Bhoop Ram and Others vs State of H.P. and Others

Dev Darshan Sud, J.—The petitioner has challenged the judgment of the learned State Administrative Tribunal dismissing the petition challenging the action of the respondents in not promoting them to the post of Clerk from amongst Class-IV employees by granting a separate quota of 10% to their category.

They approached the Administrative Tribunal on the allegations that 10% of the quota was reserved by the respondents for being filled up from amongst Class-IV employees. They had joined as peons in the year 1981 and were thereafter promoted as Process Servers in 1987. The allegation of the petitioners was that there is a provision in the Recruitment and Promotion Rules for filling up 10% of the posts of the Clerks from amongst Class-IV employees by promotion. The petitioners pleaded that they are in the higher pay scale than that of peons (all in Class IV) and had a preferential right for consideration of promotion over the other Class-IV employees and it is only after their consideration the others in this category would have a chance for being considered.

The petitioners placed reliance on a clarification of the Divisional Commissioner, Shimla, by his memorandum dated September 28, 1994 which was filed as Annexure A-6 with the Original Application to urge that Process Servers had a preferential right of consideration over the other categories as laid down in Annexure A-6 which reads:

No. 2-41/92-Commr. Office of the Commissioner Shimla Division

To

The Deputy Commissioner shimla-171001

Sub : Clarification.

Sir,

Please refer to your letter No. SML-EA-(20)/Misc-4046, dated the 10th August, 1994, on the subject cited above.

In this connection, it is pointed out that as per provisions contained in the Recruitment and promotion Rules, feeder category for promotion to the post Process Server is Peon. The pay scale of the Process is also higher to that of Peon. Therefore, the post of Process Server is naturally higher to that of peon. The promotion to the post of Process Server is also made from the Peon on the basis of seniority, subject to fulfill the other conditions. Therefore, in the first instance names of those eligible Process Server for promotion to the post of clerks against 10% reservation are required to be considered being the higher post in Class-IV. In case, no process server is eligible for promotion to the post of a clerk, then the names of eligible Peons in order of seniority be considered if they fulfill all other required qualification.

Yours faithfully, Sd/- for Commissioner, Shimla Division.

The State resisted the petition on the ground that 10% posts of Clerks are to be filled up from amongst matriculate Class-IV employees. There are other categories in this Class over and above process server i.e. Jamadars, Daftries, Process Servers, Sweepers etc. and promotion, according to the respondents, is to be made strictly on the combined seniority list of Class-IV employees which is maintained. The so-called clarification issued by the Divisional Commissioner was itself kept in abeyance by the Divisional Commissioner by its communication dated 6th December, 1994, Annexure:R-II which reads:

No. 2-51/92-Coor. Office of the Commissioner, Shimla Division.

Dated: Shimla-2, the 6th December, 1994.

To

The Deputy Commissioner, Shimla(H.P.)

Sub:- Clarification regarding promotion of Process Server/Peons to Class-III.

Sir,

In continuation of this office letter of even number, dated the 28th September, 1994 on the subject cited above, I am to inform you that the clarification, on the subject matter given vide this office letter referred to above may please be kept pending, till the matter is conferment by Government.

In a nutshell, the case of the respondent is that matriculates from amongst Class-IV employees are to be considered in accordance with the seniority against the reserved posts of 10% and not by giving preference to one category or the other. The Himachal Pradesh District Subordinate Services (Class-III) Rules, do not provide for such preference to one category alone. The stand of the State was clear and unequivocal that Class-IV staff consisting the categories of Jamadars, Daftries, Process Servers, Peons, Trunkeys, Basta Bardars and sweepers was a common cadre of Class-IV and everyone from this category possesses the basic minimum qualification of education and experience would be eligible for consideration of 10% reservation quota for promotion to the post of Clerk strictly in accordance with seniority.

The Tribunal holds that the Rule provides only for consideration for promotion from the joint seniority list of the cadre of Class-IV and there is no special preference which has been granted to the category of Process Server which is also a part of this cadre. In these circumstances, the Original Application was dismissed.

The petitioner has challenged this order by way of present writ petition. It is submitted on behalf of the petitioners that since the petitioners were appointed as Process Servers and were in a higher pay scale, therefore, the Rules are required to be interpreted by giving them preference. We cannot accept this submission. There is a common seniority list for the employees in the Class-IV category. There is nothing on the record to show that the Rules provided for preferential treatment to Process Servers by allowing them a preference over the other employees for being promoted to the next higher post. All class-IV employees who are eligible subject to their possessing the necessary minimum educational qualifications are entitled for consideration. We cannot find fault with the reasoning of the learned Tribunal. No reliance can be placed on the memorandum of the Divisional Commissioner (Annexure:A-6) as it is already kept in abeyance (Annexure:R/II). Moreover, it cannot over ride the statutory rules. There is, thus, no merit in this petition which is dismissed. There shall be no order as to costs.