IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.958/2001 Reserved on.17.3.2008 Decided on. 11.4.2008 Pushpa Devi Gupta & others. …Petitioners. Versus State of H.P. and another. …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the petitioners : M/s Bhuvnesh Sharma and Ramakant Sharma, Advocates. For the respondents Mr. R.M. Bisht, Deputy Advocate General for respondents Rajiv Sharma, J. The present petition is directed against the judgment dated 27.6.2001 passed by the learned Himachal Pradesh Administrative Tribunal in O.A. No. 393/1997. The petitioner Dhani Ram Gupta (hereinafter referred to as the original petitioner) died during the pendency of the writ petition and was substituted by his legal representatives vide order dated 9.5.2005. The brief facts necessary for the adjudication of this petition are that the original petitioner was appointed as a Clerk in the department of Directorate of Agriculture. He was subsequently appointed as a Stenographer with effect from 4.4.1961. That under 1962 and 1966 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 Recruitment and other Condition of Class-III Service Rules, the post of Assistant was required to be filled in by 100% promotion from the category of Accountants in the pay scale of Rs. 160-400 and Stenographers in the pay scale of Rs. 100-175 in the ratio of 4:1. These rules were superseded by Himachal Pradesh Agriculture Department Class III [(Ministerial Service) Recruitment Promotion and Certain Conditions of Service] Rules, 1973. The post of Assistant as per these Rules was to be filled in by way of promotion from Clerks and Stenographers in the ratio of 4:1 respectively with five years experience in the cadre. Three stenographers, namely, Prem Singh Thakur, Uma Dutt and Nathu Singh Saini were promoted as Assistants. They were promoted between 1968 and 1971. Sh. K.L. Gangta was promoted on 31.7.1973. The pay scale of Stenographers was revised from Rs.140- 300 to Rs. 160-400 on 5.3.1974. In the meantime, Sh. Prem Singh Thakur, Nathu Ram Saini, Uma Dutt and K.L. Gangta were regularized with effect from 30.1.1974 vide order dated 30.1.1974 in accordance with the quota provided under rule 8 (b) of the Recruitment and Promotion Rules. The three senior most Stenographers working as Assistants, namely, S/Sh. Prem Singh Thakur, Nathu Singh Saini, Uma Dutt sought reversion by option to the post of Stenographers being substantive holder of this post. The original petitioner joined against the post of Assistant vide office order dated 19.11.1974. The original petitioner after the reversion of S/Sh. Prem Singh Thakur, Nathu Singh Saini, Uma Dutt and K.L. Gangta from the post of Assistants to Stenographers made a representation that he should be considered against the resultant vacancies which have become available after the option exercised by these persons. The representation made by the original petitioner was 3 rejected primarily on the ground that the posts which had filled up by the persons, namely, S/Sh. Prem Singh Thakur, Nathu Singh Saini, Uma Dutt and K.L. Gangta could not be filled up retrospectively. The original petitioner approached the learned Himachal Pradesh Administrative Tribunal for the redressal of his grievance seeking directions to the respondents to consider him for the post of Assistant from the date S/Sh. Prem Singh Thakur, Nathu Singh Saini, Uma Dutt and K.L. Gangta were considered. The learned Himachal Pradesh Administrative Tribunal dismissed the original application. Mr. Bhuvnesh Sharma, Advocate had strenuously argued that once Sh. Prem Singh Thakur and others have sought reversion from the post of Assistants after the revision of pay scale from Rs. 140-300 to Rs. 160-400, his client should have been considered for promotion to the post of Assistant against vacancies which had become available. The learned Deputy Advocate General had supported the judgment dated 27.6.2001 passed by the learned Himachal Pradesh Administrative Tribunal We have heard the learned counsel for the parties and have perused the record carefully. Mr. Bhuvnesh Sharma, Advocate had submitted that though S/Sh. Prem Singh Thakur, Nathu Singh Saini, Uma Dutt and K.L. Gangta had been promoted to the post of Assistant, but in fact they had never discharged their duties against the post of Assistants. This submission of Mr. Bhuvnesh Sharma is contrary to the record. It is evident from communication dated 26th June, 1968, 8th September, 1971 and 31st July, 1973, the incumbents, namely, Prem Singh Thakur, Nathu Singh Saini and Uma Dutt had joined as Assistants in the pay scale of Rs. 160- 4 400. They were reverted on the basis of option exercised by them on 18th April, 1974. The ad hoc promotion of Sh. Prem Singh Thakur, Uma Dutt and N.S. Gangta was regularized against the post of Assistant with effect from 30th January, 1974. The pay scales were revised of the post of Stenographer from Rs. 140-300 to Rs. 160-400 with effect from 1.2.1971 vide letter dated 5.3.1974. S/Sh. Prem Singh Thakur, Nathu Singh Saini, Uma Dutt and K.L. Gangta had sought reversion after the pay scale of Stenographers was also revised from Rs. 140-300 to 160- 400. Sh. Prem Singh Thakur and others have been reverted to the post of Stenographers on the basis of their option for the post of Stenographer in the pay scale of Rs. 160-400. This has been done by the State since they were holding the substantive posts of Stenographers. It is evident from the office order dated 18th April, 1974 that these persons, namely, S/Sh. Prem Singh Thakur, Nathu Singh Saini, Uma Dutt and K.L. Gangta were promoted to the post of Assistant on regular basis with effect from 30.1.1974. They had submitted their joining as Assistant as discussed herein above. Once these persons had been promoted and occupied the posts of Assistants, it will be presumed that the quota meant for this category was consumed and the petitioner had no locus to be considered for the post of Assistant against the resultant vacancies. The effect of acceptance of the prayer of the original petitioner by us would mean that he will be promoted from retrospective date which is not permissible under law. He has also been promoted to the post of Assistant on 9.11.1974. The learned Tribunal had also come to a right conclusion that the original petitioner could not be considered for promotion to the post of Assistant even though he was senior most Stenographer since the quota against which three persons, 5 namely, S/Sh. Prem Singh Thakur, Nathu Singh Saini and Uma Dutt had been consumed. Consequently, we find no force in the writ petition and the same is dismissed. There shall be no order as to costs. (Deepak Gupta), Judge. ( Rajiv Sharma), Judge. April 11, 2008 *Awasthi*