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Himachal Pradesh High Court · body

2003 DIGILAW 217 (HP)

SATYA DEVI CHAUHAN v. H. P VIDHAN SABHA

2003-08-05

A.K.GOEL

body2003
JUDGMENT Arun Kumar Goel, J (Oral): Petitioner was admittedly working as Peon with respondent No. 1. Her service conditions are governed under the rules framed by this respondent. These are known as H.P. Vidhan Sabha Secretariat (Recruitment, conditions of Service) Rules, 1974". Under these rules a person like the petitioner holding the post of Peon is entitled to be considered for being promoted to two posts. One of clerk/Proof Reader/copy Holder. 10% of these posts are to be filled in by promotion and 90% by direct recruitment. For promotion criteria is that it is from amongst the grades of drivers, Watch and ward Assistants and other class-IV officials who are matriculates to equivalent examination pass. To the post of Book Binder, promotion is to be made 100% by promotion. Eligibility criteria is from amongst Daftris, Jamadars and Library Attendants with five years service in the grade, failing which from amongst the peons with at least 7 years service. There is a note which is to the following effect- "Note: - Only those with minimum Educational qualification of knowledge and experience of book-binding would be eligible for consideration. 2. Thus, the only distinction for promotion to the post of clerk/Proof Reader/Copy holder and Book Binder is that in former case, the ratio is 10% by promotion and rest by direct recruitment. Whereas in case of Book Binder, it is 100% by promotion. Further distinction is of educational qualification for both the above posts. For the post of Clerk/Proof Reader/Copy Holder, candidate has to be a Matriculate or equivalent pass; whereas in the case of Book Binder, the candidate has to be middle examination pass. Relevant extract from the above noted Recruitment Rules is placed on the file as Annexure PA. 3. Another fact that needs to be noted here is that the pay scale of the posts of Clerk/Proof Reader/Copy Holder, as well as Book Binder is the same. Vide Annexure PB, petitioner was promoted as Book Binder on 1.8.1989. After having been promoted, according to Mr. R.P. Singh, and having joined as such, she immediately represented to respondent No.1 vide Annexure PC saying that by joining as Book Binder as a Matriculate, she is neither giving up nor foregoing her right to be promoted as Clerk as and when vacancy is available as she is eligible also to be considered for promotion against such post. R.P. Singh, and having joined as such, she immediately represented to respondent No.1 vide Annexure PC saying that by joining as Book Binder as a Matriculate, she is neither giving up nor foregoing her right to be promoted as Clerk as and when vacancy is available as she is eligible also to be considered for promotion against such post. Vide Annexure PD, she gave instances, where other similarly situate persons like her were appointed against one post, but were given benefit of vacancy against the other post be inducting in the other cadre. 4. Mr. R.P Singh laid emphasis on paragraphs 4 and 5 of Annexure PD. Thus he has sought direction to respondent No.2 that after setting aside the rejection of the proposal sent by respondent No.1, further directing respondent No.2 for allowing merger of the post of Book Binder in the cadre of Clerks of Vidhan Sabha. Thereafter directing respondent No.1 that after the petitioner is inducted in the cadre of Clerks, to give consequential benefits to her of promotion etc. 5. So far respondent No.1 is concerned, its case is that the proposal was sent to respondent No.2 for merger of the post of Book Binder with that of Clerks and allow the post of Book Binder to be converted as such. As according to this respondent, most of the book - binding work is being done by Government press. So, there was practically no book binding work left with it. Since this proposal was not approved by respondent No.2 as such no benefit can be given to the petitioner. 6. On the other hand, stand of the respondent No.2 is that in case petitioner can be adjusted in the existing cadre of Clerks, it has no objection to the merger of the posts of Book Binder in the cadre of Clerks. Otherwise, according to this respondent, the proposal of merger of the post of Book Binder in the Vidhan in the cadre of Clerks cannot be accepted. 7. In the aforesaid factual background, Mr. R.P Singh, learned counsel for the petitioner urged that in the instant case, action of respondent No.2 is highly unjust and arbitrary besides being contrary to the earlier precedent as referred to in Annexure PD. 7. In the aforesaid factual background, Mr. R.P Singh, learned counsel for the petitioner urged that in the instant case, action of respondent No.2 is highly unjust and arbitrary besides being contrary to the earlier precedent as referred to in Annexure PD. Thus, it is not only ultra vires of Article 14 of the constitution of India, but it also violates Article 16 thereof as it discriminates between similarly situated -persons in the matter of Public employment. He further submitted that in the circumstances of this case, no additional, other or further financial burden is involved which may justify the action of respondent No.2. 8. So far respondent No.1 is concerned, Mr. Sood pointed out that for creation of the post, proposal was not agreed upon by respondent No.2. As such his client is not in a position to do anything in the matter. In case respondent No.2 on its own agrees, his client will have no objection to bring the petitioner in the cadre of Clerks. Otherwise Mr. Sood Submitted that no relief can be given to the petitioner. Thus, the writ petition is liable to be dismissed. 9. Learned Advocate General submitted that though prayer for merger of the I post of the Book Binder into the cadre of Clerks appears Prima facie to be innocuous and innocent, but when examined in depth, the action of his client cannot be said either arbitrary or unreasonable, much less discriminatory. With a view to support his case, he produced the record where the proposal was considered, not once but twice and thereafter on due consideration and application of mind the same had been rightly rejected. 10. After having heard learned counsel for the parties and for the reasons to be recorded hereinafter, I am of the view that no relief can be granted to the petitioner. 11. Admittedly petitioner was eligible for being promoted from Class IV post of peon to Class III post (Book Binder). After having availed the benefit of such promotion, she hastened to represent vide Annexure PC. This was followed by Annexure PD. In this behalf, when a reference is made to the reply of respondent No.1 it is clear that till the petitioner was confirmed, no person junior to her was inducted into the cadre of Clerks. After having availed the benefit of such promotion, she hastened to represent vide Annexure PC. This was followed by Annexure PD. In this behalf, when a reference is made to the reply of respondent No.1 it is clear that till the petitioner was confirmed, no person junior to her was inducted into the cadre of Clerks. It hardly needs to be clarified that once a person is promoted and thereafter confirmed, then under service jurisprudence, such promotee looses his lien in the lower post. This is what has exactly happened in the present case. It is also not the case of the petitioner that anyone who was junior to her was promoted as Clerk till, she was confirmed as Book Binder. 12. Another reason to reject the claim of the petitioner is that once the post of Book Binder is ordered to be merged into the cadre of Clerks or it is abolished and then prayer made by the petitioner to treat her as Clerk is accepted, then either on law or otherwise, she cannot be denied her right of consideration for further promotion as Senior Clerk, Junior Assistant, Senior Assistant, Deputy Superintendent etc. This entails financial implication. As such it cannot be said that the action of respondent No.2 suffers from any infirmity, so as to call for interference in this case. 13. Faced with this situation, learned counsel for the petitioner submitted that looking to the age of his client, she will stagnate as a Book Binder throughout her career. Reason being that in the relevant rules, there is no promotional or other avenue. Thus, a full stop is put on her career. In the alternative and without giving up the claim of the petitioner, as set up in this writ petition, Mr. R.P. Singh submitted that respondent No.1 may at least be directed to look into this aspect of the matter and if possible then in accordance with law, at least it may be directed to ensure that this stagnation is avoided, and if necessary, even by amendment of relevant rules. 14. No other point is urged. 15. R.P. Singh submitted that respondent No.1 may at least be directed to look into this aspect of the matter and if possible then in accordance with law, at least it may be directed to ensure that this stagnation is avoided, and if necessary, even by amendment of relevant rules. 14. No other point is urged. 15. In view of the aforesaid discussion, while dismissing this writ petition being without any merit and upholding the action of respondent No.2 in not agreeing to the proposal of respondent No.1, it is ordered that let respondent No.1 consider case of the petitioner, of course, in accordance with law and if it is found that with a view to mitigate the hardship to her, as noted hereinabove, it may, if again it thinks proper to look into the desirability of amendment of rules as per law. Costs on the parties. Record produced by the learned Advocate General has been returned to him in the Court.