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Himachal Pradesh High Court · body

2009 DIGILAW 122 (HP)

BAKSHI RAM SHARMA v. STATE OF HIMACHAL PRADESH

2009-03-10

SANJAY KAROL

body2009
JUDGMENT Sanjay Karol, J. (Oral):-The petitioner served the Indian Army from 1965 upto 1981. He was re-employed with the respondents as Surveyor in September, 1984, but however, the benefits of the military services rendered by him were not given to him. Hence he had to file OA No. 35 of 1992 before the Tribunal which was allowed in terms of order dated 27th May, 1993 wherein it was directed that the benefits of the approved military service be given to the petitioner. 2. However, with regard to the consequential benefits the matter was left to the discretion of the respondent/State. 3. The petitioner has filed the present petition seeking a direction that the respondents be directed to promote him to the post of Junior Engineer from the date when persons junior to him were promoted. It is his grievance that his juniors namely Sh. Budh Ram, Sh. Kundan Singh, Sh. Chuhar Singh were promoted but, however, he was unfairly and illegally left out for the reasons purely known to the respondents. 4. The respondent/State has filed the reply only stating that since the petitioner did not fulfill “8 years service condition”, as stipulated in the criteria for eligibility in the relevant Rules, he was not entitled to be considered for the promotion to the post of Junior Engineer. The reply is conspicuously silent with regard to the promotion of the above named junior persons. 5. As per the Recruitment and Promotion Rules, for the post of Junior Engineer in the Department of Agriculture, Himachal Pradesh the eligibility criteria no doubt prescribes that only such of those Surveyors who have eight years of regular service would be considered for promotion to the post of Junior Engineer but, however, the Rule itself creates an exception. 6. The relevant provisions of the Rules are reproduced as under: “11. In case of By promotion from amongst the recruitment by Surveyors with 8 years regular service promotion, deputation, or regular combined with continuous transfer, grade from adhoc (rendered upto 31.3.1991) which promotion/ service in the grade. deputation/ transfer to be made. 6. The relevant provisions of the Rules are reproduced as under: “11. In case of By promotion from amongst the recruitment by Surveyors with 8 years regular service promotion, deputation, or regular combined with continuous transfer, grade from adhoc (rendered upto 31.3.1991) which promotion/ service in the grade. deputation/ transfer to be made. Note-1 In all cases of promotion, the adhoc service rendered in the feeder post upto 31.03.1991, if any, prior to regular appointment to the post shall be taken into account towards the length of service as prescribed in these Rules for promotion subject to the condition:- (a) that in all cases where a junior person becomes eligible for consideration by virtue of his total length of service (including the service rendered on adhoc basis upto 31.03.1991) in the feeder post in view of the provisions referred to above, all persons senior to him in the respective category/post/cadre shall be deemed to be eligible for consideration and placed above the junior person in the field of consideration; Provided that all incumbents considered for promotion shall possess he minimum qualifying service of at least three years or that prescribed in the Recruitment and Promotion Rules for the post, whichever is less; Provided further that where a person becomes ineligible to be considered for promotion on account of the requirements of the preceding proviso, the persons(s) junior to him shall also be deemed to be ineligible for consideration for such promotion.” (Emphasis supplied) 7. Bare reading of the Rule itself would show that persons who are senior and have minimum qualifying service of at least three years would be deemed to be eligible for consideration if persons junior to them became eligible for consideration after a period of 8 years of service. Infact, strangely though, it bars promotion of juniors till the time seniors became eligible for consideration. 8. In the present case the petitioner was appointed as Surveyor in the year 1984. Persons junior to him were promoted as Junior Engineer in the year 1989. The petitioner admittedly had three years of minimum qualifying service and was thus fully eligible to have been considered for promotion to the post of Junior Engineer. 9. The action of the respondents undoubtedly is contrary to the Rules. The petitioner was fully eligible for consideration for the promotion to the post of Junior Engineer. The petitioner admittedly had three years of minimum qualifying service and was thus fully eligible to have been considered for promotion to the post of Junior Engineer. 9. The action of the respondents undoubtedly is contrary to the Rules. The petitioner was fully eligible for consideration for the promotion to the post of Junior Engineer. Nothing else has been shown and argued which would disentitle the petitioner for the relief claimed in the petition. 10. Under the facts and circumstances, the petition is allowed and the respondents are directed to consider promoting the petitioner for the post of Junior Engineer from the date when persons junior to him were promoted. The petitioner shall also be entitled to all consequential benefits in accordance with law. 11. No other point urged. 12. The petitioner was unfairly deprived of his legal right and was forced to approach the Court twice. Under the circumstances, he shall also be entitled to costs quantified at Rs. 11,000/-