Kamal Walia vs Union of India and others

Deepak Gupta, J.—The short controversy involves in the present petition is whether the petitioner, who is admittedly working as Senior Clerk in the H.P.State Social Welfare Advisory Board-respondent No.4, on the retirement of one Shri J.R. Kapoor on 30.9.2005 from the post of Statistical Assistant, should have been considered for promotion to the said post.

The stand of the Board is that Shri J.R. Kapoor was working as Statistical Assistant and the senior clerks are only eligible for promotion to the post of Assistant and as such the petitioner was not considered and respondent No.5 Shri Deepak Chauhan was directly recruited on contract basis for three months.

The Recruitment and Promotion Rules framed by respondent No.4 have been annexed as Annexure PB. In these rules there is no post of Statistical Assistant. The post mentioned is Assistant and this post is required to be filled in by promotion from amongst senior clerks and/or Junior Grade Stenographer in the service of the Board provided that such persons have put in at least six years of total service in the Board.

Shri Surender Sharma, learned counsel for the petitioner, submits that merely by giving the nomenclature of Statistical Assistant to the post held by Shri J.R. Kapoor, a new post could not have been created. He also submits that Shri J.R. Kapoor was getting the same scale as was payable to Assistants. It is also submitted that Shri J.R. Kapoor was a Senior Assistant though posted against the post of Statistical Assistant. Since there is no post of Statistical Assistant mentioned in the rules it shall have to be presumed that Shri J.R.Kapoor was working against the post of Assistant. Even if he himself was in a higher cadre and was working against the post of Assistant, once the post fell vacant it had to be filled in accordance with the Rules. Since the petitioner who was an employee of the Board and had joined the Board on 26th March, 1998, was eligible to be considered for promotion when Shri J.R.Kapoor was to retire. He was wrongly ignored while filling up this post.

The writ petition is, therefore, allowed and the respondent-Board is directed to consider the case of the petitioner for promotion to the post of Assistant after the retirement of Shri J.R.Kapoor. In case he is found eligible for promotion he will be granted promotion from the date it fell due. This promotion shall be counted for the purpose of seniority and fixation of pay but no actual arrears of pay shall be payable to the petitioner since the petitioner has not actually worked against the said post. The orders of this Court be complied with latest by 28th February, 2012. The petition is disposed of in the aforesaid terms. No costs.