Facts of the Case
The petitioner was appointed as a Clerk on a compassionate basis in the year 1985. He was initially posted at D.C. Office Chamba, District H.P., but on account of his family circumstances, he got himself transferred to District Kangra and was posted as a Clerk/Junior Assistant in the Office Deputy Commissioner, Kangra at Dharamshala, H.P. Due to this voluntary transfer sought by the petitioner, he lost his seniority of District Chamba. In terms of his seniority as determined from the date when he joined District Kangra, he was assigned seniority at serial No.60 in terms of the seniority list issued by the respondent department, vide Annexure P-1, dated 31.12.2007.
A Departmental Promotion Committee was convened for considering eligible candidates for promotion to the post of Senior Assistant, on 15.11.2011, and the name of the petitioner was recommended at serial No.12 in the probable list prepared for promotion, however, the petitioner was not promoted. Thereafter, vide Notification dated 18.04.2012 the Himachal Pradesh, Department of Personnel, Senior Assistant, Class-III 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. And amongst Clerks/ Junior Assistants of concerned departments, possessing ten years regular service or regular combined with continuous ad-hoc service, provided they possess the minimum educational qualification of 10+2.
The next meeting of the Departmental Promotion Committee was held on 10.07.2012 in which the name of the petitioner along with other incumbents mentioned therein, which included incumbents similar to the petitioner who only matriculated, was recommended for promotion to the post of Senior Assistant. The petitioner was not promoted, as a sufficient number of promotional posts were not available.
The grievance of the petitioner is that the act of the respondent department of denying him promotion simply on the ground that he was not possessing the qualification of 10+2 in the year 2014. Then, the petitioner had filed this petition, praying for the reliefs already enumerated hereinabove.
The respondents contended that 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 was further said by the State that though in the year 2012, the name of the petitioner was recommended by the Departmental Promotion Committee, he could not be promoted, as several posts available were occupied by his seniors.
The petitioner had reiterated the stand taken in the petition and denied the averments made in the reply as far as they were contrary to the stand of the petitioner.
The court observed that a perusal of this communication demonstrated that it was 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 favor of those Clerks, who stood recruited on a compassionate basis for promotion to the post of Senior Assistant, provided that they were matriculated.
The Hon’ble court allowed the following petition as the denial of promotion to the petitioner based on his seniority in the year 2014, was not sustainable in law, as, in the considered view of this Court, the petitioner had been appointed on a compassionate basis, was exempted from possessing the qualification of 10+2 for promotion to the post of Senior Assistant, which was a non-selection post.
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