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Himachal Pradesh High Court · body

2014 DIGILAW 2029 (HP)

Than Singh son of Sh. Sobha Ram v. State of H. P.

2014-12-31

P.S.RANA

body2014
JUDGMENT : P.S. Rana, J Present Civil Writ Petition filed under Article 226 of the Constitution of India. Brief facts of the case as pleaded are that petitioner was appointed as Gram Punchayat Vikas Adhikari (GPVA) on dated 14.10.1998. It is pleaded that in the year 2003 the name of the petitioner was sponsored by respondent department for undergoing five years degree course in B.Sc Agriculture and petitioner was allowed study leave and he completed B.Sc degree by scoring 70.1% marks. It is pleaded that in the year 2008 the Recruitment and Promotion Rules for the post of Agriculture Development Officer (Class-I Gazetted) provides two modes of recruitment to the post of Agriculture Development Officer. (1) 50% by way of direct recruitment (2) 50% by way of promotion. It is pleaded that in the recruitment by way of promotion 5% quota is reserved for the category of GPVA. It is pleaded that petitioner is qualified and eligible to be promoted for the post of Agriculture Development Officer (ADO) as per Recruitment and Promotion Rules. It is pleaded that on dated 7.3.2009 respondent department initiated the process for promotion to the post of Agriculture Development Officer Class-I Gazetted and the name of the petitioner was also mentioned in the panel at serial No.11. It is pleaded that respondents promoted as many as eleven similarly situated persons to the post of Agriculture Development Officer but the name of petitioner did not recommend for promotion for the post of Agriculture Development Officer. It is pleaded that in the year 2010 one Kaula Ram Agriculture Development Officer who belonged to the quota of the petitioner retired on 31.5.2010 and one Sh Arjun Singh Agriculture Development Officer who belonged from the same quota also retired in July, 2010. It is pleaded that two posts belonging to the category of petitioner have fallen vacant. It is further pleaded that despite the vacancy of two posts the petitioner was not promoted to the next higher post of Agriculture Development Officer in accordance with Recruitment and Promotion Rules. It is pleaded that on dated 29.8.2010 petitioner filed Civil Writ petition No.5130 of 2010 before Hon'ble High Court of HP which was decided on 23.8.2010. It is pleaded that on dated 28.12.2010 respondent No.2 has rejected the case of the petitioner in illegal manner. It is pleaded that Annexure P10 dated 28.12.2010 be quashed. It is pleaded that on dated 29.8.2010 petitioner filed Civil Writ petition No.5130 of 2010 before Hon'ble High Court of HP which was decided on 23.8.2010. It is pleaded that on dated 28.12.2010 respondent No.2 has rejected the case of the petitioner in illegal manner. It is pleaded that Annexure P10 dated 28.12.2010 be quashed. It is pleaded that petitioner be promoted to the post of Agriculture Development Officer (Class-I Gazetted) with all consequential benefits. Prayer for acceptance of writ petition sought. 2. Per contra reply filed on behalf of respondents pleaded therein that petitioner was appointed as GPVA on dated 14.10.1998. It is pleaded that as per Recruitment and Promotion Rules for promotion to the post of Agriculture Development Officer 5% quota has been provided to the category of GPVA who possess B.Sc (Agri.) with seven years regular service. It is pleaded that twenty posts fall in the share of GPVA as per provision of Recruitment and Promotion Rules. It is pleaded that all posts have been filled up by way of promotion. It is pleaded that at present no post is lying vacant in the share of GPVA. It is pleaded that the claim of the petitioner is not maintainable. Prayer for dismissal of writ petition sought. 3. Court heard learned Advocate appearing on behalf of the petitioner and learned Deputy Advocate General appearing on behalf of the respondents and also perused entire records carefully. 4. Following points arise for determination in the present writ petition: (1) Whether petitioner is entitled for promotion to the post of Agriculture Development Officer from the quota of GPVA as alleged? (2) Final order. Finding upon Point No.1. 5. Submission of learned Advocate appearing on behalf of the petitioner that petitioner is legally entitled for promotion to the post of Agriculture Development Officer from the quota of GPVA is rejected being devoid of any force for the reason hereinafter mentioned. It is proved on record that petitioner filed CWP No. 5130 of 2010 before Hon'ble High Court of HP which was disposed of on dated 27.10.2010. Hon'ble High Court of HP directed the Secretary (Agriculture) Government of Himachal Pradesh to take a decision in the matter in view of the reply regarding the entitlement of the petitioner for promotion within a period of one month from the date of production of the copy of order. Hon'ble High Court of HP directed the Secretary (Agriculture) Government of Himachal Pradesh to take a decision in the matter in view of the reply regarding the entitlement of the petitioner for promotion within a period of one month from the date of production of the copy of order. It is also proved on record that thereafter Secretary (Agriculture) to the Government of Himachal Pradesh in compliance to the direction of Hon'ble High Court of HP issued in CWP No.5130 of 2010 passed the order that no post of Agriculture Development Officer is vacant on dated 28.12.2010 from the share of GPVA and held that 20 GPVAs already stood promoted to the post of ADO from quota of GPVA who are working on regular basis and representation dated 22.11.2010 preferred by petitioner was rejected. It is proved on record that there are two modes for appointment for the post of Agriculture Development Officer (1) Direct recruitment (2) By way of promotion. It is proved on record that 50% quota is reserved for promotion from feeder cadre and 50% quota is reserved for direct recruitment for the post of Agriculture Development Officer. It is proved on record that 5% quota is reserved for GPVA category for promotion to the post of Agriculture Development Officer and 45% quota is reserved for Assistant Agriculture Development Officer. It is also proved on record that thereafter present CWP No. 910 of 2011-A was filed before Hon'ble High Court of HP and on dated 18.11.2011 Hon'ble High Court of HP directed respondent-State to verify the fact whether 19 candidates are occupying the posts of Agriculture Development Officer from 5% quota of GPVA. Hon'ble High Court of HP further directed that in case only 19 persons are occupying the posts of ADO under 5% quota of GPVA then the case of the petitioner would also be considered for promotion with all consequential benefits within a period of four weeks w.e.f. 18.11.2011. In compliance to the interim direction of Hon'ble High Court of HP passed in CWP No. 910 of 2011, Additional Chief Secretary (Agriculture) to the Government of HP passed order on dated 19.1.2012 that no post of Agriculture Development Officer in the quota of GPVA is lying vacant and held that one Sh Kartar Singh GPVA also stood promoted to the post of Agriculture Development Officer on dated 6.8.2010 on the recommendations of HPPSC. List of ADO promoted from 5% quota of GPVA submitted by respondents is quoted in toto : Sr.No. Name of ADO promoted from GPVAs. Present place of posting. Remarks. 1. S/Sh Kewal Krishan Seed Grading Centre, Pekhubela, Distt Una 2. Ram Pal S.C.Section Dhaliara, Distt Kangra 3. Surender Kumar Placed as SDSCO, Una w.e.f.23.5.2011 4. Manoj Gautam Dev Block, Nagar Distt.Kullu 5. Naresh Dutt Nankhari Cir.Dev.Block, Rampur Distt.Shimla 6. Som Raj Negi S.C.Section, Nichar, Distt Kinnaur. 7. Devi Chand Kashyap S.C.Section Kuthar Distt. Solan 8. Yoginder Pal Dev.Block, Bhedu Mahadev Distt. Kangra 9. Hakam Chand Tiara Circle Dev. Block, Kangra Distt. Kangra 10. Shyam Lal Chuhru Cir.Dev.Block, Amb, Distt Una 11. Hem Raj S.C.Section, Jhandutta, Distt. Bilaspur. 12. Abhay Kumar Dev. Block Hamirpur, Distt Hamirpur 13. Sita Ram S.C.Section, Kandaghat, Distt. Solan 14. Nitin Kumar Sharma S.C.Section, Bharmour, Distt. Chamba 15. Virender Singh SDSCO, Shimla 16. Smt. Pushpa Devi Sr. Analytical Chemist Howthorn Villa, Shimla-4 17. Durga Dutt Darlaghat Circle, Dev. Block Kunihar Distt. Solan 18. Bhupender Singh Dev. Block, Kaza Distt Lahaul & Spiti 19. Dev Raj Jalog Cir. Dev. Block, Basantpur, Distt. Shimla 20. Kartar Singh S.C.Section, Indora, Distt. Kangra 6. It is well settled law that appointment upon public post is by way of two modes (1) Promotional mode (2) Direct recruitment mode and concept of rota and quota is applied when promotion is between feeder cadre and direct recruitment. In the present case it is proved on record that 5% quota from the posts of GPVA is fixed for promotional post of Agriculture Development Officer. It is proved on record that 20 posts come to the share of GPVA. As per document placed on record there is no vacant post as of today in the quota of GPVA for promotional post of Agriculture Development Officer and as of today entire quota of GPVA in the promotional post of Agriculture Development Officer stood filled up. Details of twenty officials occupying 5% quota of GPVA are cited supra. It is well settled law that promotion in the public post is always given as per approval of recommendation of Department Promotion Committee constituted by appointing authority. It is well settled law that Department Promotion Committee is under legal obligation to recommend the name of officials for promotion keeping in view the ACRs of the officials and keeping in view the integrity of the officials suitable for public post. It is well settled law that Department Promotion Committee is under legal obligation to recommend the name of officials for promotion keeping in view the ACRs of the officials and keeping in view the integrity of the officials suitable for public post. In the present case petitioner did not place on record any documentary evidence in order to prove that his case was recommended for appointment to the post of Agriculture Development Officer by Department Promotion Committee in preference to twenty candidates cited supra. Falling names of the officials in the zone of consideration for promotion and recommendation of the officials by Department Promotion Committee for appointment in promotional post are two entirely different concepts in the promotion process in the public post. Generally minimum three candidates falls in zone of consideration for one promotional post. It was held in case reported in AIR 1995 SCC 23 titled Chandra Gupta Vs. Secretary Government of India that no employee has a right or vested right of promotion. It was held in case reported in 2014 (10) SCC 398 titled State of Jharkhand Vs. Bhadey Munda and another that an employee has no fundamental right of promotion. It was held that employee has only a right to be considered for promotion. It was held in case reported in AIR 1996 8 SCC 762 titled State Bank of India Vs. Kashinath Kher that object of writing the confidential report is two folds (1) To give an opportunity to the officer to remove deficiencies and to inculcate discipline. (2) It seeks to serve improvement of quality and excellence and efficiency of public service. It was held in case reported in 1993 1 SCC 17 titled Indian Airlines Corporation Vs. K.C.Shukla that Court could not substitute its opinion and devise its own method for evaluation of fitness of candidate for a particular post. Also see AIR 1996 SC 665 titled S.L.Soni Vs. State of M.P. It was held in case reported in 1996 (8) SCC 43 titled U.P.Jal Nigam Vs. Narinder Kumar Agarwal that merit and integrity are the sole consideration for selecting the officials in a public post for promotion. Also see 2006 (5) SCC 153 titled D.C.Aggarwal (dead) through L.Rs Vs. State Bank of India and another. Also see 1996 (1) SCC 650 titled State of HP Vs. Surinder Kumar. Also See 2007 (10) SCC 513 titled S.B. Bhattacharjee Vs. S.D.Majumdar and others. Also see 2006 (5) SCC 153 titled D.C.Aggarwal (dead) through L.Rs Vs. State Bank of India and another. Also see 1996 (1) SCC 650 titled State of HP Vs. Surinder Kumar. Also See 2007 (10) SCC 513 titled S.B. Bhattacharjee Vs. S.D.Majumdar and others. Also see 1993 (1) SCC 17 titled Indian Airlines Corporation Vs. Capt. K.C.Shukla and others. In view of the fact that no vacancy is available in the quota of GPVA for promotional post of Agriculture Development Officer as of today and in view of the fact that petitioner did not implead Agriculture Development Officers as co-respondents to whom undue favour has been given by the respondents from the reserve quota of GPVA in the promotional post of Agriculture Development Officer to meet requirement of concept of audi alteram partem no relief could be granted in favour of the petitioner as sought. Hence point No.1 is answered in negative. Final Order. 7. In view of my finding upon point No.1 civil writ petition filed by petitioner under Article 226 of the Constitution of India is dismissed with no order as to costs. Writ petition is disposed of. All pending applications if any are also disposed of.