Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 2301 (HP)

State of Himachal Pradesh v. Amar Nath

2018-12-28

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

body2018
JUDGMENT : Dharam Chand Chaudhary, J. Respondents No. 1 & 2-State in CWP(T) No. 8257 of 2008, aggrieved by the judgment dated 15.10.2011 passed by learned Single Judge are in appeal. 2. The complaint is that learned Single Judge has failed to appreciate the response to the Writ Petition filed on their behalf in its right perspective. While admitting that the respondent-writ petitioner was working as Ayurvedic Chikitsa Adhikari, it is denied that his promotion as Sub Divisional Ayurvedic Chikitsa Adhikari was delayed intentionally, deliberately and in violation of Article 14 and 16 of the Constitution of India as according to the appellants-respondents, 36 posts of Sub Divisional Ayurvedic Chikitsa Adhikari were created vide notification dated 10.12.1998. Simultaneously, equal number of posts of Sub Divisional Ayurvedic Chikitsa Adhikari were also filled up by abolishing equal number of posts of Ayurvedic Chikitsa Adhikaris. Since in the Recruitment & Promotion Rules, no provision was there qua filling up the newly created posts of Sub Divisional Ayurvedic Chikitsa Adhikaris, therefore, a decision was taken to promote the Ayurvedic Chikitsa Adhikaris purely on adhoc basis/as a stop gap arrangement with the stipulation that such promotion will not confer any right upon them to seek regular promotion and seniority. In this regard, Notification dated 24.4.1999 can be pressed into service. In this way, 36 Ayurvedic Chikitsa Adhikaris were promoted as Sub Divisional Ayurvedic Chikitsa Adhikaris purely on adhoc basis and as a stop gap arrangement purely on the basis of their seniority. The Departmental Promotion Committee (DPC) meeting could only be convened to fill up these posts on regular basis after the provisions in the Rules made on 7.11.2000 i.e. after the retirement of the petitioner on 31.10.2000 on attaining the age of superannuation. 3. Learned Single Judge has not appreciated the case so pleaded by the appellants-respondents in reply filed to the writ petition on their behalf. 3. Learned Single Judge has not appreciated the case so pleaded by the appellants-respondents in reply filed to the writ petition on their behalf. Learned Single Judge allegedly erred in law while directing the appellants to consider the case of the petitioner for promotion to the post of Sub Divisional Ayurvedic Chikitsa Adhikari by holding review DPC with all consequential benefits as any such direction could have not been issued because in case the review DPC is held, it is likely to result in multiplicity of litigation and laying a precedent that the government servant even after retirement may also claim their promotion that too when they have no legal right for the same as in the case in hand. It is also submitted that the promotion cannot be claimed as a matter of right but is subject to the administrative discretion based upon availability of posts and fulfillment of other mandatory requirements like sanction of competent authority to fill up the same, availability of service records and Recruitment & Promotion Rules etc. In the case in hand, meeting of DPC was convened on 13.9.2001 to fill up the posts in question on regular basis and on that day, the respondent had already retired from service. The impugned judgment, as such, has been sought to be quashed and set aside. 4. This matter was heard previously on 20.11.2018 for some time. The order passed on that day reads as follows: “Heard for some time. In order to verify the factual position as to whether the Ayurvedic Medical Officer(s), 36 in number, promoted on adhoc basis in the year 1999 were senior or junior to the appellant, record be produced on the next date. List on 27.11.2018.” 5. The record, however, could be produced for perusal of this Court on 13.12.2018 when after hearing this matter further, it was observed as under: “Heard further. The record produced pursuant to the order passed on 20.11.2018, suggests that no Ayurvedic Chikitsa Adhikaries junior to the writ petitioner-respondent herein was promoted in the year 1999. Ayurvedic Chikitsa Adhikaries were promoted as Sub Divisional Ayurvedic Chikitsa Adhikari purely on adhoc basis/stop gap arrangement with the stipulation that promotion does not confer any right upon them in order to seek regular promotion and seniority. Therefore, the grievance of the writ petitioner that juniors were promoted in the year 1999, is not correct. Ayurvedic Chikitsa Adhikaries were promoted as Sub Divisional Ayurvedic Chikitsa Adhikari purely on adhoc basis/stop gap arrangement with the stipulation that promotion does not confer any right upon them in order to seek regular promotion and seniority. Therefore, the grievance of the writ petitioner that juniors were promoted in the year 1999, is not correct. Learned counsel representing respondent No.1 seeks adjournment so as to enable him to have instructions. Allowed. List for further hearing on 28th December, 2018. Record be also produced on the date fixed.” 6. Today, when the matter is taken up for further consideration, learned counsel representing the respondent-writ petitioner has failed to point out from the record that persons junior to the petitioner were promoted on adhoc basis as Sub Divisional Ayurvedic Chikitsa Adhikaris in the year 1999 after the creation of 36 posts in this cadre. We have perused the record and also the orders of promotion made in the year 1999 and find that no person junior to the writ petitioner was promoted as Sub Divisional Divisional Ayurvedic Chikitsa Adhikari. The posts were newly created, therefore, the response of respondents-appellants that no rules governing the procedure to be followed for filling up such posts were in existence is absolutely justified. It is not that after creation of these posts, the respondent-State remained slept over the matter indefinitely because the existing rules were amended and the amendment notified on 5.12.2000. It is only thereafter these posts could have been filled up in accordance with R & P Rules on regular basis and the writ petitioner if eligible and in the zone of consideration as per rules considered. However, by that time, the petitioner had already retired on 31.10.2000, after attaining the age of superannuation. The rules were amended in a period about one year. In our opinion, keeping in view lengthy process and various sanctions are required before the rules are finalized and notified, this much time was essentially required for the purpose. The present, as such, is not a case where the department has delayed the finalization of the rules and held the meeting of Departmental Promotion Committee (DPC) late intentionally and deliberately to the detriment of the petitioner. The findings so recorded by learned Single Judge, as such are neither legally nor factually sustainable. 7. The present, as such, is not a case where the department has delayed the finalization of the rules and held the meeting of Departmental Promotion Committee (DPC) late intentionally and deliberately to the detriment of the petitioner. The findings so recorded by learned Single Judge, as such are neither legally nor factually sustainable. 7. True it is that a government servant has legitimate expectation of being considered for promotion, however, in the case in hand, no occasion arose to the writ petitioner during his tenure as Ayurvedic Chikitsa Adhikari for promotion to the post of Sub Divisional Ayurvedic Chikitsa Adhikari, now nomenclature as Sub Divisional Ayurvedic Medical Officer because he stood retired on attaining the age of superannuation well before the Rules came into existence. The judgment of the Hon’ble Apex Court relied upon by learned Single Judge in the given facts and circumstances of this case is also not applicable. Learned Single Judge rather has assumed and presumed so many things even if not borne out from the records. 8. The respondents-appellants are absolutely justified in claiming that a direction to convene the meeting of review DPC after the retirement of a government servant would result in multiplicity of litigation and also laying a bad precedent as in that event a person who stood retired from the service may come forward and claim promotion retrospectively on coming into force the rules or happening of any other eventuality. Learned Single Judge has failed to take into consideration this aspect of the matter and swayed with the submissions made on behalf of the petitioner that the process to convene DPC was delayed intentionally and deliberately which, to our mind are not correct because in the case in hand, R & P Rules could only be framed after superannuation of the petitioner from service. There is no delay qua making provisions under the R & P Rules for promotion to the posts in question and even there is no delay also to convene the meeting of DPC also. However, unfortunately, the petitioner had not been left with sufficient tenure for being considered against the newly created posts of Sub Divisional Ayurvedic Chikitsa Adhikari later on re-designated as Sub Divisional Ayurvedic Medical Officer in the year 1999 as he stood retired from service within one year i.e. on 31.10.2000 thereafter. However, unfortunately, the petitioner had not been left with sufficient tenure for being considered against the newly created posts of Sub Divisional Ayurvedic Chikitsa Adhikari later on re-designated as Sub Divisional Ayurvedic Medical Officer in the year 1999 as he stood retired from service within one year i.e. on 31.10.2000 thereafter. In view of the foregoing reasons, this appeal succeeds and the same is accordingly allowed. Consequently, the impugned judgment is quashed and set aside and the writ petition dismissed.