Sh. Karnail Singh vs State Of Himachal Pradesh & Ors.

Ranjan Sharma, Judge

Petitioner, Karnail Singh, filed a CWP No. 4975 of 2014, before this Court; and on establishment of Learned State Administrative Tribunal the matter was transferred to Tribunal ; and upon its abolition, the same has been re-transferred to this Court, as CWPOA No. 461 of 2019, seeking the following relief (s):

Instant writ petition was filed in the year 2014 and upon listing of the case today, despite several pass-over(s), there is no appearance for the petitioner and therefore, this Court proceeds to decide the petition, on merits.

Case as set up by petitioner is that he was appointed as a Class-IV Employee [Peon] on 24.09.1990 and he passed 10+2 Examination in March 2011. It is averred that the Respondent-State issued the Recruitment and Promotion Rules for the post of Clerk on 11.11.2008 [Annexure P-3], whereby, Class-IV incumbents were to be considered for promotion to the post of Clerk subject to their possessing 10+2 Examination. It is averred that one

Shri Punu Ram, a Class-IV employee, was promoted to the post of Clerk on 17.10.2011 [Annexure P-4] but since he did not possess 10+2 qualification, therefore, he was reverted to Class-IV post on 03.04.2013 [Annexure P-6]. It is averred that due to the reversion of Shri Punu Ram on 03.04.2013, the promotional post of Clerk fell vacant, and the aforesaid vacancy continued to exist till 07.02.2014 and the State Authorities promoted the private respondent No.3, Shri Panna Lal, from Class-IV Peon to the post of Clerk on 07.02.2014 [Annexure P-7], without considering the case of the petitioner for promotion to said post despite being senior to him. It is further averred that petitioner issued a legal notice on 25.02.2014 [Annexure P-12], requesting the Respondents to consider and promote the petitioner as Clerk in place of Respondent No. 3, Panna Lal, after quashing his promotion orders dated 07.02.2014 [Annexure P-7], with the prayer to give all consequential benefits.

Pursuant to issuance of notice on 01.09.2014, Director, Consolidation of Holdings, Himachal Pradesh has filed the Reply-Affidavit dated 08.09.2014.

4(i). Reply-Affidavit indicates that Respondent-State had issued the Seniority list of Class-IV [Peon] in the year 2001 [Annexure R-1], in which the petitioner figured at Serial No. 57, whereas the private Respondent No. 3, Panna Lal, figured at Seniority No. 35 in said list. Reply-Affidavit further indicates that as per Seniority list (Annexure P-15), the petitioner is junior as he figured at Seniority No. 23, whereas the Private Respondent No. 3 figured at Serial No. 12 of the said list. Reply-Affidavit indicates that the petitioner was junior, and therefore, by virtue of being junior, he was neither eligible nor did he fall in the zone of consideration for promotion to the post of Class-III (Clerk), at the time, private respondent No. 3 was considered/promoted.

4(ii). Reply-Affidavit, indicates that private respondent No. 3 Panna Lal, was promoted from Class-IV Peon to the post of Clerk, on the basis of DPC, convened on 29.01.2014 and since Respondent No. 3 was senior and he fulfilled the eligibility criteria, in terms of the Recruitment and Promotion Rules, therefore, the aforesaid Respondent No. 3 was validly promoted to the post of Clerk. Learned State Counsel has drawn attention of this Court to Annexure P-11, to assert that the Private Respondent^, Panna Lal, passed 10+2 Examination in October 2012. In the above backdrop, Learned State Counsel has prayed for dismissing the writ petition.

4(iii). Petitioner has chosen not to file any rejoinder and in absence of rejoinder, the stand by State Authorities goes uncontroverted.

Since there is no appearance for the petitioner, therefore, after perusing the material on record and after hearing the Learned State Counsel, this Court proceeds to adjudicate the present matter, on merits. Learned State Counsel submits that once the posts of clerk was a “non selection post” for which principle of “seniority-cum-fitness” is to be applied and based on this principle, once the petitioner being junior was neither eligible nor did he come in the zone of consideration [due to lower seniority placement in feeder grade of Class-IV Peon] and therefore, he was validly not considered for promotion and resultantly, the Respondent No.3 being eligible and senior in feeder category of Class-IV was promoted as Clerk on 07.02.2014 [Annexure P-7] in accordance with law.

Taking into account the entirety of facts and circumstances and the material on record, this Court is of the considered view, that the orders dated 07.02.2014 [Annexure P-7], promoting the private Respondent, Panna Lal, from Peon [Class-IV] to Clerk [Class-III], do not suffer from any infirmity, illegality, or perversity in the following terms:

6(i). State Authorities have notified the Himachal Pradesh, Class III Services [Clerk/Steno-typist/Statistical Assistant] Common Recruitment Rules on 13.04.2007, amended on 11.11.2008 [Annexure P-3].

6(ii). A combined reading of the Rules Notified on 13.04.2007 and 11.11.2008 [Annexure P-3] indicates that the post of Clerk [Class III] is a “non-selection post”. For making promotion to the post of Clerk [Class III] from Class IV incumbents, the same is to be filled up from Class IV officials who have passed 10+2 Examination or its equivalent from a recognized Board of School Education and possess 5 years of regular service, or regular service combined with continuous ad-hoc service rendered, if any, in the grade. In backdrop of above Rules, the Respondent-Department issued a seniority list of feeder grade i.e. Class-IV Employees as per Annexure R-1 and Annexure P-15, in which Private Respondent No.3, Panna Lal, was shown as senior to the petitioner, [as he figured at Seniority No. 35 and Seniority No. 12, vis-à-vis the petitioner, who figured at Seniority No. 57 and Seniority No. 23 in the said lists]. Petitioner joined service as a Class IV Peon on 24.09.1990, and he passed his 10+2 Examination in March 2011, whereas, the private respondent No.3-Panna Lal joined service as a Peon (Class IV) on 28.02.1990, and he passed 10+2 Examination in October 2012 [Annexure P-11]. Above facts establish that petitioner was admittedly junior to Private Respondent No.3 in feeder grade of Class-IV. Even, as per Rule 5 of the Rules, the promotional post of Clerk [Class III], was a non-selection post, and DPC for filling the post was convened on 29.04.2014 and on recommendations of DPC, the private respondent No.3 being eligible senior was duly promoted as Clerk on 07.02.2014 [Annexure P-7], in accordance with Statutory Rules. In these circumstances, the challenge to promotion ^of Respondent No.3 is devoid of any merit and is turned down.

6(iii). Petitioner has claimed promotion as Clerk, over and above Private Respondent No. 3, who was promoted as such on 07.02.2014 [Annexure P-7], on the ground, that promotional post of Clerk became available, due to the reversion of one Shri Punnu Ram on 03.04.2013 and the petitioner being eligible on the said date has a right to be considered for promotion over and above the Private Respondent No. 3 in the instant case.

The above claim of the petitioner, is not tenable, for the reason, that mere availability of a vacant post between 03.04.2013 till 07.02.2014] shall not confer an automatic or preferential right of promotion on the petitioner. Petitioner has a limited right of consideration, which is subject to the fulfilment of other criteria/pre-conditions including educational qualifications and seniority in feeder grade, being non-selection post, for which consideration has to be made by applying the principle of ‘Seniority-cum-fitness’ and the petitioner being junior to private respondent No.3 has no preferential right for consideration, dehors the principle meant for “non selection posts”. Resultantly, the contention is turned down.

6(iv). Petitioner does not have a vested right of promotion, against vacancy, which arose on 03.04.2013. Once DPC was convened on 29.01.2014, then, the Rules in force on date of DPC shall govern the consideration for promotion of an employee. In the instant case, on the date of DPC, once the Rules of 2007-2008 were in vogue which mandated that promotional post was a “non-selection post” then, the petitioner, who was junior vis-à-vis private respondent No. 3, even though he may have acquired 10+2 Qualification prior to private respondent, shall neither confer an automatic nor ipso facto right of promotion, over and above the private respondent. Permitting the petitioner to be considered for promotion on the basis of merely acquiring of earlier eligibility, [qua 10+2 qualification] in absence of any express mandates in the Statutory Rules cannot sustain. Accepting the plea of the petitioner shall negate the very principle of "non-selection post" as embedded in Rule 5 of the Recruitment and Promotion Rules for post of Clerk notified on 13.04.2007, as amended on 11.04.2008 [Annexure P-3], which were in vogue on the date of convening of DPC on 29.01.2014. In these circumstances, this Court does not find any tenable ground, to show indulgence to the petitioner or to interdict the Impugned Order dated 07.02.2014 [Annexure P-7] promoting the Private Respondent No. 3 as Clerk.

No other point was argued/raised.

In view of the above discussion, and for reasons recorded hereinabove, the instant petition is dismissed in the following terms:

In aforesaid terms, the writ petition and all pending miscellaneous applications, if any, shall stand disposed of, accordingly.