Himachal Pradesh High Court
Manohar Lal Son Of vs Respondents on 2 April, 2015
Author: P.S.Rana
Bench: P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH
.
SHIMLA:
CWP No. 8005 of 2011.
Order reserved on: 19.3.2015
Date of Order: April 2, 2015
Manohar Lal son of
late Sh Dila Ram. .....Petitioner.
H.P.Vidhan Sabha through Secretary
HP Vidhan Sabha Shimla and others. to
Versus:
.....Respondents.
Coram:
The Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for Reporting?1yes.
For the petitioner: Mr.P.D.Nanda, Advocate.
For the respondents. Mr.Dushyant Dadwal, Advocate.
P.S.Rana Judge.
ORDER:Present Civil Writ is filed under Article 226 of the Constitution of India. It is pleaded that on dated 22.2.1995 1 Whether reporters of Local Papers may be allowed to see the judgment?yes.
::: Downloaded on - 15/04/2017 17:56:18 :::HCHP 2petitioner was appointed as Clerk in Vidhan Sabha and on .
dated 6.5.2000 petitioner was designated as Junior Assistant on placement. It is pleaded that on dated 30.1.2006 seniority list of Junior Assistants/Clerks was circulated. It is pleaded that on dated 31.8.2007 on creation of additional post of Senior Assistant DPC was constituted. It is pleaded that promotional posts fell to the share of SC category but Departmental Promotion Committee recommended the name of Sh Mohar Singh from the general category. It is pleaded that on dated 1.9.2009 Sh Mohar Singh was promoted as Senior Assistant and thereafter petitioner filed present writ petition against the promotion of Sh Mohar Singh. It is pleaded that thereafter on dated 1.7.2009 the petitioner was promoted as Senior Assistant as a stop gap arrangement against leave vacancy. It is pleaded that on dated 1.10.2010 petitioner was promoted as Senior Assistant on notional basis w.e.f 1.9.2008. It is pleaded that thereafter on dated 1.10.2010 the notional promotion of the petitioner was regularized w.e.f. 1.9.2008. It is pleaded that petitioner was legally entitled for promotion on the basis of reserve ::: Downloaded on - 15/04/2017 17:56:18 :::HCHP 3 promotional vacancy for Scheduled Caste w.e.f. 1.9.2007.
.
Prayer for acceptance of petition sought.
2. Per contra reply filed on behalf of the respondents pleaded therein that HP Legislative Assembly has framed its own rules for recruitment and conditions of service. It is pleaded that as per rules the post of Senior Assistant is non selection post and method of recruitment is 100% by way of promotion. It is pleaded that promotion to the post of Senior Assistant is from the common clerical cadre of Clerks/Junior Assistants with ten years regular service. It is pleaded that those clerks who were promoted from Class-IV employee they would be promoted only after they fulfill essential qualifications with Matric 2nd division or 10+2 qualification. It is pleaded that as per rules promotion for the non selection post is laid down in Chaper-16 in para 16.34 of the Handbook on Personnel Matters Vol- I and as per rules 16.34 every person eligible for promotion was to be considered by the Departmental Promotion Committee. It is pleaded that seniority list is maintained in accordance with instructions and guidelines issued by the Government. It is ::: Downloaded on - 15/04/2017 17:56:18 :::HCHP 4 pleaded that petitioner is not entitled for promotion .
w.e.f.1.9.2007 because post in question is non selection post and the same was to be filled as per rules 16.34 of the Handbook on Personnel Matters Vol.-I. It is pleaded that petitioner figured at serial No.9 in the seniority list and could not be considered for promotion. Prayer for dismissal of writ petition sought. Petitioner filed rejoinder and re-asserted the allegations mentioned in the writ petition.
3. Court heard learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of the respondents and also perused entire record carefully
4. Following points arise for determination in the present writ petition:
(1) Whether petitioner is entitled for promotion to the post of Senior Assistant w.e.f. 1.9.2007 as alleged.?
(2) Relief.
Finding upon Point No.1.
5. Submission of learned Advocate appearing on behalf of the petitioner that promotional post of Senior ::: Downloaded on - 15/04/2017 17:56:18 :::HCHP 5 Assistant was reserved for Scheduled Caste category and .
petitioner is legally entitled for the promotion to the post of Senior Assistant w.e.f.1.9.2007 is rejected being devoid of any force for the reason hereinafter mentioned. It is proved on record that petitioner is an employee posted in HP Vidhan Sabha. It is also proved on record that petitioner is governed by the HP Vidhan Sabha Recruitment and Conditions of Service Rules 1974. As per HP Vidhan Sabha Recruitment and Conditions of Service Rules 1974 the post of Senior Assistant is non selection post and the same should be filled by way of promotion amongst common clerical cadre of clerks or Junior Assistants with having ten years regular service and from the clerks who have been promoted from Class-IV employee having the qualification of 2nd division in Matric or 10+2 pass or employee appointed on compassionate grounds. There is no mention in the rules that post will be reserved for the Scheduled Caste employee only. Even on dated 13.9.2013 the Hon'ble Supreme Court of India in Special Leave Petition (Civil) No. 30143/2009 titled HP Scheduled Tribes Employees Federation and another Vs. ::: Downloaded on - 15/04/2017 17:56:18 :::HCHP 6 HP SVKK and others directed the State Government to take .
final decision within three months relating to implementation of Constitution 85th Amendment Act 2001 and assignment of seniority to SC/ST Government servants on promotion by virtue of rule of reservation/roster. After the direction of the Hon'ble Supreme Court of India the matter was considered by the State Government which is quoted in toto:
"No.PER(AP)-C-F(1)-2/2011-Vol.I Government of Himachal Pradesh Department of Personnel (AP-III) Dated: 30.10.2013 From The Chief Secretary to the Government of Himachal Pradesh.
To
1.All the A.C.S./Principal Secretaries /Special Secretaries/Additional Secretaries /Joint Secretaries Deputy Secretaries and Under Secretaries to the Government of HP.
2. All the Divisional Commissioners in HP
3.All the Heads of the Departments in HP
4.All the Deputy Commissioners in HP
5.All the Chairmen/Managing Directors/ Secretaries & Registrars of all the Public Sector Undertakings/Corporations/Boards/Universities Etc. in Himachal Pradesh.
Sub: Implementation of the Constitution (85th Amendment) Act, 2001and assignment of seniority to SC/ST ::: Downloaded on - 15/04/2017 17:56:18 :::HCHP 7 Government servants on promotion by virtue of rule of reservation/roster.
.
Sir, I am directed to refer to the subject cited above and to say that the matter regarding implementation of the Constitution (85th Amendment) Act, 2001 in the State was under
consideration of the Government for sometime past. In its judgment dated 13.9.2013 in I.A. No.6/2012 in Special Leave Petition (Civil) No. 30143/2009 titled as HP Scheduled Tribes Employees Federation and another Vs. HP SVKK and others the Hon'ble Supreme Court of India has directed the State Government to take final decision on the issue, within a period of three months from the date of pronouncement of this judgment.
2.
As per directions of the Hon'ble Apex Court, the matter has been considered. Keeping in view the quantifiable data collected by the State, showing the overall representation of the Scheduled Castes and Scheduled Tribes in the services of the State and the Constitutional provisions thereof, the State is of the opinion that the enabling provisions of the Constitution (85th Amendment) Act, 2001 are not required to be implemented in the State.
3. In view of the above, reservation in promotion to the members of the Scheduled Castes and Scheduled Tribes categories as per the Constitution (85th Amendment) Act, 2001 may not be granted. These instructions will also supersede the instructions issued vide this department's letter No.PER(AP)-C-E(3)-2/2009-III, dated 11.1.2013 and No. PER(AP)-C-F(1)-2/2011, dated 31.1.2013 in this regard earlier.
::: Downloaded on - 15/04/2017 17:56:19 :::HCHP 84. These instructions may be followed in letter & spirit .
and brought to the notice of all concerned for strict compliance.
5. Kindly acknowledge the receipt.
Yours faithfully, Sd/-
(S.K.B.S.Negi) Principal Secretary (Personnel) to the Government of Himachal Pradesh. Tele:0177-2621897.
Endst. No.PER(AP)-C-F(1)-2/2011-Vol.I Dated 30.10.2013.
Copy forwarded for information and necessary action to:
1. The Secretary, HP Vidhan Sabha, Shimla-4.
2. The Registrar, HP High Court, Shimla-1.
3.The Secretary HP Public Service Commission, Shimla-2.
4.The Secretary, HP SSS Board, Hamirpur
5.The Additional Secretary (GAD) to the Govt. of HP
6. The Additional Advocate General, Himachal Bhawan,New Delhi.
7. The All Section Officers in HP Secretariat, Shimla-2.
8. Spare Copies (100).
Sd/-
(Prem Singh Thakur) Under Secretary (Personnel) to the Government of Himachal Pradesh Tele: 0177-2624183."
6. In view of the above stated decision taken by the State Government and in view of supersede of earlier instructions it is held that at this stage benefit of reservation in promotion to the post of Senior Assistant in HP Vidhan Sabha could not be granted to the petitioner w.e.f. 1.9.2007.
Hence point No.1 is answered in negative.
::: Downloaded on - 15/04/2017 17:56:19 :::HCHP 9Relief.
.
7. In view of my finding upon point No.1 civil writ petition filed by petitioner under Article 226 of the Constitution of India is dismissed with no order as to costs.
Writ petition is disposed of. All miscellaneous application(s) are also disposed of.
April 2, 2015(R)
to (P.S.Rana),
Judge.
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