Point of Law : Promotions made prior to enforcement of such Rules were not to be affected by 1999 Rules as such Rules were to operate prospectively and not retrospectively.

ORDER :

By way of instant petition, petitioner has prayed for the following substantive reliefs:-

“i “That a writ in the nature of certiorari may be issued and the impugned order Annexure P-9 dated 28.10.2009 may kindly be quashed and set aside

(ii) That a writ in the nature of mandamus may be issued directing respondents to grant seniority to the petitioner above respondent no.3 and thereby annexure P-7 may also be quashed and set aside with further directions to the respondents to hold the DPC after rectifying the seniority.”

2. The case of the petitioner is that initially he was appointed as Clerk (LDC) in the Department of Census and had joined as such on 18.10.1979. As per policy decision of the State Government, staff of Census Department was absorbed in various Department of the State of Himachal Pradesh. Petitioner was ordered to be appointed as Clerk in the office of Chief Conservator of Forests. He was relieved from the Census Department on 17th March, 1982 and joined as Clerk in the office of respondent No.2 on 18th March, 1982.

3. Petitioner qualified competitive examination and was resultantly promoted/appointed as Steno-Typist on 9.1.1986. Petitioner was further promoted as Senior Scale Stenographer through a competitive examination vide letter dated 1988 w.e.f. 28.07.1987, as there were no Recruitment and Promotion Rules in place for said post at any stage.

4. Respondent No.3 had also worked with the Census Department as daily wager. He had been retrenched in February, 1982. However, taking advantage of Government policy, he was also absorbed in the Department of Forest, Himachal Pradesh and had joined as Clerk on 17.03.1982. Since for promotion to the post of Senior Scale Stenographer, there were no Recruitment and Promotion Rules, respondent No.3 was also considered from the category of senior Clerks and was promoted as Senior Scale Stenographer along with petitioner.

5. In 1999, the cadre of Stenographers and ministerial staff was bifurcated in the respondent Department, the post of Personal Assistants were to be filled up from the post of Senior Scale Stenographers.

6. It is averred on behalf of the petitioner that respondent No.3, as per aforesaid Rules, was not eligible for Senior Scale Stenographer as he was not qualified to be Stenographer, petitioner had become Junior Scale Stenographer/Steno-Typist in 1986 after qualifying the requisite test, whereas respondent No.3 had never held such post. Petitioner, therefore, claimed seniority over respondent No.3 in the cadre of Stenographers on the basis of Recruitment and Promotion Rules in force in the year 1999.

7. Petitioner and respondent No.3 on 25.10.2000 were promoted as Personal Assistants. Respondent No.3, at that stage, was required to be placed below petitioner in seniority on the premise that he was not qualified to be Junior Scale Stenographer/Steno-Typist which as per 1999 Rules was feeder category for the promotional post of Senior Scale Stenographers.

8. In August, 2009, respondents No.1 and 2 circulated letter for making promotions to the post of Private Secretary (Gazetted Class-I) and at that stage, petitioner acquired knowledge that respondent No.3 was shown senior to him. Petitioner immediately represented to the respondents explaining all the facts. The representation of the petitioner was rejected by respondent No.2 on 28.10.2009 and thereafter petitioner immediately approached this Court by way of present petition.

9. In response, stand of the official respondents is that petitioner had joined service in the Forest Department on 18.03.1982, whereas respondent No.3 had joined on 17.03.1982, as such, respondent No.3 was senior to petitioner. Petitioner had claimed benefit of services rendered by him in the Census Department for the purposes of seniority, but his representation was rejected and conveyed to him vide letter dated 25.06.1983. The seniority list of Clerks was prepared by the Forest Department and was circulated on 10.04.1986, wherein pet