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Himachal Pradesh High Court · body

2011 DIGILAW 893 (HP)

Om Parkash v. State of H. P.

2011-03-04

RAJIV SHARMA

body2011
JUDGMENT Rajiv Sharma, Judge. Petitioner was appointed as P.T.I. on 13.9.1971. He joined his duties on 23.9.1971. He improved his educational qualification by acquiring degree of B.A. and also qualified D.P.Ed. course. He was promoted to the post of D.P.Ed. on 5.2.1988. He jointed his duties on 27.2.1988. The post of P.T.I. was in feeder category for promotion to the post of Assistant Physical Training Supervisor with graduation and diploma in Physical Education both of a recognized University or Bachelor of Physical Education and three years experience as D.P.E./P.T.I. in a recognized High/Higher Secondary Schools. The mode of recruitment is 75% by way of promotion and 25% by way of direct recruitment. Respondents No.4 and 5, being ex-servicemen, were given the benefit of approved military service under the Demobilized Armed Forces Personal (Reservation of Vacancies in Himachal Pradesh State Non-Technical Services) Rules, 1972. Respondents No. 4 and 5 were promoted to the post of Assistant Physical Training Supervisor in the year 1999. 1. Mr. M.C. Verma has strenuously argued that respondents No. 4 and 5 were to be given the benefit of seniority under the Demobilized Armed Forces Personal (Reservation of Vacancies in Himachal Pradesh State Non-Technical Services) Rules, 1972 after they acquired the qualification of B.A. and diploma of D.P.Ed. He has placed strong reliance upon the judgment rendered by a Division Bench of this Court in CWP No. 488/2001 decided on 29.12.2008. 2. Mr. P.M. Negi, learned Deputy Advocate General and Ms. Archana Dutt have vehemently argued that respondents No.4 and 5 rank senior to the petitioner on the basis of the seniority assigned to them after counting their approved military service. 3. I have heard the learned counsel for the parties and have perused the pleadings carefully. 4. Petitioner was promoted to the post of D.P.E. on 5.2.1988 and he joined his duties on 27.2.1988. It is not in dispute that the post of D.P.E. was in feeder category for promotion to the post of Assistant Physical Training Supervisor. Essential qualification for filling up the post of Assistant Physical Training Supervisor is that the candidate should be graduate with diploma in physical education from a recognized University. Petitioner was already possessing the qualification of B.A. and D.P.Ed. 5. Respondent-State has issued tentative seniority list of D.P.Es., as it stood on 31.12.1990, on 18.1.1991. Thereafter another seniority list pertaining to D.P.Es. Petitioner was already possessing the qualification of B.A. and D.P.Ed. 5. Respondent-State has issued tentative seniority list of D.P.Es., as it stood on 31.12.1990, on 18.1.1991. Thereafter another seniority list pertaining to D.P.Es. Annexure A-5, as it stood on 1.1.1999, was issued. Respondents No. 4 and 5 are at Sr. No. 5 and 6 of the seniority list, respectively. Their dates of appointment as D.P.Es. are 20.6.1995 and 14.6.1994, respectively. Respondents No.4 and 5 have been given the benefit of seniority, as per office order dated 4.11.1997 by counting their seniority with effect from 1.10.1978 and 6.10.1978, respectively. They have been assigned seniority as per Annexure R-5/1 at Sr. No. 3 and 4, respectively. Case of the respondent-State is also that respondents No. 4 and 5 have been given the benefit of being ex-servicemen as per rule 5 (1) of the Demobilized Armed Forces Personal (Reservation of Vacancies in Himachal Pradesh State Non-Technical Services) Rules, 1972. 6. Mr. M.C. Verma has strenuously argued that respondents No. 4 and 5 have been given the benefit of seniority from the date of their recruitment in the Army and not from the date they have acquired the essential educational qualification of B.A. and diploma in D.P.Ed. These averments find mention in ground No. (xvi) (f) of the petition as well as in the rejoinder filed to the reply of respondents No. 1 to 3. Respondent No.4 had been proceeded ex parte on 3.5.2007. Respondent No.5 has not given the date when he acquired the qualification of B.A. and D.P.Ed. Respondents No.1 to 3 have also not placed on record any tangible evidence to prove the date of acquiring essential qualification by respondents No.4 and 5 prescribed under the Recruitment and Promotion Rules for filling up the post of Assistant Physical Training Supervisor vide Annexure A-3. 7. The question raised in this petition that from which date the ex-serviceman has to be given the benefit of seniority is no more res integra in view of law laid down by the Division Bench of this Court in CWP No. 488/2001, titled V.K. Behal and othersversus State of Himachal Pradesh and others, decided on 29.12.2008. The Division Bench of this Court has held that in all cases the benefit of past service can only be available from the date when the ex-servicemen acquired the minimum educational qualification. The Division Bench of this Court has held that in all cases the benefit of past service can only be available from the date when the ex-servicemen acquired the minimum educational qualification. No benefit can be given for the army service rendered prior to the date of attaining such educational qualification. The Division Bench has held as under: "In view of the above discussion, the writ petition is allowed. The provision of Rule 5 (1) of the Rules are read down and they are held to be unconstitutional in so far as they give benefit of counting the past army service towards seniority in civil employment in case of ex-servicemen who have not joined the Armed forces during the period of emergency. It is also held that the benefit of such service cannot be given from a date prior to the date when the ex-serviceman attains the minimum educational eligibility criteria prescribed in the rules. Consequently, the seniority list Annexure P-3 is held to be illegal and is accordingly quashed and the respondents are directed to re-frame the same in accordance with the directions issued hereinabove. There shall be no order as to costs.” 8. In the instant case also, respondents No.4 and 5, as per the pleadings, have been given the benefit of entire past service, without taking into consideration the date of acquiring the minimum educational qualification, i.e. B.A. with D.P.Ed. Respondents No.4 and 5 have been promoted to the post of Assistant Physical Training Supervisor by giving them the benefit of entire past service in the year 1999. It was not permissible under law. Their seniority was to be reckoned from the date they had acquired the minimum educational qualification of B.A. with D.P.Ed. 8. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure R-5/1 dated 4.11.1997 is quashed and set aside and the consequent promotion of respondents No.4 and 5 to the post of Assistant Physical Training Supervisor is also quashed and set aside. Respondent-State is directed to redraw the seniority of respondents No.4 and 5. Thereafter necessary steps shall be taken to consider the petitioner and respondents No.4 and 5 strictly as per the Recruitment and Promotion Rules. Needful be done within a period of two months from the date of production of certified copy of this judgment by the petitioner. Respondent-State is directed to redraw the seniority of respondents No.4 and 5. Thereafter necessary steps shall be taken to consider the petitioner and respondents No.4 and 5 strictly as per the Recruitment and Promotion Rules. Needful be done within a period of two months from the date of production of certified copy of this judgment by the petitioner. There shall, however, be no order as to costs.