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Himachal Pradesh High Court · body

2022 DIGILAW 185 (HP)

Daljit Singh, S/o. Sh. Kapil Dev v. State of Himachal Pradesh, Through Principal Secretary (Transport) to the Government of Himachal Pradesh, Shimla, H. P.

2022-04-21

AJAY MOHAN GOEL

body2022
JUDGMENT : Though, by way of the present Writ Petition, the petitioner has prayed for various reliefs, however, at the time of final arguments learned counsel for the petitioner has restricted his reliefs qua Annexure P-9, P-10 and P-14 only. Further, in terms of order dated 12.04.2022, the petitioner gave up his claim qua respondent No.3, whose name was ordered to be deleted from the array of respondents. 2. Brief facts necessary for the adjudication of the present petition are that the petitioner was initially appointed against the post of Regional Manager, Class-I, vide Office Order dated 31st July, 1995 and he joined the duties of the respondent-Corporation as such w.e.f. 9th August 1995. He was promoted to the post of Deputy Divisional Manager (Non-Technical), vide Office Order dated 15.09.2010, on temporary/ad-hoc basis, which promotion was thereafter made regular. Then, the petitioner was promoted to the post of Divisional Manager (Non-Technical) alongwith other persons, vide Office Order 1st March, 2014 (Anexure-P3) and he joined as such at district Hamirpur, on 1st March, 2014 itself and started performing the duties of the said post. 3. After six years, petitioner received a corrigendum dated 09.09.2020 (Annexure P-9), vide which he was informed that as he was erroneously promoted on regular basis vide Office Order dated 01.03.2014, though the recommendations of the Departmental Promotion Committee was to promote him on officiating basis, therefore, the promotion order of the petitioner dated 01.03.2014, was being modified and the promotion of the petitioner is to be treated on officiating basis instead of regular basis from the date of his actual joining against the post in issue. This was followed by issuance of Annexure P-10 dated 01.10.2020, in terms whereof, the petitioner has been reflected as a Deputy Divisional Manager (Non-Technical) in the provisional seniority list of Deputy Divisional Manager (Non-Technical) as it stood on 30.07.2019. Thereafter, Annexure P-14 was issued which was the final seniority list in respect of Divisional Manager (Non-Technical) as it stood on 10.09.2020 and in the same the name of the petitioner was not there. 4. Thereafter, Annexure P-14 was issued which was the final seniority list in respect of Divisional Manager (Non-Technical) as it stood on 10.09.2020 and in the same the name of the petitioner was not there. 4. Learned counsel for the petitioner has argued that as Annexure P-3 was issued by the respondent-Corporation depicting therein that the petitioner was promoted on regular basis against the post of Divisional Manager (Non-Technical), therefore, the issuance of Annexure P-9 i.e. the impugned corrigendum is not sustainable in the eyes of law for the reason that while promoting the petitioner on regular basis vide Office Order dated 1st March 2014, it has to be assumed that the employer took a conscious decision to promote him as such on regular basis. Accordingly, he has prayed that in this background issuance of the impugned corrigendum is nothing but an afterthought and the said corrigendum alongwith Annexure P-10 and Annexure P14 are liable to be quashed and set aside. 5. Learned counsel for the respondent-Corporation submitted that though it is not in dispute that in terms of Annexure P-3, the promotion of the petitioner against the post of Divisional Manager (Non-Technical) was not on officiating basis, but as subsequently the corporation realized the mistake which stood committed while issuing Office Order dated 1st March 2014, the same was rectified. He further argued that as the promotion of the petitioner at the relevant time was in excess of the quota qua the feeder category to which the petitioner belongs, therefore, there is nothing wrong in the corrigendum which stood issued by the respondent-Corporation in rectifying the mistake earlier committed by it. 6. Sh. Lokinder Pal Thakur, learned counsel for respondent No.4 has submitted that the issuance of Office Order dated 1st March 2014, was an act of connivance of the petitioner with the then authorities of respondent-Corporation at the helm of the affairs which resulted in great prejudice to other Officers like respondent No.4 and subsequently, when this mistake was detected by the respondent-Corporation and the same was rectified, the said act of the Corporation cannot be permitted to be assailed by the petitioner, for the reason that it is clearly borne out from the record that the promotion of the petitioner at the relevant time was in excess of the quota of the feeder category to which the petitioner was promoted. 7. 7. I have heard learned counsel for the parties and have also gone through the impugned corrigendum (Annexure P-9) and the revised seniority lists (Annexures P-10 & P-14). At this stage, it is relevant to take note of the fact that the petitioner is to superannuate from the service on 30th April, 2022. In other words, as from today the petitioner is to superannuate exactly after 9 days. 8. The promotion of the petitioner against the post of Divisional Manager (Non-Technical) was made by the respondent-Corporation vide Office Order dated 1st March, 2014. A perusal of said Office Order demonstrates that it stood mentioned therein that consequent upon the recommendations of the Departmental Promotion Committee, Deputy General Manager (Non-Technical) Regional Managers mentioned therein were promoted to the post of Divisional Manger (Non-Technical) in the pay scale depicted therein. It further stood mentioned in the Office Order that the Officers would be on probation for a period of two years in the first instance and their seniority would be determined later on by the Competent Authority. There is no whisper in the Office Order that the promotion of the incumbents therein was against post(s) in excess of their respective quota or the said promotions were made qua one or qua all or officiating basis. Therefore, when this Office Order was completely silent that the promotion in issue was on officiating basis, there was no reason for the petitioner not to believe that the promotion so conferred upon him by the respondent-Corporation was indeed regular for all intents and purposes. Not only this, the petitioner joined against the promoted post on the same day, i.e. 1st March, 2014, thereafter, he continued to discharge his duties as Divisional Manger (Non-Technical) on regular basis till somewhere in the month of September, 2020, it dawned upon the respondent-Corporation that as the recommendations of the Departmental Promotion Committee at the relevant time was to offer promotion to the petitioner etc., on officiating basis, therefore, the order of promotion of the petitioner was liable to be modified to the said effect. There is no plausible explanation either in the pleadings or given to the Court during the time of the arguments of the matter as to why said alleged mistake, was not rectified by the Corporation within some reasonable time if the intent of the Corporation was not to confer regular promotion upon the petitioner. There is no plausible explanation either in the pleadings or given to the Court during the time of the arguments of the matter as to why said alleged mistake, was not rectified by the Corporation within some reasonable time if the intent of the Corporation was not to confer regular promotion upon the petitioner. On the last date of hearing, the Court had directed the respondent-Corporation to produce the record of the case which was duly produced for the perusal of the Court. Though, it is not in dispute that the recommendations of the DPC at the relevant time was to promote the petitioner and then on officiating basis, but it remains a fact that the said recommendations of the DPC were just recommendations and the appointing authority, i.e. the Managing Director HRTC in its wisdom at the relevant time offered appointment to the petitioner alongwith others on regular basis as is evident from the contents of Annexure P-3. Neither in the pleadings nor in the record anywhere, it is reflected that the issuance of Annexure P-3 by the then Managing Director of HRTC that too on behalf of the Chairman HRTC was either an act of colorable exercise of power or was a mala fide act done with a bias to assist the petitioner. Thus, here is a case where on the basis of a promotion order issued to the petitioner, he served the Corporation against the post of Divisional Manager (Non-Technical) on regular basis until one fine day that to 6 years after the issuance of the order of promotion, by way of a corrigendum this regular promotion was converted into officiating promotion. The issuance of this corrigendum in the peculiar facts of this case, in the considered view of this Court, is not sustainable in law. 9. There is another aspect, which the Court would like to dwell at this stage with regard to issuance of the corrigendum. Record demonstrates that before the issuance of the corrigendum of converting the regular promotion of the petitioner conferred upon him in the year, 2014, to officiating promotion that to somewhere in the month September, 2020, no show cause notice was given to him that why the regular promotion of his be not converted into officiating promotion as conferment of regular promotion in the year 2014 was erroneously given to him. Thus, there is a clear breach of principals of natural justice in the present case because the petitioner has been condemned unheard before the issuance of the corrigendum which of course has grave civil consequence as far as he is concerned. However, as otherwise also on merit, this Court is of the considered view that such a corrigendum could not have been issued by the Department by the Corporation after a lapse of six years as from the date when regular promotion stood conferred upon the petitioner, therefore, the Court is convinced that the impugned corrigendum is not sustainable in the eyes of law and the same is liable to be quashed and set aside. Ordered accordingly. 10. Not only this, as despite the recommendation of the DPC for promoting the petitioner against the post of Divisional Manager on officiating basis, the Managing Director of the respondent-Corporation had issued orders of the regular promotion of the petitioner to the said post, therefore, this Court holds that the same was a conscious decision taken by the respondent-Corporation which decision could not subsequently have been altered by it in an arbitrary manner that too after a lapse of six years as has been done in the present case. As Annexures P-10 and P-14 are offshoot of the issuance of corrigendum dated 09.09.2020, Annexure P-9, therefore, in view of Annexure P-9 having been held to the bad in law and the same having been quashed by this Court. Annexure P-10, qua the petitioner, is ordered to be quashed and set aside and further respondents are directed to reflect the name of the petitioner in the seniority list of Divisional Manager (Non-Technical) as from the date of his regular promotion conferred upon him in the year 2014. As the petitioner by virtue of the interim protection which was granted to him by the Hon’ble Division Bench of this Court vide order dated 17.03.2021, has continued to perform the duties of Divisional Manager (Non-Technical), this fact is taken on record by the Court. 11. Accordingly, the Writ Petition is disposed of in the aforesaid terms, so also the pending miscellaneous application(s), if any.