2025:HHC:41686 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.7630 of 2023 Decided on: 04.12. 2025 _________________________________________________________________ Narender Kumar ....Petitioner Versus State of H.P. & Ors. …Respondents _________________________________________________________________ Coram Ms. Justice Jyotsna Rewal Dua 1 Whether approved for reporting? _________________________________________________________________ For the petitioner: Mr. Rakesh K Dogra, Advocate. For the respondents: Ms. Menka Raj Chauhan, Deputy Advocate General, for respondents No. 1 to 4. None for respondent No.5 Jyotsna Rewal Dua, Judge Respondents regularized the promotion of the petitioner from a retrospective date, on notional basis. Petitioner represented to the respondents to allow him to exercise option for coming over to the next scale. On respondents’ failing to respond, he has preferred this writ petition. 1 Whether reporters of Local Papers may be allowed to see the judgment? yes 2025:HHC:41686 - 2 - 2. The case 2(i) After discharge from Army service, petitioner joined respondent-Education Department as Trained Graduate Teacher (Arts) on 04.09.2001. He was promoted to the post of Headmaster under order dated 21.08.2008. 2(ii) Petitioner was next considered for promotion to the post of Principal. On the basis of recommendations of the Departmental Promotion Committee, he was promoted as Principal on ad hoc basis on 05.12.2011. Respondents issued notification on 08.03.2019, notionally promoting the petitioner as Principal (School Cadre) Class-I Gazetted on regular basis in the Pay Band of Rs.15600-39100+ 6600 (GP) w.e.f. 26.05.2011. Within one month from the date of issuance of aforesaid notification, petitioner exercised his option on 18.03.2019 under Fundamental Rule 22(I)(a)(i) opting to retain his existing scale of Headmaster till the accrual of his next increment in the lower post i.e. 01.09.2011 (annual increment). 2(iii) Apparently, respondents did not take any action on petitioner’s option, which was otherwise forwarded by the concerned Principal to the Competent Authority on 2025:HHC:41686 - 3 - 18.03.2019. Petitioner retired on 30.01.2021 on attaining the age of superannuation. He again represented the respondents on 30.08.2023 for fixing his pay as per his option and for release of cascading consequential benefits. 2(iv) Hearing no response from the respondents, petitioner preferred this writ petition for grant of following substantive reliefs:- “(i) That a writ in the nature of mandamus may also be issued, directing the respondents to extend the benefits of FR-22 (I) (a) (i) to the petitioner on his regular promotion as Principal vide office order dated 08.03.2019 after accrual of annual increment, which fell due on 01.09.2011 in terms of option exercised by the petitioner vide Annexure P-4 dated 18.03.2019 which was furnished by him before the respondent No. 4-DDHE, Mandi in compliance to the order dated 14.03.2019 passed by the respondent No. 3, with a further direction to re-fix the pay of the petitioner, accordingly and release all due & admissible arrears flowing out of grant of such benefits alongwith interest @ 9% per annum and justice be done. (ii) That a writ of mandamus may also be issued, directing the respondents to revise the pension, commuted value of pension, gratuity and leave encashment qua the petitioner flowing out of grant of relief (i) above and pay arrears to the petitioner alongwith interest 9% per annum.” 2025:HHC:41686 - 4 - 3. Heard learned counsel for the parties and considered the case file. 4. Respondents have not refuted promoting the petitioner on notional basis from retrospective date. According to the respondents, in case of notional promotion, there is no provision for exercise of option. This defence is pleaded by the respondents as under:- “9-10. That in reply to these paras, it is submitted that Finance Department of Govt. of Himachal Pradesh vide letter dated 15-10-2018, has advised that "As per provisions of Rules, option for pay fixation is exercised only in case of regular promotion. In case of notional promotion, there is no provision for exercising of option". Respondents have not allowed the petitioner to exercise option for pay fixation in view of Finance Department’s instructions dated 15.10.2018. These very instructions came up for consideration in Devini Sharma and Ors Vs. State of H.P. & Ors2. In the said case, one of the grievances raised by the petitioners, was against respondents’ refusal to grant option to them under Fundamental Rules for fixing their pay-scale on promotional post. The respondents in the said case had turned down 2 CWPOA No. 5312/2020 decided on 17.05.2024 2025:HHC:41686 - 5 - petitioners’ prayer for giving them option for fixation of pay on account of their retrospective notional promotion citing Finance Department’s instructions dated 15.10.2018. This grievance of the petitioners in Devini Sharma2 was noted as under:- “2(iv) …. The petitioners’ further prayer for giving them option for fixation of pay on account of their notional promotion w.e.f. 05.10.2015 has also been turned down by the respondents during the pendency of this petition on 15.10.2018 on account of alleged advise of the Finance Department that “As per the provision of rules, option for pay fixation is exercised only in case on regular promotion. In case of notional promotion there is no provision for exercising of option.” This has compelled the petitioners to institute the present petition for grant of following substantive reliefs:- “i) That the original application of the applicant may kindly be allowed throughout with cost and the applicants may be ordered to be granted the promotional benefits from the date 05.10.2015 on which the Addendum Annexure A-2 was issued and justice be done. ii) That the respondents may be directed to provide the opportunity for exercising the option as per fundamental rules 22 to get the pay of the applicants fixed of the promotional post after earning the increment of the lower scale post.” Petitioners’ prayer for granting them option for fixing their pay consequent upon their notional promotion 2025:HHC:41686 - 6 - from retrospective date, was allowed as under:- “5(iii). There is, however, force in petitioners’ second prayer for granting them option for fixing their pay consequent upon their notional promotion to the post of Superintendent Grade-II w.e.f. 05.10.2015. Even though petitioners’ promotions have been ordered on notional basis w.e.f. 05.10.2015 vide order dated 28.02.2018 & 28.06.2018 but the fact remains that the same are on regular basis. The promotion was due to the petitioners from 05.10.2015 but on account of litigations and the orders passed in the petitions, the promotions to the post of Superintendent Grade-II were delayed. Respondents have themselves admitted that option for pay fixation is exercisable in case of regular promotions. Merely because the petitioners were conferred notional promotion w.e.f. 05.10.2015 vide order dated 22.06.2018 would not mean that such promotions were not regular. The first order passed on 28.02.2018 makes the position clear that the petitioners were promoted as Superintendent Grade-II on regular basis. Benefit of retrospectively to their promotions w.e.f. 05.10.2015 (notional promotion) was conferred upon them vide order dated 22.06.2018. Notional promotions w.e.f. 05.10.2015 will not take away the character of ‘regular promotion’ from the petitioners’ promotion order. They are entitled to exercise option for fixation of their pay as available in law. Ordered accordingly.” Learned counsel for the parties are ad idem that the aforesaid decision has attained finality and has also been implemented. The ratio of above decision is applicable to the 2025:HHC:41686 - 7 - facts of the present case as well, as the only reason for not allowing the petitioner to exercise option for pay fixation consequent upon his notional promotion from retrospective date is the instructions issued by the Finance Department on 15.10.2018, which have already been interpreted in Devini Sharma2 in favour of the petitioner. Accordingly, this writ petition is allowed. Respondents are directed to take action upon the option furnished by the petitioner on 18.03.2019 (Annexure P-4). This exercise be carried out in accordance with law, within six weeks. All consequential actions shall follow. Petitioner shall be entitled to monetary benefits, if any, flowing to him as a consequence thereof. Pending miscellaneous application(s), if any, also stand disposed of. Jyotsna Rewal Dua Judge December 04, 2025 R.Atal