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Himachal Pradesh High Court · body

2010 DIGILAW 683 (HP)

HEM RAJ KAUSHIK v. STATE OF HIMACHAL PRADESH

2010-04-06

RAJIV SHARMA

body2010
JUDGMENT Rajiv Sharma, J.-Material facts necessary for adjudication of this petition are that the petitioner joined as Lecturer in School Cadre (Hindi) on 21.11.1988. Post of Lecturer is in the feeder category for promotion to the post of Principal. Since the Departmental Promotion Committee was contemplated to be held for the post of Principal, A.C.Rs. of School Lecturers were called for. Petitioner was in the zone of consideration. His name figured at Sr. No.333 in the seniority list. Departmental Promotion Committee for the year 2006 could not be convened. A.C.Rs. of Lecturers (School Cadre) were again called for vide letter dated 19.6.2007 for promotion to the post of Principal. The same was followed by letter dated 20.8.2007. However, fact of the matter is that the Departmental Promotion Committee was not convened in the year 2007 also. The State Government took a conscious decision to grant extension in service to the petitioner for a period of two years. This decision was taken vide letter dated 20.12.2007 (Annexure A-4). Promotions were made to the post of Principal vide Notification dated 16.4.2008 (Annexure A-6), however, petitioner was ignored. The persons junior to him were promoted to the post of Principal. 2. Mr. Dilip Sharma, learned counsel for the petitioner has vehemently argued that action of the respondents of not holding Departmental Promotion Committee for considering the case of the petitioner and similarly situate persons for the post of Principal was in contravention of the instructions issued on 23.6.1984. He further clarified that the case of the petitioner was required to be considered for promotion to the post of Principal in the years 2006 and 2007 and the fact that the petitioner has been granted extension by two years could not come in his way for promotion. Mr. R.K. Sharma, learned Senior Additional Advocate General has vehemently argued that in view of office memorandum dated 4.10.1968, petitioner’s case could not be considered for promotion since he was on extension. 3. I have heard the learned counsel for the parties and perused the pleadings carefully. 4. The name of the petitioner was in the zone of consideration in the years of 2006 and 2007 respectively. Particulars of the petitioner and similarly situate Lecturers were called for as per Annexures, A-1, A-2 and A-3 respectively. 5. 3. I have heard the learned counsel for the parties and perused the pleadings carefully. 4. The name of the petitioner was in the zone of consideration in the years of 2006 and 2007 respectively. Particulars of the petitioner and similarly situate Lecturers were called for as per Annexures, A-1, A-2 and A-3 respectively. 5. It will be apt at this stage to reproduce instructions dated 23.6.1984 dealing with the subject of promotion to the selection posts, which read thus:- “In continuation of this Department O.M. No. PER(AP-II)A(I)1/80 dated 3/4th November, 1981 and 16th June, 1983 on the above subject, I am directed to stated that the matter regarding preparation of panels of DPC for promotion to selection posts has been considered by the government. It has been decided that where the DPC cannot be held in any years(s) even though some vacancies arose during that year, the DPC 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 field of choice with reference to the vacancies of each year starting with the earlier 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 instructions may kindly be brought to the notice of all concerned for strict compliance. Past cases already decided will not be reopened.” 6. It was necessary for the respondent to follow the instructions dated 23.6.1984 in letter and spirit. Since the instructions have been overlooked by the respondent, petitioner’s case for promotion to the post of Principal has been ignored in the years 2006 and 2007 respectively. Petitioner had no Fundamental Right to be promoted. However, he had a Fundamental Right to be considered for promotion to the post of Principal in accordance with law. 7. The respondent has not chosen to file reply to the petition. Respondent-State has offered no explanation at the time of arguments why instructions dated 23.6.1984 have not been implemented. Petitioner had no Fundamental Right to be promoted. However, he had a Fundamental Right to be considered for promotion to the post of Principal in accordance with law. 7. The respondent has not chosen to file reply to the petition. Respondent-State has offered no explanation at the time of arguments why instructions dated 23.6.1984 have not been implemented. The respondent has made promotions to the post of Principal on 16.4.2008. Petitioner was ignored for promotion to the post of Principal as per letter dated 16.4.2008. Incumbents junior to the petitioner have been promoted to the post of Principal. Office memorandum dated 4.10.1968 will not be applicable in this case for the simple reason that the petitioner was eligible and qualified to be considered for promotion to the post of Principal in the years 2006 and 2007 respectively. It was only due to inaction on part of the respondent that he was not considered and promoted as Principal in accordance with instructions dated 23.6.1984. Mr. Dilip Sharma has also argued that instructions dated 4.10.1968 are liable to be quashed and set aside. He has further argued that these instructions are arbitrary, thus violative of Articles 14 and 16 of the Constitution of India. The Court is of the view that these instructions are not attracted in the present case since the petitioner was to be considered for the posts which were lying vacant in the years 2006 and 2007, for which though process was initiated, but was not completed. 8. Accordingly, in view of the observations made hereinabove, the petition is allowed. Respondent is directed to consider the case of petitioner for promotion to the post of Principal from the date his juniors were promoted, with all consequential benefits, within a period of eight weeks from today. There shall, however, no order as to costs.