Assistant Gr.-Ii vs Dr. Y. S. Parmar University
2021 Latest Caselaw 5367 HP

                               1

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                 ON THE 24th DAY OF NOVEMBER, 2021




                                                          .
                           BEFORE





           HON'BLE MR. JUSTICE AJAY MOHAN GOEL
                 CIVIL WRIT PETITION (ORIGINAL APPLICATION)





                 No. 3944 of 2019

     Between:-
     SHRI PREM SINGH KASHYAP,
     SON OF SHRI KAKU RAM,




     RESIDENT      OF    VILLAGE
     BAJROL,     P.O.  SAPROON,
     DISTT.      SOLAN,      H.P.,
     PRESENTLY WORKING AS
     SENIOR

                      TECHNICAL

     ASSISTANT GR.-II, DR. Y.S.
     PARMAR      UNIVERSITY   OF
     HORTICULTURE            AND
     FORESTRY, NAUNI, DISTRICT
     SOLAN, H.P.



                                                 ...PETITIONER
     (BY SHRI L.N. SHARMA, ADVOCATE)




     AND





1.   DR. Y. S. PARMAR UNIVERSITY
     OF     HORTICULTURE    AND
     FORESTRY,     NAUNI  SOLAN





     THROUGH ITS REGISTRAR.

2.   MADAN    SINGH     CHAUHAN,
     COMPUTER          OPERATOR,
     PROMOTED AS TECHNICAL
     ASSISTANT        GR.       I
     (COMPUTERS)        THROUGH
     REGISTRAR, DR. Y.S. PARMAR
     UNIVERSITY               OF
     HORTICULTURE & FORESTRY,
     NAUNI, SOLAN, H.P.




                                         ::: Downloaded on - 31/01/2022 23:19:37 :::CIS
                                         2



                                        ...RESPONDENTS
       (SHRI AVINASH JARYAL, ADVOCATE, FOR
       R-1.




                                                                     .
       SHRI MANISH SHARMA, ADVOCATE, FOR





       R-2).
       Whether approved for reporting? Yes.
__________________________________________________________
              This petition coming on for hearing this day, the Court passed the





following:
                                    JUDGMENT

By way of this petition, the petitioner has, inter alia, prayed

for the following relief:- r "(i) That the impugned order dated 13th

November, 2001 (Annexure A-17) may be quashed and set aside and respondent University may be directed to fill up the post of Senior Technical

Assistant Gr.I for the Scheme HNP-029 (H) (now HNP-004-42) in accordance with Recruitment and Promotion Rules made on 15.3.2000 (Annexure A-2)

with further directions to consider the applicant for

promotion to the post of Senior Technical Assistant Gr. I and promote him with all consequential benefits."

2. Brief facts necessary for the adjudication of present petition

are as under:

Petitioner herein approached the erstwhile learned Himachal

Pradesh State Administrative Tribunal by way of OA No. 3156 of 2001,

feeling aggrieved by the promotion of private respondent against the post

of Technical Assistant Grade-I (Computers) vide Annexure A-17, i.e., office

order dated 13th November, 2001, on the ground that in terms of the

seniority list of Senior Assistants Grade-II of the respondent-University, it

.

was the petitioner, who was entitled for the said promotion.

3. The petition is resisted by the respondent-University as well

as the private respondent, inter alia, on the ground that promotion order of

the private respondent stood issued strictly in accordance with the

provisions contained in the Recruitment and Promotion Rules for the post

of Technical Assistant Grade-I (Computer) notified by the respondent-

University vide Annexure R-1, dated 5th July, 2001. As per the

respondents, the post of Technical Assistant Grade-I (Computer) was not

in the promotion channel of the petitioner, who happened to be Senior

Assistant Grade-II, whereas, the post of Technical Assistant Grade-I

(Computer) was to be filled in by way of promotion from amongst

Computer Operators with three years of service in the Grade in UHF.

4. I have heard learned counsel for the parties and also gone

through the pleadings as well as the documents appended therewith.

5. Learned counsel for the petitioner has informed the Court that

during the pendency of the petition, the petitioner has superannuated on

31st March, 2009. On a pointed query put to him as to whether there was

any post of Technical Assistant Grade-I available till the date of his

superannuation, for which, the post being held by him at the time of his

superannuation, was a feeder category post, learned counsel has fairly

submitted that in terms of the pleadings and documents on record, there

was none. However, as per him, in terms of Annexure A-4, one post of

.

Senior Assistant Grade-I was available under NP029(H) Establishment in

the University and the petitioner could have been conveniently promoted

to the said post.

6. It is settled law that an employee does not has a fundamental

right of promotion and the only fundamental right which stands conferred

upon an employee is the right of consideration for promotion. It is but

natural that right of consideration for promotion accrues upon an

incumbent upon the availability of promotional post vis-a-vis the feeder

category post being held by him.

7. In this case, as from the post being held by the petitioner,

admittedly, no promotional post of Senior Assistant Grade-I became

available till the date of his superannuation, against which, he could have

been promoted in terms of his seniority. Thus, right of consideration never

accrued upon the petitioner. That being the case, this Court is of the

considered view that there is no merit in the present petition.

8. Coming to the challenge laid by the petitioner to office order,

dated 13th November, 2001 (Annexure A-17), as it is duly borne out from

the record in general and Annexure R-1 in particular that this was a totally

distinct cadre post, which stood filled up by the respondent-University by

strictly complying with the Recruitment and Promotion Rules, which

govern the promotion to this post, the promotion of private respondent

against this post vide Annexure A-17 cannot be faulted with. In other

.

words, the promotion of private respondent vide Annexure A-17 is a valid

promotion and the present petitioner has no right of consideration against

this post, which was not in the channel of promotion of the petitioner. As

far as the contention of the petitioner that he should have been considered

for the post which was available in some other stream, this Court is of the

considered view that this Court cannot issue a mandamus directing the

respondents to consider him for promotion to a post with similar

nomenclature in some other stream until and unless there is cogent

material on record to demonstrate that feeder category of the said post

was the one held by the petitioner. Therefore, this petition being devoid of

any merit is dismissed, so also pending miscellaneous applications, if any.

(Ajay Mohan Goel)

Judge November 24, 2021 (bhupender)