IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 6989 of 2008 Decided on : 11.03.2011 ________________________________________________ Satish Kumar … Petitioner. Versus Himachal Pradesh Tourism Development Corporation Ltd. … Respondent. _____________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. D.P. Gupta, Advocate, vice Mr. K.D. Shreedhar, Advocate. For the Respondent : Mr. Naresh Kaul, Advocate. _____________________________________________________ V.K. Sharma, Judge.(Oral) The petitioner had joined the employment of the respondent-Corporation as Accounts Clerk on 2.9.1986. The next promotional post was that of Accountant, nomenclature whereof was later on changed as Senior Assistant (Accounts). As per the Recruitment and Promotion Rules ( in short R&P Rules), issued vide office order dated 12.7.1995, Annexure A-1, the mode for promotion/recruitment to the post of Accountant was provided as under:- 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 2. Accountant (Rs.570- 1080) 50% by promotion 50% by direct recruitment “From Accounts Clerk with 3 years service as such subject to passing the departmental t4st on merit-cum-seniority.” B. Com with 4 years experience after passing B.Com or M.Com. if done after B.Com, with two years experience after M.Com. Age ---- upto 30 years. 2. Vide office order dated 14-12-1990, Annexure A-3, two Accounts Clerks namely, Shri Raj Kumar Sharma and Shri Rakesh Agnihotri, were promoted as Accountant on ad hoc basis w.e.f 1.8.1990. However, they have not been impleaded as parties to the present petition. According to the petitioner, both of them were junior to him. However, at the same time, it is admitted case of the petitioner that when the aforesaid Shri Raj Kumar Sharma and Shri Rakesh Agnihotri, were promoted as accountant on ad hoc basis, both of them had passed the departmental test. However, he could not appear in the said test as he had not received any intimation about the same from the respondent-Corporation, as is apparent from the communication dated 28.7.1990,Annexure A-2, addressed by the Area Manager, Parwanoo Complex, of the respondent- Corporation, to its Managing Director. 3 3. Against the above backdrop, the petitioner along with some other similarly situate Accounts Clerks, moved the erstwhile H.P. State Administrative Tribunal by way of O.A No. 277 of 1991, titled Shri Ram Krishan Thakur and others vs. Himachal Pradesh Tourism Development Corporation Ltd. and others, which was disposed of vide order dated 11.5.1992, Annexure A-4, operative part whereof is as under:- “In view of above, it would be just, proper, expedient and in the ends of justice that the present application is treated as representation before the Board of Directors who after affording an opportunity of hearing to the applicants, in person, through notice, will decide the same within a period three months from today and, in case the decision is adverse to the applicants the same shall be supported by reasons. In view of this, the present application does not survive and is disposed of accordingly with liberty reserved to the applicants to come to this Tribunal on the same cause of action.” 4. Consequently, the petitioner and other similarly situate employees of the respondent- Corporation were afforded an opportunity to appear in the departmental test, as per memo dated 3.8.1993, Annexure A-5. Consequently, he along with others appeared in the departmental test and qualified the same vide result sheet dated 21.5.1990, Annexure A-6. 4 5. Thereafter, DPC was held on 20.8.1997, in which the case of the petitioner along with others was considered for promotion to the post of Senior Assistant (Accounts). From the perusal of proceedings of the DPC made available by the learned counsel for the respondent at the time of hearing, which are taken on record, it is manifest that nine Accounts Clerks, who were admittedly senior to the petitioner were promoted as Senior Assistant (Accounts), but the name of the petitioner did not find mention in the select list against the 12 posts, out of which three meant for Schedule Caste and Schedule Tribe categories were carried forward to the next recruitment year. 6. In order to understand the entire controversy, it shall be appropriate to notice the relevant portion of the proceedings of the DPC, which are as under:- ”2. The DPC considered the memorandum attached as per Annexure ‘A’ for filling up the 12 posts of Sr.Asstt. (Acctts) in the pay scale of Rs.1800-3200 which belongs to promotion quota. The posts of Sr.Asstt. (Acctts) are to be filled up from Accounts Clerk with 3 years service on the basis of merit-cum-seniority subject to passing of departmental test. It is mentioned here that the Corporation fixed departmental test of the Accounts Clerks during 1988 but Accounts Clerks did not appear in it. Then second opportunity was 5 also given during 1990 when S/Sh. Rakesh Agnihotri and Raj Kuamr, who are in the seniority list of the Accounts Clerks at 19 and 24 respectively, appeared in the test and qualified the same. The rest of the Accounts Clerks boycotted the test and some of them filed writ petition in the HP. Administrative Tribunal. These writ petitions were treated appeals to the BOD. The BOD in its meeting held on 29.6.1993 heard these Accounts Clerks in person & rejected their appeals. However, it was decided that they should be given opportunity to appear in the test. Therefore, 2 chances were given to these Accounts Clerks in which all Accounts Clerks qualified the test except Sh. Pritam Chand Parihar, who failed. Now 37 Accounts Clerks except Sh. Pritam Singh Parihar are eligible for consideration for promotion to the posts of Sr.Asstt. (Acctts.). The DPC scrutinized the ACR dossiers of 30 eligible candidates on 1:3 basis and prepared a comparative statement of past 5 years gradings as per Annexure-B. DPC finds that in the cases of Sh. Anil Goel (Sr. 3), Sushil Sharma (Sr. No. 7), Shri Rajeev Sahni (Sr. 16) Sh. Gopal Sud (Sr. No. 28) Sh.Anil Sharma (Sr. No.26) Sh. Lekh Chand (Sr. No. 32) Sh.Tarun Bakta (Sr. No. 34) ACRs for the year 1991-92 are not available as these were not written. DPC, therefore, either considered the ACR of preceding years or gave its own gradings in respect of these incumbents. Further DPC cautiously gone through each 6 column of ACRs of all the incumbents and gave its own gradings where the performance of the incumbent was not found properly assessed or he was being superseded by a margin of 1 or 2 marks to avoid supersession as far as possible. On the basis of the final gradings the DPC recommends the following for promotion to the post of Sr.Asstt. (Acctts) in the pay scale of Rs. 1800-3200 in order of merit:- 1. Sh. Majit Kumar Bali Very Good. 2. Sh. Rakesh Kochhar Very Good. 3. Sh. Madan Lal Sharma Very Good. 4. Sh. Baldev Krishan Very Good. 5. Sh. Anil Goel Good. 6. Sh. Mukesh Sharma Very Good. 7. Sh. Sushil Sharma Very Good. 8. Sh. Som Kranti Good. 9. Sh. Madan Kumar (SC) Good As far as reservation roster is concerned, DPC recommends that backlog of one point of SC has been covered but 2 points of SC and one point of ST be carried forward to the next recruitment year due to non-availability of the candidates.” 7. Thus, it is apparent that though in 1990, the aforesaid Shri Raj Kumar and Shri Rakesh Agnihotri, were promoted d as Accountants, the petitioner could not have been considered for promotion for the said post, as admittedly, he had not qualified the departmental test at that time. It being so, to this extent he cannot have any grouse against their promotion. Though, 7 admittedly the petitioner qualified the departmental test as per result sheet dated 21.5.1996, Annexure A-6, yet the fact remains that thereafter he was duly considered for promotion in the DPC held on 20.8.1997, but could not find place in the select list. Thus, his claim for ad hoc promotion on and w.e.f 21.5.1996, when he had qualified the departmental test is also not tenable on any lawful cause or basis. However, the fact remains that thereafter on completion of eight years of service, the petitioner along with other similarly situate Accounts Clerks/Junior Assistants (Accounts) was placed in the pay scale of Rs. 5800-9200 and re-designated as Senior Assistant (Accounts) w.e.f 1.7.1999, vide office order dated 17.8.1999,Anneuxre A-12. 8. By placing reliance upon office orders dated 7.4.1986,Annexure A 13-I and 23.9.1987, Annexure A 13-II, it is contended on behalf of the petitioner that the Accounts Clerks mentioned therein were promoted as Accountants on ad hoc basis subject to their qualifying the departmental test within one year and six months, respectively and that he also ought to have been treated similarly and promoted subject to qualifying the departmental test within a specified period. In this regard, suffice it to say that the petitioner had not laid any such claim when these promotions on ad hoc basis were made subject to passing of the departmental 8 test as far back as years 1986 and 1987, that is, in one case even prior to the petitioner entering the employment of the respondent-Corporation. The Original Application (OA) was filed before the Administrative Tribunal only in the year 2000. 9. Though, the petitioner has challenged the ad hoc promotion of the aforesaid Shri Raj Kumar and Shri Rakesh Agnihotri, on the ground that they were junior to him, yet the fact remains that they have not been impleaded as parties to the present petition. Thus the petition also suffers from non-joinder of necessary parties 10. In view of the above, the petitioner has not been able to make out a case for grant of the relief claimed by him in the present petition, which is accordingly dismissed leaving the parties to bear their own costs. 11. The petition, so also pending application(s), if any, stand disposed of in the above terms. (V.K. Sharma) Judge. 11th March, 2011 (lsp)