IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No.6144 of 2008 Judgment reserved on : 24.9.2010 Date of decision: 27.9.2010 Prem Chand ….. Petitioner. Vs. Managing Director HPTDC & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Ms. Archana Dutt, Advocate. For the Respondents : Mr. Naresh Kaul, Advocate, vice Mr. Rajinder Dogra, Advocate, for respondent No.1. Kuldip Singh, J. The petitioner has prayed for quashing of office order dated 6.9.1997 Annexure PD and office order dated 13.1.1999 Annexure PE with further prayer that respondent No.1 may be directed to consider the petitioner alongwith respondents No.2 and 3 for promotion for the post of Captain w.e.f. 6.9.1997 and respondent No.1 may be directed to promote the petitioner from the date his juniors were promoted and to place him over and above respondents No. 2 to 9 in the seniority list of Captains. Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 2. The brief facts of the case as projected by the petitioner are that petitioner had joined respondent No.1-Corporation on 2.7.1984 as waitor and he is senior to respondents No.2 to 9 as per seniority list dated 31.5.1994 of waitors. The names of respondents No.5 to 9 have not been shown in the seniority list dated 31.5.1994 as they were not waitors on the date the seniority list was circulated; rather they were working as assistant waiters. 3. The petitioner has passed trade test for promotion to the post of Captain/Barman as per result sheet dated 8.7.1997. The petitioner is thus eligible for promotion to the post of Captain/Barman w.e.f. 8.7.1997. The respondents No.2,3 have also passed trade test in July, 1997. The Corporation has promoted 15 waitors to the post of Captains vide office order dated 6.9.1997. The petitioner has no grievance against these promotions. 4. The Corporation vide another order dated 6.9.1997 promoted respondents No.2,3, who were junior to petitioner. The petitioner is senior to respondents No.2,3, therefore, he should have been promoted first prior to promotion of respondents No.2,3. The Corporation has ignored the petitioner for promotion and illegally promoted respondents No.2,3. The petitioner submitted representations to the Corporation but nothing favourable was done by the Corporation. The Corporation instead of redressing the grievance of the petitioner has further promoted respondents No.4 to 9 vide order dated 13.1.1999. 5. The Corporation has circulated another seniority list dated 9.12.1997 in which respondent No.4 Murli Dhar has been …3… shown junior to petitioner. The respondents No.2,3 were promoted on 6.9.1997, respondents No.5 to 9 were assistant waitors on the day seniority list was circulated, therefore, their names were not included in the seniority list dated 9.12.1997. The petitioner has assailed the promotion of respondents No.2 to 9 on the grounds that petitioner is senior to respondents No.2 to 4 in the seniority list of waitors. The respondents No.2,3 have passed the trade test on 8.7.1997, however, petitioner is senior to respondents No.2,3. The respondents No.4 to 9 have passed trade test only in 1998; hence Corporation has wrongly promoted respondents No.2 to 9 by ignoring the petitioner. 6. The respondent No.1 has contested the petition by filing reply and has submitted that petitioner had joined the respondent- Corporation as assistant waitor on 2.7.1984 and was promoted as waitor on 20.3.1989. It has been admitted that the petitioner had passed the trade test which is requirement for promotion to the post of Captain/Barman. According to respondent No.1 the Recruitment and Promotion Rules of the Corporation were made applicable on 12.7.1985. The Recruitment and Promotion Rules were amended vide office order dated 24.6.1995 and office order dated 31.5.1997. There are total 40 posts of CaptainsBarmen existing in the Corporation which were bifurcated vide office order dated 31.5.1997, 10 posts of Captains were re-designated as Captain Waitor/ Head Waitor and 30 posts were kept in the category of Captains. 7. In the first category of Captain Waitor/Head Waitors promotion to the posts of head waitors are based upon seniority …4… unless otherwise unfit. In the second category of Captains, out of the 30 posts, 25% posts are to be filled up by way of promotion from amongst graduate waitors with two years service, failing which by promotion from graduate assistant waitors within three years of service, on the basis of merit-cum-seniority subject to passing of trade test. 8. The Corporation had promoted 15 waitors to the posts of Captains vide Annexure PD (sic Annexure PC) under 75% quota fixed for non-graduate waitors on the basis of seniority. The respondents No.2,3 were promoted under 25% quota fixed for graduate waitors with two years of service. The respondent No.4 was promoted under the quota fixed for graduate waitors while others were promoted vide order dated 13.1.1997 from the category of assistant graduate waitors. The petitioner is under graduate whereas private respondents are graduates and as such they fall under two different categories for promotion to the posts of Captains under amended Recruitment and Promotion Rules. The private respondents were promoted under the category of graduate waitors from the posts of waitors and assistant waitors. The respondent No.1 has contested the claim of the petitioner. The petitioner has not filed rejoinder. 9. I have heard learned counsel for the parties. In seniority list of waitors as on 31.5.1994, the petitioner has been shown at serial No.76 with Higher Secondary qualification. It is not the case of the petitioner that private respondents are not graduates. The petitioner is claiming promotion as Captain/Barman on the basis of seniority. The …5… office order dated 31.5.1997 provides that 30 posts of Captains shall be filled up as under:- “(i) 75% posts of Captains/Barman will be filled up by promotion from amongst Waitors/Asstt. Barman within at least 5 years service as such on the basis of seniority subject to rejection of being unfit and further subject to passing of trade test. (ii) 25% posts of Captains/Barman shall be filled up by promotion from amongst the Waitors/Asstt. Barmen having educational qualification of graduation or above with 2 years of service as Waitors/Asstt. Barmen, failing which by promotion from amongst Asstt. Waitors having educational qualification of graduate or above with at least 3 years service on the basis of seniority subject to rejection of being unfit and further subject to passing of trade test. However, if eligible candidates are not available for promotion to Captains/Barmen as per the eligibility laid down in this clause, the vacant posts of Captains/Barmen against the quota laid down in this clause will be filled up from amongst the eligible candidates as per clause i) above”. 10. The office order dated 31.5.1997 makes it clear that 75% posts of Captains/Barmen shall be filled up by promotion from amongst Waitors/Asstt.Barmen with at least 5 years service on the basis of seniority and passing of trade test. The 25% posts of Captains/Barmen shall be filled up by promotion from amongst Waitors/Asstt. Barmen having educational qualification of graduation or above with 2 years of service as Waitors/Asstt.Barmen, failing which by promotion from amongst Asstt.Waitors having educational …6… qualification of graduation or above with at least 3 years service on the basis of seniority and passing of trade test. 11. The case of respondent No.1 is that 15 waitors were promoted as Captains under 75% quota. The respondents No.2,3 were promoted under 25% quota fixed for graduate waitors with 2 years of service. The respondent No.4 was promoted under the quota fixed for graduate waitors. The others were promoted on 13.1.1999 from the category of assistant graduate waitors. It is not the case of the petitioner that respondents were not eligible under 25% quota for promotion as Captains/Barmen as per office order dated 31.5.1997. The petitioner has not assailed office order dated 13.1.1999. 12. The petitioner is claiming promotion to the post of Captain/Barman on the basis of seniority. The petitioner is not graduate and as per office order dated 31.5.1997 his case for promotion falls under 75% quota where Waitors/Assistant Barmen with at least 5 years of service are eligible for promotion to the posts of Captains/Barmen on the basis of seniority subject to rejection of being unfit and further subject to passing of trade test. The respondents No.2 to 9 constitute different class. They were not promoted under clause (i) of office order dated 31.5.1997, they were promoted under clause (ii) of the said office order. The petitioner is not eligible for promotion under clause (ii) of office order dated 31.5.1997 in as much as he is not graduate. The petitioner has failed to point out that any person junior to him and eligible for promotion under clause (i) of office order dated 31.5.1997 has been promoted …7… as Captain/Barman after superseding the petitioner. The respondents No.2 to 9 were promoted as Captains/Barmen from the category in which petitioner does not fall. The petitioner has failed to point any illegality in the promotion of respondents No.2 to 9 as Captains/Barmen. There is no merit in the petition which is accordingly dismissed. September 27, 2010 ( Kuldip Singh ) (sks) Judge.