Gurdev Singh vs State Of Himachal Pradesh And Ors

Sandeep Sharma, J

Petitioner was appointed as Sepoy/Jail Warder on 28.3.1992 on regular basis, whereafter he continued to serve in the aforesaid capacity in different jails located in the State of Himachal Pradesh. At the time of his initial appointment as Warder, petitioner was only middle pass (R-1). Recruitment and Promotion Rules, 2001, for the post of Head Warder in the department notified vide Home Department, Government of Himachal Pradesh Notification No. Home-B(B)2-4/94 dated 24.4.2002 (R-2), reveal that post of Head Warder is to be filled up by promotion from amongst the warders as under:-

(A) From amongst Warders with 10 years regular service:

(i) 20% from Non Matriculate Warders.

(ii) 70% from Matriculate Warders.

(B) From amongst Warders with 3 years regular service as Warders:

(i) 10% from amongst Warders who possess merit of exceptional order as per the scheme laid down with the Recruitment and Promotion Rules."

In terms of aforesaid rules, Departmental Promotion Committee held on 1.2.2006 considered the eligible candidates for promotion to the post of Head Warders for filling up 11 posts of Head Warders on the basis of seniority list of Warders as on 31.8.2001 (R3), but since the petitioner, who admittedly at that relevant time was not matriculate, was not senior amongst the persons who were to be considered against 20 % quota fixed for non matriculate Warders, his name could not be considered. Now the precise grouse of the petitioner, as emerge from the pleadings available on record, is that since he has already passed secondary school examination in the year, 2012, he was entitled to be considered for promotion to the post of Head Warders against 70 % quota earmarked for matriculate warders. Since aforesaid claim of the petitioner never came to be considered by the department, he was compelled to approach the Erstwhile HP State Administrative Tribunal by way of OA No. 3114 of 2015, which after abolishment stands transferred to this Court for adjudication, praying therein for following main reliefs:-

"(i) That the respondent department may kindly be directed to give promotion to the applicant to the post of Heard Warder, since the applicant has served for 23 years in the respondent department and the respondent department has promoted other similarly situated persons to the said post in the year 2006 & 2007.

(ii) That the respondent department may kindly be directed to carry the pay fixation of the applicant w.e.f. 2012 to the post of Head Warder with all consequential benefits.

(iii) That the respondent department may kindly be directed to pay the revised pension to the applicant qua the post of Head Warder."

Having heard learned counsel for the parties and perused material available on record, especially reply filed by the respondents, this Court finds that prior to year 2012, case of the petitioner for promotion to the post of Head Warder could not be considered for the reason that he was not matriculate. Though case of the petitioner repeatedly came to be considered against 20 % quota fixed for promotion to the post of Head Warder amongst warders, who were non-matriculate, but since he was junior in that category, his case could not be considered in that line. But now it stands admitted in the reply filed by the respondents that in the year, 2012, petitioner passed secondary school examination and as such, his case for promotion is required to be considered against 70% quota earmarked for matriculate warders. Respondents in their reply have categorically admitted that the petitioner after having passed his secondary school examination has become eligible for promotion against 70 % quota earmarked for matriculate warders with effect from the date he has passed his secondary school examination.

Mr. R.L. Chaudhary, learned counsel representing the petitioner fairly states that the petitioner would be content and satisfied in case, his case for promotion to the post of Head Warder is considered from the date he qualified his secondary Examination against the 70 % quota earmarked for matriculate Warders. Reply filed on behalf of the respondents reveals that case of the petitioner for promotion to the post of Heard Warders in the department could not be considered for the year, 2011 and 2012 onwards on account of non-finalization of the inter-se seniority of Warders as of 31.3.20111 vis-à- vis to the Ex-Servicemen Warders recruited in the Department during the year, 2007, 2008 and 2010 pursuant to the clarification issued by the Department of Personnel (AP-III) Government of Himachal Pradesh, vide letter No. PER (AP)-C-B (19)-3/96-Vol-VII dated 17.5.2013, forwarded with clarification vide Home Department Government of Himachal Pradesh, letter No. Home-B(B) 13- 1/201-Jails 89 dated 29.6.2013 regarding status quo order passed by the Hon'ble Apex Court in SLP (C) No.66-68 of 2008 on 3.3.2008 and in SLP (C) No. 8710 of 2009 on 16.3.2009 in the matter of granting the benefit of approved military service for the purpose of fixation of their seniority on re-employment under Rule 5 (1) of the Demobilized Armed Forces personnel (Reservation of Vacancies in Himachal State Non-Technical Services) Rules, 1972, which is applicable in the case of Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal Pradesh State Non-Technical Services) Rules from 16.3.2009. It stands categorically mentioned in the reply filed by the respondents that case of the petitioner for promotion would be considered after finalization of aforesaid SLP(s) pending before the Hon'ble Supreme Court. Having taken note of the pendency of SLP(s) as taken note herein above, this Court vide order dated 2.9.2020, directed the learned Additional Advocate General to ascertain the status of the aforesaid cases pending before the Hon'ble Apex Court.

Learned Additional Advocate General on instructions states that aforesaid SLP(s) stand finally decided and as such, now there appears to be no impediment in considering the case of the petitioner for promotion to the post of Head Warder from the date he qualified the secondary school examination as has been fairly admitted in the reply by filed by the respondents.

Consequently, in view of the above, present petition is disposed of with direction to the respondents to consider the case of the petitioner for promotion to the post of Head Warder from the date he qualified the secondary examination against the 70 % quota earmarked for matriculate warders subject to his eligibility and seniority. Since the petitioner has been contesting his claim for promotion for the last so many years, this Court hopes and trusts that needful shall be done by the authorities expeditiously, preferably within a period of two months from the date of production of the certified copy of the instant judgment. In the aforesaid terms, present petition stands disposed of, so also pending application(s), if any.