IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 4420 of 2010. Judgment reserved on 16.6.2011 Date of decision: 18.6.2011. Pratap Singh Verma … Petitioner. Versus State of HP & Anr. …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: M/s. Mohit Thakur & Kunal Verma, Advocates. For the respondents: Mr. Vivek Singh Thakur, Addl. AG. Deepak Gupta, J. The grievance of the petitioner is that the service rendered by him as Instructor AEC Special in the Army should be taken into consideration while reckoning his service in the grade for purposes of promotion to the post of Principal. Briefly stated, the facts of the case are that the petitioner is an ex-serviceman. He was recruited in the Indian Army on 6th November, 1980 as Instructor AEC Special (Education Instructor Special Group A). He was discharged from the Army in the year 1998. After discharge from the Army the petitioner joined as Trained Graduate Teacher(TGT) with the State of Himachal Pradesh as an ex-serviceman on 22.12.1999. The petitioner has been given the benefit of the service rendered by him in the Army for purposes of fixing his pay and seniority. On 17th June, 2005 the petitioner was promoted as Lecturer (Political Science) and in June, 2008 he was 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. -2- promoted as headmaster. The petitioner alleges that he has qualified the departmental exam which is prerequisite for the promotion to the post of Principal. He, however, submits that he has not been promoted to the post of Principal only on the ground that he does not fulfill the requisite qualification of having 15 years service in the grade. The petitioner alleges that his Army service has not been taken into consideration. The case of the petitioner is based on the equation of Army service and civil trade issued by Directorate General of Employment & Training, Ministry of Labour, Government of India and notification dated 9th December, 1999 Annexure P-7 whereby the State of Himachal Pradesh itself has equated the post of Instructor AEC Special with that of TGT. The stand of the State is that the the equation is done only for the purpose of initial recruitment and not for the purpose of promotion. According to the State the service rendered by the petitioner in the Army cannot be taken into consideration while computing his service. For the post of Principal, the State of Himachal Pradesh has framed the Himachal Pradesh Higher Education Department, Principal (School Cadre) Class-I (Gazetted) Recruitment and Promotion Rules, 1992. One of the methods of promotion for the post of Principal is:- “i) 50% by promotion from amongst the Headmasters with three years regular service or regular combined with continuous adhoc service rendered, if any, in the grade failing which from amongst the Headmasters with 15 years regular service or regular combined with continuous adhoc service rendered, if any, as Headmaster/TGTs combined out of which 02 years service as Headmaster is essential” A bare reading of this Rule shows that 50 % promotions to the posts of Principals have to be made from amongst headmasters -3- having 3 years regular service or regular combined with continuous adhoc service, if any, in the grade and if such headmasters are not available, then from amongst those headmasters who have served as headmasters for 2 years but have 15 years combined service as headmasters/TGTs. Thus headmasters having 3 years service as headmasters are directly eligible but those headmasters who have less than 3 years but more than 2 years service as headmasters are eligible only if they have total combined service of 15 years as headmasters/TGTs. The Directorate General of Employment & Training, Ministry of Labour, Government of India issued a direction for equation of service trade in the Army with civil trades. In this, Instructor AEC Special have been equated with TGTs. “10. Instructor AEC Special Graduate/Trained Graduate/MA/MSc 151.10 Higher Secondary and High (Group-A (B.Ed.) School Teacher. 151.20 Language Teacher Higher Secondary & High School 151.90 Higher Secondary & High School Teachers” This equation has been specifically accepted by the State Government vide its notification dated 9.12.1999 which read as follows:- “Consequent upon the equation of Trades of the Indian Armed forces with that of civil trade for the employment of Ex- servicemen on civil post vide letter No. DGET.C.30018(22)/85- EE-I, dated November, 1985 by the Ministry of Labour and Employment, Govt. of India, the matter for the adoption of equation of the trade of Instructor AEC Special was under consideration of the Govt. After due consideration, the Governor, HP is pleased to order to adopt the equation of Trade of Instructor AEC Special as per list attached for employment in the Education Deptt. in H.P. With immediate effect. Sd/- Under Sectary (Edu.) to the Govt. of H.P.” Once the post of Instructor AEC Special has been equated to that of TGTs, the State in my view cannot deny the benefit of the service rendered in the Army to the petitioner and on the ground that he has not actually worked as TGT. It may be clarified that this Court -4- is not in any manner deciding that Army service of whatever nature rendered has to be taken into consideration for this purpose. In the present case the post which the petitioner held in the Army has been specifically equated with the post of TGTs and, therefore, in the facts of this case the service rendered by the petitioner in the Army must be taken into consideration while counting the service of the petitioner in the grade. The State Government having once accepted this equation cannot turn round and urge that this benefit cannot be given to the petitioner. The Apex Court in K. Madhavan and another v. Union of India and others, AIR 1987 Supreme Court 2291 was dealing with a case where promotion to the post of Superintendent of Police in CBI was under consideration. The rules required that the person should have 8 years experience in the grade. The private respondent had not served in the CBI for a period of 8 years, but if his service in the State Police Service was taken into consideration, then he would have more than 8 years of service. In that case the stand of the appellants was that 8 years service in the grade would mean 8 years service in the grade of Dy.S.P. in the CBI. The Apex Court held as follows:- “x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x The 1963 Rules do not provide that the period of eight years should be computed from the date of deputation to the CBI as DSP. In the absence of any such express provision, it must be held that the period during which one held the post of DSP in the State Police Service should also be taken into account for computing the period of eight years. The 1963 Rules provide that two years must be spent on probation as DSP in the CBI. The position, therefore, comes to that of the total period of eight years, two years must be on probation basis in the CBI. x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x” Applying the same reasoning to the present case, the only interpretation which can be given to the R & P rules for the post of Principal is that out of 15 years service, for 2 years at least, the -5- person must have worked as headmaster but for computing 15 years service the remaining service does not necessarily have to be in the Education Department. One contention raised on behalf of the State is that the equation has been made only for the purpose of employment and not for promotion. This contention has been made only to be rejected, since the Apex Court in Ajit Singh and others (II) Vs. State of Punjab and others, (1999) Supreme Court Cases 209 clearly held that the word employment includes promotion. Lastly, reliance has been placed by the State on a judgment of the Division Bench of this Court in Union of India and others Vs. Bishan Das & Ors, Latest HLJ 2008 (HP) 726 whereby this Court upheld the discrimination made by the State denying the benefit of Career Advancement Scheme to the re-employed Army Personnel. In my view this judgment has no application because in that case this Court specifically held that the purpose of the assured career advancement scheme was to help those employees who could not be promoted for a long period. The Army Personnel were deprived of the benefits of the scheme and this classification was upheld on the ground that the ex-servicemen were re-employed from the Army and may have been promoted in the Army and they had lesser years of service to render in civil employment. This judgment has no application to the facts of the present case. The petition is, therefore, disposed of with a direction to the respondent-State to consider the case of the petitioner for promotion to the post of Principal by taking into consideration the service rendered by him as Instructor AEC Special and treating it to be service in the grade. In case the petitioner is otherwise found eligible, -6- he shall be given promotion from the date when his immediate junior was promoted as Principal. The petitioner shall be entitled to all consequential monetary benefits. The respondents are directed to ensure that the orders of this Court are complied with latest by 31st October, 2011. Petition is disposed of in the aforesaid terms. No costs. ( Deepak Gupta ) Judge. 18th June, 2011 (Krn Guleria)