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2020 DIGILAW 521 (HP)

Beasa Devi v. H. P. State Electricity Board

2020-08-25

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. - By way of this writ petition, the petitioner has prayed for the following substantive reliefs:- "(a) to issue a writ of certiorari or direction in nature thereof, quashing the impugned order dated 08./08/2012 and 25/09/2012 being Annexures P10 and P-12 respectively of the writ petition, as unconstitutional and illegal and contrary to the law; (b) to issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the respondent to consider and promote the petitioner as Under Secretary from the date the posts were lying vacant with all the consequential benefits for all purposes and intents; (c) to issue an appropriate writ, order or direction in nature thereof to give full justice to the petitioners in the circumstances of the case and may pass such further writ, order or orders as this Hon'ble Court may deem fit, proper, just and expedient in the circumstances of the case;" 2. The case of the petitioner is that she stood promoted to the post of Section Officer on 21.05.2010 and she superannuated as such on 31st October, 2011. In the interregnum, between 30.06.2011 to 01.10.2011, on the retirement of the incumbents, 12 posts of Under Secretaries fell vacant and the same were to filled up in terms of office order Annexure P-1, dated 04.07.2009, which reads as under:- "The HPSEB is pleased to consider eligibility service criteria relaxed for adhoc promotion in respect of those who are with in the zone of consideration for promotion to next higher post and are retiring within a period of one year from the date of higher post falling vacant with the proviso that the employee has completed at least one year service in his present post and also subject to the condion that he is the senior most. The WTM observed that it is a general policy. However, in specific case the competent authority, for reason to be recorded may decide not to promote on adhoc basis." 3. As per the petitioner, despite the petitioner being eligible for being considered and promoted against the posts in issue and despite the promotional post being available, no D.P.C. was conducted by the respondent-Board till her superannuation, as a result of which, she retired from service as Section officer and it is only after her superannuation that promotions were made. As per the petitioner, despite the petitioner being eligible for being considered and promoted against the posts in issue and despite the promotional post being available, no D.P.C. was conducted by the respondent-Board till her superannuation, as a result of which, she retired from service as Section officer and it is only after her superannuation that promotions were made. It is in this background that this petition has been filed. 4. I have heard learned Counsel for the parties and gone through the pleadings as well as documents appended therewith. 5. It is settled law that no employee has a fundamental right for being promoted though right of consideration for promotion has been held by the Hon'ble Apex Court to be a fundamental right. Availability of promotional post ipso facto does not confer upon an employee a right to be promoted to the post in issue. It is for the employer to take a call as to whether in the event of promotional post being available, it intends to fill up the promotional post in issue or not. 6. According to the petitioner, after her promotion to the post of Section Officer and before her superannuation as such on 31st October, 2011, 12 posts of Under Secretaries fell vacant on account of retirement of the incumbents of the same and she had a right to be considered and promoted against said posts in terms of Annexure A-1. Assuming for the sake of arguments that there is no rebuttal to the said contention of the petitioner, even then, it is a matter of record that before superannuation of the petitioner, no D.P.C. was convened by the respondent-Board for promoting the persons eligible to be considered for promotion to the said posts. Though, it is her case that D.P.C. was held after her superannuation and promotions were made thereafter, however, as it is not the allegation of the petitioner that till her superannuation, the respondent-Board did not held D.P.C. for effecting promotions because of some ulterior motive or on account of some malafide. In these circumstances, it can be assumed and presumed that the act of the respondent-Board of not holding the D.P.C. and not effecting the promotions against the posts of Under Secretaries, was not a bonafide act. 7. In these circumstances, it can be assumed and presumed that the act of the respondent-Board of not holding the D.P.C. and not effecting the promotions against the posts of Under Secretaries, was not a bonafide act. 7. Accordingly, in view of discussions held hereinabove, as in my considered view, no indefeasible right for being promoted to the post of Under Secretary has accrued upon the petitioner, this petition being devoid of merit, is dismissed. Pending miscellaneous application(s), if any, also stand disposed of.