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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Dinesh Kumar & others - Petitioners
Vs.
H.P. University - Respondent
CWPOA No. 1435 of 2020
Decided On : 07-01-2023
Himachal Pradesh Ministerial Administrative Rules, 1973 – Claim Placement and Promotion - Date of Joining - By way of instant petition, petitioner has prayed for substantive reliefs – Merely, because Memorandum was issued under signatures of Vice Chancellor cannot be taken to be a factor to legitimize action of respondent university. [Para 12]
Finding of the Court: Memorandum was not issued by competent authority, that cannot be an impediment in adjudication of rights of petitioners – Petitioners had submitted their representation even, which had remained unanswered – O.A. was preferred by petitioners – It cannot be said that petitioners had slept over their rights for unduly long period or were grossly negligent in pursuing their remedies – Claim of the petitioners, therefore, cannot be said to be barred by delay and laches, which may be sufficient to defeat their claim.
Result: Petition allowed.
JUDGMENT :
Satyen Vaidya, J.
By way of instant petition, petitioner has prayed for the following substantive reliefs:-
(iii) That the respondent-University may be directed to assign seniority to the applicants as clerks from 12.4.2005 by further assigning consequential seniority from due dates in the interest of law and justice.”
2. The Executive Council of respondent University in its meeting held on 28.12.2004 passed a resolution, whereby it was decided to promote Category-D officials serving the Himachal Pradesh University. The respondent promoted some of Class-D officials of the university as Clerks vide orders dated 12.4.2005, 4.5.2005 and 20.9.2005. The officials promoted as Clerks vide orders dated 4.5.2005 and 20.9.2005 were also promoted from retrospective date i.e. 12.4.2005.
3. The petitioners were also promoted as Clerks vide orders dated 19.9.2007 from Category-D. Their promotion was ordered to be made on notional basis w.e.f. 12.4.2005 and with financial benefits from the date of their respective joining.
4. The Clerks in the respondent University were entitled to be placed as Junior Assistants after completion of five years of service as Clerks and thereafter to be as Senior Assistants after completion of further five years of service as Junior Assistants.
5. The grievance of the petitioners is that their service as Clerks has been wrongly reckoned from the date of issuance of office order dated 19.9.2007, whereas they were ordered to be promoted, though on notional basis w.e.f. 12.4.2005. Petitioners were placed as Junior Assistants in the year 2012 and then promoted as Senior Assistants in the year 2017. Petitioners claim their placement and promotion as Junior Assistants and Senior Assistants respectively w.e.f. 2010 and 2015.
6. The petitioners have alleged discrimination on the ground that the persons who were promoted as Clerks vide orders dated 4.5.2005 and 20.9.2005 were also ordered to be promoted retrospectively on notional basis w.e.f. 12.4.2005 and with financial benefits from the date of joining, but they were granted further placements and promotions by reckoning their date of promotion as 12.4.2005.
7. Respondent University has contested the claim of the petitioners on the grounds, firstly that their claim was time barred as the representation submitted by them was rejected by the respondent on 10.6.2014 and hence the petition filed in January, 2017 was highly belated and secondly, that many persons have been appointed as Clerks between 12.4.2005 to 19.9.2007 and in their absence as parties to the petition, no relief could be granted to the petitioners. On merits, it has been contended that all the Category-D officials promoted vide orders dated 12.4.2005, 4.5.2005 and 20.9.2005 were senior to the petitioners. In fact, the persons promoted vide orders dated 4.5.2005 and 20.9.2005 were inadvertently ignored while issuing the order dated 12.4.2005. Such persons were higher in seniority to some of the persons promoted vide order dated 12.4.2005. Therefore, the persons promoted subsequently vide orders dated 4.5.2005 and 20.9.2005 were placed in the same position as those who were promoted vide order dated 12.4.2005. As per respondent University, ten persons were appointed as Clerks between 12.4.2005 and 19.9.2007. Nine of whom were appointed on compassionate ground and the tenth was appointed on daily wage basis as clerk. The respondent University has further tried to justify its stand on the ground that as per Himachal Pradesh Ministerial Administrative Rules,
Executive Council is highest decision making body of University.
An employee is entitled to promotion from the date of eligibility only if they meet the stipulated criteria; failure to do so negates the claim.
The main legal point established in the judgment is that promotion to the post of Professor (Stage-5) should relate back to the date of eligibility if the candidate is successful, as provided in Clau....
Recruitment and Promotion Rules - Promotion - Benefits of - A person, who performs duties of higher office, must get salary of same post. He cannot waive of his fundamental/legal right to get higher ....
Promotion - There is no prayer in the petition challenging the seniority list. So, the issue of seniority cannot be gone into.
The discretionary power to relax rules should be exercised sparingly to meet exceptional situations, and the principle of 'equal pay for equal work' applies to grant financial benefits for dischargin....
Promotional seniority must align with established qualifications and completion of probation as per applicable statutes.
Promotion is not a vested right and an employee only has the right to be considered for promotion.
Discriminatory treatment in promotion affects employees' rights under constitutional provisions, necessitating retrospective benefits and equal treatment.
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