4.Supervisor/Instructor, Rural Industrial Training Institute. With five years regular or ad-hoc service or both as such. (For the purpose of promotion, a combined seniority of the eligible officials will be prepared based on length of service as such, 9 inter-se-seniority of each unit not to disturbed as far as possible). Category-C: 1.Industrial promotion officer(RIP) 2.Inveswtigators (Rs.225-500) 3.Investigators (Rs.200-500) 4.Technical Officer(RIP) 5.Foreman-cum-Supervisors,Industrial Extension Centres. With four years’ regular or adhoc service or both as such. For purpose of promotion, a combined seniority of eligible officials will be prepared based on length of service as such inter-se- seniority of each unit not to be disturbed as far as possible”. Column No.10 provided the method of recruitment. 50% by promotion and 50% by way of direct recruitment and column No.11 further provided that out of 50%, 35% would be by way of promotion from amongst the Administrative Officer/Industrial Promotion Officers (IPOs) in the pay scale of Rs.800- 1400 having atleast three years regular service or regular combined with adhoc (rendered upto 3.12.1983) service in the respective grades. Further 15% by promotion from Superintendent Grade-IV in the pay scale of Rs.620-1200 with atleast 5 years regular service or regular combined with adhoc (rendered upto 31.12.1983) service in the grade. For the purpose of 10 promotion, a combined seniority list of eligible officials was required to be prepared based on length of regular service in the respective grades and inter se seniority was not to be disturbed and the following roster was prescribed under the said R&P Rules: 1.Promotee from Admn.Officer/IPO. 2.Direct recruitment. 3.Promotee from Admn. Officer/IPO 4.Direct recruitment. 5.Pro,itee from Supdt. Grade-IV. 6.Direct recruitment. 7.Promotee from Admn. Officer/IPO 8.Direct recruitment. 9.Promotee from Admn. Officer/IPO 10. Direct recruitment. 11.Promotee from Supdt.Grade-IV. 12. Direct recruitment. The roster was also required to be repeated after every 12 points. A proviso was added to the aforesaid rules that the persons appointed as Managers, District Industries Centre before commencement of the Rules shall be appointed as Managers, DICs on regular basis, would be subject to their fitness to be adjudged in consultation with the Commission, and the persons so appointed on regular basis and shall be deemed to constitute the initial cadre in relation to these Rules and after such initial constitution in the first instance the remaining/subsequent posts shall be filled up in 11 accordance with the provisions of these Rules. In all cases of promotion adhoc service rendered in the feeder post upto 31.12.1983, if any prior to the regular appointment to the post was to be taken into account towards the length of service as prescribed in these rules for promotion subject to the conditions (a) to (c) appended to the aforesaid Rules. As per the recommendation of the State Level Coordination Committee the case for regularization of 23 persons working as Manager (DIC) on adhoc basis was sent to the H.P. Public Service Commission on 7.3.1987 which was approved and the said incumbents were regularized by constituting an initial cadre against the post of Manager (DIC) but 40 point roster was started in the month of May, 1987. At that time only 2 IPOs from the category-C were considered and selected for the post of Manager (DIC). Out of these 2 posts one Shri Baldev Singh from the S.C. category was promoted on 22.2.1986. Thus the first point in the roster meant for the S.C. category stood exhausted. Thereafter in the month of June, 1987, 12 post of Manager (DIC) were notified during the year 1986 which was filled in by promoting 8 persons in the category of IPO and 4 persons from the category of Superintendent against the available vacant posts. As per 40 point roster, point No. 1 and 8 were meant for S.C. candidates. Since 8 persons 12 were to be promoted from the category of IPOs and out of these 8 posts, two posts were reserved for S.C. category against which point No.1 stood already consumed by promoting Sh. Baldev Singh from S.C. category at the time of regularization of 23 persons as Manager (DIC) by constituting an initial cadre. Thus the 2nd post i.e. point No.8 in the roster was filled up by promoting Sh. Dilbag Singh from S.C. category. At the time of filling up of 8 posts from IPO category, the claim of the petitioner was also considered by the D.P.C. for his promotion against the posts reserved for S.C. category. Since Sh.Dilbag Singh and Sh. K.R.Shyam of S.C. category were senior to the petitioner, therefore, his name was not recommended for the promotion against the reserved post. The upshot of the above discussion is that the plurality of posts were made available only in the year 1999 accordingly the applicant was considered and promoted against his quota, whereas prior to that only one post each was available in May 1987 and June 1987 for the S.C. candidates from the feeder category of the applicant against which two persons named above stood already promoted who were senior to him. At that time, the petitioner did not make any grouse. For the first time he had filed his representation on 6.1.1994 and immediately thereafter he filed O.A. No. 527 of 1994 in 13 the then Administrative Tribunal. The said Original Application was directed to be treated as representation to the Secretary (Industries) to the Government of Himachal Pradesh with direction to consider his case on merits in accordance with law and decide the same within a period of three months with liberty reserved to approach the Tribunal again, on the same cause of action, if he still felt aggrieved. The F.C.-cum-Secretary (Industry) considered and rejected his representation on 25.11.1984 and passed the following order: “With reference to his application, dated 6.1.1994, on the subject cited above, Sh.Tula Ram Jain, Manager, DIC, Shimla is hereby informed that his case for promotion to the post of Manager, DIC from retrospective effect i.e. upto the year 1989 as claimed by him was carefully examined and rejected on the grounds that at this stage it is not proper to re-open or carry forward the back log quota for Sch.Caste category, even if any, available out of the initial cadre recruitment or promotion to the posts of Managers, DIC from January, 1979 to July, 1985 the date when the Recruitment & Promotion Rules for the posts of Managers, DIC were notified” It is against this order that present OA.No.3088/1994 was filed by the petitioner which was rejected. 14 On the consideration of the matter, we also feel that the representation made by the petitioner in the year 1994 with respect to his promotion against the S.C. category was made at a too belated stage which could not have been taken cognizance of due to delay and latches. Further we have found that the grouse of the petitioner was also not genuine. Because, the posts in 40 point roster meant for the S.C. candidates were properly filled in as only two posts were available to the S.C. candidates in the year 1987 and in the year 1999 when there were more posts available, the petitioner was also promoted against his category against the relevant roster point. Therefore, in these circumstances we do not find any illegality in the impugned order of the Tribunal rejecting his claim. As such no writ as sought for, can be issued in favour of the petitioner. As such the present petition fails and is accordingly dismissed. (Deepak Gupta), Judge. (Surinder Singh), Judge. July 1,2009(R) 15