Uttam Singh vs State of H.P. and Another

Dev Darshan Sud, J.—The petitioner seeks appropriate writ, order or direction seeking his consideration to be promoted for the post of Senior Assistant (Head Clerk/Assistant) in accordance with the Recruitment and Promotion Rules, 1973, titled: The Himachal Pradesh Education Department Class-III Ministerial Services Rules.

It is undisputed before me that Rule-2 of the aforesaid Rules dealing with promotion to the post of Head Clerk/Assistant (re-designated as Senior Assistant) provides:

''Name of Post

Method of recruitment whether by direct recruitment or by promotion departmental

In case of recruitment by promotion description, transfers, place from which promotion department transfer

Head Clerk/Assistant

By direct recruitment-25% By Promotion-75%

Promotion from amongst Clerks/Steno-typist having three years regular service in the grade of Rs.110-250 provided they have passed a qualifyingtest.''

In case of recruitment by promotion description, transfers, place from which promotion department transfer Promotion from amongst Clerks/Steno-typist having three years regular service in the grade of Rs. 110-250 provided they have passed a qualifying test.

It should be plain and evident from a reading of this Rule that the method of recruitment provided 25% by direct recruitment and 75% by promotion from amongst Clerks/Steno Typists having three years regular service in the grade of Rs. 110-250 provided that they qualify the prescribed test. It is undisputed before me that this Rule remained in vogue till its amendment on 15th September, 1998. The simple case pleaded by the petitioner is that he was entitled to be considered for promotion against this post as he was working as Steno Typist.

The petition is resisted by the State primarily on the ground that before 1985 the cadre of Steno Typists/Clerks was a unified cadre and in 1985 the cadre was bifurcated. The petitioner having been recruited to this post after 1985, i.e. in the year 1987, is not entitled for consideration. It is also submitted by the learned Additional Advocate General that the bifurcation of cadre having not been challenged, it is not open to the petitioner herein to urge that he may be considered for further promotion.

Prima facie this argument seems to be attractive but cannot be accepted for the reason that though the cadres may have been bifurcated but there was no amendment in the Rules of promotion to the post of Head Clerks/Assistant later on re-designated as Senior Assistant. In other words, consideration to that post by promotion was open to the Steno Typists/Assistants and they were entitled to such consideration till the amendment of the Rule in 1998.

It is trite that all vacancies occurring in a cadre prior to this amendment are to be considered in accordance with the un-amended Rules. Taking into consideration the facts and circumstances of the case, this writ petition is allowed. A direction is issued to the respondents that in case there were vacancies available before 1998 in the cadre of Steno-typists, the petitioner''s case will be considered in accordance with law and rules. Of-course, the petitioner will have to satisfy all the other criteria including tests etc. to be qualified. This writ petition is disposed of. No order as to costs. Orders rejecting the representations of the petitioner Annexures P-4 and P-8 are accordingly quashed and set aside.