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2005 DIGILAW 31 (HP)

GIRISH SHARMA v. STATE OF H. P.

2005-03-01

NARINDER SINGH THAKUR, S.S.NEGI

body2005
ORDER Narinder Thakur, Honble Vice Chairman.: The present Original Application has been filed claiming the following reliefs: "7.1) That the impugned notification date March 20,2003 at Annexure-A/4 may kindly be quashed and set aside qua respondent No.2. 7.2) That the respondent department may be directed to reconvene the Departmental Promotion Committee for appointment to the post of Assistant Professor in Anaesthesia and as a result of review Departmental Promotion Committee, applicant may be held entitled to be appointed to the post in question from the date the respondent No.2 has been so appointed will all consequential benefits. 7.3) That if during the pendency of Original Application, the applicant is recommended and appointed to the post of Assistant Professor in Anaesthesia, from a date subsequent to the date of appointment of respondent No.2 in that event as a result of recommendation of review Departmental Promotion Committee, applicant may be held entitled to appointment to the post in question from the date of appointment of respondent No.2 with all consequential benefits including seniority over respondent No.2 and all consequential benefits. 7.4) That the respondent department may be directed to produce records pertaining to this case before this Tribunal. 7.5) Any other relief deemed proper in the circumstances may also be granted." 2. The applicant claims himself to be senior to the respondent No.2 in the feeder category and is eligible to be appointed as Assistant Professor (Anaesthesia). Despite this the respondent department on 20 3.2003, Annexure-A/4 promoted the respondent No.2 as Assistant Professor by ignoring the applicant. The applicant made representation on 23.3.2003 and 30.8.2003 as per Anneure-A/7 and A-8 but without any result. 3. The above factual position has not been denied in the reply filed by the respondents. However, main plank of contest by the respondent No.1 in the reply is that the service particulars of the applicant were not received by the respondent from the filed office at the time of holding of DPC and as such the applicant could not be considered for promotion by the Departmental Promotion Committee. It is further stated that DPC was held in March, 2003 for four vacant posts of Assistant Professors (Anaesthesia). These posts were to be filed up in ratio of 1:1 as per R&P Rules. The names of eligible GDOs were called for from the field offices, i.e. Director of Health Services, Director of Medical Education and Principals. It is further stated that DPC was held in March, 2003 for four vacant posts of Assistant Professors (Anaesthesia). These posts were to be filed up in ratio of 1:1 as per R&P Rules. The names of eligible GDOs were called for from the field offices, i.e. Director of Health Services, Director of Medical Education and Principals. Only three GDOs names were received till March, 2003. Immediate action to fill up these posts were required to be taken in view of ensuring MCI inspection and as a result a decision was taken to fill up three posts from amongst the three GDOs and recoup the shortfall of direct recruitment quota in future vacancies. The respondent No.2 was already working as Assistant Professor (Anaesthesia) on ad hoc basis at Dr. RPGMC, Tanda since November, 1997 and he was at Sr. No.3 as per information received from field offices. It was noticed subsequently that another doctor (applicant) is senior to the respondent No.2. faced with this situation a decision was taken to review the regular promotion of Dr. R.K. Verma (respondent No.2) and withdraw his promotion orders and to restore the vacancy to direct recruitment quota ion which it actually belongs. As and when the vacancy of Assistant Professor (Anaesthesia) under promotion quota will be available in future, the candidature of applicant as well as respondent No.2 alongwith other eligible doctors will be considered at the appropriate time. 4. Rejoinder has been filed namely reiterating its stand taken in Original Application. 5. Admittedly, the respondent department while having resort to fill up the posts of Assistant Professor have not acted prudently and fairly. The rightful claim of the applicant has been ignored. The respondent department can hardly be heard saying that they have not received details from the field offices, more so when seniority list is always available with the respondent department. Right to be considered for promotion is a fundamental department. Right to be considered for promotion is a fundamental right under Article 16(1) of the Constitution as has been observed by the Honble Apex Court in para 22 of the judgment reported in (1990) 7 SCO 209 titled as Aajit Singh and others (II) vs. State of Punjab and Others has observed that: "Article 14 and 16(1) is right to be considered for promotion a fundamental right. 22. Article 14 and 16(1) are closely connected. 22. Article 14 and 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws" Article 16(1) issue a positive command that "There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State." It has been held presently by this Court that clause (1) of Article 16 is a fact of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity" in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right." 6. Not only this after the applicant filed the present Original Application before this Tribunal, respondents department with a view to defeat the claim of the applicant has reviewed the promotion of respondents No.2 on its own, then taken decision contrary to its earlier decision to fill up the present post from amongst promotees. It is also worth while to mention, here that as per instructions contained in para 16.33 of Hand Book on Personnel Matters, Vol-I, Second Edition at page 553 the review DPCs can be held under certain circumstances enumerated there and in the present case the Review DPC could not have been held by the department after filing of present OA as the same is not covered under the instructions and provisions made therein. The respondent department cannot be permitted to do so with a view to circumvent the circumstances favourable to the applicant for the reasons that he has come before the court against illegal the arbitrary action of the respondent department in ignoring his rightful claim. The respondent department cannot be permitted to do so with a view to circumvent the circumstances favourable to the applicant for the reasons that he has come before the court against illegal the arbitrary action of the respondent department in ignoring his rightful claim. Had the applicant not challenged the illegal and arbitrary action of the respondent department, they would have happily gone ahead with their present arrangement of promoting the respondent No.2 against the post of direct recruitment. "Review DPC under certain other circumstances and other important aspects. (6) To rectify certain unintentional mistakes etc., it may be necessary to convene a review DPC under certain circumstances e.g. (a) when eligible persons were committed to be considered; or (b) ineligible persons were considered by mistake; or (c) where the seniority of a person is revised with retrospective effect to differ with the seniority list placed before the earlier DPC; or (d) where some procedural irregularity was committed by a DPC; or (e) when adverse remarks in the C.Rs were toned down or expunged after the DPC had considered the case of the officer. Whenever such review DPC meets, it should consider only those persons who were eligible as on the date of meeting of original DPC, that is, person who became eligible as on a subsequent date should not be considered by the review DPC." The Honble Apex Court in its judgment reported in (1998) 9 SCC 219 led as Life Insurance Corporation of India vs. Jagmohan Sharma and Others has observed that in such like situation the benefit to aggrieved party should be given from the date the persons junior were given benefit. 7. In (1994) SCC 450 titled as Union of India and others. Vs. Tushar Ranjan Mohanty and others in para 14 it has been observed by the Honble Apex Court that:- "the legislatures and the competent authority under Article 309 of the Constitution of India have the power to make laws with retrospective effect. This power, however, cannot be used to justify the arbitrary, illegal or unconstitutional acts of the Executive. When a person is deprived of an accrued right vested in him under a statute or under the Constitution and he successfully challenges the same in the court of law, the legislature cannot render the said right and the relief obtained nugatory by enacting retrospective legislation." 8. When a person is deprived of an accrued right vested in him under a statute or under the Constitution and he successfully challenges the same in the court of law, the legislature cannot render the said right and the relief obtained nugatory by enacting retrospective legislation." 8. Record had been produced by the respondents on 31,12.2004 which has been perused by us. It is admitted fact from the record that earlier DPC was held on 11.3 2003 by the respondent department. It is also admitted position from the record that at that every moment the applicant was not considered due to non receipt of his service record. Respondent No.2 Dr.R.K. Verma, was promoted as Assistant Professor (Anaesthesia) on the basis of DPC which was held on 11.3.2003, when the present Original Application was filed by the applicant. Review DPC was held on 25.8.2004 and the applicant was also considered alongwith his juniors i.e. respondent No.2. As per record in the ACRs as applicant has been graded as Very Good and respondent No.2 has been graded as Good. Now respondents has taken the plea that the regular promotion of respondent No.2 has been withdraw and vacancy position of direct recruitment quota has been restored. The case of the applicant is that he should have been considered in the DPC held on 11.3.2003 and should have been promoted with all consequential benefits in that DPC. The applicant was not at fault if his service record was not received by the DPC. It is also admitted position that at the time of DPC three posts of Assistant Professor (Anaesthesia) were in existence, later on in the review DPC one post was stated to be available for direct recruitment. It is also admitted that respondent No.2 has been promoted and allowed to work on ad hoc basis even after the withdrawal of his regular promotion, since November, 1997. It is pertinent to mention here that prior to this ad hoc services of respondent No.2 was regularized vide order dated 20.3.2003 and subsequent in the review DPC the regular promotion orders of respondent No.2 were withdrawn and the applicant is senior to respondent No.2. 9. It is pertinent to mention here that prior to this ad hoc services of respondent No.2 was regularized vide order dated 20.3.2003 and subsequent in the review DPC the regular promotion orders of respondent No.2 were withdrawn and the applicant is senior to respondent No.2. 9. It is not in dispute that applicant was eligible for promotion and was within zone of consideration for promotion, when respondent No.2 who is junior to him, was considered by DPC and was promoted as Assistant Professor (Anaesthesia) vide notification dated 20.3.2003 Annexure-A/4. Thus, his fundamental right to be "considered" for promotion was infinged. When his junior was promoted in March, 2004 Thus, in case facts applicant gets right to be considered for promotion from the date his junior was so promoted. 10. It is not in dispute that applicant was eligible for promotion and was within zone of consideration for promotion, when respondent No.2 who is junior to him, was considered by DPC and was promoted as Assistant Professor (Anaesthesia) vide notification dated 20.3.2003 Annexure-A/4. Thus, his fundamental right to be "considered" for promotion was infinged. When his junior was promoted in March, 2004. Thus, in these facts applicant gets right to be considered for promotion from the date his junior was so promoted. The fundamental right of applicant to be considered for promotion has been infringed in March, 2003 when a policy decision was taken to divert post from direct quota to promottee quota and his junior was promoted on regular basis, without considering him for promotion. If vested and Constitutional rights can not be taken away by retrospective amendment of the rules, the fundamental right of applicant can also be not defeated by taking a decision at this stage by restoring the said post to direct quota and to defer the right of consideration for promotion to some future indefinite dates as and when such post may be available in promottee quota. In view of the above, the present Original Application is allowed and the respondents are directed to hold review DPC and grant promotion to the applicant from the date when his junior i.e. respondent No.2 was promoted with all consequential benefits. Original Application stands finally disposed of with no order as to costs. These direction will be complied with within two months from the date of this order.