IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.253/2003 Reserved on: 27.4.2011 Decided on:18.5.2011 _____________________________________________ Union of India and others. …Petitioners. Versus Roshan Lal Verma. …Respondent. _______________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Jugde. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 . For the petitioners : Ms. Shilpa Sood, Central Government Counsel. For the Respondents: Mr. Lalit K. Sharma, Advocate. ____________________________________________________ Per Justice Rajiv Sharma, Judge. This petition is directed against the judgment dated 17.12.2002 rendered by the Central Administrative Tribunal in OA No. 720/HP/2001. 2. Material facts necessary for the adjudication of this petition are that the respondent was appointed as Chowkidar with the National Sample Survey Organization (Field Operations Division) on 11.10.1974. The post of Chowkidar was converted to the post of Peon on 14.6.1982. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 The Department of Statistics has framed the Recruitment and Promotion Rules to the post of Lower Division Clerk on 7.9.1990, which read as under: (a) “90% by direct recruitment; (b) 10% by promotion in the following manners: i) 5% of the posts shall be filled up on the basis of seniority subject to rejection or unfit’ and ii) 5% of the vacancies shall be filled on the basis of qualifying examination to be conducted departmentally. Provided that if sufficient number of persons do not become available, the vacancies shall be filled in the manner prescribed in (a) above. Provided further that if more of such employees than the number of vacancies available under this clause qualify at the said examination, such excess employees shall be considered for filling the vacancies arising in the subsequent years so that the employees qualifying at an earlier examination are considered before those who qualify at a later examination. Note: Maximum age limit for appearing in the departmental examination shall be 45 years (50 years for the scheduled castes or the scheduled tribe candidates). Note 2: For filling up the reserved vacancies 100 point roster shall be maintained which will have points 1, 21, 41, 61 and 81 reserved for appointment of eligible group ‘D’ employees through promotion on seniority-cum- fitness basis and point 11, 31, 51, 71 and 91 reserved for appointment of Group ‘D’ employees through qualifying departmental examination.” 3. The respondent, being eligible for promotion to the post of Lower Division Clerk against 10% quota appeared 3 in the departmental examination on 15.12.1990. He qualified the same. However, the respondent was not promoted on the pretext that no vacancy was available. The respondent-approached the learned Central Administrative Tribunal for the redressal of his grievance by way of O.A.No. 25/HP/99. The same was decided on 3.10.2000. The respondent was permitted to make a representation, which he made on 6.10.2000. The representation made by the respondent was rejected on 1.10.2001. In these circumstances, respondent assailed the rejection of his representation by way of OA No. 720/HP/2001. The same was decided in favour of the respondent on 17.12.2002. Present petition has been preferred by the Union of India against the judgment dated 17.12.2002 rendered in OA No. 720/HP/2001. 4. Ms. Shilpa Sood has vehemently argued that the findings recorded by the Tribunal that fifth vacancy was available on the basis of Annexure RP-1 in the year 1991-92 is factually incorrect. According to her, only four vacancies were available, which were filled up as per roster. 5. Mr. Lalit K. Sharma has supported the judgment of the Tribunal rendered in OA No. 720/HP/2001. 4 6. We have heard the learned counsel for the parties and have perused the pleadings carefully. 7. It is evident from the reading of the Recruitment and Promotion Rules framed in the year 1990 for filling up the post of Lower Division Clerk that out of 10% posts, 5% of these posts are to be filled up on the basis of seniority subject to rejection or unfit and remaining 5% vacancies are to be filled up on the basis of qualifying examination to be Departmentally. Respondent has qualified the departmental examination on 15.12.1990. The promotion was to be made on the basis of 100 point roster maintained by the Department. Vacancies 11, 31, 51, 71 and 91 fell in the share of those candidates, who were to be considered against 5% quota on the basis of departmental examination. The respondent, as noticed above, had approached the Tribunal by way of O.A. No.25/HP/1999 seeking direction to the petitioner-Department to consider his case for promotion after qualifying the written examination on 15.12.1990. The Tribunal after hearing the parties disposed of the original application on 3.10.2000. The operative portion of the judgment dated 3.10.2000 reads thus: "The only dispute that remains to be resolved is whether more than 4 vacancies became available prior to 1.1.1993 for candidates who competed in the departmental examination. To resolve the controversy 5 the applicant is given liberty to file a comprehensive representation to respondent No.2 within 15 days by bringing out that five or more than five vacancies became available before 1.1.93. The respondents shall also check up if five vacancies were available before 1.1.93 in the quota of 5 vacancies to be filled on the basis of departmental examination. In case it is found that five vacancies were available, the applicant would be offered appointment as LDC by way of promotion from the due date, but actual payment of arrears shall be made only from the date of filing the OA. Respondent No.2 shall take decision on the representation of the applicant within 3 months of the receipt of representation.” 8. In sequel to the judgment rendered in OA No. 25/HP/1999, respondent made a detailed representation vide Annexure A-14 on 6.10.2000. The representation made by the respondent was rejected on 10.1.2001. Respondent feeling aggrieved by the issuance of office memorandum dated 10.1.2001 was constrained to move fresh O.A. bearing No.720/HP/2001. The same was allowed by the Tribunal vide judgment dated 17.12.2002. The findings recorded by the Tribunal are that fifth vacancy was available on the basis of Annexure PR-1. Text of Annexure PR-1 reads thus: (i) Number of vacancies in the grade of L.D.C. arising during the year 1991 28 1992 12 (ii) Number of vacancies out of (i) reserved for educationally qualified Group ‘D’ employees and the number to be filled in through Limited 01 6 Departmental Examination quota. (iii) Number of vacancies out of (ii) above reserved for scheduled caste/scheduled tribe N.A. N.A. (iv) Number of Group ‘D’ Employees eligible to take the examination and their names and present place of posting. -- -- 9. Ms. Shilpa Sood has vehemently argued that the findings recorded by the Tribunal that there was 5th vacancy available were contrary to record. According to her, one post was available only on all India basis. There is no merit in the contention of Ms. Shilpa Sood. The Tribunal has noticed that the learned counsel appearing on behalf of the petitioner could not controvert Annexure PR-1. The Tribunal, on the basis of Annexure PR-1, has come to a right conclusion that 5th vacancy was available for promotion for qualified Group ‘D’ employees through limited departmental examination for the post of Lower Division Clerk in the year 1991. Since the respondent had already qualified the limited departmental examination, he was required to be considered against this post. It will be apt at this stage to note that respondent has been subsequently promoted on the basis of seniority-cum-fitness. 10. There is no merit in the contention of Ms. Shilpa Sood that the vacancy was available on all India level. On 7 query put by the Court, Ms. Shilpa Sood could not explain the basis on which the vacancy was to be filled up on all India level. We are of the considered view that the respondent has not been dealt with by the Department in a just and fair manner. He has been dragged to litigation, which has lasted fore more than a decade. It is settled law by now that an incumbent has only right to be considered for promotion. However, the same has to be in accordance with law and the authorities ought not to deny the same by taking flimsy grounds, as is in the instant case. 11. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed with costs, which are quantified at Rs. 5,000/-. It is made clear that the interim orders dated 16.4.2003 and 16.7.2003 are vacated forthwith. The Department is directed to consider the case of the respondent, as directed by the Tribunal, within a period of four weeks from today for the post of Lower Division Clerk from the date 5th vacancy had fallen vacant with all the consequential benefits. (Justice R.B. Misra), Judge. (Justice Rajiv Sharma), Judge. 18.5. 2011*awasthi*