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2010 DIGILAW 1068 (HP)

Kanhaya Lal Verma v. State of Himachal Pradesh

2010-08-30

RAJIV SHARMA

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JUDGMENT : RAJIV SHARMA, J. 1. Material facts necessary for the adjudication of this petition are that the petitioner was appointed as Drawing Inspector Electrical in Government Polytechnic, Sundernagar on 1.1.1979. This post was in feeder category for promotion for the post of Lecturer (Electrical Engineering). Respondent-State has framed the rules for promotion for the post of Lecturer (Electrical Engineering) on 13.7.1973. Petitioner was promoted as Lecturer (Electrical Engineering) on ad hoc basis for six months or till the post was filled up by regular promotion, whichever was earlier. Petitioner was regularised as Lecturer (Electrical Engineering) on 29.9.1992. Tentative seniority list, as on 31.3.1995, was circulated on 29.9.1995. Petitioner made representation on 12.10.1995. Thereafter without taking into consideration the representation made by the petitioner, respondent-State issued final seniority list, as it stood on 31.3.1995, on 20.10.1995. He made representation against the final seniority on 30.11.1995. 2. Mr. Dilip Sharma has strenuously argued that his client was fully eligible and qualified for promotion to the post of Lecturer (Electrical Engineering) and he ought to have been appointed on regular basis instead of ad hoc basis with effect from 29.11.1986. He then contended that assuming not conceding that his client had acquired the educational qualification in the year 1988 in that eventuality, he was to be considered for promotion from the 1988 onwards. 3. Mr. P.M. Negi, learned Deputy Advocate General and Mr. Vikas Bhardwaj have strenuously argued that the petitioner has rightly been regularised with effect from 24.9.1992 and he cannot rank senior to respondent No. 2, who has been appointed by way of direct recruitment in the month of January, 1992. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. As per pleadings, four posts of Lecturer in the subject of Electrical Engineering were already available and filled up as on 27.11.1985. Thereafter one post was created on 28.11.1985 followed by another post on 25.4.1986. Petitioner was promoted on ad hoc basis with effect from 29.11.1986. He has passed TTTI diploma in 1983. The question whether the petitioner was qualified or not for being considered for promotion to the post of Lecturer in the subject of Electrical Engineering is no more res integra in view of the judgment rendered by this Court in CWP No. 283/1974, titled S.C. Mata v. The State of Himachal Pradesh and others, decided on 3.9.1985. The question whether the petitioner was qualified or not for being considered for promotion to the post of Lecturer in the subject of Electrical Engineering is no more res integra in view of the judgment rendered by this Court in CWP No. 283/1974, titled S.C. Mata v. The State of Himachal Pradesh and others, decided on 3.9.1985. This Court has held as under: "It is obvious from a reading of the aforesaid columns of the Schedule attached to the Rules that column No. 7 deals with educational and other qualifications for direct recruits. In educational qualifications we find mention Bachelors degree in Mechanical/Auto Engineering or its equivalent and in the alternative Diploma in Mechanical/Auto Engineering with T.T.T.I Diploma. In the other qualification we find that in the case of candidates possessing Bachelors degree in Mechanical/Auto Engineering or its equivalent they should possess two years profession experience after obtaining T.T.T.I. Both these qualifications, educational and other, must co-exist in the candidate for direct recruitment. Next column, that is, column No. 8 deals with the question whether age and educational qualifications prescribed for direct recruitment apply in the case of promotees as well. It is pertinent to note that whereas this column deals with age and educational qualifications it does not deal with other qualifications mentioned in the preceding column No. 7. It is laid down in this column No. 8 that whereas the qualifications regarding age will not apply in the case of promotees, the qualification regarding minimum educational qualification will apply. With respect to experience in the case of promotees there is a separate column being column No. 11 which says that in case of promotees belonging to any of the feeder post, they must have four years service in their respective grade. Service experience of four years prescribed in the case of promotees is under column No. 11, though in column No. 8 the query raised was only with respect to the educational qualifications whether such qualification as prescribed for direct recruits was applicable in the case of promotees also. The other essential qualification in the case of direct recruits comprising of professional experience was not considered essential in the case of promotees on account of the minimum service experience prescribed for them in column No. 11. The other essential qualification in the case of direct recruits comprising of professional experience was not considered essential in the case of promotees on account of the minimum service experience prescribed for them in column No. 11. It is not, therefore, correct to say that the qualification other than the educational qualifications prescribed for direct recruits are attracted in the case of promotees as well. The professional experience of two years and five years as mentioned under column No. 7 is intended only for direct recruits and not for the promotees for whom the requisite experience has been prescribed in column No. 11." 6. The Court had directed the respondent-State to produce the record of the Departmental Promotion Committee. The record was produced by Mr. P.M. Negi. It will be apt at this stage to reproduce paragraphs No. 3, 4 and 5 of the minutes of the Departmental Promotion Committee held on 10.7.1992, which read thus: "3. The Committee then proceeded to consider such officials who were eligible in terms of Column No. 8 and 11 of the R&P Rules in the year of occurrence of vacancy and after having examined their ACRs for the last five years i.e. 1980-81 to 1984-85 in respect of the post of year 1985, 1981-82 to 1985- 86 in respect of the post of year 1986 and for the years 1985- 86 to 1989-90 in respect of the post of 1987, since no official became eligible prior to the year 1990, assessed them in order of seniority, as under: YEAR 1985 1. Sh. Satish Chand... Found fit and assessed as Very Good. 2. Sh. Kanhaya Lal ... Found fit and assessed as Good. YEAR 1986 1. Sh. Satish Chand... Already recommended in 1985. 2. Sh. Kanhaya Lal ... Found fit and assessed as Good. YEAR 1987 (Carried forward to the year 1990 due to non availability of eligible official prior to 1990) 4. The Committee also perused the Integrity and Vigilance Clearance Certificates of the above mentioned eligible officials and was satisfied that no departmental/Vigilance case was pending against any of them and that their integrity was not in doubt. 5. Based on the above assessment, the Committee recommends the names of following officials for promotion to the posts of Lecturer in Electrical Engineering (Class-I) in the scale of Rs. 2200-4000 plus Rs. 200/-. S.P., in order of merit. YEAR: 1985 Sh. Satish Chand. 5. Based on the above assessment, the Committee recommends the names of following officials for promotion to the posts of Lecturer in Electrical Engineering (Class-I) in the scale of Rs. 2200-4000 plus Rs. 200/-. S.P., in order of merit. YEAR: 1985 Sh. Satish Chand. YEAR: 1986 Sh. Kanhaya Lal. YEAR: 1990 1. Sh. Vinay Kumar Vaidya; and 2. Sh. Prem Parkash Sharma." 7. A bare perusal of the same reveals that the petitioner was found fit and assessed as Good in the year 1985 and he was again found fit and assessed as Good in the year 1986. According to para 5 of the minutes, case of the petitioner has been recommended for promotion to the post of Lecturer in Electrical Engineering (Class-I) in the pay scale of Rs. 2200-4000 plus Rs. 200/- special pay, in order of merit. In these circumstances, the reply filed by the respondent-State that the post was not available in the year 1986 is factually incorrect. He has been considered by the Departmental Promotion Committee against the post of Lecturer in Electrical Engineering available in the year 1986 in promotee quota. It is intriguing to note that once the vacancy was available and the petitioner was eligible and qualified, there was no reason why the Departmental Promotion Committee was not convened for six years. Petitioner cannot be faulted for the same. Respondents cannot take advantage of their own wrongs. 8. The matter is required to be considered from another angle. It has come in the reply, as noticed above, that one vacancy had become available on 28.11.1985 followed by another vacancy on 25.4.1986. It is in these circumstances that the petitioner was appointed as Lecturer in the subject of Electrical Engineering against these posts on ad hoc basis. Respondent No. 2 has been appointed as Lecturer in the subject of Electrical Engineering by way of direct recruitment in the month of January, 1992. Since the Departmental Promotion Committee has considered the case of the petitioner in the year 1986, ad hoc promotion of the petitioner dated 29.11.1986 is required to be regularised for all intents and purposes from this date. 9. Accordingly, in view of the observations made herein above, the petition is allowed. Since the Departmental Promotion Committee has considered the case of the petitioner in the year 1986, ad hoc promotion of the petitioner dated 29.11.1986 is required to be regularised for all intents and purposes from this date. 9. Accordingly, in view of the observations made herein above, the petition is allowed. Petitioner shall be deemed to have been promoted on regular basis with all the consequential benefits with effect from 29.11.1986, as per recommendations made by the Departmental Promotion Committee, whereby he has been considered for promotion in the year 1986. He shall rank senior to respondent No. 2. There shall, however, be no order as to costs.