Failure to pass mandatory departmental examination renders employee ineligible for gazetted promotion despite seniority, adhoc service, or pre-retirement DPC; no right to regular/notional promotion or pay fixation benefits.

JUDGMENT :
Ranjan Sharma, Judge

Petitioners, Roop Lal, initially filed CWP No.1031 of 2013, before this Court and upon establishment of Learned State Administrative Tribunal and upon abolition has now been re-transferred to this Court, as CWPOA No.945 of 2019 seeking the following reliefs:-

“12(i) That the respondents be directed to consider and promote the petitioner as Planning Assistant on regular basis w.e.f 13.04.2011 from which date the person junior to him was promoted on regular basis;

12(ii) That the directions may kindly be issued to the respondents to re-fix the pay of the petitioner as Planning Assistant and allow the petitioner to exercise his option as per FR (22) 1 (a) (i) from the due date with all consequential benefits”.

FACTUAL MATRIX:

2. Grievance of the petitioner is that he was initially appointed as Tracer Draughtsman on 20.03.1972. He was promoted as Draughtsman in the year 1978 and then as Head Draughtsman in 1995. He was promoted as Circle Head Draughtsman in the year 2006. It is averred that the department issued a Provisional Seniority List of Circle Head Draughtsman issued on 26.03.2011 [Annexure P-1] wherein, the petitioner was shown as senior to Sh. Narinder Kumar and Sh. Chatter Singh. It is averred that on 04.09.2008 [Annexure P-2], the petitioner along with Sh. Narinder Kumar and Sh. Chatter Singh were promoted as Planning Assistant, Class-II on adhoc basis and though these juniors were promoted as Assistant Engineer on regular basis on the recommendation of DPC on 13.04.2011 [Annexure P-3] whereas the petitioner was not promoted as such. Petitioner submitted a representation on 21.04.2011 [Annexure P-4]. It is averred that the State Authorities convened the DPC on 13.06.2011 and promoted the juniors, namely Sh. Narinder Kumar and Sh. Chatter Singh as Planning Assistant vide Notification dated 26.07.2011 [Annexure P-6] with the prayer for promoting him as Planning Assistant from the date juniors were promoted, as such, with all consequential benefits.

STAND OF STATE AUTHORITIES-RESPONDENTS IN REPLY-AFFIDAVIT:

3. Pursuant to the issuance of notice by this Court on 23.03.2013, the Respondents filed the Reply-Affidavit dated 13.09.2013 of Under Secretary (PW) to the Government of Himachal Pradesh.

3(i) Perusal of Para-4 of Reply-Affidavit indicates that the petitioner was promoted as Planning Assistant on ad-hoc basis as a stop-gap arrangement, strictly on the basis of seniority alongwith Narinder Kumar and Chattar Singh vide Notification dated 04.09.2008 [Annexure P-2].

3(ii) Reply-Affidavit indicates that the department convened a DPC for promotion to post of Assistant Engineers [Civil] Class-1 [Gazetted] wherein, the feeder cadre Draughtsman namely Shri Narender Kumar and Chatter Singh were considered and promoted as Assistant Engineer on regular basis on 13.04.2011 [Annexure P-3] and since petitioner had not qualified the departmental examination, therefore, being ineligible [as per Rule 23(2) of the Departmental Examination Rules 2007] he was not promoted as Assistant Engineer.

3(iii) Reply-Affidavit further states that after the 85th Constitutional Amendment, the State Authorities, imposed a ban on promotion and after lifting of the ban, the process for regular promotion for post of Planning Assistant was started in the year 2010, by calling Vigilance Clearance Certificates of eligible officers. Even Memorandum for Consideration of Departmental Promotion Committee [DPC] was sent to H.P. Public Service Commission on 20.06.2011 and DPC was convened on 13.06.2011. After convening