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2012 DIGILAW 957 (HP)

Ramesh Chand Rana v. State of Himachal Pradesh

2012-12-11

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, Judge (Oral) : Petitioner was appointed as Steno-typist in the respondent-Department on 15.11.1989. The post of Steno-typist is in feeder category for promotion to the post of Junior Scale Stenographer. The post of Junior Scale Stenographer is to be filled 100% by promotion. The candidate is required to possess five years regular service as Steno-typist. The post of Junior Scale Stenographer became available in the month of May, 2002. However, according to the petitioner, no Departmental Promotion Committee was convened for filling up this post. In fact, the petitioner has been promoted to the post of Junior Scale Stenographer on 19.06.2008. The post of Junior Scale Stenographer is in feeder category for promotion to the post of Senior Scale Stenographer. The post of Senior Scale Stenographer is to be filled up by the candidate possessing five years regular service. The petitioner made a representation on 21.03.2011, seeking notional promotion from 2002. His case was recommended by the respondent No. 2 to the State Government on 25.07.2011. However, the fact of the matter is that the same has been rejected on 02.11.2011. 2. Mr. Bhuvnesh Sharma, learned counsel for the petitioner has vehemently argued that the petitioner ought to have been considered for promotion to the post of Junior Scale Stenographer in the year 2002. He also contended that his client has never refused promotion to the post of Junior Scale Stenographer. 3. Mr. Vikas Rathore, learned Deputy Advocate General has strenuously argued that the present petition is barred by delay and laches. He also contended that the cause of action has arisen to the petitioner in the year 2003, but the petition has been filed only on 09.01.2012, when the petitioner is at the verge of retirement. He also contended that the petitioner could not be considered for promotion retrospectively. He lastly contended that the petitioner is not eligible to be considered for promotion to the post of Senior Scale Stenographer, since he does not possess five years regular service as Junior Scale Stenographer. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The respondent-State was directed to file a supplementary affidavit on 16.11.2012 clarifying therein whether the petitioner has ever forgone his promotion, as stated in the reply or not. The supplementary affidavit was filed by the Director, Animal Husbandry, Himachal Pradesh on 29.11.2012. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The respondent-State was directed to file a supplementary affidavit on 16.11.2012 clarifying therein whether the petitioner has ever forgone his promotion, as stated in the reply or not. The supplementary affidavit was filed by the Director, Animal Husbandry, Himachal Pradesh on 29.11.2012. Paragraph No. 3 of the supplementary affidavit reads as under: “3. That while considering the representation dated 21.03.2011 submitted by the petitioner (Annexure P-6, annexed with the present petition, the then Director had made observations on the noting sheet as under:- “Case for relaxation may be sent to Government. As regard to non promoting him during 2002-2008 to the post of Junior Scale Stenographer he met me during that period and requested that his promotion may be deferred as his domestic condition were not favourable”. 6. The then Director has made observations, as quoted hereinabove in the noting portion that the petitioner has met him during 2002-08 and has requested that his promotion may be deferred due to domestic condition. It is not believable that the post of Director was held by the same person between 2002-2008. There is a detailed procedure, the manner in which the refusal of promotion can be made as per paragraph No.16.21 of the Handbook on Personnel Matters, Vol-I (Second Edition). According to paragraph No. 16.21, when a Government employee does not want to accept a promotion which is offered to him, he may make a written request that he may not be promoted and the request will be considered by the appointing authority, taking relevant aspects into consideration. 7. In the instant case, since no Departmental Promotion Committee has met, there was no occasion for the petitioner even to refuse promotion. It was only if the promotion has been made and thereafter the petitioner has refused to accept the same, paragraph No. 16.21 would be applicable. 8. The fact of the matter is that the D.P.C. has never met between 2002 to 2008. The petitioner has only been promoted as Junior Scale Stenographer on 19.06.2008. Assuming hypothetically that the petitioner has refused to accept the promotion, in that eventuality, his promotion could be deferred for six months to one year and thereafter as and when the Departmental Promotion Committee would have met, his case was bound to be considered. The petitioner has only been promoted as Junior Scale Stenographer on 19.06.2008. Assuming hypothetically that the petitioner has refused to accept the promotion, in that eventuality, his promotion could be deferred for six months to one year and thereafter as and when the Departmental Promotion Committee would have met, his case was bound to be considered. Respondent-State was required to convene the Departmental Promotion Committee, the moment the vacancy has become available in the month of May, 2002. The respondent-State has not placed any tangible evidence on record to establish that the Departmental Promotion Committee has ever met between 2002 to 2008. The petitioner, though has no right for promotion, but he had a right to be considered for promotion in accordance with law. The petitioner was fully eligible for promotion to the post of Junior Scale Stenographer in the year 2002 since he was appointed as Steno-typist on 15.11.1989. In case the petitioner had been considered for promotion to the post of Junior Scale Stenographer, he would have also become eligible for the post of Senior Scale Stenographer, since the post of Junior Scale Stenographer is in feeder category for promotion to the post of Senior Scale Stenographer. 9. The respondent-State has also relied upon instructions contained in paragraph No. 16.25 and 16.34 of the Handbook on Personnel Matters Vol-I (Second Edition) to contend that the promotion cannot be made retrospectively and it would always be prospectively. However, these instructions would not be applicable in the present case, for the simple reason that the respondents cannot take advantage of their own wrong by not convening the DPC regularly, denying the petitioner’s legitimate right to be considered for promotion to the post of Junior Scale Stenographer. There is nothing on record, except the noting portion, as contained in paragraph No. 3 of the supplementary affidavit filed by the Director, Animal Husbandry, whereby the petitioner has met him between 2002 to 2008 and requested that his promotion may be deferred due to domestic reason. It is, thus, evident that the petitioner has never made any written request for deferring his promotion. It also cannot be presumed that the petitioner had been meeting the Director regularly between 2002 to 2008 and requesting him to defer his promotion for the post of Junior Scale Stenographer. It is, thus, evident that the petitioner has never made any written request for deferring his promotion. It also cannot be presumed that the petitioner had been meeting the Director regularly between 2002 to 2008 and requesting him to defer his promotion for the post of Junior Scale Stenographer. Petitioner has made a representation for considering his case notionally from the date when the vacancy has arisen, i.e., 2002, but the same has been rejected without a speaking order on 02.11.2011. Once the petitioner has made a representation, more particularly, when the same has been recommended by the respondent No. 2 favourably, the authority should have passed a speaking/detailed order. The order, dated 02.11.2011, is laconic. The reasons suggests due application of mind. 10. Their Lordships of the Hon’ble Supreme Court in Union of India and another Vs. Hemraj Singh Chauhan and others (2010) 4 Supreme Court Cases 290 have held that right of an eligible employee to be considered for promotion is virtually a part of his fundamental right under Article 16 and legitimate expectation for being considered for promotion cannot be defeated due to inaction on the part of State Government in conducting cadre review in time despite reminders from Central Government. Their Lordships have further held that the delay has deprived employees of their right to be considered fairly. Their Lordships have held as under: “34. However, from the discussion made hereinbefore, the following things are clear: (a) Both the appellants and the State Government in accordance with their stand in the subsequent affidavit accepted that cadre review in the State of Uttar Pradesh was made in 1998 and the next cadre review in that State was due in 2003; (b) Neither the appellants nor the State Government has given any plausible explanation justifying the delay in cadre review; (c) From the materials on record it is clear that the appellant as the Cadre Controlling Authority repeatedly urged the State Government to initiate the review by several letters referred to hereinabove; (d) The only reason for the delay in review, in our opinion, is that there was total inaction on the part of the Uttar Pradesh Government and lackadaisical attitude in discharging its statutory responsibility. 35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. 35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a welfare State. 36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.” 11. Accordingly, the writ petition is allowed. The respondents are directed to consider the case of the petitioner for promotion to the post of Junior Scale Stenographer strictly in accordance with law against the vacancies which were available between 2002 to 2007, within a period of twelve weeks from today. In case he is promoted as Junior Scale Stenographer from an anterior date, he shall not be entitled to any monetary benefits. He will be entitled to only notional benefits with seniority and counting this period for the purpose of pensionary benefits. In the eventuality of the petitioner being promoted as Junior Scale Stenographer from an anterior date, his case for promotion to the post of Senior Scale Stenographer shall also be considered in accordance with law, within a further period of ten weeks. The pending application(s), if any, also stands disposed of. No costs.