IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 12183 of 2008 Judgment reserved on: 21.12.2010 Date of decision: 21.2.2011. Surinder Kumar …..Petitioner. Vs. State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the petitioner : Mr. M.C. Verma, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. Advocate General with Mr. J.S. Rana, Assistant Advocate General. Kuldip Singh, J. The petitioner has prayed for mainly the following reliefs:- (i) Keeping in view the above submissions it is humbly prayed hat the applicant may kindly be directed to be relieved and join as clerk in pursuance of Annexure A-10 issued by respondent No.2 promoting the applicant as clerk at serial No.29 of the list. (ii) That the decision imparted in O.A. No.527/05 attached as Annexure A-2 is prayed to be quashed being ultravires and devoid of law. (iii) That the appellant be deemed to have been appointed as clerk from the date his immediate junior in the promotion orders Annexure A-10 i.e. serial number 30 has Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… joined his duty and his seniority position may also kindly be maintained accordingly in the clerical cadre. (iv) That the applicant may kindly be held entitled to pay fixation benefit at par within his juniors as clerks appointed in Annexure A-10. 2. The brief facts of the case are that the petitioner is matriculate. He was initially selected as part time water carrier and later on regularized as whole time Class-IV in the education department. He joined duty as regular Class-IV in Central State Library at Solan on 30.11.1991. 3. It has been alleged that 10% posts of clerks in the education department are earmarked for promotion of Class-IV employees who are matriculate as per Recruitment and Promotion Rules notified vide notification dated 26.4.1973. 4. The petitioner was not promoted as clerk, he was promoted as Laboratory Attendant by respondent No.4 and posted at Govt. High School, Domehar vide office order dated 13.10.1995. 5. The petitioner was aware that he was eligible for promotion as clerk, he did not join duty as Laboratory Attendant and requested for his promotion as clerk vide representation dated 28.10.1995. The representation of the petitioner was not considered, the respondent No.4 once again issued office order dated 4.11.1996 promoting the petitioner as Laboratory Attendant and posted him at Govt. Senior Secondary School, Chail. The petitioner had no option but to join as Laboratory Attendant at Govt. Senior Secondary School, Kandaghat on 7.11.1996 with the hope that the petitioner would be …3… promoted as clerk as and when the same is ordered by the department. The petitioner submitted representation dated 1.9.1998 requesting the department to promote him as clerk instead of Laboratory Attendant. 6. The respondent No.2 vide office order dated 25.3.1998 promoted several Class-IV employees including petitioner as clerk. The petitioner made request to respondent No.3 to relieve him and allow him to join at Govt. High School, Kiyari, District Shimla as per office order dated 25.3.1998. 7. The note 2 to office order dated 25.3.1998 provides that in case any Class-IV employee has been promoted as Laboratory Attendant or Storekeeper, these cases may be referred to the Director of Education and such employees may not be relieved for joining the post of clerk till further orders from the Director of Education. On 20.4.1998, respondent No.3 had written a detailed letter to respondent No.4 and sought further directions, but respondent No.4 had not responded to the communication of respondent No.3. 8. The petitioner had filed OA No. 527/2005 seeking immediate relief. On 10.3.2005, the Original Application No. 527/2005 filed by the petitioner was ordered to be treated as representation to the Director (Secondary) Education, with a direction to him to dispose of the same within three months. The respondent No.2 vide office order dated 8.8.2005 has observed that it is not possible to give promotion to the petitioner as clerk. In taking that view the respondent No.2 has taken the help of decision in OA No.1597/95. It has been alleged that facts in OA No.1597/95 were …4… totally different. The petitioner from day one was eligible for appointment as clerk under the Recruitment and Promotion Rules. The petitioner was promoted as clerk but his relieving was withheld arbitrarily in unlawful manner. On these facts the petitioner has filed the petition. 9. The respondents No.1 to 5 have filed reply. It has been stated that in the Recruitment and Promotion Rules there is no provision to promote the Lab Attendant who has been confirmed in his cadre to the post of clerk. However, as per Recruitment and Promotion Rules Class-IV employee (peon) can be promoted to the post of clerk who fulfills the educational qualification to the post of clerk. 10. The petitioner had been promoted to the post of clerk vide office order dated 25.3.1998. The petitioner had been promoted as clerk subject to the condition that in case any employee promoted in the list has already been promoted to the post of Laboratory Attendant/ Store Keeper such case may be sent to the Directorate for further directions and those employees may not be relieved to join as clerk. The petitioner had already been promoted as Laboratory Attendant on 13.10.1995, therefore, the petitioner has not been allowed to join as clerk as per condition imposed in the promotion order dated 25.3.1998. The petitioner was promoted as Laboratory Attendant on 13.10.1995, therefore, his representation was rightly decided by the Director of Higher Education vide office order dated 8.8.2005. The Laboratory Attendant cannot be promoted as clerk as both the posts are having identical pay scales and both are Class-III …5… posts. The petitioner has been confirmed as Laboratory Attendant on 11.1.2006 and cannot be promoted as clerk contrary to Recruitment and Promotion Rules. The petitioner cannot claim benefits of two posts. The respondents have prayed for dismissal of the petition. The petitioner has filed rejoinder to the reply of respondents No.1 to 5 and has reiterated his case. 11. I have heard learned counsel for the parties. The petitioner had joined as regular Class-IV employee in the Central State Library at Solan on 30.11.1991. The Rule 7 of Himachal Pradesh Education Class III ( Ministerial Section) Service rules, 1972 provides that 10% vacancies will be reserved for Class-IV Government employees of Education Department, subject to the condition of fulfillment of minimum qualifications. Rule 8(a) provides procedure for recruitment by promotion which shall be made on seniority-cum-merit basis subject to the rejection of the unfit from amongst the persons holding posts and with the length of service prescribed in the rules. 12. It is not the case of the respondents that petitioner was not eligible for promotion from the category of Class-IV employee as clerk under the rules. The defence of the respondents is that petitioner got the promotion as Laboratory Attendant and was confirmed as Laboratory Attendant, therefore, he could not be promoted as clerk under the rules. The posts of Laboratory Attendant and clerk are Class-III and carry same scale. The petitioner cannot be given benefits of two promotions. On the contrary, the case of the petitioner is that right from the very …6… beginning he had been requesting the respondents to consider his case for promotion as clerk and not as Laboratory Attendant. He was promoted as clerk vide office order dated 25.3.1998, but again he was not relieved to join at Govt. High School, Kiyari as directed in office order dated 25.3.1998. The petitioner had filed OA No.527/2005 which was ordered to be considered as representation by erstwhile Tribunal on 10.3.2005, but the case of the petitioner was rejected by taking the help of decision in OA No.1597/95 decided on 2.12.2004 where the facts were different. 13. The dispute involved in the case is short. There is no dispute between the parties that Class-IV employees as per 1972 Rules are eligible for promotion as clerk. There is also no dispute that petitioner is eligible for promotion from the category of Class-IV employee as clerk under the rules. It is a different matter that respondents have taken the plea that once the petitioner has been confirmed as Laboratory Attendant, therefore, he cannot be promoted as clerk under the rules. The fact remains, the petitioner vide office order dated 25.3.1998 was promoted as clerk and his name finds mentioned at serial No.29 of office order dated 25.3.1998. He was ordered to be posted at Govt. High School, Kiyari, District Shimla. There is a note-2 in the office order dated 25.3.1998 to the effect that in case any employee promoted in the list has already been promoted to the post of Laboratory Attendant/ Store Keeper such case may be sent to the Directorate for further directions and those employees may not be relieved. The petitioner and other employees mentioned in office order dated 25.3.1998 were consciously promoted. The further …7… directions were required from the Directorate for relieving earlier promoted Laboratory Attendants and Store Keepers to join as clerks. It appears the purpose of note-2 to office order dated 25.3.1998 was to take some reasonable time for making adjustments in the department in view of promotions as clerks of employees who were earlier promoted Laboratory Attendants/ Store Keepers. 14. The respondents under the shelter of note -2 in office order dated 25.3.1998 took altogether untenable stand by pleading that petitioner could not be promoted as clerk since he was already confirmed as Laboratory Attendant. The respondent No.2 has taken a conscious decision by issuing office order dated 25.3.1998 and promoting petitioner as clerk. The office order dated 25.3.1998 till today has not been withdrawn. The office order dated 25.3.1998 is still in force. The note-2 attached to office order dated 25.3.1998 regarding further directions with respect to already promoted Lab Attendant/Store Keeper from the Directorate cannot be interpreted that already promoted Lab Attendants/Store Keepers were not promoted as clerks. The purpose of relevant note was to give reasonable time to department for making adjustments in the department but that cannot continue for more than twelve years in as much as according to petitioner he was promoted as clerk vide office order dated 253.1998 but he has not been allowed to join as clerk in pursuance to office order dated 25.3.1998. The respondent No.2 has wrongly rejected the representation of petitioner vide office order dated 8.8.2005 by treating his case to be similar type of case decided by erstwhile Tribunal on 2.12.2004 in OA NO.1597/95. The …8… petitioner already stands promoted as clerk vide office order dated 25.3.1998. 15. In view of above discussion, petition is allowed. It is held that petitioner has been promoted as clerk vide office order dated 25.3.1998. The petitioner is entitled to all benefits of clerk including pay fixation, seniority etc. w.e.f. 25.3.1998. The respondents are directed to relieve the petitioner and allow him to join as clerk at appropriate place of posting in one month from the date of supply of copy of the judgment by the petitioner to the competent authority. February 21, 2011 ( Kuldip Singh ), (sks) Judge.