Research › Search › Judgment

Himachal Pradesh High Court · body

2011 DIGILAW 1372 (HP)

Daya Ram Kaundal v. State of Himachal Pradesh

2011-03-17

V.K.SHARMA

body2011
JUDGMENT V.K.Sharma, Judge The petition has been filed on the following prayer:- “Because the Applicant is senior to Respondent No.3 on the entry grade post and also on the post of Upper Division Clerk in the pay scale of Rs.570-1080 and drawn higher pay in the pay scale of s. 570-1080 which promotion was conferred on merit basis, he has been confirmed on the post of Assistant in the pay scale of Rs. 57—1080 earlier to Respondent No.3 which forms anchorsheet for determining seniority & promotion on posts mentioned in Sub-Para (f) herein above, as demonstrated in Para-6 herein above, who ahs been assigned seniority erroneously, unfairly and arbitrarily in utter violation of Apex Court judgments cited in Para-6 and its Sub-Paras he is lawfully entitled for seniority and promotion on all posts of Supdt. Gr.II, Supdt. Gr.I earlier to Respondent No.3. In view of this, the impugned order (Annex.A-1) being grossly, illegal, unfair and unjust and violative of Principles of Natural Justice, may be quashed and set aside and the Respondents No. 1 & 2 may be directed to consider the case of the applicant for promotion to the post of Registrar.” 2. In reply, respondents No. 1 and 2 have taken the following stand vide para 5 of the preliminary submissions:- “That the applicant has admitted that he was appointed as Clerk on 02-06-66 in the department and continued in the same cadre whereas the respondent No.3 was appointed as Steno Typist on 11-08-1966 in the department. Therefore, it is clear that the applicant belongs to Clerical cadre and the respondent No.3 belongs to the Stenographers cadre and the department has maintained different seniority for both these categories. As per provisions contained in R & P rules for HP PWD Subordinate Class-III (Clerical and Stenographer Services) 1960 both the Rs.25/-as Special pay whereas Clerks were in the scale of Rs.110-250 only. Further, the promotional channel of both the categories were also different as the clerks who used to pass the departmental examination were only designated as Sub Divisional Clerk granting Rs.20/- as Cash allowance. These Sub Divisional Clerks were eligible for promotion to the post of Accounts Clerk till 24-10-1975 whereas the Steno Typists were eligible for promotion to the post of Junior Scale Stenographers/Circle Stenographers according to the availability of post in their cadre. These Sub Divisional Clerks were eligible for promotion to the post of Accounts Clerk till 24-10-1975 whereas the Steno Typists were eligible for promotion to the post of Junior Scale Stenographers/Circle Stenographers according to the availability of post in their cadre. Later on the Accounts Clerk and Junior Scale Stenographers / Circle Stenographers were promoted as Head Clerk in the ratio of 9:1 (9 from Accounts Clerk and 1 from the category of Stenographer) meaning thereby 9 post were filled from Clerk cadre and every 10th post was to filled by promotion from Stenographer category according to the seniority position in their respective cadre irrespective of seniority position in both the cadres for placement of seniority of Head Clerk /Senior Assistants and the seniority positions w as determined on the post of Head Clerks /Senior Assistant according to roster point of reservation. It may be stated that the candidates who were promoted under the rule of reservation by jumped up promotion under the roster point, their seniority was subject to change as per Department of Personnel letter dated 27-05-96 copy of Notification annexed as Annexure R-I. The respondent No.3 is from the Stenographers (general) category whereas the applicant is from Clerical (reserved) category getting jumped up promotion / seniority and as such, his claim for seniority with other category categories have different identity, qualifications and pay scale. The Steno were in the scale of Rs.110-250 + i.e. Stenographer category is based on surmises and conjuncture without any cogent grounds. Therefore the claim of the applicant is un warranted, baseless, wrong and is not tenable.” 3. The following averments have been set up on behalf of respondent No.3, vide para 6.iv(4) of the reply:- “That in reply to this para it is submitted that the applicant as well as the replying respondent no.3 was promoted as supdt. Grade III, subsequently Grade II. However it is submitted that the applicant was promoted as such against the rule of reservation being Schedule Caste candidate, were as the replying respondent no.3 was promoted as general candidate in his turn and in the ratio of 9:1. therefore the jumped up promotion acquired by the applicant was to be changed for the purpose of fixing his seniority as and when the candidate from the general category, senior to him in the entry trade is promoted to the post. therefore the jumped up promotion acquired by the applicant was to be changed for the purpose of fixing his seniority as and when the candidate from the general category, senior to him in the entry trade is promoted to the post. Since both were promoted by a single order dated 27.6.1989 as Supdt. Grade-III, re-designated as Supdt. Grade-II, therefore the seniority of the applicant w as re-fixed after promotion in the Supdt.Grade-II and subsequently, the department issued a provisional seniority list of Supdt. Grade-II on 17.5.1994, where in the name of the replying respondent figures at sr. no. 65 and the name of the applicant at sr. no. 66. The afore said list was made final in the year, 1997. The applicant did not challenge the said seniority position, which has become final now. There after the applicant as well as the replying respondent was promoted to the post of Supdt. Grade-I on 17.7.2000 and thereafter the provisional seniority list of Supdtt. Grade-I was circulated on 4.9.2003, where in the name of the replying respondent figures at sr. no. 5 and the name of the applicant at sr. no. 16. The afore said seniority list was finalized on 29.6.2004. The applicant did not object this seniority position also which is final. Therefore the applicant has got no right to challenge the promotion of the applicant as Registrar, without challenging the seniority of Supdtt. Grade.II and Grade. I, which stands finalized .” 4. Rejoinder refuting the above stand on behalf of respondents No. 1 and 2 and reiterating the averments set up in the petition, has been filed. 5. The grievance raised by the petitioner is with regard to seniority and promotion vis-à-vis respondent No.3. Admittedly, both, the petitioner and respondent No.3, have since retired from service of the respondent-department. 6. In the facts and circumstances of the case, the petition is disposed of with a direction that subject to the petitioner making a detailed representation supported by documents along with copy of this judgment to respondent No.1 within two months from today, the same shall be considered and decided by the said respondent in accordance with law within next two months, after affording an opportunity of being heard, to the petitioner and respondent No.3, if so desired. 7. The petition, as also pending CMP(s), if any, stand disposed of in the above terms.