IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 3028/2008 (OA 336/96) Date of Decision : April 08, 2009 Sh. Devinder Singh Petitioner Versus H.P. Horticultural Produce Marketing and Processing Corporation Ltd. and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. B.S.Ranjan, Advocate, for the petitioner. For the respondents : Mr. Dilip Sharma, Advocate, for respondent No.1. Mr. Sandeep Chauhan, Advocate, vice Mr. Bhubnesh Sharma, Advocate, for respondent No. 9. Sanjay Karol, J. (Oral) The petitioner has assailed the impugned orders dated 27.2.1996 (Annexure A-5) and 29.2.1996 (Annexure A-6) allegedly on the ground that persons junior to him were appointed as Assistant Marketing Officers, ignoring his claim. Petitioner was working as Marketing Assistant with the respondent-Organisation. Even though the next promotional post is of Assistant Marketing Officer but however, as per the Recruitment and Promotional Rules the criterion is merit-cum-seniority and not 1 Whether reports of Local Papers may be allowed to see the judgment? 2 seniority alone. It is the grievance of the petitioner that the instructions contained in Office Memorandum dated 27.7.1978 (Annexure A-4) were not adopted by the respondent while effecting such promotions. It is also his grievance that he was wrongfully ignored from being considered to the said promotional post. Office Memorandum dated 27.7.1978 provides for a procedure for filling up of the vacancy as under: “Out of the list so prepared, selection for filling up the vacancies which may have arisen will be from slab of first three candidates for each vacancy. For every vacancy, a slab of 3 suitable officers will be framed and if in this, a junior among them happens to be of exceptional merit, his suitability will be considered otherwise the senior most will be Selected. This does not mean that after selection has been made, the other two will become unsuitable. For the next vacancy, another slab of three will be formed and the two who are not selected for the first vacancy will necessarily have to be included in that slab. It is quite possible that one of them may be selected for the second vacancy. In fact, therefore, after the slab has been formed for the first vacancy, every subsequent slab will necessarily contain two candidates of the slab proceeding it.” The respondents in their reply have clarified that the Office Memorandum dated 27.7.1978 stood revised by the Government, firstly vide Office Memorandum dated 16.3.1981 and then vide 3 Office Memorandum dated 3/4.11.1981. The aforesaid criteria was done away by the State itself. Importantly the said memorandum having been issued by the State Government, is not applicable to the respondent-Organisation as it has its own bye-laws which alone are implemented while filling up the vacancies. The selection took place in the year 1996 in accordance with the service bye-laws purely on merit and after taking into account the ACRs of each individual eligible candidate including the petitioner. The respondents in their reply have categorically stated that merit list was prepared and selected candidates were found higher in merit in comparison with the petitioner. It is not a case where the petitioner was ignored or not considered for the post of Assistant Marketing Officer. On comparative assessment the private respondents were found to be higher in merit than the petitioner. It is not the case of the petitioner that his ACRs have been malafidely misread or misinterpreted so as to wrongfully deprive him of his promotion. Hence the petitioner’s contention is untenable in law. No other point urged. For the aforesaid reasons there is no merit in the present petition and the same is dismissed. (Sanjay Karol), Judge. April 08, 2009 (PK)