1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CWP(T) No. 12131, 16654 & 7380 of 2008. Date of Decision: 20th April, 2011. 1. CWP(T) No. 12131/2008 Sudhir Kumar ….Petitioner. Versus State of H.P & Ors. …..Respondents. 2. CWP(T) 16654/2008 Luxmi Kant Sharma ….Petitioner. Versus State of H.P & another ….Respondents. 3. CWP(T) 7380/2008 Manoj Tomar ….Petitioner. Versus State of H.P & others ….Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No 1. CWP(T) 12131/2008 For the Petitioner: Mr. Ajay Mohan Goel, Advocate. For the Respondents: Mr. R.M Bisht, Dy. A.G with Mr. Vinod Thakur, Dy. A.G.for the Respondents/State. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2. CWP(T) 16654/2008 For the Petitioner: Mr. Lalit Kumar Sharma, Advocate. For the Respondents: Mr. R.M Bisht, Dy. A.G with Mr. Vinod Thakur, Dy. A.G.for the Respondents/State. 3. CWP(T) 7380/2008 For the Petitioner: Mr. Ajay Mohan Goel, Advocate. For the Respondents: Mr. R.M Bisht, Dy. A.G with Mr. Vinod Thakur, Dy. A.G.for the Respondents/State. Sanjay Karol, J. (Oral). According to the learned counsel for the petitioners, the matter in issue is squarely covered by the decision rendered by the coordinate Bench of this Court in CWP (T) No. 12130/2008 titled as Kameshwar Singh Dhaulta Vs. State of H.P & others. Copy of which is taken on record. 2. The present petitions are being disposed of with a common judgment, as the issue is common. According to the State consequent upon their promotion to the next higher post, petitioners seized to be member of the feeder category, therefore they were ineligible for promotion to the post of H.A.S. While dealing with similar issue, the Court in Kameshwar Singh Dhaulta (supra) held as under:- “6. As far as the rule itself is concerned, it is apparent that appointment to the administrative service is not a promotion. It is an appointment to a service. The person appointed to such a service is, however, asked to manpost(s) which are generally posts in the higher category and this factor will have to be kept in mind while deciding the petition. The rule contemplates that 50% posts shall be filled in by direct recruitment; 22% from Tehsildars and 28% from various categories of posts where the 3 persons to be appointed must have two years service in the post. Clause (c) of sub rule 1 refers to the post of Assistant Registrar, Cooperative Societies. It is not disputed that the Petitioners at one time or the other held such post. They were, however, promoted to the higher post(s) of Deputy 6 Registrar and Joint Registrar over a period of time. Then came the issue of appointment of persons from the Cooperation department to the HAS. The petitioners’ claim is that they should have been considered and their claim has been negitivated on the ground that since they are no longer holding the post of Assistant Registrar Cooperative Societies they are not eligible for being considered for the said post. It is also not disputed before me that prior to this exercise, which is under challenge in this petition, persons who had been appointed to higher posts were considered for HAS. It has, however, been urged on behalf of the State that such persons were considered erroneously and the State is now correcting the bad old practice. It has secondly been urged that instructions were issued in the year 2000 that persons who completed their period of probation in the higher post shall cease to hold lien on the substantive post and therefore persons like the petitioners who had successfully completed the period of probation on the higher post could not be considered to be substantive holders of the post in the lower categories. 7. In my considered view the instruction of 2000 does not in any way further the cause of the State. It is a settled position of service jurisprudence that when a person successfully completes probation on a higher post 7 he looses his lien on the lower post. No clarificatory instructions can change this very basic principle of service jurisprudence. A person can hold lien on a post on a lower post only till the time when he is holding a higher or another post in an officiating or temporary capacity. As soon as his appointment is formalized in the higher or other 4 equivalent post, which obviously includes completion of probation, he will cease to hold lien on the lower post. 8. It is obvious that prior to the impugned action the State was always considering the officials holding higher ranks for appointment to the HAS. There is strength in the argument of Shri Ajay Mohan Goel, Advocate that in case any other interpretation is given it would lead to anomalous situation. For example, we can take the case of two persons appointed as Assistant Registrars Cooperative Societies on the same date. Person (A) is senior and (B) is junior. Person (A) is also more meritorious and is promoted to the next higher post of Dy. Registrar whereas person (B) gets left behind. If the argument of the State is accepted then when the post in the HAS is to be filled in from Assistant Registrars (B) will be appointed and (A) will have no chance to be appointed to the HAS. Resultantly,(B) who was otherwise less meritorious will effectively become senior to (A). It may be true that when persons 8 are recruited to the HAS they are not promoted but are appointed but as observed earlier the fact remains that after such appointment the said person will man a post which is much senior to that of a Deputy Registrar or Joint Registrar. It is for this reason alone that persons who have been promoted in their own department are still willing to join the administrative service. It would be a travesty of justice if persons who are junior or who are less competent and have been left behind are appointed to the administrative service whereas persons who are more senior, more meritorious and have gained promotion in their own departments on merit are denied this opportunity. 9. The aforesaid reasoning also takes care of the contention raised on behalf of the State that no option was required. If the State wants that persons who are promoted in their own department should forgo their claim to be appointed to the HAS 5 then they must seek an option from such persons and must make clear to them that in case they choose to seek appointment in their own department they will forgo their right to be considered for promotion in the HAS in terms of Rule 7 thereof. It is only if such an option is given and an employee agrees to be promoted in his department then it can be said that he has forgone his right to be considered for appointment to the HAS. 10. In view of the above discussion, I am of the considered view that the petitioners were required to be considered for promotion to the HAS at the relevant time. Therefore, the respondents are directed to reconstitute a fresh Departmental Promotion Committee wherein names of the petitioners, if they are otherwise eligible, shall also be taken into consideration for appointment to the HAS.” 3. In the instant cases also, the Rules are similar and the petitioners also claim right of consideration for promotion to the post(s) in the cadre of HAS. Consequently, the directions issued in Kameshwar Singh (supra) squarely apply to them also. 4. As such, respondents are directed to consider the case of the petitioners for promotion to HAS by reconstituting a fresh departmental promotion committee, which shall also consider the petitioners’ entitlement and eligibility for the same. 5. With the aforesaid observations, the present petitions are disposed of. ( Sanjay Karol), Judge April 20, 2011 (Priti)