Himachal Pradesh High Court
Alka Kainthla vs State Of H.P. &Ors on 23 April, 2025
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.5996 of 2023 Date of decision: 23.04.2025 Alka Kainthla. ...Petitioner.
Versus
State of H.P. &Ors. ...Respondents.
Coram:
Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting? Yes.
For the petitioner : Mr. P.K. Verma, Advocate vice
Mr. K.B. Khajuria, Advocate.
For the respondents : Ms. Leena Guleria, Deputy
Advocate General for
respondents No.1 & 2-State.
: Mr. Narender Sharma and Ms.
Meenakshi Sharma, Advocates,
for respondent No.3.
Jyotsna Rewal Dua, Judge
Petitioner stakes her name for promotion to the post of Deputy Director (Language) on the ground that she is senior to respondent No.3 and possesses same educational qualifications as possessed by respondent No.3. Her further claim is that the respondents are required to be directed to carry out amendment in the Recruitment & Promotion Rules for the post of Deputy Director (Language).
2. Following facts emerge from the pleadings and submissions made by learned counsel for the parties:-
1Whether reporters of Local Papers may be allowed to see the judgment? Yes -2- 2(i). Petitioner was promoted as District Language Officer on 08.04.2015. Seniority list of District Language Officers depicting the position as on 31.12.2018 was issued by the respondents on 25.04.2019. Petitioner was placed at Serial No.2 and respondent No.3 figured at Serial No.3 of the seniority list.
2(ii). As per Recruitment & Promotion Rules in place, further channel of promotion from the post of District Language Officer is either to the post of Assistant Director (Publication) or to the post of Assistant Director (Language).
Post of Assistant Director (Publication) was lying vacant w.e.f. 01.05.2019. Petitioner was holding additional charge of the post of Assistant Director (Publication) ever since 01.05.2019.
2(iii). Department of Personnel of Himachal Pradesh issued a circular on 03.12.2014 providing for exercise of option in respect of post having more than one channel of promotion. The said circular dated 03.12.2014 reads as under:-
"Subject: Promotion in respect of posts having more than one channel- instructions regarding.
Sir, -3- I am directed to invite your attention to the subject cited above and to say that the matter of promotion in respect of the posts having more than one channel was under consideration of the State Government. After considering and in supersession of this Department's letter No. Per (AP-II) A (3)-4/78 dated 24-12-1981 and letter of even number dated 1st September, 2010, it has been decided that henceforth in the case of posts having more than one channels of promotion from the feeder posts(s) to the next higher post(s), the following procedure will be adopted:
(i) For the post having more than one promotional channel, the option will invariably be called for in every calendar year and officers/officials in zone of consideration and holding the feeder post will have to opt for one of the channels of promotion of his/her choice, which shall be final and irrevocable.
(ii). Once a candidate is promoted as per the option exercised, such candidate will neither be entitled for consideration for promotion in the other channel nor wil! be allowed to withdraw the option, so exercised and his/her option shall be treated as final and irrevocable for entire service career.
2. These instructions may be brought to the notice of all concerned for strict compliance and the receipt of the same may also be acknowledged. Any departure from instructions will be viewed seriously and liable for disciplinary action." 2(iv). In terms of above circular, petitioner exercised her option on 01.07.2020 for regular promotion to the post of Assistant Director (Publication). Meeting of Departmental Promotion Committee was convened on 06.08.2020, which recommended the petitioner for promotion to the post of Assistant Director (Publication). The petitioner was promoted as Assistant Director (Publication) on 29.08.2020 and she joined as such.
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Notably on 14.08.2020, the petitioner wrote a letter to the respondents seeking to withdraw her option dated 01.07.2020 and expressing her intention that she be considered for promotion to the post of Assistant Director (Language). However, the fact remains that on the basis of her option exercised on 01.07.2020, petitioner was promoted as Assistant Director (Publication) on 29.08.2020 and she joined as such.
2(v). Respondent No.3, who was serving as District Language Officer opted for promotion to the post of Assistant Director (Language). She was promoted as Assistant Director (Language) on 31.08.2020. Respondent No.3 joined as Assistant Director (Language).
2(vi). A post of Deputy Director (Language) fell vacant on 31.01.2023.
As per Recruitment & Promotion Rules, 2017, the post of Deputy Director (Language), was required to be filled- up 100% by promotion, failing which by direct recruitment on regular basis, or by recruitment on contract basis as the case may, failing which on secondment basis. Clause 11 of the Rules provided that Assistant Director (Language) and -5- Assistant Director (Archives) having three years regular service or regular combined with continuous ad hoc services rendered, if any, in the grade, would be eligible for promotion to the post of Deputy Director (Language).
At that stage, eyeing the vacant post of Deputy Director (Language) for which the petitioner was not eligible under the R&P Rules, in view of her promotion as Assistant Director (Publication), petitioner instituted this writ petition on 31.08.2023 seeking following substantive reliefs:-
"i. That the petitioner may kindly be considered for promotion to the post of Deputy Director (Language) being senior to the respondent No.3 and is having same educational qualifications.
ii. That the respondent department may kindly be directed to carry out the necessary amendment in the Recruitment and Promotion Rules for the post of Deputy Director (Language)."
2(vii). During the pendency of the petition, respondent No.3 was promoted as Deputy Director (Language) on 14.02.2024. Petitioner has also been promoted as Deputy Director (Performing Arts/Fine Arts) on 31.07.2024. Petitioner, who was senior to respondent No.3 as District Language Officer has now become junior to respondent No.3 as Deputy Director, though their fields and categories are different.
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3. Heard learned counsel for the parties and considered the case file.
Learned counsel for the petitioner submits that the petitioner had though exercised option on 01.07.2020 for regular promotion to the post of Assistant Director (Publication), however, she had withdrawn her option on 14.08.2020 for promotion to the post of Assistant Director (Publication) and expressed intention for promotion to the post of Assistant Director (Language). In spite of this respondents promoted her to the post of Assistant Director (Publication) on 29.08.2020. This promotion has caused serious prejudice to the petitioner. The respondents could not have acted upon her option dated 01.07.2020. It is the petitioner, who ought to have been promoted to the post of Assistant Director (Language) and not respondent No.3.
Learned counsel for the petitioner also submitted that feeder channels for promotion to the post of Deputy Director (Language), in terms of applicable R&P Rules, are Assistant Director (Language) and Assistant Director (Archives), whereas for the post of Deputy Director (Performing Arts/Fine Arts), the feeder channels are -7- Assistant Director (Performing Arts/Fine Arts) Assistant Director (Publication). All the posts of Assistant Directors, be it of Language/Archives/Publication/Fine Arts, require/carry same qualifications. The respondents could not have created artificial distinction by providing separate feeder channels of promotions to the post of Deputy Director (Language) and Deputy Director (Performing Arts/Fine Arts). Accordingly, amendment is necessitated in the Recruitment & Promotion Rules for the post of Deputy Director (Language). The post of Assistant Director (Publication) held by the petitioner is also required to be treated as feeder channel for promotion to the post of Deputy Director (Language).
4. There is no force in the contentions of learned counsel for the petitioner. I am in agreement with the following submissions made by the learned counsel for the respondents: -
4(i). Before exercising her option for promotion to the post of Assistant Director (Publication), the petitioner was well aware of the Recruitment & Promotion Rules for the post of Deputy Director (Performing Arts/Fine Arts) as well as for the post of Deputy Director (Language). In terms of -8- Recruitment & Promotion Rules for the post of Deputy Director (Language), the eligible feeder categories were Assistant Director (Language) and Assistant Director (Archives). For promotion to the post of Deputy Director (Performing Arts/Fine Arts) eligible feeder categories were Assistant Director (Performing Arts/Fine Arts) and Assistant Director (Publication).
4(ii). It is well-settled that "questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by -9- addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service." [Reference: P.U. Joshi & Ors. vs. Accountant General & Ors.1] 1 (2003) 2 SCC 632 -10- Similar view was taken in Chandigarh Admn. vs. Usha Kheterpal Waie & Ors.2 as under:-
"It is now well settled that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. Courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the concerned authority so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of Constitution, statute and Rules. [See J. Rangaswamy vs. Government of Andhra Pradesh3 and P.U. Joshi vs. Accountant General 1]."
In Ravikumar Dhansukhlal Maheta & Anr. v. High Court of Gujarat & Ors.4 Hon'ble Apex Court held that "in India, no government servant can claim promotion as their right because the Constitution does not prescribe criteria for filling seats in promotional posts. The Legislature or the executive may decide the method for filling vacancies to promotional posts based on the nature of employment and the functions that the candidate will be expected to discharge. The courts cannot sit in review to decide whether the policy adopted for promotion is suited to select the 'best candidates', unless on the limited ground where it violates 2 (2011) 9 SCC 645 : (2011) 2 SCC (L&S) 567, at page 650. 3 1990 (1) SCC 288 4 Writ Petition (C) No.432 of 2023 decided on 17.05.2024. -11- the principle of equal opportunity under Article 16 of the Constitution."
4(iii). The petitioner has not laid any challenge to the Recruitment & Promotion Rules. Her prayer for amendment to the Recruitment & Promotion Rules, merely on the ground that all the categories of Assistant Directors require possession of same qualifications, carries no force. In fact it is not even open for the petitioner to urge this submission three years after accepting promotion to the post of Assistant Director (Publication) with full awareness of provisions of Recruitment & Promotion Rules for the post of Deputy Director (Language) and Deputy Director (Performing Arts/Fine Arts).
4(iv). Fully aware of the circular dated 03.12.2014 of the respondent-State, which provided that in case a promotional post had more than one feeder channel, then the employee was required to opt for one of the channels of promotion of his choice, which would be treated final and irrevocable and further that when a candidate is promoted as per the option exercised, candidate will neither be entitled for consideration for promotion in other channel nor will be -12- allowed to withdraw the option so exercised and his option would be treated as final and irrevocable for entire service career, the petitioner exercised her option on 01.07.2020 for promotion to the post Assistant Director (Publication). That being the position, petitioner could not have withdrawn her option on 14.08.2020.
Still going further, in case the petitioner was aggrieved by the action of the respondents for promoting her to the post of Assistant Director (Publication) and not considering her changed option for promotion to the post of Assistant Director (Language), it was for her to have laid challenge to such action at that stage. Petitioner was required to seek appropriate remedy in accordance with law at the relevant time. But the petitioner acquiesced in her promotion to the post of Assistant Director (Publication). She accepted her promotion and joined as such. Petitioner continued to serve for three years as Assistant Director (Publication). It was only when post of Deputy Director (Language) became available in January, 2023 and realising that the respondent No.3 then serving as Assistant Director (Language) was eligible for promotion to the post of Deputy -13- Director (Language) and if promoted, would become petitioner's senior that the petitioner filed this writ petition on 31.08.2023.
In Bichitrananda Behera Versus State of Orissa and Others5, Hon'ble Supreme Court highlighted the significance of the doctrines of delay & laches and acquiescence in service-related disputes. Hon'ble Court observed that the claimant therein had delayed pursuing his claim for over 12 years despite being aware of the appointment of another person to the same post of Physical Education Trainer (PET). This prolonged inaction was held to amount to acquiescence, which effectively bars the claim because it implies consent through silence or failure to act. Hon'ble Court explained that while laches refers to an unreasonable delay without active consent, both delay and laches serve the important purpose of preventing stale claims that disrupt settled rights and administrative decisions. In service matters, these doctrines were held to play crucial roles as they protect the stability and finality of 5 Civil Appeal No.6664 of 2023 (@ Special Leave Petition (Civil) No.16238 of 2017), decided on 11.10.2023 -14- administrative decisions. Relevant portion of the judgment reads as under:-
"21. Profitably, we may reproduce relevant passages from certain decisions of this Court:
(A) Union of India v Tarsem Singh, (2008) 8 SCC 648:
"To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
(Emphasis supplied) xxx xxx xxx (C) Chairman, State Bank of India v M J James, (2022) 2 SCC 301:
36. What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of days, etc. as it depends upon the facts and circumstances of each case. A right not exercised for -15- a long time is non- existent. Doctrine of delay and laches as well as acquiescence are applied to non-suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay. In the present case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time. Without satisfactory explanation justifying the delay, it is difficult to hold that the appeal was preferred within a reasonable time.
Pertinently, the challenge was primarily on the ground that the respondent was not allowed to be represented by a representative of his choice. The respondent knew that even if he were to succeed on this ground, as has happened in the writ proceedings, fresh inquiry would not be prohibited as finality is not attached unless there is a legal or statutory bar, an aspect which has been also noticed in the impugned judgment. This is highlighted to show the prejudice caused to the appellants by the delayed challenge. We would, subsequently, examine the question of acquiescence and its judicial effect in the context of the present case.
xxx
38. In Ram Chand v. Union of India [Ram Chand v. Union of India, (1994) 1 SCC 44] and State of U.P. v. Manohar [State of U.P. v. Manohar, (2005) 2 SCC 126] this Court observed that if the statutory authority has not performed its duty within a reasonable time, it cannot justify the same by taking the plea that the person who has been deprived of his rights has not approached the appropriate forum for relief. If a statutory authority does not pass any orders and thereby fails to comply with the statutory mandate within reasonable time, they normally should not be permitted to take the defence of laches and delay. If at all, in such cases, the delay furnishes a cause of action, which in some cases as elucidated in Union of India v. Tarsem Singh [Union of India v. Tarsem Singh, (2008) 8 SCC 648 : (2008) 2 SCC (L&S) 765] may be continuing cause of action. The State being a virtuous litigant should meet the genuine claims and not deny them for want of action on their part. However, this general principle would not apply when, on consideration of the facts, the court concludes -16- that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge, as has been held in para 6 of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. [Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144] Applying this principle of acquiescence to the precept of delay and laches, this Court in U.P. Jal Nigam v. Jaswant Singh [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] after referring to several judgments, has accepted the following elucidation in Halsbury's Laws of England : (Jaswant Singh case [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] , SCC pp. 470-71, paras 1213).
"12. The statement of law has also been summarised in Halsbury's Laws of England, Para 911, p. 395 as follows:
'In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii) any change of position that has occurred on the defendant's part.
Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.'
13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in -17- such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?"
39. Before proceeding further, it is important to clarify distinction between "acquiescence" and "delay and laches". Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain. [See Prabhakar v. Sericulture Deptt., (2015) 15 SCC 1 : (2016) 2 SCC (L&S) 149. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das, 1925 SCC OnLine Cal 30 : AIR 1925 Cal 1107] In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. [See Krishan Dev v. Ram Piari, 1964 SCC OnLine HP 5 : AIR 1964 HP 34] Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and in spite of the infringement takes no action mirroring acceptance. [See "Introduction", U.N. Mitra, Tagore Law Lectures -- Law of Limitation and Prescription, Vol. I, 14th Edn., 2016.] However, acquiescence will -18- not apply if lapse of time is of no importance or consequence.
40. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation."
5. In view of above factors, the prayer of the petitioner cannot be accepted not only for delay & laches on her part in seeking the relief but also on account of her having acquiesced in her promotion as Assistant Director (Publication) on 29.08.2020 & thereby becoming ineligible for promotion to the post of Deputy Director (Language), which became available on 31.01.2023 and which is presently occupied by respondent No.3 on promotion from the post of Assistant Director (Language). Petitioner's claim for amendment in the R&P Rules for the post of Deputy Director -19- (Language) has no merit. The writ petition, therefore, lacks merit and is accordingly dismissed.
Pending miscellaneous application(s), if any, also stand disposed of.
Jyotsna Rewal Dua
23rd April, 2025 Judge
(Pardeep)