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Himachal Pradesh High Court · body

2026 DAILYLAW 16722 (HP)

Namita Verma v. State of HP

2026-02-27

Jiya Lal Bhardwaj

body2026
JUDGMENT : Jiya Lal Bhardwaj, J. By way of present petition, the petitioner has prayed for quashing of office order dated 25.08.2011 (Annexure P-8), whereby the proforma promotion order of the petitioner to the post of Block Medical Officer, as per Department Notification dated 10.12.2008, has been withdrawn and recovery of over-payment on account of erroneous promotion, has been ordered. 2. Shorn of unnecessary details, brief facts of the case are that the petitioner was appointed as Medical Officer (General Wing). In sequel to her appointment, she joined her duties on 09.04.1988. The petitioner has placed on record the seniority list, as it stood on 31.03.2000 (Annexure P-1) and in the final integrated seniority list of Doctors belonging to Civil Medical Services (General Wing), the petitioner’s name figured at Serial No. 481. As per the Recruitment and Promotion Rules for the post of Block Medical Officer, Class-I (Gazetted), the State Government had issued the notification on 05.07.2006 (Annexure P-2), prescribing the eligibility conditions. The said Rules are called as the Himachal Pradesh Health and Family Welfare Department, Himachal Pradesh Block Medical Officer, Class-1 (Gazetted), Recruitment and Promotion Rules, 2006. As per these rules, the method of recruitment for the post of Block Medical Officer, Class-1 (Gazetted) is 100% by way of promotion. The eligibility conditions for the promotion are as under :- “10. Method of recruitment. Whether by direct recruitment or by promotion, deputation, transfer and the percentage of posts to be filled in by various methods: 100 % by promotion 11. In case of recruitment by promotion, deputation, transfer, grade from which promotion/ deputation transfer is to be made: By promotion from amongst the Medical Officers with 10 years’ regular service or regular combined with continuous adhoc service rendered, if any, in the grade out of which three years service in hard/rural areas is essential." 3. The petitioner vide Notification dated 10.12.2008 (Annexure P-3) was promoted to the post of Block Medical Officer on proforma basis in the pay scale of Rs.12000-15500+NPA as admissible under the Rules with immediate effect. After promotion of the petitioner as Block Medical Officer, the respondents-State had passed an office order on 05.10.2009 (Annexure P-4), fixing the pay of the petitioner. 4. The petitioner retired from service on attaining the age of superannuation on 31.05.2011 afternoon (Annexure P-5). After promotion of the petitioner as Block Medical Officer, the respondents-State had passed an office order on 05.10.2009 (Annexure P-4), fixing the pay of the petitioner. 4. The petitioner retired from service on attaining the age of superannuation on 31.05.2011 afternoon (Annexure P-5). Thereafter, the benefits emanating from service rendered by her had been paid to her, as is evident from perusal of Annexure P-6 and pension of the petitioner was fixed vide office order dated 15.06.2011 (Annexure P-7). 5. After the retirement of the petitioner, respondents-State issued an office order on 25.08.2011 (Annexure P-8), withdrawing the promotion of petitioner on proforma basis made vide Notification dated 10.12.2008 and also ordered the recovery of over-payment on account of erroneous promotion, on the ground that it has been found that the petitioner had not acquired higher qualification i.e. PG course and even the Diploma Certificate in OBG issued by the Society for Advance Studies in Medical Sciences in her favour, is not recognized by the Medical Council of India. 6. The petitioner by way of the present petition laid challenge to the said order on the ground that she was eligible under the Rules for promotion to the post of Block Medical Officer and further her promotion has been made on the recommendations of the Departmental Promotion Committee vide Notification dated 10.12.2008 (Annexure P-3). Though the petitioner had been promoted as Block Medical Officer on proforma basis, but the pay scale was the same as that of Block Medical Officer. After her joining on the post of Block Medical Officer, she had performed her duties as such, till her retirement and the respondents cannot retrospectively withdraw her promotion w.e.f. 10.12.2008. The action on the part of the respondents is illegal, wrong and unwarranted. 7. It has been further averred that there can’t be any retrospective withdrawal of the promotion of any employee after superannuation. 8. The respondents filed reply to the petition and submitted that the Recruitment and Promotion Rules (hereinafter referred as R&P Rules) for the post of Block Medical Officer were notified on 05.07.2006 and as per these Rules, Medical Officers with 10 years of regular service are eligible for promotion to the posts of Block Medical Officer. As per column 17 of the R&P Rules every member of the service is required to pass a departmental examination. As per column 17 of the R&P Rules every member of the service is required to pass a departmental examination. The respondents-State vide Notification dated 17.05.2008, had inserted the additional provision in Column No. 17, which prescribes that the Medical Officer having Degree/Diploma in a particular subject (Specialization) are exempted from qualifying departmental examination for the purposes of promotion to the grade of Block Medical Officer (hereinafter referred as BMO) and above. However, they are required to clear departmental examination for actually holding post of BMO/CMO/MS/Principal/Dy. Director. In case they do not pass departmental examination, they will receive promotion to the said scale of pay, but will not hold the relevant administrative post of BMO/CMO etc. 9. The respondents further averred in the reply that on 02.12.2008, the Departmental Promotion Committee was held, wherein 18 Medical Officers were promoted to the post of Block Medical Officers on regular basis and 10 Medical Officers, who are specialists, were promoted on proforma basis and the petitioner was one of them. However, later on, it came to the notice of the Government that the petitioner does not possess recognized diploma in Gynaecology, and as such the matter was reviewed and a show cause notice was issued to the petitioner to explain as to why she did not report that she had wrongly been shown as Specialist and was promoted to the post of BMO (Specialist). In response thereto, the petitioner has submitted that she had never misled and misrepresented to the Department that she had acquired specialization in OBG and was promoted to the post of Block Medical Officer, on the basis of her seniority. After examination, it was found that the petitioner had not acquired higher qualification in OBG and the Diploma Certificate issued by the Society for Advanced Studies in Medial Sciences was not recognized by the Medical Council of India. Hence, the proforma orders issued on 10.12.2008 were withdrawn and the recovery of over-payment on account of said erroneous promotion had been issued. 10. I have heard the learned counsel for the parties and also gone through the record carefully. 11. Hence, the proforma orders issued on 10.12.2008 were withdrawn and the recovery of over-payment on account of said erroneous promotion had been issued. 10. I have heard the learned counsel for the parties and also gone through the record carefully. 11. A perusal of the R&P Rules reveals that the person, who is to be promoted to the post of Block Medial Officer, Class-I (Gazetted), must have 10 years’ regular service or regular combined with continuous adhoc service rendered, if any, in the grade, out of which three years’ service in hard/rural areas is essential. Thus, the essential qualifications do not prescribe that the person should have higher qualification for promotion to the post of BMO. 12. The office order dated 25.08.2011 only talks about the fact that the petitioner had not acquired higher qualification i.e. PG Course and even the Diploma Certificate in OBG, issued in her favour was not recognized by the Medical Council of India. Once the Rules do not prescribe the higher qualification, the order dated 25.08.2011, passed vide Annexure P-8, is illegal, arbitrary and wrong. 13. It is not in dispute that the petitioner was retired from service on 31.05.2011 and thereafter her service benefits were released and further her pension was fixed as per Annexure P-7 on 15.06.2011, before issuance of the impugned order. Even as per the Notification dated 17.05.2008 appended with the reply by the respondents clearly goes on to show that the provision, which has been added is that the Medical Officers having Degree/Diploma in a particular subject (Specialization) are exempted from qualifying Departmental Examination for purposes of promotion to the grade of BMO and above. It is not the case of the respondents in the reply that the petitioner had not qualified the examination, the same is also not evident from the office order dated 25.08.2011 (Annexure P-8). 14. Furthermore, once the petitioner had retired from service on 31.05.2011, the impugned order passed thereafter on 25.08.2011, withdrawing the proforma promotion cannot stand, more particularly when the retiral benefits on the basis of the last pay drawn by the petitioner were calculated and paid to the petitioner. Even the pension had also been fixed on the basis of the last pay drawn by the petitioner on 15.06.2011. 15. Even the pension had also been fixed on the basis of the last pay drawn by the petitioner on 15.06.2011. 15. Once the petitioner had discharged the duties on the post of Block Medical Officer, and further the respondents had promoted her as per the Rules in existence, the impugned order to withdraw the promotion retrospectively and order to make recovery is arbitrary and illegal. Since the petitioner had retired from service, no recovery can be affected from her. 16. Consequently, the writ petition is allowed and the impugned order dated 25.08.2011, passed by the respondents is quashed and set aside and the petitioner is held entitled to all benefits on the basis of the promotion to the post of Block Medical Officer made vide Notification dated 10.12.2008. However, no order as to cost. Application(s), if any, also stand disposed of.