Point of Law: Rules for promotion as Senior Assistant - Qualification - Promotion as Senior Assistant - Act of Departmental Promotion Committee of respondent-department, convened, of not recommending petitioner for promotion to post of Senior Assistant on the ground that he was not possessing qualification of 10+2, is held to be bad in law and respondent- department is directed to promote petitioner, as from date when person Junior to him was actually promoted to the post of Senior Assistant, on the basis of recommendations of the Departmental Promotion Committee.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioner has, inter alia, prayed for the following relief:-

“That the respondents may be directed to consider the name of the petitioner for promotion as Senior Assistant from the due date i.e. 2012 after receiving the DPC on 10.07.2012 and 05.06.2014, also placing the name of the petitioner in accordance with the corrected seniority list. Further the respondent may be directed to provide the petitioner all consequential benefits after granting his promotion w.e.f. 2012.”

2. The case of the petitioner is that he was appointed as a Clerk on compassionate basis in the year 1985. He was initially posted at D.C. Office Chamba, District Chamba, H.P., but on account of his family circumstances, he got himself transferred from District Chamba to District Kangra and was posted as a Clerk/Junior Assistant in the Office Deputy Commissioner, Kangra at Dharamshala, H.P. w.e.f. 31.01.1990. On account of this voluntarily 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 in 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 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 dated 18.04.2012 (Annexure P-3 Colly), 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 adhoc service, provided they possesses the minimum educational qualification of 10+2. The next meeting of the Departmental Promotion Committee was held on 10.07.2012 (Annexure P- 4), vide which the name of the petitioner alongwith 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. Though, persons senior to the petitioner, but matriculate, were promoted to the post of Senior Assistant on the recommendation of the Departmental Promotion Committee, however, the petitioner was not promoted, as sufficient number of promotional posts were not available. Thereafter, again a Departmental Promotion Committee was convened in the month of 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 petitioner was promoted to the post of Senior Assistant in the year 2015, after he completed his 10+2 in the year 2014.

3. 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, is bad in law as the respondent-department erred in not appreciating that as the petitioner was initially appointed by way of compassionate appointment, then in terms of the communication dated 31.03.2005, issued by the Financial Commissioner-cum-Secretary Revenue, to the Government of Himachal Pradesh, the petitioner could not have been ignored for promotion to the post of Senior Assistant, on the ground that he was not possessing 10+2 qualification as there was an exemption from possessing the qualification of 10+2, in case of employees who were appointed as Clerks on compassionate basis, provided they possessed the qualification of