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2017 DIGILAW 733 (HP)

Shiv Ram Bali v. State of Himachal Pradesh

2017-06-29

SANDEEP SHARMA, SANJAY KAROL

body2017
JUDGMENT : Sandeep Sharma, J. Instant letters patent appeal is directed against judgment dated 11.3.2011 passed by a learned single Judge of this Court in CWP-T No. 534 of 2009, whereby petition/original application having been filed by the appellant came to be dismissed. 2. Facts as emerge from the record are that the appellant, who was initially appointed as a Patwari in the Settlement Department, filed an original application before the Himachal Administrative Tribunal, seeking therein direction to the respondent-State for framing Recruitment and Promotion Rules for promotion to the post of Kanungo from the post of Patwari. Recruitment and promotion rules were framed by the respondent-Department on 27.10.1995, for the post of Kanungo, as a consequence of which, appellant was promoted as kanungo in the year 1996. Thereafter, appellant filed another original application being OA No. 251 of 1998, seeking therein direction to the respondents to frame Recruitment and Promotion Rules for the post of Naib Tehsildar, however, original application was ordered to be treated as representation on 4.1.1999. Respondents, on the basis of representation having been filed by the appellant, framed recruitment and promotion rules for the post of Naib Tehsildar and promoted the appellant to the post of Naib Tehsildar on 8.10.1999. Subsequent to his promotion as Naib Tehsildar, appellant again made a representation to the respondent-department for up-gradation of post of Naib Tehsildar to that of Tehsildar. Case of the appellant was recommended by respondent No.4 vide communication dated 28.7.2005 to the respondent No.1. Since no action was taken on the representation, appellant again preferred an OA bearing No. 723 of 2007, which came to be treated as a representation to Principal Secretary (Finance) to the Government of Himachal Pradesh. Principal Secretary (Finance) HP considered and decided representation having been filed by the appellant vide order, whereby prayer of appellant for promotion to the post of Tehsildar by up-grading post was rejected. Principal Secretary (Finance) HP considered and decided representation having been filed by the appellant vide order, whereby prayer of appellant for promotion to the post of Tehsildar by up-grading post was rejected. In the aforesaid background, appellant approached Himachal Administrative Tribunal, by way of OA No. 1549 of 2007, which subsequently came to be registered as CWP-T No. 534 of 2009, seeking therein following main reliefs amongst others: “(I) That the impugned order dated 11.5.2007 as contained in Annexure A-9 passed by respondent No.1 may very kindly be quashed and set aside thereby directing the respondents to consider the case of the applicant for promotion as Tehsildar or Land Acquisition Officer in the department of respondent No.5 from the post of Naib Tehsildar. (II) That the respondents may very kindly be directed to frame the rules for the promotion of the Naib Tehsildars, who are posted in the respondent No.2-department, to the post of either Tehsildar or Land Acquisition officer, in the interest of justice.” 3. Learned single Judge, vide judgment dated 11.3.2011, dismissed the petition having been filed by the appellant and held that Court can not direct respondents to create a post since it is a policy matter. Learned single Judge further held that Court can not direct respondents to frame recruitment and promotion rules and it is prerogative of the State being a legislative function to frame Recruitment and Promotion Rules. In the aforesaid background, appellant has come before this Court by way of instant proceedings, praying herein for setting aside impugned judgment passed by learned single Judge. 4. Mr. Ramesh Sharma, learned counsel representing the appellant vehemently argued that the impugned judgment passed by learned single Judge is not sustainable in the eyes of law as the Learned single Judge has failed to consider all the aspects of the case in its right spirit, as a result of which, great injustice has been caused to the appellant, who has been serving the respondent-Department since 1.6.1987. While inviting attention of this Court to the order, annexure A-2, Mr. Sharma contended that respondent No.3 sanctioned three posts of Tehsildar in the respondent-Department on 10.2.2011 and thereafter Revenue Department took a decision to promote three Naib Tehsildars to the post of Tehsildar in the Revenue Department. Mr. While inviting attention of this Court to the order, annexure A-2, Mr. Sharma contended that respondent No.3 sanctioned three posts of Tehsildar in the respondent-Department on 10.2.2011 and thereafter Revenue Department took a decision to promote three Naib Tehsildars to the post of Tehsildar in the Revenue Department. Mr. Sharma, further invited attention of this Court to Annexure A-7, annexed to the petition to suggests that it was proposed that there should a Tehsildar below LAO, who could attend to the cases of acquisition by assisting the LAOs PWD and in other matter so that the LAO could devote more attention towards compensation cases. It was also proposed that three posts of Naib Tehsildar, one each for LAO Shimla, LAO Mandi and LAO Kangra be upgraded to that of Tehsildars in HP PWD by abolishing equal number of posts of Naib Tehsildars. Mr. Sharma, further contended that respondents despite aforesaid policy decision having been taken by the government, failed to promote appellant to the post of Tehsildar, rather, they appointed employees from Revenue Department on secondment basis, depriving appellant from promotional avenues as such judgment passed by learned single Judge deserves to be set aside. While concluding his arguments, Mr. Verma, contended that it has specifically come in the reply of respondents that appellant passed departmental examination for the post of Tehsildar, but relevance of departmental examination was only to improve functioning of officials and to adjudge suitability for higher post, if available. Mr. Sharma, further contended that perusal of Annexures A-4, A-5 and A-6 clearly suggests that appellant has/had enough experience that is why he was appointed as Land Acquisition Officer vide order dated 16.6.2010 (Annexure A-3), but, despite that, respondent-Department deprived him of his right to promotion. With the aforesaid submissions, Mr. Sharma, prayed that impugned judgment passed by learned single Judge deserves to be quashed and set aside being contrary to the decision taken by the Government. 5. Mr. Shrawan Dogra, learned Advocate General duly assisted by Mr. Anup Rattan, learned Additional Advocate General, supported the impugned judgment passed by learned single Judge. Mr. Dogra, while inviting attention of this Court to the impugned judgment passed by learned single Judge vehemently contended that there is no illegality of infirmity in the same, because, admittedly at relevant time, there was no post of Tehsildar, qua which appellant could be appointed as Tehsildar. Mr. Mr. Dogra, while inviting attention of this Court to the impugned judgment passed by learned single Judge vehemently contended that there is no illegality of infirmity in the same, because, admittedly at relevant time, there was no post of Tehsildar, qua which appellant could be appointed as Tehsildar. Mr. Dogra further contended that bare perusal of averments contained in the petition, itself suggests that appellant got sufficient promotions after being appointed as a Patwari on 1.6.1987, as such, it can not be said that he is stagnating on one post. Mr. Dogra, further contended that repeatedly on representations having been made by the appellant, a conscious decision was taken to create post of Kanungo and thereafter that of Naib Tehsildar. While making prayer to dismiss the present appeal having been filed by the appellant, learned Advocate General further contended that no direction, if any, could be passed by the court below to create any post of Tehsildar because decision, if any, in this regard is/was only to be taken by competent authority that too by framing appropriate Recruitment and Promotion Rules, for filling up post of Tehsildar, if any. 6. We have heard the learned counsel for the parties and gone through the impugned judgment carefully. 7. This Court, after having carefully gone through the pleadings as well as documents available on record vis-a-vis judgment passed by learned single Judge, sees no force in the arguments of Shri Ramesh Sharma, learned counsel representing the appellant, rather, this court is of the view that on repeated representations having been filed by the appellant, posts of Kanungo and Naib Tehsildar were created in the Settlement Department and thereafter, appellant was promoted to the post of Kanungo and Naib Tehsildar. Since sufficient promotions as have been discussed herein above, were granted to the appellant, we see no merit in the arguments of Mr. Sharma that appellant is/was stagnating on one post. Perusal of annexure A-7, on which heavy reliance was placed by learned counsel for the appellant to suggest that matter with regard to up-gradation of three posts of Naib Tehsildar to that of Tehsildar in the pay scale of Rs. Sharma that appellant is/was stagnating on one post. Perusal of annexure A-7, on which heavy reliance was placed by learned counsel for the appellant to suggest that matter with regard to up-gradation of three posts of Naib Tehsildar to that of Tehsildar in the pay scale of Rs. 7220-11669 in HP PWD was considered in the Working Group of Finance Department, HP, and it was proposed that there should be a Tehsildar below the LAO, who could attend to the cases of acquisition by assisting the LAO’s PWD and in other matter so that the LAO could devote more attention towards compensation cases. It further appears that three posts of Naib Tehsildars, one each for LAO’s Shimla, Mandi and Kangra were proposed to be upgraded to that of Tehsildar in HP PWD by abolishing equal number of posts of Naib Tehsildars. Though, no document has been led on record by the appellant suggestive of the fact that consequent action, if any, was taken by appropriate authority on the aforesaid proposal submitted by Principal Secretary (PW) to the Government of Himachal Pradesh, but, even then, no benefit can be drawn from the same by the appellant since specific proposal was sent to create three posts of Naib Tehsildar, one each for LAO Shimla, Mandi and Kangra to that of Tehsildar by abolishing equal number of posts of Naib Tehsildars. 8. Further perusal of order dated 11.5.2007 as contained in Annexure A-9 (of Original Application/CWP-T No. 534/2010), suggests that case of appellant was considered in light of Rules/orders relating to ACPS and pay scales. Assured Career Progression Scheme, (ACPS), which was in existence in respect of regular employees, guarantees next pay scale in the hierarchy of pay scales alongwith one increment on completion of 8 years of service and one proficiency step up on completion of 16/26 years of service, as such, there is no stagnation in case of appellant, who was admittedly granted two regular promotions after his having been appointed as Patwari in 1987. Vide order dated 11.5.2007, Principal Secretary (Finance) while considering representation of the appellant, rightly came to the conclusion that since benefit under ACPS is admissible to the appellant, there is no stagnation in one pay scale, as such, no case is made out for upgradation of the post, in view of the recommendations made by 6th Pay Commission. Vide order dated 11.5.2007, Principal Secretary (Finance) while considering representation of the appellant, rightly came to the conclusion that since benefit under ACPS is admissible to the appellant, there is no stagnation in one pay scale, as such, no case is made out for upgradation of the post, in view of the recommendations made by 6th Pay Commission. In the instant case, as clearly emerges from the record, appellant has already been promoted twice and it is settled law that Court may interfere only in those cases where there are no promotional avenues, for creating promotional avenues to the employees. Hence, this Court, sees no illegality or infirmity in the findings returned by learned single Judge. 9. Apart from above, this Court sees no merit in the submissions of Mr. Sharma, that the appellant had qualified departmental examination, and as such, he ought to have been promoted, especially because there is/was no post qua which appellant could be promoted. It has been repeatedly held by this Court as well as Hon'ble Apex Court that Court has no power to direct the Government to create posts, rather, it is the prerogative of the State to frame Rules, for the post, if any, to be created. 10. Hon'ble Apex Court in P.U. Joshi v. Accountant General, (2003) 2 SCC 632 has held that questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State. The Apex Court has held as under: “10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.” 11. Hon'ble Apex Court in K. Samantaray v. National Insurance Co. Ltd. (2004) 9 SCC 286, has held that no one has a right to be promoted but only a right to be considered for promotion. The Apex Court has held as under: “6. In all services, whether public or private there is invariably a hierarchy of posts comprising of higher posts and lower posts. Promotion, as understood under the Service Law Jurisprudence, is advancement in rank, grade or both and no employee has right to be promoted, but has a right to be considered for promotion. The following observations in Sant Ram Sharma v. State of Rajasthan and Ors., AIR (1967) SC 1910 are significant : "The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit. That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones; an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem, therefore, is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able man? In other words, the question is how to find a correct balance between seniority and merit in a proper promotion-policy."” 12. Hon'ble Apex Court in Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796 , has held that the courts are not to plunge into policy making by adding something to the policy by way of issuing a writ of mandamus. The Apex Court has held as under: “23. The centripodal question that emanates for consideration is whether the High Court could have issued such a mandamus commanding the appellant to carry out a census in a particular manner. 24. The High Court has tried to inject the concept of social justice to fructify its direction. It is evincible that the said direction has been issued without any deliberation and being oblivious of the principle that the courts on very rare occasion, in exercise of powers of judicial review, would interfere with a policy decision. Interference with the policy decision and issue of a mandamus to frame a policy in a particular manner are absolutely different. The Act has conferred power on the Central Government to issue Notification regarding the manner in which the census has to be carried out and the Central Government has issued Notifications, and the competent authority has issued directions. It is not within the domain of the Court to legislate. The courts do interpret the law and in such interpretation certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. It is not within the domain of the Court to legislate. The courts do interpret the law and in such interpretation certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court may also fill up the gaps in certain spheres applying the doctrine of constitutional silence or abeyance. But, the courts are not to plunge into policy making by adding something to the policy by way of issuing a writ of mandamus. There the judicial restraint is called for remembering what we have stated in the beginning. The courts are required to understand the policy decisions framed by the Executive. If a policy decision or a Notification is arbitrary, it may invite the frown of Article 14 of the Constitution. But when the Notification was not under assail and the same is in consonance with the Act, it is really unfathomable how the High Court could issue directions as to the manner in which a census would be carried out by adding certain aspects. It is, in fact, issuance of a direction for framing a policy in a specific manner. 25. In this context, we may refer to a three-Judge Bench decision in Suresh Seth V. Commr., Indore Municipal Corporation. wherein a prayer was made before this Court to issue directions for appropriate amendment in the M.P. Municipal Corporation Act, 1956 so that a person may be debarred from simultaneously holding two elected offices, namely, that of a Member of the Legislative Assembly and also of a Mayor of a Municipal Corporation. Repelling the said submission, the Court held: “In our opinion, this is a matter of policy for the elected representatives of people to decide and no direction in this regard can be issued by the Court. That apart this Court cannot issue any direction to the legislature to make any particular kind of enactment. Under out constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. In Supreme Court Employees’ Welfare Assn. v. Union of India: (SCC para 51) it has been held that no court can direct a legislature to enact a particular law. Under out constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. In Supreme Court Employees’ Welfare Assn. v. Union of India: (SCC para 51) it has been held that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. This view has been reiterated in state of J & K v A.R. Zakki. In A.K. Roy v. Union of India it was held that no mandamus can be issued to enforce an Act which has been passed by the legislature.”” 13. Consequently, in view of above, we see no reason to interfere in the judgment passed by learned single Judge, which appears to be based upon correct appreciation of rules occupying the field, as such, same is upheld and present appeal is dismissed. Pending applications, if any, are also disposed of.