w w w . L a w y e r S e r v i c e s . i n



Rakesh Kumar v/s H.P. Urban Development Authority & Another


Company & Directors' Information:- KUMAR URBAN DEVELOPMENT PRIVATE LIMITED [Active] CIN = U70101PN1993PTC072139

Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400MH2011PTC300616

Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400WB2011PTC166069

Company & Directors' Information:- R K URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U45400MH2011PTC223591

Company & Directors' Information:- AMP URBAN INDIA PRIVATE LIMITED [Active] CIN = U45400WB2011PTC164960

Company & Directors' Information:- RAKESH KUMAR AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U45201UP2000PTC025788

Company & Directors' Information:- A. B. URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U70100MH2015PTC267677

    CWPOA No. 5060 of 2019

    Decided On, 27 August 2020

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE AJAY MOHAN GOEL

    For the Petitioner: Adarsh K. Vashista, Advocate. For the Respondents: C.N. Singh, Advocate.



Judgment Text

(Through Video Conferencing).Ajay Mohan Goel, J.1. By way of this petition, petitioner has prayed for the following reliefs:“i) That the impugned order Annexure A10 dt. 10.4.2015 passed by the respondent no.1 may kindly be quashed and set aside.ii) That the Respondents may kindly be directed to consider the candidature of the applicant for promotion to the post of clerk from the date the similarly placed persons have been promoted as clerks.iii) That the respondents may kindly be directed to grant, allow and pay the officiating allowance in favour of the applicant w.e.f. 16.7.2007 till date as he has been working against the post of clerk 2.3.f. 2006 but he was regularized in w.e.f. 16.7.2007”.2. The case of the petitioner is that he was initially engaged as a Beldar in the year 1993, by the respondent authority and his services were regularized as such in the year 2007. In the respondents authority, there are posts of Clerk, which inter alia are filled by promotion from amongst eligible Class IV employees, who have served the respondentauthority for a minimum period of five years and also possessed the minimum qualification of 10+2 as prescribed in the Rules. Contention of the petitioner is that despite the factum of him being a ClassIV employee and despite the factum of him being eligible in terms of the Recruitment and Promotion Rules for being considered for promotion against the post of Clerk as he has put in five years’ service as a ClassIV employee and also possesses the minimum qualification of 10+2, promotion has not been given to him against the post of Clerk, though other ClassIV employees, who are otherwise junior to him, stand promoted against the said post.3. The stand of the respondent is that though there is no dispute that ClassIV employees, who fulfill the minimum eligibility criteria of 10+2 and have put in five years’ service as such, are eligible for promotion against the post of Clerk, however, the promotion is restricted only to the categories of Peons and Chowkidar and Beldars are not entitled for promotion against the post of Clerk.4. I have heard learned Counsel for the parties and have also gone through the pleadings as well as documents appended therewith.5. The Recruitment and Promotion Rules pertaining to the post of Clerk are appended with the petition as Annexure A4. This is a Notification, dated 17.12.2013 and the same pertains to Recruitment and Promotion to the post of Clerk in Himachal Pradesh Housing and Urban Development Authority. In terms of the said Notification, the post of Clerk is a ClassIII post. It is a nonselection post and the cadre strength of the same is 65. Clause7 of the Rules deals with the minimum educational qualification and other qualifications prescribed for the purpose of direct recruitment and in terms of the said Clause, minimum qualification is 10+2 examination or equivalent from the recognized Board/University. Clause11( a) of the Rules deals with the mode of recruitment and the same inter alia provides that 20% of the posts are filled in by way of promotion from amongst ClassIV officials possessing 10+2 qualification through competitive examination to be conducted in the mode and manner prescribed therein. Clause11( b) thereof provides that 10% of the posts are to be filled in by promotion from amongst ClassIV officials, who have passed 10+2 examination or its equivalent from a recognized Board of School Education/University and who possess five years regular service or continued adhoc service rendered, if any, in the Grade.6. A perusal of the Clause11( b), demonstrates that there is no rider contained in the same that amongst Class IV officials, who possess five years’ service as well as minimum education qualification, only Peons and Chowkidar are to be considered for the purpose of promotion against 10% quota to the post of Clerk and Beldars, who are serving the respondentauthority on regular basis and who otherwise possess the minimum requisite qualification of 10+2 and have also put in five years’ service as ClassIV employees, are not eligible for promotion. However, this is the stand which has been taken in the reply filed by the respondentauthority while justifying the denial of promotion to the petitioner.7. Today, learned Counsel for the respondent authority has handed over a copy of instructions so imparted to him and in this, a new case has been set up by the authority to the effect that ClassIV posts in the authority stand divided into two groups i.e. (a) Industrial ClassIV Post and (b) Nonindustrial ClassIV Post. It is further mentioned in the said instructions that in H.P. Urban Development Authority, only nonindustrial ClassIV posts holders are eligible for promotion against the post of Clerk under 10% quota.8. In my considered view, promotion to a post is to be governed by the Recruitment and Promotion Rules. As, I have already mentioned above, in the Recruitment and Promotion Rules, there is no differentiation made between any ClassIV post holder, be he a Beldar, a Chowkidar etc. Thus, the classification which is now being carved out by the authority in denying the promotion to the petitioner against the post in issue, is not contained in the Recruitment and Promotion Rules and thus, the contents of the reply in fact are not inconsonance with the Rules.9. Not only this, even the instructions which have been handed over to the Court today by learned Counsel, do not come to the assistance of the respondents Board for the simple reason that by way of these circulars etc., the Recruitment and Promotion Rules can neither be substituted nor supplanted and promotions have to be effected by the respondent authority strictly as per the language which is so used in the Recruitment and Promotion Rules.10. Therefore, as the Recruitment and Promotion Rules do not bar the promotion of a ClassIV Beldar against the post of Clerk in case he fulfilled the eligibility criteria for being considered for promotion under the 10% quota, the act of the respondent authority of not promoting him purportedly on the ground that only Peons and Chowkidars are eligible for promotion against the post in issue, is arbitrary and set aside.11. This petition is accordingly allowed by directing that the petitioner be promoted against the post of Clerk under 10% quota as from the date when the person junior to him, who was hol

Please Login To View The Full Judgment!

ding the post of ClassIV employee was promoted. Needful be positively done within a period of four weeks from today.12. For the purpose of conferring consequential benefits to the petitioner, his promotion from the previous date till the date on which he actually joins the post of Clerk, shall be treated to be notional for all intents and purposes and actual wages as may be calculated after giving notional benefit to the petitioner, shall be paid to the petitioner of the post of Clerk as from the date of his joining. He will also get the benefit of seniority. The petition is allowed in above terms. Pending miscellaneous applications, if any, also stand dismissed. Interim order, if any, stands vacated.
O R