IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 11523 of 2008 Decided on : 13.05.2011 Surinder Kumar ..… Petitioner. Versus The State of Himachal Pradesh and Others … Respondents Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Dushyant Dadwal, Advocate. For the Respondents : Mr. Anil Jaswal, Dy. Advocate General for respondents No. 1 to 3. Remaining respondents ex parte. V.K. Sharma, Judge (Oral) The petition has been filed on the following substantive prayers vide para 7(i) to (iii):- “(i) That the respondents may be directed to consider the applicant for promotion to the post of Clerk in the 10% reserved promotional quota to the total cadre strength of Clerks in the District, 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 keeping in view the date of his eligibility for promotion to the said higher post and to promote him with effect from the date any of his juniors have been promoted and to grant him all the consequential benefits, i.e. fixation of pay, arrears of pay, seniority in the cadre of clerks etc. alongwith interest at the rate of 15% per annum from the date due till the actual date of payment thereof. (ii) That the respondents may be further directed to produce the whole records of promotions to the posts of Clerks from the post of peons etc. pertaining to reserved quota of 10% of the cadre strength alongwith seniority lists etc. for perusal by this Hon’ble Tribunal at the time of final disposal of the Original Application. (iii) That the respondents may be further ordered and directed to pay the salary and allowances of a clerk for the period from 13- 11-2001 till date during which period the applicant has been assigned the duties and functions of a Clerk concerning to completion i.e. paging/indexing of old pending decided files of the Court of Tehsildar Palampur and to consign the same to the Records Room, for maintenance of proper record, on the principle of ‘equal pay for equal work’ and the arrears resulting on the basis thereof may be directed to be released alongwith interest at the rate of 15% 3 per annum from the date due till the actual date of payment thereof.” 2. In reply, respondents No. 1 to 3 have taken the following stand vide paras 3, 6(iii) and (iv):- “3. That the contents of this para that the applicant deprived of his right to be considered for promotion to the post of clerk are incorrect, hence denied. It is submitted that the applicant was recruited as peon vide office order No. 1261-81/PER dated 28- 2-1987 (copy enclosed as annexure R-1) with some terms and conditions with the advice that if he is willing to serve as peon, he should report for duty. The applicant has accepted the recruitment as peon and had joined office duty on 28-2-1987 vide his joining report (Copy enclosed as annexure R-2). The seniority of class-IV employees recruited with the applicant was determined on merits as stood finalized as on 30-6-1988. Had the applicant any objection for the finalization of above seniority list circulated amongst the officials as well as to the applicant he was supposed to file representation if any for which proper opportunity was afforded to him. So far as the question regarding promotion of respondents number 4 to 4 7 as clerk than that of applicant is concerned, it is submitted that Respondent No. 4 & 5 have been recruited as peon on 4-6-1976 & 27-2- 1982 respectively whereas the applicant was appointed on 28-2-1987. Similarly respondent No.6 & 7 who have been promoted as clerk are also senior to the applicant as per seniority list circulated on 30-6-1988. thus respondents No. 4 to 7 have been promoted as clerks in accordance with the instructions contained in HP Deptt. of Revenue Notification No. 2- 60/72-Rev.I dated 18.8.1979, Deptt. Of Personnel, H.P. Govt: letter No. Per(AP-3)A(3)2/80-Loose Part-II dated 13.8.1997 and Financial Commissioner- cum-Secretary (Revenue) HP Shimla’s letter No. Rev.A(A)3-16/95 dated 23.7.1999 subject to their seniority- cum-merit as stood on 30-6-1988 and no violation of Rules as well as standing instructions have been done. Therefore, the applicant has not been deprived of his right for promotion to the post of clerk but would be considered as & when his turn come up for promotion to the post of clerk as per quota prescribed, however he was offered the promotion of process Server which is also a promotional 5 channel for peons to the said post vide order No. 1(6)D-III-2156-79/EA dated 28-04-2001 & No. 1(6)D-4661-4708/EA dated 6-9-2004 respectively but he had foregone the promotion. No such orders have been passed/issued by the Respondent No.2 being an appointing authority in favour of the applicant for promotion to the post of Clerk. The applicant has only been ordered by the Respondent No.3 (Tehsildar Palampur) to assist the Ahalmad for consignment of the decided court files in the General Record Room and he was never entrusted the work of clerk as is claimed by him and as such he is not entitled for payment of salary of the post of clerk w.e.f. 23.11.2001 as claimed by him. It is also submitted that no ineligible peon/class-IV employees have been promoted as clerk by not considering the right of the applicant. 6(iii) In reply to this sub para, it is respectfully submitted that as per final seniority list of class-IV employee as stood on 30-6-1988 respondent No. 4 to 7 have been promoted to the post of clerks in view of the reservation quota prescribed for promotion amongst the class-IV employees on the 6 basis of seniority-cum-merit as they have improved required educational qualification for promotion to the post of clerk and there is no bar for a Govt: employee to improve educational qualification during service. Recruitment & Promotion Rules for the post of clerk in the Revenue Deptt. of Deputy Commissioner Office in the State laid down at Sr. No. 11 as under “In case of recruitment by promotion, deputation/transfer, grades from which promotion /deputation/transfer is to be made: 1. By promotion from amongst the class-IV officials who have passed Matric or Hindi (Rattan) with Matric (English as one of the subject) and also possess five years regular service” (copy enclosed as R-3). Therefore promotion of respondent number 4 to 7 have been considered rightly as they have possessed the requisite qualification at the time of Departmental Promotion Committee. So far as the question regarding promotion of Sh: Bhumi Ram is concerned, it is submitted that the incumbent belongs to Scheduled Tribe category and had become senior to the applicant as per roster point of 7 reservation. Moreover references of orders quoted by the applicant that name of Sh: Bhumi Ram appeared at Sr. No. 21, are the orders of further posting/adjustment in the subordinate offices and not in order of seniority as construed by him, because seniority has been determined separately on merit. (iv) That the contents of this para that the under Matric Class-IV employees have been promoted by debarring the applicant are incorrect, hence denied. It is submitted that respondents number 4 to 7 who have been promoted as clerk were senior to the applicant and have acquired higher education i.e. prescribed for the post of clerks prior to their promotion with the prior permission of the Appointing Authority. Hence the plea of the applicant on this score does not substantiate.” 3. Some undisputed facts may be noticed first. Admittedly, the petitioner had joined the respondent-department as peon on 28.2.1987. As per the Recruitment and Promotion Rules (in short ‘R & P Rules’), issued vide notification dated 23.7.1999, which is at page 28-34 of the paper book, there is 10% quota for 8 promotion from the post of Peon to that of Clerk. Rule 10 and relevant part of Rule 11 of the R & P Rules are extracted below:- 10. Method of recruitment whether by direct recruitment or by promotion/deputation/ transfer and the percentage of vacancies to be filled in by various methods. i) 90% by direct recruitment. ii) 10% by promotion failing which by direct recruitment. 11. In case of recruitment by promotion, deputation/transfer, grades from which promotion/deputation/trans fer is to be made. “By promotion from amongst the class-IV official who have passed Matric or Hindi (Rattan) with Matric (English as one of the subject) and also possess five years regular service or regular combined with continuous Adhoc (rendered upto 31.3.1998) Service.” 4. The claim of the petitioner for promotion has been refuted on behalf of respondents No. 1 to 3 solely on the ground that he was junior to respondents No. 4 to 7. However, the seniority list has not been brought on record either by the petitioner or the respondents. At thus juncture, it shall be pertinent to 9 notice that though later on the petitioner was promoted as Clerk in the year 2010, yet his claim for promotion relates back to the year 2004. 5. In the facts and circumstances of the case, the petition is disposed of with a direction that subject to the petitioner making a detailed representation supported by documents, if any, along with copy of this judgment to respondent No.2/competent authority, within one month from today, who shall consider the same and take a final decision in the matter in accordance with law within next two months, after affording an opportunity of being heard to the petitioner, if so desired. Needless to say that consequential benefits, if any, would follow the decision on the representation. 6. The petition as also pending CMP(s), if any, stand disposed of in the above terms. Copy dasti. (V.K. Sharma) Judge 13th May, 2011. Lsp*