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2025 DIGILAW 113 (HP)

State of H. P. v. Vibhor Kumar Sharma

2025-01-09

RAKESH KAINTHLA, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. We really wonder how the State can be said to be aggrieved so as to file the instant appeal, as would be clear from the further discussion. The parties herein shall be referred to as they were before the learned Writ Court. 2. The petitioner approached this Court by filing writ petition for the grant of following substantive relief:- (i) That an appropriate writ, order or directions may kindly be issued thereby directing the respondents to promote the petitioner to the post of Head of Department (Civil Engineering) against two vacant posts which are lying vacant, on the basis of DPC dated 14.9.2023, i.e. from the date when same and similar situated persons were promoted, with all the consequential benefits of pay, seniority, arrears, etc. etc.” 3. The facts are not in dispute. 4. The petitioner is working as Senior Lecturer (Civil Engineering) in Government Polytechnic College, Sundernagar, District Mandi, H.P. As per the Recruitment and Promotion Rules dated 20.05.2000 the post of Head of Department (for short, ‘HOD’) in Government Polytechnic Colleges, is required to be filled by way of promotion from feeder cadre of Senior Lecturers possessing five years’ service in the grade as Lecturer. 5. It is further not in dispute that the petitioner was also eligible for being considered for promotion to the post of HOD (Civil Engineering) w.e.f. 19.7.2022. 6. Yet again, it is not in dispute that besides petitioner, six other incumbents had also attained eligibility. Since, the respondents were not convening the DPC for considering all eligible incumbents for promotion to the post of HOD (Civil Engineering), notwithstanding, the availability of vacancies, writ petitions being CWP No.3909 of 2023 and CWP No.4234 of 2023, seeking directions to the respondents to convene the DPC were filed before this Hon’ble Court. The petitioner was a party in CWP No. 4234 of 2023 and both these petitions were disposed of by this Court on 22.9.2023, by observing as under:- “Learned senior counsel for the petitioners has submitted that the petitioners shall be contended at this stage in case the respondents are directed to finalize the DPC proceedings which have taken place in respect of the petitioners at the earliest. He further submits that regarding remaining reliefs, he reserves liberty to avail appropriate legal remedy in accordance with law at an appropriate stage including approaching this Court, if so required. 2. He further submits that regarding remaining reliefs, he reserves liberty to avail appropriate legal remedy in accordance with law at an appropriate stage including approaching this Court, if so required. 2. The petitions are accordingly disposed of with a direction to the respondents to finalize the DPC proceedings, which have taken place in respect of the petitioner, within one week from today. The petitioners shall be at liberty, as prayed for. Pending applications, if any, also stand disposed of.” 7. In compliance to the aforesaid order, the respondents convened a DPC and considered the cases of the eligible persons including the petitioner, who was found eligible for promotion. However, all the other incumbents except the petitioner were promoted as HOD (Civil Engineering) vide notification dated 23.09.2023, constraining him to file the writ petition. 8. It was contended by the writ petitioner that once he was duly qualified for being considered for promotion to the post of HOD (Civil Engineering) in terms of the Recruitment and Promotion Rules and there was also vacancy available, the respondents could not have denied promotion. 9. The respondents filed their reply wherein, it was averred that there were only six clear cut vacancies and since the petitioner was 7 th in the seniority position, he could not be promoted. It is contended that eligibility was not the sole criteria for promotion but it was dependent on the availability of vacancy. 10. The respondents further submitted that only six posts of HOD were vacant and the reference of eight posts in the communication dated 21.06.2023, in fact, included two posts held by Mr. Deepak Angra and Smt. Anita Joshi, who as a matter of fact, were posted as Deputy Director (Training & Placement) and HoD (Continuation Education), respectively, and therefore, these posts could not be stated “vacant”. 11. In the rejoinder filed by the petitioner, it was pointed out that Mr. Deepak Angra was working against the post of Deputy Director (Training & Placement) since 26.10.2019 and Smt. Anita Joshi was working as HOD (Continuation Education) for the last more than five years and, therefore, these posts ought to be treated as “vacant”. 12. The learned Writ Court after relying on the provisions of para 16.23(3) of the Handbook, allowed the writ petition, against which the State has filed the instant Letters Patent Appeal. 13. 12. The learned Writ Court after relying on the provisions of para 16.23(3) of the Handbook, allowed the writ petition, against which the State has filed the instant Letters Patent Appeal. 13. It is vehemently contended by the learned Additional Advocate General for the respondents/State that the petitioner had not been promoted to the post of HOD for the reasons that there was no vacancy in the cadre and only six clear cut vacancies were available and the posts of Mr. Deepak Angra and Smt. Anita Joshi cannot be said to be vacant so as to promote the writ petitioner. 14. We have given our thoughtful consideration to these submissions and find this appeal to be a luxury litigation, more particularly, in view of the clear cut provisions contained in Chapter – 16 of Handbook on Personnel Matters, Volume-I (Second Edition) relating to the promotion and selection grade. 15. Clause 16.8 of the above referred Chapter provides for method of calculating vacancies. As per the said Clause, short-term temporary vacancy as detailed in para 16.23(3) should not be taken into account for preparing panels for select list and this provision reads as under:- “(3). Determination of short-term and clear vacancies: (a) Vacancies which are caused by leave, training etc. would be purely short-term temporary vacancies and should not be brought into the recruitment roster. Such vacancies may be filled on adhoc basis in consultation with the Himachal Pradesh Public Service Commission, wherever necessary by any method provided in the recruitment rules other than direct recruitment. (b) All clear vacancies arising in a post/grade/service due to death, retirement, resignation, promotion of incumbents to higher posts/grades, deputation, for a period exceeding 3 years and vacancies arising from creation of temporary posts which are likely to be made permanent or continued on a long-term basis should be filled according to the provisions of the recruitment rules and brought on to the recruitment roster.” 16. It would be evidently clear from the aforesaid instructions adopted by the State Government that there is a clear mandate to consider the vacancy arising in a post/grade/service due to death, retirement, resignation, promotion of incumbent to higher posts/grades, deputation for a period exceeding three years besides others as clear vacancies. Now when Mr. It would be evidently clear from the aforesaid instructions adopted by the State Government that there is a clear mandate to consider the vacancy arising in a post/grade/service due to death, retirement, resignation, promotion of incumbent to higher posts/grades, deputation for a period exceeding three years besides others as clear vacancies. Now when Mr. Deepak Angra and Smt. Anita Joshi having been deputed to discharge the function and duties of Deputy Director (T&P) and HOD (Continuation Education), respectively for more than three years. The vacancies created by them over a period of three years, clearly fall within the ambit of para 16.23(3)(b). Therefore, the posts of HODs allegedly held by them were liable to be considered as “vacant” at the time of holding of DPC, wherein the petitioner was also considered for promotion to the post of HOD (Civil Engineering). 17. Once the provisions, as contained in Chapter 16, more particularly, para 16.23 are clear on the subject and have been adopted by the State Government, then we have no hesitation to conclude that the respondents are liable to consider the posts held by Mr. Deepak Angra and Smt. Anita Joshi, as clear vacancies and denial of such position by the respondents is clearly dehors the provisions contained in para 16.23 (supra). 18. Accordingly, we find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.