IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CWP No.7630 of 2023

Decided on: 04.12. 2P025

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Narender Kumar ....Petitioner

Versus

State of H.P. & Ors. …Respondents

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Coram

Ms. Justice Jyotsna Rewal Dua

1 Whether approved for reptorting?

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For the petitioner: Mr. Rakesh K Dogra, Advocate.

For the respondents: Ms. Menka Raj Chauhan, Deputy

oAdvocate General, for respondents

No. 1 to 4.

None for respondent No.5

Jyotsna Rewal Dua, Judge

Respondents regularized the promotion of the

petitioner from a retrospective date, on notional basis. Petitioner represented to the respondents to allow him to exercise option for coming over to the next scale. On respondents’ failing to respond, he has preferred this writ

petition.

1 Whether reporters of Local Papers may be allowed to see the judgment? yes

2. The case

2(i) After discharge from Army service, petitioner joined respondent-Education Department as Trained Graduate Teacher (Arts) on 04.09.2001. H He was promoted to the post of Headmaster under order dated 21.08.2008.

2(ii) Petitioner was next considered for promotion to the post of Principal. On the basis of recommendations of the Departmental Promotion Committee, he was promoted as Principal on ad hoc basis on 05.12.2011. Respondents issued notification on 08.03.2019, notionally promoting the petitioner as Principal (School Cadre) Class-I Gazetted on regular basis in the Pay Band of Rs.15600-39100+ 6600 (GP)

hw.e.f. 26.05.2011. Within one month from the date of gissuance of aforesaid notification, petitioner exercised his option on 18.03.2019 under Fundamental Rule 22(I)(a)(i) opting to retain his existing scale of Headmaster till the accrual of his next increment in the lower post i.e.

01.09.2011 (annual increment).

2(iii) Apparently, respondents did not take any action on petitioner’s option, which was otherwise forwarded by the concerned Principal to the Competent Authority on

18.03.2019. Petitioner retired on 30.01.2021 on attaining the age of superannuation. He again represented the respondents on 30.08.2023 for fixing his pay as per his option and for release of cascading consequential benefiHts.

2(iv) Hearing no response from the respondents, petitioner preferred this writ petition for grant of following substantive reliefs:-

“(i) That a writ in the nature of mandamus may also be issued, directing the respondents to extend the benefits of FR-22 (I) (a) (i) to the petitioner on his regular promotion as Principal vide office order dated 08.03.2019 after accrual of annual increment, which Cfell due on 01.09.2011 in terms of option exercised by the petitioner vide Annexure P-4 dated 18.03.2019 which was furnished by him before the respondent No.

h4-DDHE, Mandi in compliance to the order dated

14.03.2019 passed by the respondent No. 3, with a further direction to re-fix the pay of the petitioner, accordingly and release all due & admissible arrears H flowing out of grant of such benefits alongwith interest @ 9% per annum and justice be done.

(ii) That a writ of mandamus may also be issued, directing the respondents to revise the pension, commuted value of pension, gratuity and leave encashment qua the petitioner flowing out of grant of relief (i) above and pay arrears to the petitioner alongwith interest 9% per annum.”

3. Heard learned counsel for the parties and considered the case file.

4. Respondents have not refuted promoting the petitioner on notional basis from Hretrospective date. According to the respondents, in case of notional promotion, there is no provision for exercise of option. This defence is pleaded by the respondents as under:-

“9-10. That in reply to these paras, it is submitted that Finance Department of Govt. of Himachal Pradesh vide letter dated 15-10-2018, has advised that "As per provisions of Rules, option for pay fixation is exercised only in case of