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Clerk moves Himachal Pradesh HC, gets due promotion with retrospective effect

The petitioner wanted directions to the state to provide him all consequential benefits after granting his promotion.

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A clerk in Himachal Pradesh, who had been denied a due promotion more than once, despite other similarly qualified people having been promoted, had moved the Himachal Pradesh High Court. On Wednesday the court ordered that the person be promoted and all dues with retrospective effect be given to him.

The person had appealed to the court for promotion to Senior Assistant with retrospective order from the due date. The person also wanted his name placed in accordance with the corrected seniority list.

The petitioner also wanted directions to the state to provide him all consequential benefits after granting his promotion. The case of the Petitioner was that he was appointed as a Clerk on compassionate grounds in 1985. He was initially posted at DC Office Chamba, District Chamba, H.P. But on account of his family circumstances he got himself transferred from Chamba to District Kangra and was posted as a Clerk/Junior Assistant in the Office of the Deputy Commissioner, Kangra at Dharamshala, H.P. on January 31, 1990. 

Now, having sought voluntary transfer from Chamba, he lost the seniority he gained at Chamba. In terms of his seniority as determined from the date when he joined in District Kangra, he was assigned seniority at serial No. 60 in terms of the seniority list issued by the department on December 31, 2007. 

A Departmental Promotion Committee was convened for considering eligible candidates for promotion to the post of Senior Assistant, on November 15, 2011 and the name of the Petitioner was recommended at serial No. 12 in the probable list prepared for the purpose of promotion. However, the petitioner was not promoted. Thereafter, vide notification of April 18, 2012 the Himachal Pradesh Department of Personnel, Senior Assistant, Class-III (Non-Gazetted, Ministerial Services) Common Recruitment and Promotion Rules, 2011 were amended to the effect that the post of Senior Assistant was now to be filled 100% by promotion, inter alia, from amongst Clerks/ Junior Assistants of concerned departments, possessing ten years regular service or regular combined with continuous ad-hoc service, provided they possesses the minimum educational qualification of 10+2. 

The next meeting of the Departmental Promotion Committee was held on July 10, 2012. The name of the Petitioner, along with other incumbents mentioned therein, which included incumbents similar to the petitioner who were only matriculate, were recommended for promotion to the post of Senior Assistant.The petition says that though persons senior to the Petitioner but matriculate, were promoted to the post of Senior Assistant on the recommendation of the Departmental Promotion Committee, the Petitioner was not. This was because sufficient number of promotional posts were not available. 

Thereafter, again a Departmental Promotion Committee was convened in June, 2014, but the name of the petitioner was not recommended for promotion to the post of Senior Assistant as per his seniority, on the ground that he was not possessing the qualification of 10+2. 

The Petition is opposed by State, on the ground that as the Recruitment and Promotion Rules to the post of Senior Assistant stood modified in the year 2012 and the minimum qualification necessary for promotion was 10+2, therefore, in the absence of the petitioner possessing the said qualification, he was not eligible to be considered for promotion till he attained the qualification of 10+2.

It is further the stand of the State that though in the year 2012, name of the Petitioner was recommended by the Departmental Promotion Committee, but he could not be promoted, as number of posts available, were occupied by his seniors, whereas the Departmental Promotion Committee convened on June 5, 2014, rightly did not recommend the name of the petitioner for promotion to the post of Senior Assistant as he was not possessing the qualification of 10+2.

A single bench of Justice Ajay Mohan Goel noted that that it is not as if it was only in the year 2012, that the minimum qualification necessary for promotion to the post of Senior Assistant was prescribed as 10+2.

However, an exemption was carved out earlier also in favour of those clerks who stood recruited on compassionate basis for promotion to the post of Senior Assistant, provided that they were matriculate.”The condition of possessing 10+2 as the minimum qualification was existing prior to the year 2012 for promotion from the post of Clerk/ Junior Assistant to the post of Senior Assistant, yet the Departmental Promotion Committee which was held on 10.07.2012  recommended not only the name of the Petitioner for promotion to the post of Senior Assistant, but names of other incumbents, including one Shri Nirbhay Kumar and Smt. Darshana Devi, who as per the petitioner were also possessing the qualification of matriculation only and who admittedly on the recommendation of the said Departmental Promotion Committee’s proceedings were promoted to the post of Senior Assistant in the year 2012 itself,” observed the Court.

The High Court said that the Recruitment and Promotion Rules to the post of Senior Assistant were amended in the year 2011-12 and 10+2 was made the minimum qualification for promotion, also does not hold any water for the reason that if that was the case, then why even in the year 2012, matriculates were promoted to the post of Senior Assistant, could not be explained by learned Additional Advocate General during the course of arguments. Moreover, in the year 2014, when the Departmental Promotion Committee was convened for recommending the candidates to the post of Senior Assistants from amongst Junior Assistants the Departmental Promotion Committee, dated 05.06.2014, the non-recommendation of the Petitioner for promotion to the post of Senior Assistant simply on the ground that he was a matriculate and was not possessing the qualification of 10+2, is not justifiable in law , the Court held.

”Accordingly, this writ petition is allowed to the extent that the act of the Departmental Promotion Committee of the respondent-department, convened on 05.06.2014, of not recommending the petitioner for promotion to the post of Senior Assistant on the ground that he was not possessing the qualification of 10+2, is held to be bad in law and respondent-department is directed to promote the petitioner, as from the date when person Junior to him was actually promoted to the post of Senior Assistant, on the basis of the recommendations of the Departmental Promotion Committee, convened on 05.06.2014. 

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“For this purpose, if necessary, supernumerary post of Senior Assistant shall be created, which shall be personnel to the petitioner. The promotion shall stand conferred upon the petitioner with all consequential benefits including monetary benefits and needful be done within three months from today,” the order reads. 

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