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2010 DIGILAW 48 (HP)

STATE OF HIMACHAL PRADESH v. NARINDER KUMAR

2010-01-06

KULDIP SINGH, R.B.MISRA

body2010
JUDGMENT 1. This appeal has been directed against the judgment dated 21.7.2009 passed by learned Single Judge in CWP(T) No.2411/2008, directing the appellants to consider the case of respondent No.1 for promotion to the post of Restorer from the date his juniors were promoted i.e. 23.12.1994 with all consequential benefits. It has also been made clear that if the post is not available, it would be open for appellants to create supernumerary post. In case respondents No.2 to 4 have already been regularly promoted during the pendency of the petition then the case of respondent No.1 be considered for promotion to the post of Restorer on regular basis. 2. It is the case of the respondent No.1 that office order No.1-12/92 dated 24.12.1994 issued by appellant No.2, promoting juniors of respondent No.1, ignoring respondent No.1, though he was eligible for the post of Restorer is wrong, illegal and violative of Articles 14,16 and 21 of the Constitution. The further case of the respondent No.1 is that he was working in the office of appellant No.1 w.e.f. 11.1.1998 and was placed at serial No.5 of the seniority list Annexure A/1. The appellant No.2 had convened DPC and on 24.12.1994 vide Annexure A/2 promoted some persons who were junior to respondent No.1. The juniors of respondent No.1 namely Ashok Kumar, Nand Lal and Parma Nand have been promoted wrongly and illegally. 3. The reply was filed by appellants in which preliminary objection has been taken that respondent No.1 did not fulfill the requisite qualification prescribed for the post of Restorer in the proposed Recruitment and Promotion Rules which is Matric whereas respondent No.1 is simply middle pass, therefore, respondent No.1 was not promoted. The persons who were promoted have not been impleaded, therefore the petition is not maintainable. On merits, the appellants contested the petition on the ground that respondent No.1 does not fulfill the requirement of the proposed Recruitment and Promotion Rules for the post of Restorer and therefore, respondent No.1 was not promoted. 4. The respondents No.2 to 4 had filed an application for impleadment which was allowed by learned Single Judge. The respondents No.2 to 4, however, did not file separate reply. 5. The learned counsel for the appellants has reiterated the defence of appellants before us. The seniority of respondent No.1 and other respondents has not been denied. 4. The respondents No.2 to 4 had filed an application for impleadment which was allowed by learned Single Judge. The respondents No.2 to 4, however, did not file separate reply. 5. The learned counsel for the appellants has reiterated the defence of appellants before us. The seniority of respondent No.1 and other respondents has not been denied. The service conditions of the employees working in the office of appellant No.2 at the relevant time were governed under the Himachal Pradesh Secretariat Class-III Services ( Recruitment, Promotion and Certain Conditions of Service) (Fifth Amendment) rules, 1975. The length of service at the relevant time was the only criteria for effecting promotion to the post of Restorer. The respondent No.1 was senior to respondents No.2 to 4 at the relevant time. The respondent No.1 was ignored for promotion to the post of Restorer on the basis of draft rules which were promulgated in the year 1997 but the promotions were made on 24.12.1994. 6. In Vimal Kumari v. State of Haryana and others, (1998) 4, SCC 114 it has been held that to regulate the service conditions of the employees, rules can be considered at the draft stage but there must be clear intention on the part of the Government to enforce those rules. There was no urgency to invoke draft rules when the promotions were made on 24.12.1994. The appellants No.1 and 2 have not made out a case of urgency invoking draft rules at the time of promotions on 24.12.1994. In rare case the draft rules can be taken into consideration in case of urgency but no such case of urgency has been made out in the present case. The promotion confers higher status, therefore, even for ad-hoc appointment by way of promotion to be made by the State, Articles 14 and 16 cannot be ignored. 7. The learned Single Judge has recorded a finding that in the present case the rules have remained in suspended animation from 1994 to 8.7.1997. In these circumstances, it can not be said that there was an urgency to press draft rules. The respondent No.1 was senior to respondents No.2 to 4. 8. The respondents No.2 to 4 were promoted on ad-hoc basis. The respondent No.1 had right to be considered for promotion on ad-hoc basis. Dharam Singh on 23.12.1991 was promoted as Restorer and he was 9th pass only. The respondent No.1 was senior to respondents No.2 to 4. 8. The respondents No.2 to 4 were promoted on ad-hoc basis. The respondent No.1 had right to be considered for promotion on ad-hoc basis. Dharam Singh on 23.12.1991 was promoted as Restorer and he was 9th pass only. In these circumstances, denial of the promotion to respondent No.1 who was 8th pass has been rightly held to be wrong by learned Single Judge. 9. The learned Single Judge has rightly appreciated the material on record in consonance with the legal position. The appellants have failed to make out a case for interference. Resultantly Appeal/petition fails and is accordingly dismissed with no order as to costs.