The relevant date for consideration for promotion shall be the date on which the promotional post fell vacant, and passing the departmental examination is a significant factor for promotion, but seniority also plays a crucial role.

Kuldip Singh, J.-The petitioners had filed Original Application No. 917 of 1997 in the Himachal Pradesh Administrative Tribunal and on abolition of the Tribunal, the Original Application No. 917 of 1997 was transferred to this Court under Himachal Pradesh Administrative Tribunal (transfer of decided and pending cases and applications) Act, 2008 and thereafter, the Original Application No. 917 of 1997 has been registered in this Court as CWP(T) No.4333 of 2008.

2. The petitioners through this petition have prayed for quashing of order dated 1.5.1997 Annexure A-1 vide which respondent No.3 was promoted as Kanungo, prayer has also been made for a direction to respondents No. 1 and 2 to fill up the post and all other posts of Kanungos falling vacant in future on the basis of the day the Patwari acquires the eligibility criteria of promotion and as and when the promotional post becomes available.

3. The further case of the petitioners is that they were appointed as Patwaris on different dates in the years 1981 to 1984. they had already completed 14 to 16 years of continuous service as confirmed Patwari. The Rule 17 of the Recruitment and Promotion rules for the post of Kanungo provides that Patwari shall be eligible to appear in Kanungo examination after putting four years service as Patwari. It also provides that Patwari shall require to pass the Kanungo examination in three chances. However, after availing three chances, one additional chance can be given by the Government after due consideration of the case. The petitioners cleared their departmental examination of Kanungo in the years 1987 to 1994. The respondent No.3 joined the service in the year 1974 and cleared the departmental examination of Kanungo in the year 1994.

4. The respondent No.2 used to promote Kanungo even those persons who had not passed the departmental examination. This unrestricted power was checked by the Government vide letter dated 15.12.1983 Annexure E with the direction that unqualified Kanungos candidates should be reverted back immediately when they failed to pass the examination within the prescribed period. Thereupon respondent No.2 vide order dated 3.2.1994 reverted unqualified 9 Kanungos who were promoted earlier.

5. The respondents vide endorsement No. 1053-63 dated 2.5.1996 promoted Raj Lal, Nanak Chand, Asha Puran and Jeet Singh, Patwaris as Kanungos immediately on their clearing the departmental examination. Raj Lal was ordered to be reverted as Patwari but he was again promoted as Kanungo when he cleared the departmental examination, thus favour was shown to Raj Lal. It is the case of the petitioners that dominant factor for promotion to the post of Kanungo is to qualify the departmental examination and not the seniority alone. The date when Patwari acquires eligibility is dominant factor. In case the senior acquires eligibility later, then the junior who has cleared the departmental examination earlier is entitled to promotion first.

6. The petitioners have contended that on the retirement of Raj Lal, Kanungo one post fell vacant, the respondent No.2 promoted respondent No.3 even though the respondent No.3 had passed examination much later than the petitioners and he became eligible for promotion subsequent to the petitioners. The respondents should have filled the post after considering the petitioners who have acquired eligibility earlier to respondent No.3. The respondents No. 1 and 2 committed an illegality by promoting respondent No.3 without considering the claim of the petitioners or other Patwaris who acquired eligibility earlier to respondent No.3.

7. The respondent No.2 contested the petition by filing the reply. It has been pleaded that the claim of the petitioners for promotion before seniors, in view of their passing the departmental Kanungo examination is not sustainable. The Patwaris and Kanungos Recruitment and Promotion Rules, 1992 do not suggest non-consideration for promotion of the senior Patwaris existing