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2025 DIGILAW 320 (HP)

R. P. Rana v. State of Himachal Pradesh

2025-03-10

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. 1. By way of instant petition, the petitioner has prayed for following substantive reliefs:- “i. Issue a writ in the nature of certiorari, mandamus or other appropriate writ or direction quashing Office Order dated 1 st May, 2012, (Annexure P-8). ii. Issue a writ of mandamus directing the respondent department and respondent No.3 to convene review DPC and consider the case of the petitioner for promotion of the post of Labour Officer from the due date i.e. Sept., 2002 with all consequential benefits or in alternative direct the respondent department to promote the petitioner as Labour Officer w.e.f. Sep., 2002.” 2. The case as pleaded by the petitioner is that he was appointed as Labour Inspector on 08.08.1990. On completion of five years of service as Labour Inspector, the petitioner became eligible for being considered for promotion to the post of Labour Officer. The post of Labour Officer fell vacant in the month of September, 2002. The petitioner being senior most Labour Inspector was though due for consideration for promotion to the post of Labour Officer, but, such consideration was stalled as one Shri Rajesh Kumar preferred O.A. No. 3289 of 2002 , titled as Rajesh Kumar vs. State of H.P. & Ors., before the H.P. State Administrative Tribunal asserting his claim to be considered for promotion to the post of Labour Officer on the premise that the post as per the applicable roster was to be offered to the candidate from the Scheduled Caste category and the said Shri Rajesh Kumar being a scheduled caste candidate was entitled to be considered. The petitioner in the instant petition was also impleaded as respondent in the said petition. By way of interim order passed by the erstwhile H.P. State Administrative Tribunal, the process for further promotion was halted. Finally, the O.A. No.3289 of 2002 was dismissed vide order dated 30 th September, 2004. Thereafter, DPC was convened and on its recommendation, the petitioner was promoted as Labour Officer in the month of March, 2005. 3. The grievance raised by the petitioner is that he was due for consideration for promotion to the post of Labour Officer in September, 2002 and since the same was delayed till March, 2005 without any fault on his part, the petitioner was entitled to be promoted as Labour Officer w.e.f.September, 2002 with all consequential benefits. 4. 3. The grievance raised by the petitioner is that he was due for consideration for promotion to the post of Labour Officer in September, 2002 and since the same was delayed till March, 2005 without any fault on his part, the petitioner was entitled to be promoted as Labour Officer w.e.f.September, 2002 with all consequential benefits. 4. Petitioner preferred representations dated 15.01.2011 and 16.04.2012, however, the said representations were rejected by the respondents vide communication dated 01.05.2012 (Annexure P-8). Hence this petition. 5. The respondents have contested the claim of the petitioner on the ground that the promotion process for the post of Labour Officer was not initiated due to pendency of O.A. 3289 of 2002 before the erstwhile H.P. State Administrative Tribunal. It was only after the dismissal of the said O.A. that the DPC was convened and the petitioner was promoted as Labour Officer w.e.f. March, 2005. It has further been submitted that the delay had not been caused by the respondents intentionally and was only for the bonafide reason of pendency of O.A. No. 3289 of 2002 . As per the respondents, the petitioner was not entitled for promotion from the retrospective date as promotional and financial benefits cannot be granted without actually performing the duties of the post concerned. 6. As regards the rejection of the representations of the petitioner, the grounds stated in the rejection letter (Annexure P-8) have been sought to be justified. 7. In rejoinder filed by the petitioner, he has placed reliance on the opinion rendered by the law department on the representations of the petitioner to assert the validity of his claim. 8. I have heard learned counsel for the parties and have also gone through the entire record carefully. 9. Learned counsel for the petitioner has contended that the petitioner could not be made to suffer for no fault of his. He has further contended that the promotion of petitioner was delayed on account of an interim order passed in O.A. No. 3289 of 2002 , which was finally dismissed on merits. 9. Learned counsel for the petitioner has contended that the petitioner could not be made to suffer for no fault of his. He has further contended that the promotion of petitioner was delayed on account of an interim order passed in O.A. No. 3289 of 2002 , which was finally dismissed on merits. He placed reliance on judgment dated 24.03.2022 passed by a Division Bench of this Court in CWP No. 7794 of 2021 , titled Sushil Kumar vs. State of H.P. & Ors., judgment dated 23.08.2014 passed by a coordinate Bench of this Court in CWP No. 1238 of 2013 , titled Hem Chand vs. State of H.P. & Ors., judgment dated 31.10.2023 passed by this Court in CWP No. 3276 of 2023 , titled Sanjay Kumar vs. State of H.P. & Ors., and another judgment passed by Division Bench of this Court on 04.01.2022 in CWP No. 4443 of 2019 , titled as Poonam Devi vs. State of H.P. & Ors. 10. The judgments relied upon by the learned counsel for the petitioner, in my considered view cannot further the case of the petitioner for the reason that all these judgments have been passed in different sets of facts, where the initial appointments of the petitioners therein were found and held to have been delayed for unjustified reasons not attributable to such petitioners. As regards the grant of promotion from retrospective date is concerned, the Hon’ble Supreme Court vide judgment dated 27.11.2024 passed in the matter of SLP Diary No. 43488 of 2023 , titled as Government of West Bengal & Ors. vs. Dr. Amal Satpathi & Ors., 2024 SCC OnLine SC 3512 has held as under:- “19. It is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself. In this regard, we may gainfully refer to a recent decision of this Court in the case of 2024 SCC OnLine SC 1768, wherein it was observed as follows: "18. In this regard, we may gainfully refer to a recent decision of this Court in the case of 2024 SCC OnLine SC 1768, wherein it was observed as follows: "18. It is no longer res integra that a promotion is effective from the date it is granted and not from the date when a vacancy occurs on the subject post or when the post itself is created. No doubt, a right to be considered for promotion has been treated by courts not just as a statutory right but as a fundamental right, at the same time, there is no fundamental right to promotion itself. In this context, we may profitably cite a recent decision in Ajay Kumar Shukla v. Arvind Rai , (2022)12 SCC 579 where, citing earlier precedents in Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty , (1991) 2 SCC 295 and Ajit Singh v. State of Punjab, (1999)7 SCC 209 , a three-Judge Bench observed thus: 41. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in Director, Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty in para 4 of the report which is reproduced below: '4. There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent-writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent-writ petitioner was unjustly denied of the same is obviously unjustified.' 42. A Constitution Bench in Ajit Singh v. State of Punjab , laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her's fundamental right. Jagannadha Rao, J. speaking for himself and Anand, C.J., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paras 22 and 27: 'Articles 14 and 16(1) : is right to be considered for promotion a fundamental right 22. Article 14 and Article 16(1) are closely connected. Jagannadha Rao, J. speaking for himself and Anand, C.J., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paras 22 and 27: 'Articles 14 and 16(1) : is right to be considered for promotion a fundamental right 22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the 'State shall not deny to any person equality before the law or the equal protection of the laws'. Article 16(1) issues a positive command that: 'there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State'. It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity" in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16 (1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right. "Promotion" based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1). * * 27. In our opinion, the above view expressed in Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201 and followed in Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 and other cases, if it is intended to lay down that the right guaranteed to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before [Ashok Kumar Gupta v. State of U.P.], right from 1950.' "20. In State of Bihar v. Akhouri Sachindra Nath K., 1991 Supp (1) SCC 334, it was held that retrospective seniority cannot be given to an employee from a date when he was not even borne in the cadre, nor can seniority be given with retrospective effect as that might adversely affect others. The same view was reiterated in Keshav Chandra Joshi v. Union of India , 1992 Supp (1) SCC 272, where it was held that when a quota is provided for, then the seniority of the employee would be reckoned from the date when the vacancy arises in the quota and not from any anterior date of promotion or subsequent date of confirmation. The said view was restated in Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State of U.P. (2006) 10 SCC 346 , in the following words: '37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotes, it would not be proper to do injustice to the direct recruits. 38. This Court has consistently held that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validity in the meantime."(Emphasis supplied) 20. 38. This Court has consistently held that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validity in the meantime."(Emphasis supplied) 20. In the instant case, it is evident that while respondent No. 1 was recommended for promotion before his retirement, he could not assume the duties of the Chief Scientific Officer. Rule 54(1) (a) of the West Bengal Service Rules, clearly stipulates that an employee must assume the responsibilities of a higher post to draw the corresponding pay, thus, preventing posthumous or retrospective promotions in the absence of an enabling provision. 21. While we recognize respondent No.1's right to be considered for promotion, which is a fundamental right under Articles 14 and 16(1) of the Constitution of India, he does not hold an absolute right to the promotion itself. The legal precedents discussed above establish that promotion only becomes effective upon the assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation. Considering that respondent No. 1 superannuated before his promotion was effectuated, he is not entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity.” 11. Learned counsel for the petitioner has also placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Amarjeet Singh & Ors. vs. Devi Ratan and others , (2010) 1 SCC 417 to assert that no litigant can be allowed to derive any benefit from mere pendency of case in the court of law as interim order always merge in the final order. As per him a party cannot be allowed to take any benefit of its own wrong by getting an interim order and thereafter blame the court. 12. In the facts of the case at hand, O.A. No. 3289 of 2002 was filed by a third person, not party to this litigation. The respondents had not delayed the initiation of process for promotion to the post of Labour Officer, rather it was on account of an interim order passed by the erstwhile H. P. State Administrative Tribunal that the respondents could not undertake such process. The respondents had not delayed the initiation of process for promotion to the post of Labour Officer, rather it was on account of an interim order passed by the erstwhile H. P. State Administrative Tribunal that the respondents could not undertake such process. Immediately after dismissal of O.A. No. 3289 of 2002, the respondents completed the process by convention of DPC and promoted the petitioner to the post of Labour Officer. No malafide has been alleged or proved against the respondents. The petitioner cannot even blame the respondents for any laxity as the petitioner himself was a party respondent in O.A. No. 3289 of 2002 and he also could not get the interim order vacated before the final disposal of the O.A. No. 3289 of 2002 . 13. It is well settled proposition of law that retrospectivity in promotion can be allowed only in exceptional circumstances where an employer has willfully and for malafide reasons denied the right of consideration of an employee. That being not the case here, petitioner cannot be held entitled for promotion from retrospective date. 14. Further it can be seen that the petitioner was promoted as Labour Officer in the month of March, 2005. He accepted the promotion without any reservations. It was on 15.01.2011 that the petitioner for the first time made a representation. In such view of the matter, the claim of the petitioner also suffers from delay and laches more particularly when no explanation has been rendered by the petitioner for not agitating the matter within reasonable period of time. 15. For the foregoing reasons, there is no merit in the instant petition and the same is accordingly dismissed. Pending applications, if any, also stand disposed of.