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Himachal Pradesh High Court · body

2022 DIGILAW 876 (HP)

Brij Lal v. State of H. P.

2022-12-26

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. By way of instant petition, petitioner has prayed for grant of following substantive reliefs: “i) That the action of the respondents department is arbitrary, illegal, unreasonable, unconstitutional, discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India. ii) That the announcement made by the Hon’ble Chief Minister in terms of the cabinet decision/policy decision taken by the Government and same is required to be implemented from the date of such announcement i.e. 2.5.2016. Contrary to the same the respondents have carried out the amendment in the Recruitment and Promotion Rules for the post of Foreman, purposely after a lapse of more than one and half months denying the benefit of the announcement to the applicant and to favour their near and dear ones and made applicable with immediate effect, which is contrary to the above stated fact. iii) That the right of consideration is a fundamental right of every employee. The action of the respondents w.r.t. not making applicable the amendment w.e.f. the announcement/policy decision taken by the Government would amount a violation of the abovementioned right.” 2. Brief facts necessary for adjudication of the petition are that the petitioner was appointed as T-Mate in the Himachal Pradesh State Electricity Board (for short, “the Board”) on work charge basis in the year 1977. He was regularized on the same post w.e.f. 7.10.1983. Petitioner was promoted as Lineman on 12.03.2007. 3. The next promotional post available from the feeder category of Lineman was that of Foreman. The petitioner attained the age of superannuation on 31.05.2016. 4. The Recruitment and Promotion Rules to the post of Foreman in the Board were notified in the year 1991. As per these Rules, the Lineman with ITI certificate having 7 years of regular service and non-ITI having 10 years regular service as Lineman was eligible to be considered for promotion to the post of Foreman. Till the date of retirement of petitioner, the aforesaid Rules remained in vogue. Since, petitioner had not completed requisite years of service as Lineman, he was not considered for promotion to the post of Foreman. 5. The 15th General Conference of Himachal Pradesh State Electricity Board Employees Union was convened at Sundernagar on 2.5.2016, in which Hon’ble the Chief Minister of the State made various announcements. Since, petitioner had not completed requisite years of service as Lineman, he was not considered for promotion to the post of Foreman. 5. The 15th General Conference of Himachal Pradesh State Electricity Board Employees Union was convened at Sundernagar on 2.5.2016, in which Hon’ble the Chief Minister of the State made various announcements. One of such announcement was to reduce the promotion criteria for Lineman from 10 years regular service to 7 years regular service for non-ITI Lineman. The Board notified the amendment in the Recruitment and Promotion Rules to the post of Foreman vide notification dated 23.6.2016, whereby the criteria of regular service of 10 years earlier prescribed for non-ITI Lineman was reduced to 7 years of regular service. 6. The petitioner, by way of instant petition, seeks the retrospective benefit of amendment carried in the R & P Rules on 23.6.2016 and is claiming his promotion to the post of Foreman and consequential benefits by making prayers as noticed above. 7. The respondents have contested the claim of the petitioner on the ground that the benefit of amendment in R & P Rules cannot be granted retrospectively. Petitioner was governed by the service conditions as were applicable till the date of his retirement. It has also been submitted that the announcement made by Hon’ble the Chief Minister was subject to its feasibility. Accordingly, the matter was placed before the Chairman of the Board on 13.5.2016. The procedural formalities and necessary approvals took reasonable time and finally the notification was issued on 23.6.2016. 8. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 9. The first question that arises for consideration is whether the petitioner had acquired any right to be promoted to the next higher post of Foreman? 10. The answer is in negative for the reason that mere existence of post or vacancy does not confer any right on the incumbents in the feeder category to claim promotion. Only, right of consideration for promotion exists. In the facts of the case, even such right cannot be held to have existed in favour of the petitioner as he did not fulfill the requisite criteria applicable at the relevant time. 11. Indisputably, the petitioner was promoted as Lineman on 12.3.2007. He did not possess ITI certificate. He would have completed 10 years of regular service as Lineman on 12.3.2017. 11. Indisputably, the petitioner was promoted as Lineman on 12.3.2007. He did not possess ITI certificate. He would have completed 10 years of regular service as Lineman on 12.3.2017. However, he retired on 31.5.2016 before completion of requisite period of 10 years regular service as Lineman, which could have made him eligible to be considered for promotion to the post of Foreman. 12. Merely because there was some assurance given by Hon’ble the Chief Minister of the State, the petitioner cannot be said to have acquired any right to be considered for promotion to the next higher post. The proposal was placed before the Chairman of the Board on 13.5.2016 and the notification amending the R & P Rules to the post of Foreman was issued on 23.6.2016. It cannot be said that the respondent-Board took unreasonably long time to issue the notification. The respondents have clearly explained the utilization of time taken for issuance of notification. Their stand is justified. 13. The petitioner has also not been able to place any material on record to show that the action of the respondents was malafide and was only to defeat the alleged right of petitioner. Even otherwise, the facts do not suggest such an inference for the reasons that the incumbents, even though might have been placed junior to petitioner in seniority list of Lineman, were promoted after 23.6.2016. Even if the petitioner had got chance to get promoted as Foreman during his service, his juniors would have become entitled immediately on his retirement. 14. In light of above discussion, I have not found any merit in the petition and the same is accordingly dismissed. Petition is accordingly disposed of, so also the pending miscellaneous application(s) if any.