IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.: 7507 of 2008. Decided on: 22.5.2009. ___________________________________________________________ Shri Kailash Chand Gupta … Petitioner. Versus The State of H.P. and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. D.P. Gupta, Advocate vice Mr. K.D. Shreedhar, Advocate. For Respondents No.1 to 3. : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Ramesh Thakur, A.A.G. For Respondent No.4 : Mr. Dilip Sharma, Advocate. ______________________________________________________ Rajiv Sharma, Judge. Brief facts necessary for adjudication of this petition are that the petitioner was promoted as Assistant A-Grade in the pay scale of Rs. 600-1120 on 8.7.1988. The posts of Assistants A-Grade and B-Grade were merged and re-designated as Senior Assistants. Respondent No.4 was appointed as Clerk on 28.1.1975. He belongs to the Scheduled Caste category. He was promoted as Assistant B-Grade with effect from 30.6.1980. He was further promoted as Assistant A-Grade with effect from 30.11.1984. The petitioner ranked at serial number thirteen in the seniority list of Senior Assistants as it stood on 1.6.1997. Respondent No.2 ranked at serial number six. The post of Senior Assistant is in the feeder category for promotion to the post of Superintendent Grade- 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 II. The Departmental Promotion Committee met in the month of July, 2000. The suitability of the petitioner was also adjudged and he ranked at serial number three in the panel. Shri Ramesh Chand was promoted in the month of August, 2000 to the post of Superintendent Grade-II. Smt. Shashi Bala was sent on deputation with Haryana Police. The department took a decision to hold Review Departmental Promotion Committee on 27.12.2000. The case of respondent No.4 was considered after the acceptance of his representation. His name was approved by the Review Departmental Promotion Committee. Mr. D.P. Gupta has strenuously argued that action of the respondents No. 1 to 3 of approving and promoting respondent No. 4 to the post of Superintendent Grade-II is illegal and arbitrary, thus, violative of Articles 14 and 16 of the Constitution of India. According to him, the respondents have failed to take into consideration the instructions issued vide Annexures A-4, A-5 and A-6 respectively while considering the case of respondent No.4 to the post of Superintendent Grade-II. The learned Senior Additional Advocate General has argued that the case of respondent No.4 was considered by convening Review Departmental Promotion Committee on the basis of representation made by him. He then argued that the Departmental Promotion Committee has seen the rules/instructions prevailing in the year 1998 and recommended the promotion of respondent No.4 with effect from 15.12.1999 Mr. Dilip Sharma has argued on behalf of respondent No.4 that the petition was not maintainable on apprehended violation of 3 the rights of the petitioner. He then argued that his client stood promoted to the post of Superintendent Grade-II on the basis of the recommendations made by the Review Departmental Promotion Committee in the month of December, 2000. He lastly contended that the petitioner has neither placed on record office order whereby the petitioner was promoted nor he has assailed the same by amending the petition. I have heard the parties and have perused the record carefully. The Departmental Promotion Committee met in the month of July, 2000. The name of the petitioner was recommended by the Departmental Promotion Committee to the post of Superintendent Grade-II along with Shri Ramesh Chand and Smt. Shashi Bala. As per the averments contained in the reply, respondent No.4 had made representation seeking promotion to the post of Superintendent Grade-II on the basis of seniority assigned to him in the cadre of Senior Assistants. His representation was duly considered and Review Departmental Promotion Committee met on 27.12.2000. The Committee took into consideration the instructions/guidelines prevalent in the year 1998. The petitioner was promoted as Assistant A-Grade on 8.7.1988. The respondent No.4 was promoted as Assistant A-Grade with effect from 30.11.1984. The State Government had issued instructions on 27.5.1996 and also issued clarification on 27.3.1997 regarding maintenance of roster and determination of seniority. However, the State Government further issued clarification on 4.9.1997. The clarification issued on 4.9.1997 was withdrawn vide communication 4 dated 28.12.1999. The case of respondent No.4 was considered on the basis of the position which existed on the basis of letters dated 27.5.1996, 27.3.1997 and 4.9.1997. It is settled law that the rules and regulations existing at the time of arising/availability of the vacancy are to be applied. The instructions issued on 4.9.1997 have been withdrawn on 28.12.1999. Letter dated 28.12.1999 is prospective. The case of respondent No.4 has been considered on the basis of his seniority assigned to him in the cadre of Senior Assistants. It is further clear that the Departmental Promotion Committee which was convened on 16.10.1999 have not considered seniority list i.e. Annexure A-4 issued vide memorandum dated 19.6.1997 and had taken into consideration the seniority list of eligible candidates on the basis of seniority at the time of joining service i.e. as Clerk and ignored the seniority of respondent No.4 as Assistant A-Grade. This has been rectified by the Review Departmental Promotion Committee which met on 27.12.2000. The promotions were in fact to be made for the intervening period after taking into consideration the instructions issued on 4.9.1997 by the Departmental Promotion Committee which met in the year 1998. The present petition has been filed apprehending promotion of respondent No.4 to the post of Superintendent Grade-II. The petition in the present form was not maintainable. In fact, after filing of the petition, respondent No.2 was issued promotion letter and he started discharging the duties of Superintendent Grade-II. It was necessary for the petitioner to assail the promotion of respondent No.4 by seeking amendment to the petition. The petitioner has not 5 amended his petition. Since the petitioner has not laid any specific challenge to the promotion of respondent No.4, his promotion cannot be set aside. Accordingly, in view of the observations made hereinabove, there is no merit in this petition and the same is dismissed. No costs. (Rajiv Sharma), J. May 22, 2009. (cr)