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2009 DIGILAW 586 (HP)

NEK RAM v. STATE OF HIMACHAL PRADESH

2009-06-19

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, J.-Brief facts necessary for the adjudication of this petition are that the petitioner was appointed initially as a Clerk in the respondent-Directorate on 4.11.1982. He was granted selection grade of Rs. 1500-2640 and was re-designated as Junior Assistant. He was promoted purely on temporary basis and appointed to officiate as Senior Assistant in the pay scale of Rs. 1800-3200 on 17.7.1996. The promotion to the post of Senior Assistant is regulated under the Himachal Pradesh Mountaineering and Allied Sports Class-III (Ministerial) Recruitment, Promotion and Service Rules, 1973. As per the Recruitment and Promotion Rules, the post of Senior Assistant is to be filled up 75% by promotion and 25% by direct recruitment. He was reverted to the position of Junior Assistant vide office order dated 27.3.1997. 2. Mr. D.P. Gupta, Advocate has strenuously argued that his client has not been afforded with reasonable opportunity of being heard before the issuance of office order dated 27.3.1997. He then argued that the promotion of the petitioner to the post of Senior Assistant was in accordance with law. 3. Mr. R.K. Sharma, learned Senior Additional Advocate General and Mr. R.S. Gautam, Advocate have supported the issuance of order dated 27.3.1997. They contended that the promotion of the petitioner to the post of Senior Assistant was on temporary basis and once the same was found to be erroneous, he was rightly reverted to the post of Junior Assistant on 27.3.1997 on the basis of the review Departmental Promotion Committee. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. The post in question i.e. Senior Assistant is to be filled up 75% by promotion and 25% by direct recruitment. It is borne out from the record that initially one Sh. Dharam Pal was promoted against the 4th post/point of Senior Assistant. The 4th post was to be filled up by way of direct recruitment as per the Recruitment and Promotion Rules in the year 1996. This was not approved by the State Government. However, vide letter dated 30.9.1988 (Annexure R-3), the Government conveyed the ex-post facto approval of the Government that the 5th post/point will go to direct recruitment. Respondent No.2 had sought the permission to fill up the 5th post by way of promotion on 4.1.1995. The same was turned down by the State as is gathered from letter dated 6.3.1995. 6. However, vide letter dated 30.9.1988 (Annexure R-3), the Government conveyed the ex-post facto approval of the Government that the 5th post/point will go to direct recruitment. Respondent No.2 had sought the permission to fill up the 5th post by way of promotion on 4.1.1995. The same was turned down by the State as is gathered from letter dated 6.3.1995. 6. The petitioner was working in the Establishment. In other words, he was dealing with the recruitment matters. The Departmental Promotion Committee for filling up the post in question was convened on 15.7.1996. The petitioner, who himself was dealing with the matter, had not brought to the notice of the Departmental Promotion Committee letter dated 30.9.1988 whereby the 5th post was to be filled up by way of direct recruitment and not by promotion. Respondents No.3 to 5 made representations to the authorities on 12.9.1996 and 19.12.1996 against the promotion of the petitioner to the 5th post/point. The petitioner was promoted purely on officiating basis and no notice was required to be issued before his reversion. He had no right to hold the post in question. 7. The petitioner has admitted as is evident from Annexure R-14 that he has not brought to the notice of the Departmental Promotion Committee letter dated 30.9.1988 which had direct bearing on his promotion. He was also given personal hearing on 6.3.1997. He had admitted before the authorities that he had failed to bring the letter/decision of the Government to fill up 5th post/point through direct recruitment to the notice of the Departmental Promotion Committee. He was also issued show cause notice on 27.3.1997 for not producing the letter/instructions/decision before the Departmental Promotion Committee in which his case was considered and he was promoted to the post of Senior Assistant on officiating basis vide letter dated 17.7.1996. In the present case, post was to be filled up by way of direct recruitment on the basis of letter dated 30.9.1988. It was the duty cast upon the petitioner to bring this letter to the notice of the Departmental Promotion Committee. The representations were made by the persons, who were affected by the promotion of the petitioner on 12.9.1996 and 19.12.1996. He has diarized the same but has not brought these representations to the notice of the authorities at the earliest. It was the duty cast upon the petitioner to bring this letter to the notice of the Departmental Promotion Committee. The representations were made by the persons, who were affected by the promotion of the petitioner on 12.9.1996 and 19.12.1996. He has diarized the same but has not brought these representations to the notice of the authorities at the earliest. In fact, one of the persons belongs to the Scheduled Tribe category and as per 40 point roster, 4th post was to go to the Scheduled Tribe category candidate. It was always open to the authorities concerned to review the erroneous promotion granted to the petitioner on the basis of his own misconduct by not bringing to the notice of the Departmental Promotion Committee letter 30.9.1988. Such like matters are required to be dealt with under FR-31-A and as per para 16.12 contained in Annexure R-17. 8. In view of the aforesaid discussion, there is no merit in the petition and the same is dismissed. The erstwhile Himachal Pradesh Administrative Tribunal has stayed the operation of Annexure A-1 dated 27.3.1997 on the first date of hearing i.e. 2.4.1997. Order dated 2.4.1997 is vacated forthwith. It is open to respondents No. 1 and 2 to take action against the petitioner in accordance with FR 31-A and other enabling provisions as per para 16.12 contained in Annexure A-17. There shall, however, be no order as to costs.