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2012 DIGILAW 47 (HP)

Bansi Lal Gazta v. State of Himachal Pradesh

2012-01-13

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. The petitioner was appointed as Clerk in the office of Deputy Commissioner, Solan on 7.1.1977. He was confirmed on 26.11.1980. Petitioner was promoted as Junior Assistant on 1.1.1986. In the final seniority list of Clerks of the office of Deputy Commissioner, Solan as it stood on 31.3.1994, respondents No.3 to 5 are at Sr. No.5, 7 and 14 and the petitioner is at Sr. No.18. The post of Junior Assistant is in the feeder category for promotion to the post of Senior Assistant. The respondent-State has initiated the process of filling up the post of Senior Assistants. The Departmental Promotion Committee was convened which led to the promotion of respondents No.3 and 4 vide office order dated 30.1.1996. Respondent No.5 was promoted to the post of Senior Assistant on 18.10.1996 against roster point No.28. Respondents No. 3 and 5 are from ex-servicemen category and they also belong to Scheduled Caste category. 2. Mr. P.D. Nanda, learned counsel for the petitioner has strenuously argued that the petitioner's name was required to be considered against point No.28 for promotion to the post of Senior Assistant. According to him, as per law laid down by the Hon'ble Supreme Court of India in Rajesh Kumar Daria v. Rajasthan Public Service Commission and Others, (2007) 8 SCC 785 if a candidate is selected on his own merit, his seniority is not to be treated against the reserved quota. He has further argued that respondent No.3 was to be promoted against roster point No.20 and Shri Shyam Lal against roster point No.22 and the petitioner against roster point No.28. 3. Mr. Vikas Rathore, learned Deputy Advocate General has argued that the case of respondents No.3 to 5 has rightly been considered as per instructions issued by the State Government, dated 18.12.1975. 4. I have heard learned counsel for the parties and gone through the pleadings and record carefully. 5. Respondents No.3 and 5 belong to ex-servicemen category. They have been appointed after the petitioner. They have been given the benefit of ex-servicemen category towards seniority. The promotions were effected on 30.1.1996 whereby respondent No.3, one Gurbax Singh and respondent No.4 were promoted to the post of Senior Assistant. These promotions were made against roster points No.20, 21 and 22. Roster Points No.20 and 21 were unreserved and point No.22 was reserved for Scheduled Caste category. The promotions were effected on 30.1.1996 whereby respondent No.3, one Gurbax Singh and respondent No.4 were promoted to the post of Senior Assistant. These promotions were made against roster points No.20, 21 and 22. Roster Points No.20 and 21 were unreserved and point No.22 was reserved for Scheduled Caste category. Respondent No.3 was required to be considered against roster point No.20 and Gurbax Singh against roster point No.21. Respondent No.5 was required to be promoted against this point reserved for Scheduled Caste category, i.e. Sr. No.22. The instructions, dated 18.12.1975 relied upon by the State are contrary to the law laid down by the Hon'ble Supreme Court. It is settled law by now that if a candidate belonging to reserved category is selected on his own merit/seniority, he is not to be reckoned against reserved quota. 6. In the instant case, respondent No.3 was to be promoted at his own merit/seniority against roster point No.20 and the same could not be reckoned against reserved quota point No.22. Roster point No.22 was only meant for the candidate belonging to Scheduled Caste category and the action of respondent-State of promoting respondent No.3 against this point was contrary to law. In this view of the matter, respondent No.5 was required to be considered against roster point No.22 and not against point No.28 as stated in the reply. The petitioner was to be considered for promotion against roster point No.28 which was also reserved for Scheduled Caste category. The petitioner has also placed on record the copies of Departmental Promotion Committee's recommendations on the basis of which respondents No.3 to 5 were promoted. The petitioner has also placed on record the instructions dated 27.5.1996 whereby it is clearly stated that while determining the number of candidates belonging to Scheduled Caste category, but selected/promoted on their own merit, shall not be counted as reserved category candidates. These instructions have been issued after the decision of R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 case. While promoting respondents No.3 and 4, the respondents have again taken into consideration the instructions dated 18.12.1975 vide Annexure A-8. It is reiterated that the promotion of respondent No.3 ought to have been against roster point No.20 only and Gurbax Singh against roster point No.21 and that of respondent No.5 against point No.22. Promotion of Chiranji Lal was contrary to law. It is reiterated that the promotion of respondent No.3 ought to have been against roster point No.20 only and Gurbax Singh against roster point No.21 and that of respondent No.5 against point No.22. Promotion of Chiranji Lal was contrary to law. Respondent No.3 could not be reckoned for promotion against roster point No.22. Point No.22 has never become available for general category as argued by Mr. Vikas Rathore, learned Deputy Advocate General. 7. It is well settled by now that in vertical reservation, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs stood filled. The entire reservation quota will be intact and available to SC category in addition to those selected under Open Competition category (see Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 , Union of India v. Virpal Singh Chauhan, : (1995) 6 SCC 684 , Ritesh R. Sah v. Dr. Y.L. Yamula, : (1996) 3 SCC 253 ). 8. In normal circumstances the promotion/ appointment of respondent No.4 to the post of Senior Assistant was liable to struck down. However, in the interest of justice, the Court is of the view that since 15 years period has elapsed, his promotion is not liable to be set aside. 9. Accordingly, in view of the observations and discussions made hereinabove, writ petition is allowed. Respondents No.1 and 2 are directed to consider the case of the petitioner for promotion to the post of Senior Assistant against roster point No.28 without disturbing the promotions of respondents No.3 to 5, within a period of two months after the date of production of certified copy of this judgment with all consequential benefits, and if need be, by creating supernumerary post. The pending application(s), if any, also stands disposed of. No costs.