IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No.: 1547 of 2008 Date of decision: 18.8.2010 M.K.Sharma … Petitioner. Versus State of H.P. and another …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Dilip sharma, Advocate. For the respondent No.1: Mr. Vivek Singh Thakur, Addl.A.G. For the respondent No.2: Mr. Trilok Chauhan, Advocate. Deepak Gupta, J. (Oral) 1. The petitioner by means of this writ petition has prayed for the following amongst other reliefs:- (i) That the proposed action of respondent department reflected in letter dated 1.3.2008, Annexure A-12, whereby respondent No.2 is being considered for promotion to the post of CMO, even though he is not in the feeder cadre of BMO may kindly be struck down; (ii) That respondent department may be restrained from considering respondent No.2 for promotion to the post of BMO qua any vacancy occurring prior to 2008; (iii) That even if respondent No.2 is promoted as BMO, he being not eligible for such promotion 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 prior to 2007 may kindly be declared to be junior to the applicant in the cadre of BMO; (iv) That applicant may be held entitled to be considered for promotion to the post of CMO over and above respondent No.2 with all consequential benefits; (v) That if during the pendency of OA respondent No.2 is promoted as BMO by assigning him position above applicant, in that event such promotion of respondent No.2 may kindly be quashed and set aside with all consequential benefits with further direction to consider applicant for promotion to the higher post from the date respondent No.2 may be promoted. 2. In this petition the petitioner without prejudice to his rights in the other petitions filed by him has submitted that he may be treated junior to the private respondent. 3. The main ground of the petitioner is that as per the recruitment and promotion rules governing the parties i.e. the rules for the post of Block Medical Officer, every member of the service is required to pass a departmental examination as prescribed in the Departmental Examination Rules, 1997. Rule 21 of the Departmental Examination Rules, 1997 lays down that no person shall be promoted to the higher post unless he has passed the departmental examination 3 prescribed in the rules. The respondents alongwith their reply have placed on record a notification dated 17th May, 2008, which reads as follows:- “In continuation of this department notification No. Health-A-B(15)-2/2005 dated 5.7.2007 regarding R&P Rules to the post of BMO, the Governor, Himachal Pradesh is pleased to insert the additional provision in column No.17 in the said Rules that Medical Officer having Degree/Diploma in a particular subject (Specilasation) are exempted from qualifying Departmental Examination for purposes of promotion to the grade of BMO and above. However, they are required to clear departmental examination for actually holding post of BMO/CMO/MS/Principal/Dy. Director. In case they do not pass Departmental Examination they will receive promotion to the said scale of pay but will not hold the relevant administrative post of BMO/CMO etc.” 4. As per this notification a person who has not passed the departmental examination but is a specialist in a particular subject, shall be exempted from qualifying the departmental examination for the purpose of promotion to the grade of BMO and above. A rider has, however, been added that such person shall be required to clear the departmental examination before he actually holds the post of BMO/CMO, etc. 5. A bare perusal of this notification shows that the intention was that the employee should not be denied 4 the benefit of the grade but would not actually be posted on a post in the cadre. 6. I have also been informed that the private respondent has in fact cleared the departmental examination on 28th April, 2008. In view of the fact that the private respondent has cleared the departmental examination the only relief which can be granted to the petitioner is that the case of the private respondent for promotion shall be considered to the post of BMO only after 28th April, 2008 and he shall have no claim to such post prior to the said date. The question as to how the inter-seniority between the parties has to be worked out has not been decided in this case and left open to be decided in the other writ petition or any other subsequent petition which may be filed. The petition is accordingly disposed of. No order as to costs. 18th August, 2010 ( Deepak Gupta ) ™ Judge.