PARKASH CHAND SHARMA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THE petition has been filed for grant of the following substantive relief vide para 7 (i): - That the application may kindly be accepted and the respondents No. 1 & 2 may kindly be directed to promote the applicant as Senior Assistant from the date of issuance of the promotion orders dt. 18 May, 1996, shown as Annexure A -I with all consequential benefits.

(2.) IN reply on behalf of respondents No. 1 and 2, the following averments have been set up vide para (II) of the preliminary submissions and para 6 (v) on merits: - That the Applicant being an ex -serviceman was appointed as clerk in the department of Cooperation on 16.11.1991. The applicant was given benefit of approved military service in the fixation of his pay and seniority as per provision of the Demobilized Armed Forces Personal (Reservation of vacancies in Himachal State Non -Technical Services) Rules, 1972. Accordingly, he was placed at serial No. 55 of the seniority list as it stood on 22.09.1995 and respondent No.3 to 5 have been placed at serial No. 90 and 94 of the seniority list. The Respondents No. 3 to 5 were appointed as clerk in the department on 13.03.79, 06.02.79 and 24.02.79 respectively. After completion of five years service, the respondents were placed in the higher scale w.e.f 1.1.86 as senior clerks. They were further placed as Junior Assistants in the scale of Rs. 1500 -2700 after rendering 10 years combined service as clerk/Senior Clerks w.e.f 23.03.89, 06.02.1989 and 24.02.1989. As already submitted, the Applicant was appointed as Clerk on 16.11.91 when the respondents had already completed two years service as Junior Assistant. The Applicant was however placed in the higher scale (1200 -2130) w.e.f 16.11.1994. As per Recruitment and Promotion Rules for filling up the posts of Senior Assistants, the following criteria has been provided for making recruitment by promotion: -

(3.) THOUGH the stand on behalf of the respondents is that since the petitioner was not having 10 years qualifying service in the common clerical cadre of Clerk/Sr. Clerk/Junior Assistant, he was not eligible for promotion as Senior Assistant, yet in view of Rule 11 of the Rules governing promotion to the post of Senior Assistant, which is extracted below, it is apparent that on a plain reading of the proviso to the said Rule the requirement is that all incumbents to be considered for promotion shall possess the minimum qualifying service of at least three years or that prescribed in the recruitment and promotion Rules for the post, whichever is less -, meaning thereby that though the Rules provide for minimum qualifying service of 10 years, yet the first proviso to Note (1) to Rule 11, supra, when read in conjunction with Rule 11, it is more than clear that an incumbent possessing three years qualifying service such as the petitioner, would also be equally eligible for promotion to the higher post of Senior Assistant in case persons junior to him become eligible for consideration by virtue of their total length of service ( including service rendered on ad hoc basis upto 31.3.1991): -