IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP-T No. 2595 of 2008 Date of decision: 26.05.2011 ________________________________________________________________ Rakesh Dogra. .....Petitioner. Versus The State of H.P. & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ________________________________________________________________ For the petitioner: Ms. Ranjana Parmar, Advocate. For the respondents: Mr. Vikas Rathore, Dy. AG, for respondents No. 1 & 2. Ms. Sunita Sharma, Advocate, for respondent No. 3. V.K. Sharma, J. (Oral). The petition has been filed on the following prayers vide para 7(i) and (ii): “7 (i) That the action of the respondents to fill up the post of Superintendent Grade-II from the reserved category candidate may be held illegal, ultra vires and void ab initio, with further directions to the respondents to fill up the post of Superintendent Grade-II from the General Category as per 13-point roster. (ii) That the respondents may be directed to consider and promote the applicant as Superintendent Grade-II from the date he becomes eligible for the same with all consequential benefits.” 2. In reply, on behalf of respondents No. 1 and 2, the following stand has been taken vide paras 3 (i) on merits: 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ...2... “3(i). In reply to the contents of this para it is submitted that there are two posts of Superintendent Grade-II in the Department. One post is filled up and second one is lying vacant since 3.1.2000. As per Recruitment & Promotion Rules for the post of Superintendent Grade-II, which are at Annexure A-2, no body was eligible for this second post which was lying vacant post in the Department till respondent No. 3 became eligible on 3.9.2003. The applicant who stood at Sr. No. 2 in the seniority list of Senior Assistants, which is feeder category to the post of Superintendent Grade-II, being posted at same station i.e. Shimla was given additional charge of the post of Superintendent Grade-II in the interest of smooth functioning of the Directorate purely on stop gap arrangement basis because respondent No. 3 who is at Sr. No. 1 in the Seniority list of Senior Assistants was working at Kullu in Divisional Town Planning Office. As per Recruitment & Promotion Rules for the post of Superintendent Grade-II it is non-selection post and is to be filled up on the basis of seniority whether it is to be filled up from General Category or Reserved category. Now both applicants and respondent No. 3 have completed 6 years service as Senior Assistants and are eligible for promotion to the vacant post of Superintendent Grade-II in the Department. Respondent No. 3 has joined as clerk in the department on 19.1.1985 and was promoted as Senior Assistant on 3.9.1997 whereas applicant has joined as clerk in the department on 5.2.1987 and was promoted as Senior Assistant on 30.9.1997. The respondent No. 3 was senior to the petitioner in lower post as clerk and is also senior as Senior Assistant as well. Therefore, the candidature of respondent No. 3 cannot be ignored for promotion to the regarding roster point is submitted that respondent No. 3 was senior to the applicant in the initial direct recruitment cadre I.ze. Clerk and is also senior to him in the present cadre. Therefore, the candidature of the respondent No. 3 can not be ignored for the vacant post of Superintendent grade-II in the Department even if the roster point is for general category.” 3. In reply, on behalf of respondent No.3, the following averments have been setup vide para 3: “3. That the contents of this para are wrong, thus denied. It is most humbly submitted that the post of Superintendent Grade-II is to be filled up strictly in conformity with the Recruitment & Promotion Rules to the post of Superintendent ...3... Grade-II. The replying respondents is senior most Sr. Assistant in the feeder category and it would be apt to submit that the replying respondent was also senior to the applicant in the cadre of clerks. The replying respondent has been promoted to the post of Sr. Assistant without being granted any benefit of belonging to SC category. The applicant has no indefeasible right to hold additional charge of the post of Superintendent Grade-II and the post is required to be filled up strictly in conformity with Recruitment & Promotion Rules.” 4. It is quite disturbing to note that the Original Application (O.A.) which was filed before the erstwhile H.P. State Administrative Tribunal way-back in January, 2004, is still pending after the same was transferred to this Court on abolition of the said Tribunal and has been registered as CWP-T No. 2595 of 2008 and owing to an interim order, promotion to the post of Superintendent Grade-II in the respondent department, which is lying vacant, is held up. Admittedly, the petitioner is officiating against that post as a stop gap arrangement, which arrangement is continuing for the last more than 7 years. 5. The controversy between the parties lies within a narrow compass. Whereas, according to the petitioner, he belongs to general category and the post, as per roster, is meant for general category. However, according to respondents No. 1 and 2, the petitioner being junior to respondent No. 3 cannot be promoted over and above respondent No. 3, though being in the zone of consideration he may be considered. The case of respondent No. 3 is that though he belongs to scheduled caste category, yet the fact remains that he was promoted as Senior Assistant against a general vacancy and as such he has a right to be considered for promotional post of Superintendent Grade-II even against the general vacancy firstly being senior and second ...4... having been promoted in the feeder cadre against a general vacancy. However, it is reiterated on behalf of the petitioner that the initial appointment of respondent No. 3, as clerk, was against a reserved vacancy. 6. In view of the above, the petition is disposed of with a direction to respondents No. 1 and 2/competent authority to initiate the process for promotion to the post of Superintendent Grade-II without any further loss of time and to complete it within a reasonable period strictly in accordance with rules, regulations and law governing such promotion vis-a-vis reservation roster, if any. It is hoped that such an exercise would be taken to its logical conclusion within next six months. 7. The petition stands disposed of, so also pending CMP(s), if any. (V.K. Sharma) Judge 26th May, 2011 (virender)