Clerk/Junior Assistant appointed on compassionate grounds eligible for promotion: Himachal Pradesh High Court

 Hig h C o urt of H.P on 19 05 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.5620 Reserved on: 05.05.2021 Decided on: 12.05.2021 Narinder Kumar Datta .…Petitioner. Versus State of H.P. & others …. Respondents. Coram Hon’ble Mr. Justice Ajay Mohan Goel Judge. Whether approved for reporting 1 Yes For the petitioner : Mr. Varun Chandel Advocate. For the respondents : Mr. Sumesh Raj Mr. Dinesh Thakur Additional Advocates General Ms. Divya Sood Deputy Advocate General for the respondents No.1 to 4 State. Respondents No.5 and 6 ex parte. Ajay Mohan Goel Judge By way of this petition the petitioner has inter alia prayed for the following relief: “That the respondents may be directed to consider the name of the petitioner for promotion as Senior Assistant from the due date i.e. 2012 after receiving the DPC on 10.07.2012 and 05.06.2014 also 1 Whether reporters of the local papers may be allowed to see the judgment Hig h C o urt of H.P on 19 05 HCHP 2 placing the name of the petitioner in accordance with the corrected seniority list. Further the respondent may be directed to provide the petitioner all consequential benefits after granting his promotion w.e.f. 2012.” 2. The case of the petitioner is that he was appointed as a Clerk on compassionate basis in the year 1985. He was initially posted at D.C. Office Chamba District Chamba H.P. but on account of his family circumstances he got himself transferred from District Chamba to District Kangra and was posted as a Clerk Junior Assistant in the Office Deputy Commissioner Kangra at Dharamshala H.P. w.e.f. 31.01.1990. On account of this voluntarily transfer sought by the petitioner he lost his seniority of District Chamba. In terms of his seniority as determined from the date when he joined in District Kangra he was assigned seniority at serial No.60 in terms of the seniority list issued by the respondent department vide Annexure P 1 dated 31.12.2007. A Departmental Promotion Committee was convened for considering eligible candidates for promotion to the post of Senior Assistant on 15.11.2011 and name of the petitioner Hig h C o urt of H.P on 19 05 HCHP 3 was recommended at serial No.12 in the probable list prepared for the purpose of promotion however the petitioner was not promoted. Thereafter vide Notification dated 18.04.2012the Himachal Pradesh Department of Personnel Senior Assistant Class IIICommon Recruitment and Promotion Rules 2011 were amended to the effect that the post of Senior Assistant was now to be filled 100% by promotion inter alia from amongst Clerks Junior Assistants of concerned departments possessing ten years regular service or regular combined with continuous adhoc service provided they possesses the minimum educational qualification of 10+2. The next meeting of the Departmental Promotion Committee was held on 10.07.2012vide which the name of the petitioner alongwith other incumbents mentioned therein which included incumbents similar to the petitioner who were only matriculate were recommended for promotion to the post of Senior Assistant. Though persons senior to the petitioner Hig h C o urt of H.P on 19 05 HCHP 4 but matriculate were promoted to the post of Senior Assistant on the recommendation of the Departmental Promotion Committee however the petitioner was not promoted as sufficient number of promotional posts were not available. Thereafter again a Departmental Promotion Committee was convened in the month of June 2014 but the name of the petitioner was not recommended for promotion to the post of Senior Assistant as per his seniority on the ground that he was not possessing the qualification of 10+2. The petitioner was promoted to the post of Senior Assistant in the year 2015 after he completed his 10+2 in the year 2014. 3. The grievance of the petitioner is that the act of the respondent department of denying him promotion simply on the ground that he was not possessing the qualification of 10+2 in the year 2014 is bad in law as the respondent department erred in not appreciating that as the petitioner was initially appointed by way of compassionate appointment then in terms of the communication dated 31.03.2005 issued by the Financial Commissioner cum Secretary Revenue to the Hig h C o urt of H.P on 19 05 HCHP 5 Government of Himachal Pradesh the petitioner could not have been ignored for promotion to the post of Senior Assistant on the ground that he was not possessing 10+2 qualification as there was an exemption from possessing the qualification of 10+2 in case of employees who were appointed as Clerks on compassionate basis provided they possessed the qualification of matriculation. It is in this background that this petition has been filed praying for the reliefs already enumerated hereinabove. 4. The petition is opposed by respondents State inter alia on the ground that as the Recruitment and Promotion Rules to the post of Senior Assistant stood modified in the year 2012 and the minimum qualification necessary for promotion was 10+2 therefore in the absence of the petitioner possessing the said qualification he was not eligible to be considered for promotion till he attained the qualification of 10+2. It is further the stand of the State that though in the year 2012 name of the petitioner was recommended by the Departmental Promotion Committee but he could not be Hig h C o urt of H.P on 19 05 HCHP 6 promoted as number of posts available were occupied by his seniors whereas the Departmental Promotion Committee convened on 05.06.2014 rightly did not recommend the name of the petitioner for promotion to the post of Senior Assistant as he was not possessing the qualification of 10+2. 5. By way of rejoinder the petitioner has reiterated the stand taken in the petition and denied the averments made in the reply as far as they are contrary to the stand of the petitioner. 6. I have heard learned counsel for the parties and also gone through the pleadings and documents appended therewith. 7. It is not in dispute that the petitioner was initially recruited against the post of Clerk on compassionate basis. It is also not in dispute that there is a communication issued by the Financial Commissioner cum Secretary Revenue to the Government of Himachal Pradesh dated 31.03.2005 on the subject regarding “modification in Recruitment and Promotion Hig h C o urt of H.P on 19 05 HCHP 7 Rules for promotion as Senior Assistant” which reads as under: “I am directed to refer to your letter No.14854 Ka Sha dated 14.09.2004 on the above subject and to say that the condition for acquiring of higher qualification of Matric 2nd division or 10+2 examination pass for promotion to the post of Senior Assistant to those incumbents of the posts of Clerks who were promoted from Class IV employees with the qualification of Matric pass or matric in English only with Hindu Rattan pass and the incumbents appointed as clerks on compassionate grounds with the qualification of Matric third division prior to 27.11.1991 will not be applicable. As such the incumbents who are working on the posts of clerks with lower qualification prior to 27.11.1991 can not be debarred from promotion to the post of Senior Assistant. Similarly the instructions issued by the Department of Personnel on dated 30.01.2002 will also not be applicable to those incumbents of class IV employees who had been promoted appointed as clerk prior to 27.11.1991. It is also informed that the proviso below Rule 7(ii) and added Rule 7(iii) in the Recruitment Hig h C o urt of H.P on 19 05 HCHP 8 and Promotion Rules for the posts of Clerk have been notified vide this department Notification Rev. A(B)3 16 95 dated 23.07.1999 and corrigendum of even number dated 04.10.1999 which is not desirable now and therefore it is required to omit aforesaid proviso and Rule 7(iii) from the Rules as these conditions have already been withdrawn by the Government and the common Recruitment Rules 1984 for the post of Clerks have also been amended accordingly by the Department of Personnelvide Notification No. Per(AP IIA(3) 2 84 III dated the 17 07 1998. You are therefore requested to take further action in the matter accordingly and send proposal through concerned Divisional Commissioner for amending R&P Rules for the post of Clerks in D.C. Offices alongwith various other amendments which are to be carried out in the said Rules immediately.” 8. A perusal of this communication demonstrates that it is not as if it was only in the year 2012 that the minimum qualification necessary for promotion to the post of Senior Assistant was prescribed as 10+2. However an exemption was carved out earlier also in favour of those Clerks who stood Hig h C o urt of H.P on 19 05 HCHP 9 recruited on compassionate basis for promotion to the post of Senior Assistant provided that they were matriculate. 9. During the course of arguments learned Additional Advocate General could not demonstrate that communication dated 31.03.2005 was later on rescinded. 10. There is another important aspect of the matter which requires mentioning at this stage. As has been observed by me hereinabove also the condition of possessing 10+2 as the minimum qualification was existing prior to the year 2012 for promotion from the post of Clerk Junior Assistant to the post of Senior Assistant yet the Departmental Promotion Committee which was held on 10.07.2012recommended not only the name of the petitioner for promotion to the post of Senior Assistant but names of other incumbents including one Shri Nirbhay Kumar and Smt. Darshana Devi who as per the petitioner were also possessing the qualification of matriculation only and who admittedly on the recommendation of the said Departmental Promotion Committee’s proceedings were Hig h C o urt of H.P on 19 05 HCHP 10 promoted to the post of Senior Assistant in the year 2012 itself. 11. In this background the stand of the State that as the Recruitment and Promotion Rules to the post of Senior Assistant were amended in the year 2011 12 and 10+2 was made the minimum qualification for promotion also does not holds any water for the reason that if that was the case then why even in the year 2012 matriculates were promoted to the post of Senior Assistant could not be explained by learned Additional Advocate General during the course of arguments. 12. In this background in the year 2014 when the Departmental Promotion Committee was convened for recommending the candidates to the post of Senior Assistants from amongst Junior Assistants i.e. the Departmental Promotion Committee dated 05.06.2014 the non recommendation of the petitioner for promotion to the post of Senior Assistant simply on the ground that he was a matriculate and was not possessing the qualification of 10+2 is not justifiable in law. Hig h C o urt of H.P on 19 05 HCHP 11 13. This is more so for the reason that the factum of there being a communication issued by Secretary Revenue to the Government of Himachal Pradesh to the effect that an incumbent appointed as a Clerk on compassionate basis was eligible for promotion to the post of Senior Assistant provided he was matriculate has not been denied by the State in its reply especially in response to para 10 of the writ petition. It is in this para of the writ petition that the petitioner had averred about the existence of this exemption and the averments of this para stand admitted by the State. Therefore the denial of promotion to the petitioner on the basis of his seniority in the year 2014 is not sustainable in law as in the considered view of this Court the petitioner having been appointed on compassionate basis was exempted from possessing the qualification of 10+2 for promotion to the post of Senior Assistant which was a non selection post. 14. Accordingly this writ petition is allowed to the extent that the act of the Departmental Promotion Committee of the respondent department convened on 05.06.2014 of not Hig h C o urt of H.P on 19 05 HCHP 12 recommending the petitioner for promotion to the post of Senior Assistant on the ground that he was not possessing the qualification of 10+2 is held to be bad in law and respondent department is directed to promote the petitioner as from the date when person Junior to him was actually promoted to the post of Senior Assistant on the basis of the recommendations of the Departmental Promotion Committee convened on 05.06.2014. For this purpose if necessary supernumerary post of Senior Assistant shall be created which shall be personnel to the petitioner. The promotion shall stand conferred upon the petitioner with all consequential benefits including monetary benefits and needful be done within three months from today. 15. With these observations this writ petition stands disposed of so also pending miscellaneous applications if any. Interim order if any stands vacated. Judge May 12 2021 

Summary: While addressing a writ petition on the promotion of clerks who were appointed on compassionate grounds and were matriculates; the Court held that when the Secretary of Revenue had issued a notification stating the exemption of certain qualification and eligibility for the government has to give the same. This judgment was passed in the case of Narinder Kumar Dutta vs. State of H.P. &amp; others [CWP No. 561.2020] by a Single Bench consisting of Hon’ble Justice Ajay Mohan Goel. The petitioner prayed for the respondents to consider his name for the promotion as a senior assistant from the due date (2012) after receiving the DPC in 2012 and 2014. He also prayed for his name to be on the corrected seniority list and provide the consequential benefits after granting promotion. The petitioner claims that he was appointed as a clerk on compassionate grounds in the year 1985. Initially, he was posted at D.C. office Chamba and later on account of family circumstances got transferred to district Kangra where he was posted as the Clerk/Junior Assistant in the office of Deputy commissioner from 1990. Due to his voluntary transfer, he lost his seniority level as was assigned no.60 in the seniority list released by the respondent in 2007. The petitioner’s name was considered for promotion in 2011 but was not promoted. Later in 2012, a notification was released by the respondent by which the Himachal Pradesh, Department of Personnel, Senior Assistant, Class-III Common Recruitment and Promotion Rules, 2011 were amended to the effect that the post of Senior Assistant was to be filled 100% by promotion, from the Clerks/ Junior Assistants of concerned departments, possessing ten years regular service or regular combined with continuous ad-hoc service, provided they possess the minimum educational qualification of 10+2. In a meeting, the petitioner and other names were recommended for promotion although they were only matriculated. However persons senior to the petitioner but matriculate were promoted, the petitioner was not promoted since sufficient posts were not available. In 2014, his name was not considered because of qualification, and in 2015 he was promoted after he completed his 10+2. The petitioner was aggrieved by the fact that he did not get the promotion earlier than 2015 as he was appointed on compassionate grounds and he deserved the same irrespective of him not possessing the 10+2 qualification. On the same ground, the petitioner filed the present petition. The High Court heard both the parties before rendering its decision. After sifting through the notification the High Court observed that the qualification of 10+2 existed even before 2012. An exemption was carved out for clerks who were appointed on compassionate grounds provided they were matriculated. The High Court held that given the qualification and amended notifications, there was no reason why the matriculates were promoted but the petitioner was not. The counsel for respondents also failed to establish the same. Therefore, the non-recommendation of the petitioner in the 2014 meeting was also not qualified in law. The High Court held denial of promotion to the petitioner on the basis of seniority was not sustainable in law since the petitioner was exempted from the possession of such a qualification vide the appointment order. The High Court Concluded by holding, “The promotion shall stand conferred upon the petitioner with all consequential benefits including monetary benefits and needful be done within three months from today.”