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Himachal Pradesh High Court · body

2023 DIGILAW 62 (HP)

Preeti Sharma v. Himachal Pradesh Tourism Development Corporation Limited

2023-01-13

AJAY MOHAN GOEL

body2023
JUDGMENT : Ajay Mohan Goel, J. By way of the present petition, the petitioners have sought the following reliefs:- (i) That the impugned Annexures A-6 and A7, circular dated 20th February, 2019 and office order dated 9th July, 2019, respectively, issued by respondent No.1, may kindly be quashed and set aside; (ii) That respondent No.1-Corporation may kindly be directed to consider the candidature of applicant No.1 for promotion to the post of Manager (House Keeping) against the promotional quota meant for the category of House Keeping and the candidature of applicant No.2 may kindly be ordered to be considered for promotion to the post of Assistant Manager (House Keeping). 2. Brief facts necessary for the adjudication of the present petition are as under:- The case of the petitioners is that petitioner No.1 was initially appointed as Linen Keeper with respondent-Corporation on 18th September, 1986. She thereafter was appointed as a Trainee (House Keeping), vide office order dated 20th July, 1987. She was thereafter appointed as Assistant House Keeper on regular basis w.e.f. 4th June, 1991 and promoted against the post of House Keeper, vide office order dated 4th June, 2011 vide Annexure A-1. Petitioner No.1 was promoted as Assistant Manager (House Keeping) on officiating basis, vide office order dated 26th October, 2015 (Annexure A-2) and was discharging her duty, as such at the time of filing of the petition. Petitioner No.2 was initially appointed as a Trainee (House keeping) in the year 1987 and thereafter appointed as Room Boy in the year 1995. He was thereafter appointed as Floor Assistant in the year, 1997 and thereafter as a Senior Floor Assistant. He was appointed as Assistant House Keeper in October, 2002 and on the recommendations of Departmental Promotion Committee, he was promoted against the post of House Keeper on officiating basis, vide Annexure A-3 dated 07.11.2015. This petitioner was also discharging his duty as such at the time when the petition was filed. As per the petitioners, respondents No. 3 to 5 were junior to them. Respondent No.3 was from the House Keeping cadre, whereas respondents No. 4 and 5 were belonging to the Front Office Cadre. 3. This petitioner was also discharging his duty as such at the time when the petition was filed. As per the petitioners, respondents No. 3 to 5 were junior to them. Respondent No.3 was from the House Keeping cadre, whereas respondents No. 4 and 5 were belonging to the Front Office Cadre. 3. Respondent-Corporation vide Agenda Item No. 142, in terms of minutes of meeting held on 14th August, 2015,the Service Committee rejected the proposal to fill up managerial posts meant for direct quota through Limited Direct Recruitment i.e. LDR on the ground that the same will affect the efficiency adversely. It was observed that this may lead to frustration amongst the existing incumbents in case quite junior or junior incumbents as well as officials working at lowest rank were elevated through LDR to the level of Manager/Assistant Manager. Further, these posts were recommended to be filled-up through open advertisement on contract basis, if need be so. 4. There are also on record the Rules relating to the appointment/promotion to the post of Assistant Manager (House Keeping) and Manager (House Keeping). As far as the post of Assistant House Keeping is concerned, in terms of the rules, these posts are to be filled-in 50% by way of Direct Recruitment and 50% by way of promotion. Similarly, the post of Manager (House Keeping) is to be filled-in 25% by way of Direct Recruitment and 75% by way of promotion. The post of Assistant Manager (House Keeping) is to be filled-in by way of promotion from once House Keeper with at least three years of service as such on the basis of merit-cum-seniority and the post of Manager is to be filled-in by way of promotion from amongst Assistant Manager with atleast three years of service as such on the basis of merit-cum-seniority who fulfill the eligibility criteria. 5. The grievance of the petitioner is that despite the fact that in the Rules relating to the posts of Manager and Assistant Manager, there is no provision of any appointment to these posts by way of LDR, yet the private respondents, were appointed to the posts concerned through Limited Direct Recruitment Process in relaxation of the R&P Rules. It is in this background, that the petition has been filed praying for the reliefs already enumerated hereinabove. 6. It is in this background, that the petition has been filed praying for the reliefs already enumerated hereinabove. 6. The decision to go ahead with the Limited Direct Recruitment in relaxation of R&P Rules as a onetime measure was undertaken vide Annexure A-6, dated 20th February, 2019 and on the basis of recommendations of the Selection Committee, the private respondents were appointed as Manager (House Keeping) and Manager (Front Office) vide officer order dated 9th July, 2019. 7. Learned counsel for the petitioners has argued that the appointment of the private respondents in terms of Annexure A-7 is not sustainable and is bad in the eyes of law for the reasons that the process, which was adopted by the Selection Committee for appointment of the private respondents by resorting to Limited Direct Recruitment Process is not only alien to the Recruitment and Promotion Rules but once the Selection Committee had in terms of its minutes dated 14th August, 2015 rejected the same proposal, then it is not understood as to how appointment of the private respondents was made by giving a total go by to the Recruitment and Promotion Rules. Accordingly, a prayer has been made for quashing of the appointment of the private respondents with further direction to the respondents to consider the case of the petitioner for promotion against their respective category. 8. The stand of the respondent-Corporation is that the Limited Direct Recruitment was resorted to by the Corporation for the reason that it was not in the interest of the Corporation to keep vacant senior level functional posts for long duration and it was for this reason that after the proposal was accepted by the authorities concerned, the process was undertaken for the recruitment in which the private respondents were successful. 9. Despite service, none appeared for the private respondents. 10. I have heard learned counsel for the parties and have also carefully gone through the pleadings. 11. The relevant R&P Rules which governs appointment and promotion to the posts of Manager and Assistant Manager have already been referred by me hereinabove. 12. A perusal thereof demonstrates that there is no provision of making any appointment through LDR envisaged therein. 13. I have heard learned counsel for the parties and have also carefully gone through the pleadings. 11. The relevant R&P Rules which governs appointment and promotion to the posts of Manager and Assistant Manager have already been referred by me hereinabove. 12. A perusal thereof demonstrates that there is no provision of making any appointment through LDR envisaged therein. 13. That being the case, this Court is of the considered view that the appointment of the private respondents in terms of Annexure A-7 by following a procedure both alien and foreign to the Recruitment and Promotion rules is per se bad in law and their appointment in terms of office order dated 9th July, 2019 (Annexure A-7) is void ab initio. Similarly, the decision which has been taken in terms of Annexure A-6, dated 20th February, 2019 is also void ab initio, because there is no power conferred upon the respondent-Corporation to take a decision to fill up the posts of Manager by way of Limited Direct Recruitment by relaxing the Recruitment and Promotion rules because during the course of arguments, nothing was brought to the notice of the court in terms whereof any such power of relaxation was conferred upon the Corporation. It is not understood as to what was the hurry to appoint the private respondents through the process of LDR, as it is not the case of the respondents that despite initiating process for direct recruitment none could be recruited. Similarly, it is also not in dispute that when private respondents were appointed through LDR, promotional vacancies were available and there were eligible persons in feeder category. As this court has already held the appointment of private respondent to be void ab intito, now the call which this Court has to take, is as to whether, these persons should be reverted back to the respective posts from which they were appointed as such? 14. As this court has already held the appointment of private respondent to be void ab intito, now the call which this Court has to take, is as to whether, these persons should be reverted back to the respective posts from which they were appointed as such? 14. This Court is of the considered view that to do substantive justice to the parties, i.e. to the petitioners as well as the private respondents, it would be in the interest of justice, in case, the appointment of the respondents in terms of Annexure A-7 is protected as a measure personal to them, with further observation that they shall superannuate from this post only and also with the direction to the respondent-Corporation that as on the date when the private respondents were appointed against the post of Managers. Let a Departmental Promotion Committee be held for effecting promotions against the post of Manager (House Keeping) and Manager (Front Office) and all eligible incumbents, in terms of the R&P Rules, including the petitioners be considered for said promotion and those who are found eligible be conferred promotion against the post of Manager (House Keeping) and Manager (Front Office) w.e.f. 9th July, 2019, by conferring them seniority over and above the private respondents in the respective cadres, with all consequences to ensue. Ordered accordingly. The petition stands disposed of in above terms, so also, pending miscellaneous application(s), if any.