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2006 DIGILAW 62 (HP)

SHRI B. N. KAPOOR v. H. P. T. D. C.

2006-03-21

NARINDER SINGH THAKUR

body2006
JUDGEMENT Narinder Thakur, Vice Chairman:- This application has been filed under Section 19 of the Administrative Tribunals Act, 1985. The applicant prays for the following reliefs:- "7.1 That the impugned promotion of respondent No.2 to the post of Senior Manger vide order dated 29.1.2002 at Annexure-A/2 may kindly be quashed and set-aside. 7.2. That the respondent Corporation may be directed to produce the minutes of Departmental Promotion Committee resulting in promotion of respondent No.2 vide order at Annexure-A/2 and the recommendations of Departmental Promotion Committee qua respondent No.2 may kindly be quashed and set aside. 7.3. That the respondent Corporation may be directed to hold a review Departmental Promotion Committee, by preparing year wise panel and as a consequence thereof the applicant may be held entitled to be promoted as Senior Manager from the same day from which respondent No.2 has been promoted with all consequential benefits. 7.4 Any other relief deemed proper in the circumstances may also be granted. 7.5. Cost of the application may also be awarded." 2. In the present Original Application the applicant is aggrieved by his supersession by respondent No.2 for promotion to the post of Senior Manager vide order dated 29.1.2002, Annexure-A/2. His representation against supersession was rejected and rejection was conveyed to the applicant vide memo dated 27.11.2002, Annexure-A/5 hence this Application. 3. The final seniority list of the Managers Food & Beverages (F&B) as on 31.10.1997 circulated by respondents corporation is enclosed herewith as Annexure-A/1. In this list the applicant figures at Sr. No.4 and respondent No.2 is at Sr. No. 16 and the promotion from Manager (F&B) to the post of Senior Manager, (F&B) is made by selection method wherein if the merit is equal, seniority has to prevail. 4. The respondent No.2 was promoted from the post of Manager, F&B to the post of Senior Manager (F&B) vide order 29.1.2002 (Annexure-A/2) by picking him up from Sr. No. 16 in the seniority list by illegally ignoring the claim of the applicant for consideration for promotion. The applicant was subsequently as a Senior Manager (F&B) on the recommendation of same Departmental Promotion Committee, vide office order 12.7.2002 Annexure-A/3 with the OA. 5. The respondent No.1 has filed the reply resisting claim to the applicant. No separate reply was filed by respondent No.2 who has argued on the basis of reply filed it respondent No.1. 6. The applicant was subsequently as a Senior Manager (F&B) on the recommendation of same Departmental Promotion Committee, vide office order 12.7.2002 Annexure-A/3 with the OA. 5. The respondent No.1 has filed the reply resisting claim to the applicant. No separate reply was filed by respondent No.2 who has argued on the basis of reply filed it respondent No.1. 6. I have heard the learned counsel for the applicant and Mrs. Ranjana Parmar, Advocate, for respondent No.1 and Ms. Sangeeta Justa Advocate for respondent No.2. The main thrust of the case of the applicant is that the respondent Corporation prepared a panel by clubbing six vacancies which arose in different years, by ignoring the instructions circulated vide H.P. Govt. Department of Personnel letter dated 23.6.1984. These instructions appears at page 602 of the Hand Book of Personnel Matters Vol-I (2nd Edition), whereby it has been provided that if the DPC cannot be held in any years even those some vacancies arose during that year, the DPC that means thereafter should prepare panel for each year separately and consider the eligible candidates within the zone of consideration for each year separately. 7. The record of DPC was summoned and was produced by the counsel of respondent No.1 on 21.4.2006. The proceedings of DPC reveal that the respondent Corporation did not follow the instructions regarding holding years wise DPC and if these instructions could have been followed, the respondent No.2 would not have been within the zone of consideration for promotion to the post in question. The learned counsel for respondent No.1 was directed to file "Supplementary affidavit to indicate as to whether the instructions issued by State of H.P., with respect of holding of DPC were applicable in respondent Corporation or not? No affidavit was filed by the respondent No.1. However, learned counsel for respondent No 1 made a statement on 26.7.2006 that instructions regarding holding of DPC as issued by the State of H.P. were being followed by the respondent Corporation. 8. It may be relevant to produce instructions of department of Personnel dated 23.6.1984 at this stage, which reads as follows:- "Subject: Principle for promotion to Selection posts Modifications thereof. 8. It may be relevant to produce instructions of department of Personnel dated 23.6.1984 at this stage, which reads as follows:- "Subject: Principle for promotion to Selection posts Modifications thereof. In continuation of this Department O.M. No. PER(AP-II) A(l)1/80 dated 3/4th November, 1981 and 16lh June, 1983 on the above subject, I am directed to state that the matter regarding preparation of panels of D.P.C. for promotion to selection posts has been considered by the Government. It has been decided that where the D.P.C. cannot be held in any year(s) even though some vacancies arose during that year, the D.P.C. that meets thereafter should follow the following procedure:- (i) Determine the actual number of regular vacancies that arose in each of the previous year / years immediately proceeding and the actual number of regular vacancies proposed to be filled in the current year separately, (ii) Consider in respect of each year those officers only who would be within the filed of choice with reference to the vacancies of each year starting with the earliest years onwards, (iii) Prepare a select list for each of the years starting with the earliest year onwards, (iv) Prepare a consolidated select list by placing the select list of the earlier year above the one for the next and so on. 5. It is requested that these interactions may kindly be brought to the notice of all concerned for strict compliance. Past cases already decided will not be reopened." 9. In 1995 (4) SCC 246, titled as Vinod Sangal vs. Union of India and others, the Honble Supreme Court consider similar instructions as quoted above, in para- 4 of the judgments. In para 8 of the judgment of the Honble Supreme Court made following observations:- "8. It is not the case of the respondents that the DPC made separate selection for the vacancies for the years 1980, 1982 and 1983 and the DPC appears to have bunched together all the vacancies for the year, 1980 to 1985 and has made on selection for the six promotional vacancies and this has resulted in enlargement of the filed of choice for the purpose of selection. The grievance of the appellant is that this made of selection in disregard of the instructions contained in the office memorandum dated 24.12.1980 operated to his prejudice appears to be justified because if separate selection had been made for the vacancies which occurred in the years 1980, 1982 and 1983 the field of choice would have been much more restricted and the appellant would have had better chances of being selected." 10. From the factual position emerging in the present case, it is clear that respondent Corporation did not follow the instructions for holding year wise DPC, which unduly enlarged the zone ef consideration and prejudiced and the case of the applicant. Had the respondent corporation followed the above said instructions the respondent No.2 would not have been in the zone of consideration. The judgment of Honble Apex Court (supra) is squarely applicable to the facts of the present case. 11. In view of the above settled position of law and instructions, Annexure-A/2 is quashed and set aside with a direction to the respondent Corporation to hold a review department promotion committee for preparing years wise penal as envisaged in the instructions dated 23 6.1984 (supra), and consider and the applicant for promotion to the post of Senior Manager, (F&B) from the date of promotion of respondent No.2 with all consequential benefits. With these aforesaid observation and directions the present Original Application stands disposed of.