IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 6190/2008 Reserved on: 11.10.2011 Decided on:14.10.2011 _____________________________________________ Chhotu Ram. …Petitioner. Versus 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. K.D. Shreedhar, Advocate. For the Respondents: Mr. R.P. Singh, Asstt. A.G. for respondent No.1. Mr. S.D. Gill, Advocate for respondent No.3. None for respondent No.2. ___________________________________________________________ Justice Rajiv Sharma, Judge. Petitioner was appointed as Instructor (Electrician Trade) on 9.3.1981. He was promoted to the post of Foreman on ad hoc basis in the year 1987. Thereafter, he was promoted on regular basis against the post reserved for the category of scheduled tribe as per 40 point roster on 28.1.1989. Respondent Department has issued final integrated seniority list of Group Instructor/ 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 Foreman/ Mill Wright Foreman/Superintendent (Technical)/Surveyor (HQ.), as it stood on 28.2.1997, as per Annexure A-1. Petitioner was assigned Sr. No.8 and respondents No.2 and 3 were assigned Sr. Nos. 9 and 10, respectively, in the final integrated seniority list. The post of Foreman is in feeder category for promotion to the post of Principal. The post of Principal is to be filled up as per the Recruitment and Promotion Rules. 50% posts were to be filled up by promotion and 50% by direct recruitment. Petitioner became eligible for promotion to the post of Principal strictly as per the Recruitment and Promotion Rules. However, respondent-Department vide notification dated 29.10.1999, promoted respondents No.2 and 3 to the post of Principal. 2. Mr. K.D. Shreedhar has strenuously argued that the action of respondent No.1 of promoting respondents No.2 and 3 is wholly illegal, arbitrary, thus, violative of Articles 14 and 16. According to him, the petitioner was fully eligible and was required to be considered before respondents No.2 and 3, who were juniors to the petitioner in the final integrated seniority list. He then argued that respondents No.2 and 3 were appointed by way of direct recruitment as Foreman on 22.4.1992 and 4.3.1995. He finally contended that the instructions dated 27.5.1996 relied upon by respondent 3 No.1 are relevant if the dispute is between the promotee officers with regard to the seniority. 3. Mr. R.P. Singh, learned Assistant Advocate General and Mr. S.D. Gill have vehemently argued that the promotion of respondents No.2 and 3 is in accordance with law. They have also relied upon instructions issued on 27.5.1996. Mr. R.P. Singh has further agued that one Sh. M.D. Bodh was promoted as Foreman against the scheduled tribe category on 27.9.1975 and the process of promotion did not reach next roster point reserved for scheduled tribe candidates, i.e. Sr. No. 17. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. Petitioner was appointed as Instructor (Electrician Trade) on 9.3.1981. He was promoted to the post of Foreman on ad hoc basis in the year 1987. He was promoted on regular basis on 28.1.1989. Respondents No.2 and 3 have been appointed as Foremen, by way of direct recruitment, on 22.4.1992 and 4.3.1995, respectively. Respondents No.2 and 3 rank below the petitioner in the integrated final seniority list as per Annexure A-1 issued on 2.9.1997, as it stood on 28.2.1997. Petitioner has also placed on record proceedings of the Departmental Promotion Committee 4 whereby case of the petitioner though considered but was not recommended for promotion to the post of Principal. According to the deliberations of the Departmental Promotion Committee, case of the petitioner could not be considered for promotion against the unreserved posts on the basis of accelerated seniority till all the seniors in the entry grades were considered. 6. Petitioner stood promoted on regular basis on 28.1.1989. He was ranking senior to respondents No.2 and 3. Petitioner was placed at Sr. No.8 and respondents No.2 and 3 were placed at Sr. Nos. 9 and 10, respectively. The instructions relied upon by Mr. R.P. Singh and S.D. Gill dated 27.5.1996 are not applicable in the present case. These instructions deal with the issue of seniority of promotee officers. According to these instructions even if scheduled caste/scheduled tribe candidate is promoted later to the higher grade, the general candidate shall regain his seniority over such earlier promoted scheduled caste/scheduled tribe candidate and the earlier promotion of the scheduled caste/scheduled tribe candidate in such a situation will not confer upon him seniority over the general candidate even though the general candidate is promoted later. The general candidate shall be considered senior and his case shall be considered first for promotion applying either the 5 principle of seniority-cum-merit or merit-cum-seniority as the case may be. In the instant case, petitioner has already been promoted on 28.1.1989 and respondents No.2 and 3 were appointed by way of direct recruitment on 22.4.1992 and 4.3.1995, respectively. Petitioner was to be considered for promotion on the basis of seniority assigned to him as per notification dated 2.9.1997 without waiting for the other general candidates to catch up him in the cadre of Foreman. In the case in hand, though the petitioner has been given accelerated promotion, but no general category candidate from his feeder cadre has been promoted to the post of Foreman. In case the general category candidate had been promoted as Foreman in that eventuality, the petitioner was to rank junior to the person, who had been promoted subsequently as general category candidate in the same cadre. The instructions dated 27.5.1996 are not applicable. These instructions are applicable only vis-à- vis promotees and not directly recruited candidates. The Departmental Promotion Committee has erred in law by making observation in the proceedings that the case of the petitioner for promotion was to be deferred till the other seniors in the entry grade were to be considered. The date of entry grade of respondents No.2 and 3 as Foreman is 22.4.1992 and 4.3.1995. They were 6 admittedly junior to the petitioner and could not be promoted to the post of Principal before the petitioner even though he had been given accelerated promotion as Foreman. In a given case the general category candidate may not be promoted from the feeder category for number of years. In that eventuality, it will not be fair to deny promotion to the candidates, who have been given accelerated promotion. Respondent No.1 has misconstrued the instructions dated 27.5.1996 while denying the promotion to the petitioner. 7. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure A-4 dated 29.10.1999, qua respondents No.2 and 3, is quashed and set aside. Respondent No.1 is directed to consider the case of the petitioner for promotion to the post of Principal from the date his juniors have been promoted with all the consequential benefits within a period of 8 weeks from the date of production of certified copy of this judgment by the petitioner. No costs. (Justice Rajiv Sharma), Judge. 14.10. 2011 *awasthi*