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2015 DIGILAW 1061 (HP)

State of Himachal Pradesh v. Inder Mohan Sharma

2015-08-10

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT Mansoor Ahmad Mir, J. 1. Challenge in this appeal is to the judgment and order, dated 09.03.2009, made by the Writ Court in CWP (T) No. 2586 of 2008, titled as Inder Mohan Sharma versus State of H.P. and another, whereby the writ petition filed by the writ petitioner-respondent herein came to be allowed (for short "the impugned judgment"). 2. The writ petitioner-respondent herein has filed Original Application No. 1412 of 1995 before the erstwhile H.P. State Administrative Tribunal and has sought the following reliefs amongst others: "(i) That the order dated July 10, 1995 may be quashed and set aside. The respondents may be directed to treat the applicant eligible for promotion to the post of Principal taking into consideration the relaxation given by the State of Himachal Pradesh in consultation with the Public Service Commission. (ii) That after declaring the applicant eligible for the post of Principal, the respondents may be directed to consider the applicant for the post of Principal from the waiting cadre with effect from March 01, 1994, as the applicant is senior-most Lecturer in the 'waiting cadre' or from any other date this Hon'ble Tribunal deems fit. (iii) That the respondents may be restrained from "equating suitability" with eligibility criteria and further directions may be issued to the respondents not to hold the applicant unsuitable for the post of Principal on the ground of educational qualifications. (iv) That the respondents may be directed to release all consequential benefits to the applicant as a result of the promotion to the post of Principal if he is found fit by the Departmental Promotion Committee." 3. On abolition of the erstwhile Tribunal, the Original Application was transferred to this Court, came to be diarized as CWP (T) No. 2586 of 2008. 4. We have gone through the impugned judgment and have perused the record and are of the considered view that the impugned judgment, on the face of it, is illegal and not tenable in the eyes of law for the following reasons: 5. 4. We have gone through the impugned judgment and have perused the record and are of the considered view that the impugned judgment, on the face of it, is illegal and not tenable in the eyes of law for the following reasons: 5. Learned Single Judge/Writ Court has not issued the writ of certiorari and has directed the respondents to consider the case of the writ petitioner-respondent herein for promotion to the post of Principal from due date on the basis of the judgment rendered by the Apex Court in a case titled as The District Registrar Palghat and Others vs. M.B. Koyakutty and Others, (1979) 2 SCC 150 . The ratio laid down by the Apex Court in the judgment (supra) is not applicable to the instant case. It is apt to reproduce para 30 of the judgment herein: "30. The last point for consideration is whether it was proper for the High Court to issue a positive direction requiring the appellant to promote the respondent to the Upper Division and thereafter to determine his rank in the cadre of Upper Division Clerks. Ordinarily, the court does not issue a direction in such positive terms; but the peculiar feature of this case is that it has not been disputed that Koyakutty respondent satisfies the twofold criterion for promotion laid down in the statutory Rule 28 (b) (ii). Indeed, the District Registrar, Palghat, who was impleaded as respondent 3 in the writ petition, expressly admitted in paragraph 8 of his counter-affidavit filed before the High Court, "that the seniority of service is the basis of promotion from the ranks of Lower Division Clerks to the ranks of Upper Division Clerks provided they are fully qualified by passing the departmental tests for the purpose." It was never the case of the Registrar that Koyakutty was not otherwise fit for promotion. Indeed, even in the grounds of appeal to this Court, incorporated in the Special Leave Petition, it is not alleged that Koyakutty did not satisfy the criterion of seniority-cum-fitness prescribed by Rule 28 (b) (ii). The position taken by the appellant, throughout, was that this rule should be deemed to have been "supplemented" by the impugned Government Notification. It is not correct that the impugned Notification merely "supplements" or fills up a gap in the statutory rules. The position taken by the appellant, throughout, was that this rule should be deemed to have been "supplemented" by the impugned Government Notification. It is not correct that the impugned Notification merely "supplements" or fills up a gap in the statutory rules. It tends to supersede or superimpose by an Executive fiat on the statutory rules something inconsistent with the same. Since the existence of both the criteria viz. seniority and fitness for promotion to the Upper Division prescribed by the statutory Rule 28 (b) (ii), in the case of Koyakutty was not disputed, the High Court was justified in issuing the direction it did." 6. Learned Senior Counsel appearing on behalf of the writ petitioner-respondent herein frankly conceded that the judgment rendered by the Apex Court is not applicable, however, she argued that the writ petitioner-respondent herein was eligible for promotion to the post of Principal. 7. Learned Single Judge/Writ Court has not determined as to whether the writ petitioner-respondent herein was eligible and whether relaxation granted at the entry level can again be granted to the writ petitioner-respondent herein while considering his case for promotion to the post of Principal. 8. Learned Single Judge/Writ Court has not discussed the facts and merits of the case and has also not made even a whisper about the reliefs sought. 9. Having said so, the impugned judgment, on the face of it, is illegal and merits to be set aside. Accordingly, the appeal is allowed, the impugned judgment is set aside, the writ petition is revived and transferred to the H.P. State Administrative Tribunal for decision afresh. 10. Parties are directed to cause appearance before the H.P. State Administrative Tribunal on 24th August, 2015.