Research › Search › Judgment

Himachal Pradesh High Court · body

2005 DIGILAW 39 (HP)

U. S. CHAUHAN v. STATE OF H. P.

2005-03-10

BAKHSHISH KAUR, D.S.AMIST

body2005
JUDGMENT Ms. J. Bakhshish Kaur (Retd.), Chairman.—Applicant is aggrieved by the impugned action of the respondents, whereby vide notification dated 3.8.1997 Annexure A-10 he has been ignored for regulartsation as Executive Engineer from due date and persons junior to him have been regularly promoted by superseding him. 2. The factual backdrop of the case briefly stated is that the applicant joined the department of H.P. Public Works as Graduate Junior Engineer on 27.5.1977. As a result of his selection through Himachal Pradesh Public Service Commission he joined as Assistant Engineer on 23.5.1978 vide notification dated 18.10.1978 Annexure A-l and he was promoted as Executive Engineer on ad hoc basis vide Annexure A~2. 3. In June, 1988 the applicant joined as Executive Engineer on ad hoc basis at Kalpa in District Kinnaur, which is difficult area. Single line administration was introduced in Kinnaur, Lahaul Spiti and Bharmour areas as per Annexure A-4. It was also ensured that Divisional Level Officers including Executive Engineers were to perform duties pertaining to one step higher in their respective rank, such officers are entrusted higher job responsibilities apart from arduous nature of job in addition to their routine work. 4. In December, 1995 departmental promotion committee was convened for regularising the ad hoc Executive Engineers from 1985 to 1993 pertaining to the common cadre of Executive Engineers in the composite department of Public Works and Irrigation and Public Health Department. As per notification dated December 26,1995 Annexure A-6 private respondents working in Public Works Department were regularised with immediate effect by ignoring the claim of applicant. His representation claiming regularisation as Executive Engineer was rejected vide Annexure A-8. The applicant, therefore, filed OA-631/97. 5. The promotion of Executive Engineers were challenged by S/Sh. D.K. Nayar and others and Naresh Sharma and others by way of two separate original applications No.2394 of 1996 and 174 of 1997 respectively. The Tribunal had quashed the said promotion vide order dated 6.6.1997 with a direction to hold fresh departmental promotion committee. The OA filed by applicant was also disposed of vide Annexure A-9. Vide notification dated 23.8.1997 Annexure A-10 promotions were effected for the period from 1985 to 1993, wherein applicant was not included and persons junior to him were granted regular promotion. The OA filed by applicant was also disposed of vide Annexure A-9. Vide notification dated 23.8.1997 Annexure A-10 promotions were effected for the period from 1985 to 1993, wherein applicant was not included and persons junior to him were granted regular promotion. The applicant has, therefore, filed this OA for quashing of Annexure A-10 dated 23.8.1997 to the extent that persons junior to him have been assigned the date of regular promotion as Executive Engineer by ignoring the claim of applicant and he may be held entitled for regular promotion w.e.f. 1988, or, in the alternative from the due date from which Mr. N.L. Sharma and other private respondents junior to him were promoted as Executive Engineers with all consequential benefits, 6. The point raised by the respondents is that as per Recruitment and Promotion Rules the post of Executive Engineer is a selection post and promotion to the post of Executive Engineer from the feeder category is made on merit-cum-seniority basis. The applicant alongwith 4 other Assistant Engineers was promoted as Executive Engineer on ad hoc basis subject to the result of CWP No. 245 of 1983 filed by Sh. G.S. Bajwa and others and that this will not confer any right upon the appointees other than the right to work in the post and to draw salary against such work till the appointment lasts and they would not be entitled to claim benefit of service rendered in such posts for the purpose of seniority, promotion etc. The applicant alongwith others were promoted as Executive Engineer on regular basis vide notification dated 23.8.1997 w.e.f. 31.12.1994 after receiving decision of the Administrative Tribunal in OA-2394/96 and OA-174/97. Departmental promotion committee were reviewed in accordance with rules and instructions. The applicant has, therefore, no right to claim promotion from the date his juniors were promoted as the juniors have superseded the applicant on better merit, therefore, OA is liable to be dismissed. 7. We have heard Sh. Dilip Sharma, learned Counsel for the applicant and Smt. Abhilasha Kumari, learned Additional Advocate General for respondents No. 1 and 2. 8. Annexure A-4 is a letter dated 11.4.1988 under the subject "Introduction of single line of administration in ITDP areas of Kinnaur, Lahaul Spiti and Bharmour. Para 3 and para 4(iii) of the letter read as under: "3. Dilip Sharma, learned Counsel for the applicant and Smt. Abhilasha Kumari, learned Additional Advocate General for respondents No. 1 and 2. 8. Annexure A-4 is a letter dated 11.4.1988 under the subject "Introduction of single line of administration in ITDP areas of Kinnaur, Lahaul Spiti and Bharmour. Para 3 and para 4(iii) of the letter read as under: "3. The Deputy Commissioner/Additional Deputy Commissioner heading the single line administrative in the above areas will exercise all powers of the Head of the Department in respect of all officers upto Divisional level i.e. Executive Engineers, Deputy Conservators of Forest etc. posted in their areas. All these Divisional level Officers will exercise technical powers to the ^extent of one step higher in their respective ladders. 4. (iii)The Divisional level officers i.e. Executive Engineer, Deputy Conservators of Forest etc. will exercise technical powers to the extent of one step higher in their respective ladders. The Superintending Engineers/Conservators of Forests etc. working in these areas or incharge of these areas will exercise technical powers of Chief Engineer/Chief Conservator of Forests etc. for works relating to these areas." 9. Annexure A-5 is office memorandum under the subject of principles for promotion to selection posts-modification thereof. 10. Mr. Dilip Sharma, learned Counsel for the applicant contended that in view of the instructions issued at Annexures A-4 and A-5 the applicant is entitled to be given due weightage to higher job responsibilities, which could affect change by upgrading by atleast one step up as compared to his counterparts who were working either as Executive Engineer on ad hoc basis or Assistant Engineer in normal areas. Mr. Sharma has also drawn our attention to the decision rendered in OA-56/86, Subhash Chander Gupta v. The Commissioner-cum-Secretary (PWD) Government of Himachal Pradesh, Shimla. Somewhat similar situation arose therein and under para-5 it has been observed as under : "However, there is nothing on record to stand that the Departmental Promotion Committee had given due weightage to the applicants working as Assistant Engineer from September 17,1975 when he was promoted on Ad hoc basis as Assistant Engineer. Admittedly, the applicant on October 19/20, 1982 was working as Assistant Engineer but the Departmental Promotion Committee considered and examined the A.C.Rs. of the applicant for the last five years from 1976-77 to 1980-81 when he was not working as Junior Engineer but was working as Assistant Engineers. Admittedly, the applicant on October 19/20, 1982 was working as Assistant Engineer but the Departmental Promotion Committee considered and examined the A.C.Rs. of the applicant for the last five years from 1976-77 to 1980-81 when he was not working as Junior Engineer but was working as Assistant Engineers. Legally, the applicant who was working on ad hoc basis against the post of Assistant Engineer, should have been given weightage while considering alongwith those eligible Junior Engineers, while doing their comparative assessment." 11. Though a reference to a letter dated 16.3.1981 issued by the Deputy Secretary (Personnel) on the subject Principles for promotion to selection posts- Modification thereof has been made, however, in suppression of department of personnel office memorandum dated 16.3.1981, Annexure A-5 has been issued as the question relating to the promotion to the selection post is under consideration of the Government. The Government has taken decision in this behalf which is fully enumerated in Annexure A-5. The learned Counsel for applicant contended that by virtue of Annexure A-4 coupled with instructions issued by the respondents vide letter dated 3/4-11-1981 Annexure A-5 it was incumbent upon the respondents to have taken into account the nature of the job against which the applicant was posted. On the contrary respondents allege that personnel department instructions are guidelines for the DPC which ultimately exercises its discretion in such matters after taking into consideration all factors affecting service. Although there is provision assessing the ACRs in its own judgment by the DPC for making classification such as Good Very Good and "Out Standing" but this does not imply ipso facto. For grading the officer one step higher, his entire service record, nature of duties and his entire length of service has also to be kept in mind. The applicant had worked only in tribal area for the period from June, 1988 to September, 1989 i.e. merely one year and three months. He has not even completed the tenure of three summers and two winter session. 12. In Annexure A-4 it is no where provided that the incumbent should complete his normal tenure in the tribal area only then they will be entitled to one step higher in their respective ladders, rather it is clear that being posted in difficult area, he was discharging higher job responsibilities/arduous duties in addition to his routine work of an Executive Engineer. Since he was entrusted with higher job responsibilities i.e. one step above, which was the rank of Superintending Engineer, therefore the applicant was entitled to be given due weightage for discharging arduous duties and higher job responsibilities, which could only be achieved by upgrading his ACRs by one step above as compared to his counter parts. The case of the applicant is also covered by the decision rendered by this Tribunal in OA-56/86, decided on 2.11.1995. 13. For the aforesaid reasons the OA is allowed with a direction to the respondents that a review departmental promotion committee be constituted for considering the case of the applicant for promotion to the post of Executive Engineer w.e.f. 1988 or from due date in 1989 from which date Sh. N.L. Sharma and others private respondents junior to him have been regularly promoted as Executive Engineer by appropriately stepping up his categorisation of A.C.Rs. alongwith others similarly situated, if found entitled for regular promotion. 14. Necessary steps in this regard or exercise be taken on these lines within a period of five months from the date of the receipt of the copy of order. The OA is allowed with no order as to costs. O.A. allowed.