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2025 DAILYLAW 3823 (HP)

Pushpa Thakur v. State of Himachal Pradesh

2025-10-14

Ranjan Sharma

body2025
JUDGMENT : Ranjan Sharma, Judge Petitioners, Smt. Pushpa Thakur and others being the legal heirs of Late Sh. Ajay Singh, [referred to as original petitioner] have come up before this Court, seeking the following reliefs:- “7(i) That the impugned Annexure A-10 may kindly be quashed and set aside 7(ii) To direct the respondents to grant appropriate seniority to the applicant in Ex-Serviceman Category (School Cadre Lecturer Category) after counting service rendered the applicant in Air Force from the due date 7(iii) To direct the respondents to consider the case of the applicant for promotion to the post of Principal after assigning him seniority in the appropriate place in pursuance to relief at (ii) above and from the date his juniors have been promoted as Principal. 7(iv) Annexure A-5 & A-6 be ordered to be quashed and directions be issued to re- draw the seniority list of Ex-Servicemen (School Cadre) Category” 2. At the very outset, Learned Senior Counsel, on Instructions of Mr. Vasu Sood states that relief No. 7(iv) regarding Annexure A-4 and Annexure A-5 is not pressed in instant proceedings. FACTUAL MATRIX: 3. Grievance of the petitioner is that the petitioners husband Late Sh. Ajay Singh [referred to as Original Petitioner] joined the Armed Forces, [Air Force] in the year 07.01.1981 and was discharged on 31.01.2001, as per the discharge book [Annexure A-1]. It is averred that the petitioners husband was recommended by the State Selection Committee, Ex- Serviceman Cell, District Hamirpur for appointment as Lecturer School Cadre (Economics) against the post meant for ex-serviceman in the pay scale of Rs. 6400- 10640 plus allowances and based on the said recommendations, the husband of the petitioner Late Sh. Ajay Singh was appointed as Lecturer (School Cadre)on 20.01.2002 [Annexure A-3] and was posted in Government Senior Secondary School Kiani, (Chamba) but the petitioner did not join his posting, which was modified on 02.04.2002 [Annexure A-4] posting him in Government Senior Secondary School Bagwara, District Hamirpur against vacancy. In compliance to the modified posting orders dated 02.04.2002 [Annexure A-4], the petitioner joined as Lecturer (School Cadre) on 02.04.2002. It is averred that the State Authorities issued Seniority List of Ex-Servicemen on 18.11.2004 [Annexure A-7], and the name of the petitioners husband did not figure in the said list. In compliance to the modified posting orders dated 02.04.2002 [Annexure A-4], the petitioner joined as Lecturer (School Cadre) on 02.04.2002. It is averred that the State Authorities issued Seniority List of Ex-Servicemen on 18.11.2004 [Annexure A-7], and the name of the petitioners husband did not figure in the said list. It is averred that junior incumbents-lecturers (School Cadre) were promoted as Principal (School Cadre) on adhoc basis on 29.09.2005 [Annexure A-8], whereas, petitioner was not considered at the relevant time. 3(i). It is further averred that the petitioner filed an Original Application No. 2740 of 2005, before the Learned State Administrative Tribunal and the same was disposed of on 08.11.2005 [Annexure A-9], as representation, with the direction to Principal Secretary [Education] to examine the matter after affording hearing to the petitioner and the Principal Secretary (Education) passed an order dated 13/15.12.2005 [Annexure A-10] rejecting the claim of the petitioners husband for promotion to the post of Principal (School Cadre) on the ground, that the promotional panel for post of Principal (School Cadre) was prepared by the State Authorities on 29.01.2005 and since the original petitioner did not complete requisite 03 years service in the feeder grade of Lecturer (School Cadre), which was reckonable from 02.04.2002 [Annexure A-4], therefore, for want of completion of 03 years of requisite service, the original petitioner being not eligible was not considered for induction in the promotional panel for the post of Principal (School Cadre). Besides this, the Rejection order indicates that a direction was given to the Director of Education, Himachal Pradesh to fix the seniority of the petitioner, as per norms. In above background, the original petitioner had assailed the Rejection Orders dated 13/15.12.2025 [Annexure A-10], on the ground, that the action of the State Authorities is not assigning seniority as Lecturer (School Cadre) has adversely effected the rights of the original petitioner, by depriving him of the fundamental rights of consideration for promotion to the post of Principal (School Cadre) from the date of the juniors were promoted by the respondents. Accordingly, a prayer is made for assigning seniority as Lecturer (School Cadre) and for considering the original petitioner [Late Sh. Ajay Singh] for promotion as Principal (School Cadre) from the date juniors were promoted with all consequential benefits. STAND OF STATE AUTHORITIES-RESPONDENTS: 4. Pursuant to the issuance of notice, the respondents filed a Reply-Affidavit dated 21.02.2006 of Director of Higher Education. Ajay Singh] for promotion as Principal (School Cadre) from the date juniors were promoted with all consequential benefits. STAND OF STATE AUTHORITIES-RESPONDENTS: 4. Pursuant to the issuance of notice, the respondents filed a Reply-Affidavit dated 21.02.2006 of Director of Higher Education. 4(i) Perusal of the Reply-Affidavit indicates that petitioner joined service as Lecturer (School Cadre) on 02.04.2002. Reply-Affidavit indicates that the promotional panel for promoting Lecturer (School Cadre) to the post of Principal (School Cadre) was prepared by the Government on 29.01.2005 and since the petitioner did not complete requisite 03 years service in the feeder grade of Lecturer (School Cadre) at the time of preparation of panel therefore, the petitioner being ineligible was not included in the promotional panel. Para 6(ii) of Reply-Affidavit admits that the petitioner was not assigned seniority amongst the re-employed Ex-Serviceman as Lecturer (School Cadre) by the respondents. Para 6 (iv) of Reply- Affidavit states that name of the petitioner will be considered for promotion to the post of Principal (School Cadre) as an when the DPC is convened. In reply, the Rejection Orders dated 13/15.12.2005 [Annexure A-10], was reiterated by the State Authorities. In this background, the State Authorities have prayed for dismissal of the writ petition. APPLICATION FOR APPROPRIATE DIRECTIONS/ ADDITIONAL DOCUMENTS 5. During the pendency of instant petition, the petitioner filed a CMP(T) No. 1825 of 2008. Pursual of the application, indicates that during the pendency of the instant petition, the Director of Education, Himachal Pradesh issued a communication in the month of February, 2006 [Annexure A-12], whereby, the original petitioner was assigned seniority as Lecturer (School Cadre) by placing him at Seniority No 28-B [at serial No. 5 of the aforesaid communication] by reckoning seniority as Lecturer (School Cadre) with effect from 02.04.2002. Petitioner also placed on record a Notification dated 09.01.2007 [Annexure A-11] to assert even after of assigning of seniority as Lecturer (School Cadre) at Seniority No.28-B. The junior incumbents-lecturers figuring at Serial No. 35-C to Seniority No 1195 were promoted to post of Principal (School Cadre), on regular basis on 09.01.2007 [Annexure A-11] without considering the original petitioner and therefore, the petitioner deserves to be considered for promotion as Principal (School Cadre) from the date the junior(s) were promoted by the respondents. REBUTTAL BY PETITIONER. 6. In rebuttal, the petitioner refers to one Sh. REBUTTAL BY PETITIONER. 6. In rebuttal, the petitioner refers to one Sh. Ram Singh, who is stated to have been assigned Seniority No. 29-A as Lecturer (School Cadre), who was promoted as Principal (School Cadre) on 29.09.2005 by the Respondents. In Rejoinder, the petitioner has reiterated his claim in the writ petition, lying a challenge to the Rejection Orders dated 13/15.12.2005 [Annexure A-10] and seeking direction to the respondents to refix his seniority as Lecturer (School Cadre) and then to consider his case for promotion to the post of Principal (School Cadre) from the date immediate juniors were considered and promoted. 7. Heard, Mr. Neel Kamal Sood, Learned Senior Advocate with Mr. Vasu Sood, Advocate and Mr. Sumit Sharma, Learned Deputy Advocate General. ANALYSIS: 9. Taking into account the entirety of facts and circumstances and the material on record, this Court is of the considered view, that the Rejection Orders dated 13/15.12.2005 [Annexure A-10] so far as it denies the consideration and resultant promotion to the petitioner from the feeder grade of Lecturer (School Cadre) to the post of Principal (School Cadre), does not suffers from any infirmity, for the following reasons:- 9(i) Original petitioner, Late Sh. Ajay Singh, after having served the Armed Forces, was nominated for appointment as a Lecturer (School Cadre) by the Ex- Serviceman Cell, Hamirpur. Pursuant to the said nomination, the original petitioner, was appointed as Lecturer (School Cadre) on 02.01.2002 [Annexure A-3].In pursuance to the offer of appointment, the husband of original petitioner did not join his place of posting. To the contrary, he sought his adjustment at new posting which was given on 01.04.2002 in GSSS Bagwara (Boranj), District Hamirpur [Annexure A-4], where he joined on 02.04.2002. Admittedly, the next promotional post of Lecturer (School Cadre) and in case of Ex-Serviceman category incumbents, the same is to be filled from Lecturers who have completed three years regular service in the feeder grade as Lecturers (School Cadre). It is not in dispute that the State Authorities initiated the process for making the promotion for the post of Principal (School Cadre) and accordingly, the promotional Panel was prepared and sent to the Government on 29.01.2005. It is not in dispute that the State Authorities initiated the process for making the promotion for the post of Principal (School Cadre) and accordingly, the promotional Panel was prepared and sent to the Government on 29.01.2005. On the date of preparation of promotional panel for promotional post of Principal (School Cadre) on 29.01.2005, the petitioner, admittedly did not possess the requisite 03 years of regular service as Lecturer (School Cadre), which, in the instant case, was reckonable from the date of his appointment/joining as Lecturer (School Cadre) on 02.04.2002. In these circumstances, once the original petitioner, Late Sh. Ajay Singh did not possess 03 years of regular service in the feeder grade of Lecturer on the date of preparation of the promotional panel for the promotional post of Principal (School Cadre) on 29.01.2005, therefore, this Court does not find any infirmity or illegality in the Rejection Orders dated 13/15.12.2005 [Annexure A-10], for considering his case for promotion as Principal (School Cadre), on the basis of promotional panel prepared on 29.01.2005, being ineligible, at the relevant time. 9(ii). The original petitioner has no vested right of promotion. An employee has a limited right to be considered for promotion, which is subject to eligibility in accordance with the Recruitment and Promotion Rules. Admittedly, for promotion of Lecturer (School Cadre) to the post of Principal (School Cadre), once requirement of three years regular service for Ex- serviceman-Lecturer is a sine qua-non for acquiring eligibility and resultant consideration on the date of preparation of promotional panel on 29.01.2005, but once the petitioner has not rendered the requisite 03 years of regular service in the feeder grade [which was reckonable from 02.04.2002], therefore, the ineligibility of the original petitioner, namely Late Sh. Ajay Singh, disentitles him for consideration or for inclusion of his name in the promotional panel. Accordingly, the rejection of claim and non- consideration of case for promotion, due to ineligibility and non completion of requisite 03 years of service as Ex-serviceman- Lecturer does not suffers from any illegality or infirmity. Accordingly, the Rejection Orders dated 13/15.12.2005 [Annexure-10], disentitle the petitioner for promotion to the post of Principal [School Cadre], at the time of preparation of the promotional panel on 29.01.2005, does not suffer from vice of illegality or arbitrariness and the Rejection Orders are accordingly upheld. 9(iii). Accordingly, the Rejection Orders dated 13/15.12.2005 [Annexure-10], disentitle the petitioner for promotion to the post of Principal [School Cadre], at the time of preparation of the promotional panel on 29.01.2005, does not suffer from vice of illegality or arbitrariness and the Rejection Orders are accordingly upheld. 9(iii). So far as Relief No.7(i) and (ii) whereby, the petitioner asserts that after having been appointed and after having joined as Lecturer [School Cadre] on 02.04.2002 [on the basis of Annexure A-4], the Respondents did not assign seniority to the original petitioner Late Sh. Ajay Singh as Lecturer (School Cadre). Pertinently, during the pendency of the instant petition, the petitioner has filed an application i.e. CMP(T) No. 1825 of 2008 enclosing a communication dated February, 2006 [Annexure A-12], issued by Director of Education, assigning seniority to original petitioner, Late Sh. Ajay Singh as Lecturer (School Cadre) at Seniority No. 28-B and by reckoning such seniority from date of joining as Lecturer on 02.04.2002 In these circumstances, the claim for assigning seniority as Lecturer (School Cadre) under Relief 7(i) and (ii) stands granted to original petitioner by the respondents in February, 2006 [Annexure A-12] as referred to above. 9(iv). Now, coming to the claim of the original petitioner for promotion as Principal (School Cadre) after assigning seniority as Lecturer (School Cadre) at Seniority No. 28-B w.e.f 02.04.2002, [Annexure A-12], Learned Senior Counsel submits that one Sh. Ram Singh, who was junior at seniority no. 29-A in the seniority list of lecturers issued in the month of February 2006 [Annexure A-12] by reckoning his seniority from 09.0.2002 and aforesaid Ram Singh was considered and promoted as Principal (School Cadre), despite being junior to the petitioner. The above contention of Learned Senior Counsel in considered view of this Court does not stands to rational for the reason, that a perusal of the Seniority list of Lecturers issued in February, 2006 [Annexure A-12] indicates that the original petitioner [Late Sh. Ajay Singh was placed at Seniority No.28-B by reckoning seniority from 02.04.2002 i.e the date of joining as Lecturer (School Cadre) on the basis of modified posting Orders dated 01.04.2002 [Annexure A-4]. However, a perusal of Seniority List of Lecturers issued in February, 2006 [Annexure A-12], indicates that aforesaid Shri Ram Singh joined his appointment as Lecturer (School Cadre), on the basis of appointment orders originally issued on 09.01.2002 as Lecturer(School Cadre). However, a perusal of Seniority List of Lecturers issued in February, 2006 [Annexure A-12], indicates that aforesaid Shri Ram Singh joined his appointment as Lecturer (School Cadre), on the basis of appointment orders originally issued on 09.01.2002 as Lecturer(School Cadre). The aforesaid Shri Ram Singh completed 03 years of service in feeder grade of Lecturer on 09.01.2005, making him eligible for consideration for promotion as Principal (School Cadre) on the date of promotion of promotional panel on 29.01.2005, whereas the original petitioner [Late Sh. Ajay Singh] was appointed as Lecturer on 01.01.2002[Annexure P-4] but he joined his modified posting on the basis of orders dated 02.04.2002 on 02.04.2002 itself and for want of 03 years service as on 28.01.2005, the original petitioner being ineligible had no right of consideration vis-à-vis the eligible incumbent Shri Ram Singh. Accordingly, the contention of Learned Senior Counsel that the petitioner was entitled for promotion at par with Ram Singh is misconceived and devoid of any merit. 9(v) Besides the above, Learned Senior Counsel submits that once the Director of Education had assigned the seniority to the petitioner as Ex-Serviceman Lecturer (School Cadre) in February 2006 by placing him at Seniority No. 28-B and by reckoning his seniority as Lecturer from the date of joining on 02.04.2002 [Annexure A-12] and once the junior incumbents [Seniority No. 35C to 1195] were promoted as Principal (School Cadre) on 09.01.2007 [Annexure A-11] then, the petitioner deserves to be considered for promotion as a Principal (School Cadre) from the date the juniors were promoted on 09.01.2007 [Annexure A-11]. The above contention has merit for the reason that the petitioner joined as Lecturer (School Cadre) from Ex-Serviceman category on 02.04.2002 and he completed requisite 03 years regular service as such on 02.04.2005 and once the junior incumbents were promoted as Principal on 09.01.2007 [Annexure A-11] and the promotional post of Principal (School Cadre) was a selection post, for which the promotion is to be made on the basis of merit-cum-seniority, therefore, the petitioner being eligible and senior, has a fundamental right to be considered for promotion as Principal (School Cadre) from the date juniors as indicated in the Notification dated 09.01.2007 [Annexure A-11] were considered and promoted. Needless to say, that this Court, is not mandating the Respondents to grant promotion to the original petitioner as Principal (School Cadre) from the date the juniors were promoted on 09.01.2007 [Annexure A-11]. Needless to say, that this Court, is not mandating the Respondents to grant promotion to the original petitioner as Principal (School Cadre) from the date the juniors were promoted on 09.01.2007 [Annexure A-11]. This Court is only mandating the State Authorities to consider the case of the petitioner who is eligible, senior and possess three years regular service in the feeder grade as Lecturer on 02.04.2002 to be considered for promotion as Principal (School Cadre) from the date the juniors were promoted on 09.01.2007 [Annexure A-11] in accordance with law. In these circumstances, the prayer No. 7(i) and (ii) seeking a direction to consider him for promotion to the post of Principal (School Cadre) from the date the juniors incumbents-School Lecturer(s) were promoted to the post of Principal on 09.01.2007 [Annexure A-11], has merit and the same is accepted in the aforesaid terms. Upon consideration, in case the original petitioner [Late Sh. Ajay Singh] is found entitled for promotion, then in such an eventuality, necessary admissible benefits like fixation of pay as Principal (School Cadre) be extended from the date of promotion of juniors w.e.f 09.01.2007 [Annexure A-11] during service, and revised retiral benefits till his death on 22.01.2012 and the admissible revised Family Pension, if any, be released to the present petitioner namely Smt. Puspha Thakur being the widow of the original petitioner, Late Sh. Ajay Singh on 22.10.2012 with all admissible consequential benefits, if any, in accordance with law. DIRECTIONS 10. In view of the above discussions and for the reasons recorded hereinabove, the instant petition is disposed of, in the following terms:- (i) Rejection Orders dated 13/15.12.2005 [Annexure A-10] so far as it disentitles the petitioner for promotion as Principal (School Cadre) on the date of preparation of promotional panel as 29.01.2005 being ineligible; is disallowed; (ii) Consequent upon assigning of seniority as Lecturer (School Cadre) in February, 2006 at Seniority No. 28-B, the State Authorities shall consider original petitioner [Late Sh. Ajay Singh] for promotion as Principal (School Cadre), on regular basis from the date the juniors were promoted as such on 09.01.2007 [Annexure A-11]; (iii) Upon consideration and finding the original petitioner entitled for promotion; the State Authorities shall release all admissible monetary benefits from due date [as in direction No. (i) and (ii) above] and to grant the admissible Revised Family Pension to petitioner no.1 [Smt. Pushpa Thakur being the widow], from the date of death of her husband on 22.10.2012; with all admissible consequential benefits; (iv) Costs made easy for respective parties. In aforesaid terms, the instant petition and all pending miscellaneous application(s), if any, shall stand disposed of, accordingly.