IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 4725 of 2008. Decided on: 1.11.2010. __________________________________________________ Shri Mohan Lal Sharma …Petitioner. Versus Dr.Y.S. Parmar University and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. S. R. Sharma, Advocate. For respondent No.1 : Mr. B.S. Attri, Advocate. For respondents No. 2 to 4. : None. ___________________________________________________________ Justice V.K. Sharma, Judge (Oral). The petition has been filed for the grant of the following substantive reliefs vide para 7 (1) to (4) of the petition:- “(i) That the impugned promotion rules vide Annx. A8-A9 may kindly be declared to be devoid of rational basis lacking in intelligible differentia and without any co- relation to the desired objective, and the same may kindly be quashed and set aside. (ii) That the impugned office order dt. 4/5/90 (Annexure- A10 whereby respondents No. 2 to 4, who are juniors to the applicant in the ‘D’ category joint seniority list, have been promoted to the post of Clerk, may kindly be quashed and set aside. (iii) That the office memo dt. 26/6/97 (Annex. A15) issued by Registrar, Y.S.P.U. rejecting representation of the applicant may kindly be quashed and set aside. 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 (iv) That the respondent-University may kindly be directed to consider the case of the applicant for promotion to the post of Clerk w.e.f. 4/5/1990 when his juniors were so promoted to the said post with all consequential benefits, including seniority etc.” 2. In the reply filed on behalf of respondent No.1- University, the following averments have been set up, vide para 6 (vi), (viii), (xi) and (xii):- “6 (vi). Admitted to the extent that prior to 30-11-1985, the applicant was the employee of HP Krishi Vishva Vidyalaya and was being governed by the rules of that University. The respondent-University came into being on 1.12.1985 whereafter the applicant became its employee and was to be governed by the rules of Respondent-University. It is, however, worth- mentioning that Promotion Rules for Administrative/ministerial staff in the Respondent- University as formulated on 21.11.1987 Annexure A-8 and amended on 11.3.1988 Annexure A-9 were similar to the Promotion Rules, as formulated by the H.P. Krishi Vishvavidyalaya on 12.6.1986 which provide that only Daftri, Peons, Office Chowkidars and Sweepers from amongst category ‘D’ staff were eligible for promotion to the post of Clerk. A copy of the promotion rules of HP Krishi Vishvavidyalaya as circulated on 12.6.1986 is appended and marked as Annexure R-1. The applicant holding the post of Mali was, therefore, not eligible for promotion to the post of Clerk in accordance with these rules applicable in both the Universities. (viii) It is submitted that prior to separation of respondent- University from HP Krishi Vishvavidyalaya as on 1.12.1985, all category ‘D’ employees were eligible for consideration towards promotion to category ‘C’ posts on the basis of joint seniority list, but subsequently as 3 per Promotion Rules formulated by the HP Krishi Vishvavidyalaya vide notification No. 2-7/86-HPKVV (GA)Vol.III/24019-72 dated 12.6.1986 Annexure R-1, only the category ‘D’ employees holding the posts of Daftri, Peon, Office Chowkidars and Sweeper were eligible for promotion to the post of Clerk. This provision of Promotion Rules existed in HP Krishi Vishvavidyalaya upto 15.11.1990 as is evident from the amendment ordered by that University vide notification NO. 2-7/BB-HPKV (GA) Vol. IV/-61662- 741 dated 16.11.1990 to the extent that all the category ‘D’ employees were made eligible for promotion to the category ‘C’ posts such as Field Assistant, Laboratory Assistant and Clerk irrespective of the posts they held in the feeder category, as copy of which is annexed herewith and marked as Annexure R-2. The existing and amended provisions of Rules as appeared in Annexure R-2 is relevant in the matter which also make it clear that prior to the amendment notified by the HP Krishi Vishvavidyalaya on 16.11.1990, the Daftries, Peons, Office Chowkidars and Sweepers were being promoted to the posts of Clerks, whereas others holding the posts of Mali, Beldar etc. were being promoted as Field Assistant in that University. However, there was a provision in the Promotion Rules of HP Krishi Vishvavidyalaya prior to the year 1986 to promote all the category ‘D’ employees to the pposts of clerk irrespective of the posts they held in the feeder category as is evident from Annexure A-4, A-5 & A-6 attached with the application. Further on the analogy of HP Krishi Vishvavidyalaya, the respondent Unversity also ordered the similar amendments in its Promotion Rules vide notification No. 5-1/91 (19)(GA)/31301-41 dated 7.3.1991 (Annexure A-12) making all the category ‘D’ employees eligible for 4 promotion to category ‘C’ posts falling under ministerial, field and laboratory streams. As regards the promotion of RespondentsNo.2 to 4 to the pposts of Clerk ordered by the respondent-University on 4.5.1990 as per orders Annexure A-10, it is made clear that Promotion Rules as attached at Annexure 9 were applicable in their case according to which only Daftries, Peons, Office Chowkidars and Sweepers falling under category ‘D’ posts were eligible for promotion to the posts of Clerks. As such, the respondent No. 2 holding the post of Chowkidar and respondents No. 3 & 4 holding the posts of Peon in May, 1990 have rightly been promoted as Clerks as per promotion rules applicable at the relevant time Annexure A-10. The applicant who was though senior to these respondents as per joint seniority list Annexure A-7 could not be considered for such promotion in view of the fact that he while holding the post of mali was eligible for promotion as Laboratory Assistant or Field Assistant as per another set of Promotion Rules notified on 25.8.1988, a copy of which is filed at Annexure R-3 and there being no such post available under promotion quota in May 1990, the applicant could not be promoted as Laboratory Assistant/Field Assistant and the respondents 2 to 4 who were eligible for promotion as Clerks and as the posts were also available under the promotion quota, got the promotion thereby superseding the applicant. The situation as aforesaid was beyond the control of the respondent-University of which the applicant should not fee aggrieved. (xi) It is wrong to say that respondent-University reverted to the Promotion Rules followed by HP Krishi Vishvavidyalaya as contended by the applicant. As is evident from Annexure R-2 the HP Krishi Vishvavidyalaya was also following the same 5 provision of Promotion Rules upto 15.11.1990 as was applicable in the respondent-University according to which category ‘D’ employees holding the posts of Mali, Beldar as in the case of applicant were not eligible for promotion to the posts of Clerk. Accordingly, there was no scope to promote the applicant to the post of Clerk in May, 1990 as he was holing the post of Mali at that time and his line of promotion was for Laboratory Assistant or Field Assistant. The respondent No.2 to 4 holding the posts of Chowkidars and Peon were, however, promoted to the posts of Clerk according to their line of promotion prescribed in Promotion Rules (Annexure A-9). The plea of applicant is, therefore, not tenable that he was eligible for promotion to the post of Clerk along with respondent No. 2 to 4 in May, 1990 as there was no post of Clerk available under the promotion quota. (xii) It is submitted that with the amendment of Promotion Rules notified by the respondent-University, on the analogy of HP Krishi Vishvavidyalaya, on 7.3.1991 Annexure A-12 all the category ‘D’ employees were made eligible for promotion to category ‘C’ posts such as Clerk, Laboratory Assistant and Field Assistant irrespective of the posts they held in feeder category. In the light of amended provision of Rules, the applicant was also promoted to the post of Clerk on 1.6.1991 as per Annexure A-13. Relevant to submit here that promotion quota was still not available for the posts of Laboratory Assistant and Field Assistant as upto 1.6.1991. 3. Admittedly, the posts of Daftri, Peon, Office Chowkidar, Sweeper and Mali are class IV posts. Initially all these posts, except the post of Mali, were included in the Recruitment & 6 Promotion Rules (in short R&P Rules) by the respondent-University for promotion to the post of Clerk. The post of Mali was excluded from the domain of the R&P Rules on the ground that such rules of the respondent-University as also its predecessor, H.P. Krishi Vishva Vidyalaya did not include the post of Mali for promotion to the post of Clerk. Lateron the respondent-University amended these rules and included the post of Mali as one of the feeder cadres for promotion to the post of Clerk. However, in the meantime, private respondents No. 2 to 4 who were junior to the petitioner in the joint seniority list of class IV employees, were promoted as Clerk and thus, became senior to him. 4. Though it may be argued that Daftri, Peon and Office Chowkidar work in the office and thus, are conversant with the office procedure as also duties to be performed by a Clerk and in case they possess the requisite qualification, they could be promoted as Clerk. At the same time, the posts of Sweeper and Mali can very well be termed as requiring some special skill in the trade. If it is so, in case the post of Sweeper can be considered as a feeder cadre for the post of Clerk, it does not stand to reason as to why the post of Mali should have been left out. Though the incongruity in this regard has already been rectified by the respondent-University by amending the R&P Rules, yet the damage had already been done to the petitioner who was promoted as Clerk only after about one year from the promotion of the private respondents who were junior to him in the joint seniority list in the lower cadre, that is, the cadre comprising of Class IV officials. 7 5. In view of the above, the unamended rules though, lateron amended, were discriminatory vis-à-vis the petitioner and private respondents No. 2 to 4 and thus, ultra virus of the Constitution. 6. The above discussion brings me to hold that the petitioner’s claim for seniority over and above the private respondents No. 2 to 4 is well deserved and is accordingly allowed. Consequently, the petitioner shall rank senior to private respondents No. 2 to 4 in the cadre of Clerks. However, since he had not worked as Clerk during the relevant period, he shall not be entitled for any financial benefit on this count. Consequently, respondent No.1-University is directed to grant seniority to the petitioner over and above private respondents No. 2 to 4 and circulate fresh seniority list to this extent within three months from today. 7. The petition stands disposed of in the above terms. In view of disposal of the main petition, pending CMP(s), if any, shall also stand disposed of as infructuous. (V.K. Sharma) Judge. November 1, 2010. (cr)