Himachal Pradesh High Court
Ashwani Kumar Sharma vs Union Of India And Others on 4 October, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.2509 of 2023 Date of Decision: 04.10.2023 .
_______________________________________________________ Ashwani Kumar Sharma .......Petitioner Versus Union of India and others ... Respondents _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes.
of For the Petitioner: Mr. D.K.Khanna Mr. Deven Khanna Advocates.
For the Respondents: Mr. rtBalram Sharma, Deputy Solicitor General of India.
____________________________________________________________ Sandeep Sharma, Judge(oral):
Being aggrieved and dissatisfied with order dated 14.03.2023 (Annexure P-11), whereby request having been made by the petitioner for promotion to the post of Senior Scientific Officer came to be rejected, petitioner is compelled to approach this Court in the instant proceedings under Article 226 of the Constitution of India, praying therein for following reliefs:-
"i) That the respondents may be directed to promote the petitioner as Senior Scientific Officer as per recommendation of ACoNFAR (Advisory Committee on Non-Faculty Recruitment) with effect from due date with all consequential benefits when similarly situated persons were promoted as Senior Scientific Officer for post of direct quota, or a supernumerary post may be created and 1 Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 07/10/2023 20:33:47 :::CIS 2
post falling in category of Direct Recruit be converted a promotional post.
ii) That the impugned order of rejection dated 14.03.2023 (Annexure P-11) may kindly be quashed and set-aside.
.
iii) That the respondent may be directed to reconsider the case of promotion of petitioner to the post of Senior Scientific Officer from the date respondent Nos. 4 and 5 have been considered for promotion, with all consequential benefits.
iv) The promotions orders dated 29.01.2020 vide Annexure P-
12 and order dated 29.01.2020 vide Annexure P-13 may of kindly be quashed and respondent institute may be directed to re-conduct the selection process for promotion to the post of Senior Scientific Officer and consider the rt petitioner from the date respondent Nos. 4 and 5 were considered with all consequential benefits.
v) That the respondent s may be directed to pay to the petitioner monetary relief as compensation for mental harassment and damage cause to the petitioner."
2. For having bird's eye view, facts which may be relevant for adjudication of the case at hand are that on 24.11.2009 petitioner joined as Scientific Officer in Grade pay of Rs. 5400/- at National Institute of Technology, Hamirpur, Himachal Pradesh (Annexure P-1).
On 5.02.2014, Recruitment Rules dated 5.02.2014 came to be promulgated providing therein automatic revision of grade pay of Rs.5400-6600/- (Annexure P-9). After promulgation of aforesaid Recruitment Rules, petitioner came to be granted grade pay of Rs.6600/- with effect from 28.05.2016 through a Selection Committee vide order dated 31.05.2016 (Annexure P-2). In the month of ::: Downloaded on - 07/10/2023 20:33:47 :::CIS 3 October, 2019, National Institute of Technology, Hamirpur invited applications for promotion to the two posts of Senior Scientific Officer in the grade pay of Rs.7600/-. Scientific/ Technical Officer with regular .
service of 10 years, out of which 5 years with Grade pay of Rs. 6600/-
were eligible to apply against the aforesaid promotion posts (Annexure P-4) . Petitioner herein though was granted pay scale of Rs. 6600/- vide order dated 31.05.2016, but since he had not of completed requisite period of five years with aforesaid Grade pay of Rs. 6600/-, he was not permitted to participate in the selection rt process and as such, he filed representation, dated 11.05.2021 (Annexure P-5) on the ground that similarly placed Officers working as Assistant Registrar and Assistant Librarian were granted benefit of next grade pay of Rs.6600/- immediately after completion of 5 years of service without holding meetings of selection committee/interview, whereas petitioner is required to undergo selection process and face the interview in order to get the next grade pay of Rs.6600/-. On 3.02.2022, grade pay of the petitioner was reviewed and he was given such benefit with effect from 25.11.2014 instead of 31.05.2016.
(Annexure P-3). After rectification of aforesaid mistake committed by National Institute of Technology, Hamirpur petitioner again made representation dated 16.02.2022 (Annexure P-6), requesting therein for his promotion to the post of Senior Scientific Officer on account of ::: Downloaded on - 07/10/2023 20:33:47 :::CIS 4 revision of grade pay and on account of his having acquired the requisite eligibility with effect from 25.11.2019. In the aforesaid representation petitioner averred that process for promotion was done .
in January 2020, but notification regarding revision of grade pay was issued in February 2022, as a result thereof, he lost an opportunity to be promoted to the next higher post of Senior Scientific Officer in the grade pay of Rs. 7600/-. Since in the aforesaid representation, of petitioner also prayed for listing his matter before Advisory Committee on Non-Faculty Recruitment, matter came to be placed before the rt aforesaid committee (Annexure P-10), which after having considered case of the petitioner made recommendation dated 25.07.2022 to promote the petitioner against the post of Senior Scientific Officer in the institute after converting the post available under direct recruitment quota. In the aforesaid recommendation Committee categorically observed that injustice has been done to the petitioner by the institute and he was wrongly ignored at the time of filling of two promotional posts of Senior Scientific Officer. Committee categorically observed that had institute granted Grade pay of Rs. 6600/- to the petitioner well in time, he would have been promoted against the two posts reserved for promotional quota, but since he has lost this opportunity, he can be compensated by granting promotion against the post reserved for direct recruitment. Though, aforesaid ::: Downloaded on - 07/10/2023 20:33:47 :::CIS 5 recommendation of the committee was made in July 2022, but since no action was taken, petitioner again filed representation dated 16.02.2019 (Annexure P-7), seeking promotion to the post of Senior .
Scientific Officer alongwith consequential benefits, as was allowed in respect of other counterparts of Computer Centre namely, Sh. Anil Kumar and Sh. Jagdish Chand Verma against the advertisement notice dated 7.10.2019. In the aforesaid representation, petitioner of also prayed to create one supernumerary post of Senior Scientific Officer. Interestingly, National Institute of Technology, Hamirpur vide rt communication dated 14.03.2023 while responding to aforesaid representations filed by the petitioner conveyed that his case was placed before the Finance Committee and Board of Governor in its meeting held on 15.12.2022, deferred the agenda item as posts under promotion category are not available as of now according to RRs. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein for the reliefs, as have been reproduced hereinabove.
3. Pursuant to the notices issued in the instant proceedings, respondent Nos. 1 to 3 have filed reply, wherein facts as have been noticed hereinabove have not been disputed, rather stand admitted.
If reply filed by the respondents is read in its entirety, though there is clear cut admission on their part that petitioner ought to have been ::: Downloaded on - 07/10/2023 20:33:47 :::CIS 6 granted grade pay of Rs. 6600/- with effect from 25.11.2014 and on account of non-grant of aforesaid grade pay, promotion of the petitioner to the post of Senior Scientific Officer in the grade pay of .
Rs. 7600/- was denied in the year 2019, but yet an attempt has been made to carve out a case that in recruitment rules, there is no provision to fill up post reserved for direct quota by giving promotion to the post of Senior Scientific Officer, who otherwise under of recruitment rules has different channel of promotion. It has been further stated on behalf of the respondents that ACoNFAR is an rt advisory body not a statutory body and as such, recommendation given by it are not binding, especially when same are not in line with recruitment rules framed by Ministry of Education for the posts of Senior Scientific Officer, which distribute the direct and promotional posts in the ratio of 50:50, so the 4 posts sanctioned for Senior Scientific Officers are divided into 2 posts for direct recruit and 2 posts of promotion category. It has been stated in the reply that two posts under promotion category are at present filled up and only 2 posts of Senior Scientific Officer under direct category are vacant at present. It has been further stated in the reply that Institute is in process to advertise these two posts of Senior Scientific Officer under direct category for which petitioner may apply and if found suitable he may be granted the post of Senior Scientific Officer accordingly.
::: Downloaded on - 07/10/2023 20:33:47 :::CIS 74. It is quite apparent from the pleadings adduced on record, especially reply filed by the respondents that petitioner though was entitled to grade pay of Rs. 6600/- with effect from 25.11.2014, .
but erroneously such benefit was granted to him on 28.05.2016 vide order dated 31.05.2016. On 7.10.2019, National Institute of Technology, Hamirpur invited applications for promotion to the two posts of Senior Scientific Officer in the Grade Pay of Rs. 7600/-, of though, at that time the petitioner had completed required period of service but since benefit of grade pay of Rs. 6600/- was granted to rt him with effect from 28.05.2016 vide order dated 31.05.2016, he was not fulfilling the criteria of five years service with Grade pay of Rs.
6600/- and as such, was not considered for promotion at that relevant time. On account of the clear cut fault of National Institute of Technology, whereby it failed to grant grade pay of Rs. 6600/- to the petitioner in the year 2014 despite his being fully eligible, right of the petitioner to equal opportunity in employment/promotion as enshrined under Article 16(1) of the Constitution of India is violated.
5. Though, internal committee i.e. ACoNFAR having taken note of injustice done to the petitioner specifically recommended to promote him against the post reserved direct recruitment, but such recommendation has been not accepted on the ground that post reserved for direct recruitment cannot be filled up from the other ::: Downloaded on - 07/10/2023 20:33:47 :::CIS 8 source of recruitment i.e. promotion channel. Since petitioner has lost the opportunity to be promoted against the post of Senior Scientific Officer on account of sheer negligence on the part of the .
respondent -Institute, he deserves to be compensated by offering him promotion either against the post reserved under recruitment quota or against the supernumerary post.
6. Learned counsel representing the petitioner fairly states of that petitioner would be content and satisfied in case he is considered for promotion against the post of Senior Scientific Officer created on rt supernumerary basis, but petitioner shall be held entitled for consequential benefits from the date, he lost his right to be considered against the post in question in the year 2019 or when other persons were promoted under the same recruitment process.
7. This Court having perused the material available on record, especially reply filed by the respondents, is fully convinced that great injustice has been caused to the petitioner for no fault of him. Petitioner was not promoted in the year 2019 against the post of Senior Scientific Officer on account of non grant of grade pay of Rs.
6600/- from due date i.e. 25.11.2014. Since respondent- Institute after having realized its mistake reviewed the order dated 31.5.2016 and decided to grant grade pay of Rs. 6600/- to the petitioner with effect from 25.11.2014, he shall be deemed to have received aforesaid ::: Downloaded on - 07/10/2023 20:33:47 :::CIS 9 benefit of grade pay of Rs. 6600/- with effect from the year 2014, if it is so, he becomes eligible to be considered for promotion against the post of Senior Scientific Officer advertised in the year 2019, otherwise .
there shall be clear cut violation of provision of under Article 16(1) of the Constitution of India, which provides for equal opportunity in employment. Reliance in this regard is placed upon the judgment dated 13.08.2019 passed by Co-ordinate Bench of this Court in CWP of No.7957 of 2010, titled Dhanpat Lal Sharma vs. Bhakra Beas Management Board (BBMB) and another, wherein it has been held as under:-
rt "18. Admittedly, the case of the petitioner has not at all been considered by the respondent-Board for promotion. Once that be so, then the petitioner's fundamental right under Articles 14 and 16 stands breached. It is settled proposition of law that though an employee does not have a fundamental right for promotion, however, he has a fundamental right for being considered for promotion.
19. In Ajit Singh and others (II) vs. State of Punjab and others (1999) 7 SCC 209, the Hon'ble Supreme Court held as under:
"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 the matters relating to employment or appointment to any office under the State". It has been held repeatedly by this Court that sub-clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The ::: Downloaded on - 07/10/2023 20:33:47 :::CIS 10 said sub- clause particularizes the generality in Article 14 and identifies, in a constitutional sense "equality 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 of 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 rt 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):
23. Where promotional avenues are available, seniority becomes closely interlinked with promotion provided such a promotion is made after complying with the principle of equal opportunity stated in Article 16(1). For example, if the promotion is by rule of `seniority-cum-
suitability', the eligible seniors at the basic level as per seniority fixed at that level and who are within the zone of consideration must be first considered for promotion and be promoted if found suitable. In the promoted category they would have to count their seniority from the date of such promotion because they get promotion through a process of equal opportunity. Similarly, if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, he will have to be promoted first. If he is not found so meritorious, the ::: Downloaded on - 07/10/2023 20:33:47 :::CIS 11 next in order of seniority is to be considered and if found eligible and more meritorious than the first person in the seniority list, he should be promoted. In either case, the person who is first promoted will normally count his .
seniority from the date of such promotion. (There are minor modifications in various services in the matter of counting of seniority of such promotees but in all cases the senior most person at the basic level is to be considered first and then the others in the line of seniority). That is how right to be considered for promotion and the `seniority' attached to such promotion of become important facets of the fundamental right guaranteed in Article 16(1).
Right to be considered for promotion is not a mere rt statutory right:
24. The question is as to whether the right to be considered for promotion is a mere statutory right or a fundamental right.
25. Learned senior counsel for the general candidates submitted that in Ashok Kumar Gupta Vs. State of U.P. (1997) 5 SCC 201), it has been laid down that the right to promotion is only a "statutory right" while the rights covered by Articles 16(4) and 16(4A) are "fundamental rights". Such a view has also been expressed in Jagdish Lal and some other latter cases where these cases have been followed. Counsel submitted that this was not the correct constitutional position.
26. In this connection our attention has been invited to para 43 of Ashok Kumar Gupta (supra). It reads as follows:- (SCC p. 239) "43. It would thus be clear that right to promotion is a statutory right. It is not a fundamental right. The right to promotion to a post or class of posts depends upon the operation of the conditions of service. Article 16(4) read with Articles 16(1) and 14 guarantees a right to ::: Downloaded on - 07/10/2023 20:33:47 :::CIS 12 promotion to Dalits and Tribes as a fundamental right where they do not have adequate representation consistently with the efficiency of administration... before expiry thereof (i.e. 5 years rule), Article 16(4) has come .
into force from 17.6.1995. Therefore, the right to promotion continues as a constitutionally guaranteed fundamental right."
A similar view was expressed in Jagdish Lal versus State of Haryana, (1997) 6 SCC 538 and followed in some latter cases. In the above passage, it was laid down that promotion was a statutory right and that of Articles 16(4) and 16(4A) conferred fundamental rights.
27. In our opinion, the above view expressed in Ashok Kumar Gupta, and followed in Jagdish Lal and other rt 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 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 (1997) 5 SCC 201: 1997 SCC(L&S) 1299 right from 1950."
20. The Hon'ble Supreme Court in Badrinath vs. Government of Tamil Nadu and others (2000) 8 SCC 395, held as under:
"47. Every officer has a right to be considered for promotion under Article 16 to a higher post subject to eligibility provided he is within the zone of consideration. But the question is as to the manner in which his case is to be considered. This aspect is a matter of considerable importance in service jurisprudence as it deals with 'fairness' in the matter of consideration for promotion ::: Downloaded on - 07/10/2023 20:33:47 :::CIS 13 under Article 16. We shall therefore refer to the current legal position."
21. The Hon'ble Supreme Court in Union of India and others vs. Sangram Keshari Nayak (2007) 6 SCC 704, held as .
under:
"11.Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration....."
22. The Hon'ble Supreme Court in Hardev Singh vs. Union of of India and another, (2011) 10 SCC 121, held as under:
"17. It cannot be disputed that no employee has a right to get promotion; so the appellant had no right to get promotion to the rank of Lieutenant General but he had a right to be rt considered for promotion to the rank of Lieutenant General and if as per the prevailing policy, he was eligible to be promoted to the said rank, he ought to have been considered. In the instant case, there is no dispute to the fact that the appellant's case was duly considered by the SSB for his promotion to the rank of Lieutenant General."
23. In Major General H.M. Singh, VSM vs. Union of India and another, (2014) 3 SCC 670, the Hon'ble Supreme Court held as under:
"28.The question that arises for consideration is, whether the non- consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition, that the respondents were desirous of filling the vacancy of Lieutenant General, when it became available on 1.1.2007. The factual position..... he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view, that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the ::: Downloaded on - 07/10/2023 20:33:47 :::CIS 14 Presidential order dated 29.2.2008, and thereafter, by a further Presidential order dated 30.5.2008......"
30. Besides the above, we are also of the considered view, that consideration of the promotional claim of the senior most eligible officer, .
would also fall in the parameters of the rule providing for extension, if the exigencies of service so require. It would be a sad day if the armed forces decline to give effect to the legitimate expectations of the highest ranked armed forces personnel. Specially when, blame for delay in such consideration, rests squarely on the shoulders of the authorities themselves. This would lead to individual resentment, bitterness, displeasure and indignation. This could also undoubtedly lead to, outrage at the of highest level of the armed forces. Surely, extension of service, for the purpose granted to the appellant, would most definitely fall within the realm of Rule 16A of the Army Rules, unless of course, individual rt resentment, bitterness, displeasure and indignation, of army personnel at the highest level is of no concern to the authorities. Or alternatively, the authorities would like to risk outrage at the highest level, rather than doing justice to a deserving officer. Reliance on Rule 16A, to deprive the appellant of promotion, to our mind, is just a lame excuse. Accordingly, extension in service granted to the appellant, for all intents and purposes, in our considered view, will be deemed to satisfy the parameters of exigency of service, stipulated in Rule 16A of the Army Rules.
31.....This because of denial of due consideration to the appellant, who was the senior most eligible serving Major-General, as against the claim of others who were junior to him. And specially when the respondents desired to fill up the said vacancy, and also because the vacancy had arisen when the appellant still had 14 months of remaining Army service. Surely it cannot be overlooked that the Selection Board had singularly recommended the name of the appellant for promotion, out of a panel of four names. In such an eventuality, we would have no other alternative but to strike down the action of the authorities as being discriminatory and violative of Article 16 of the Constitution of India."
24. In Haryana State Warehousing Corporation and others vs. Jagat Ram and another, (2011) 3 SCC 422, the Hon'ble Supreme Court held as under:
::: Downloaded on - 07/10/2023 20:33:47 :::CIS 15"17. In applying the principle of granting promotion on the basis of seniority-cum-merit, what is important is that the inter se seniority of all candidates who are eligible for consideration for promotion should be identified on the .
basis of length of service or on the basis of the seniority list as prepared, inasmuch as, it is such seniority which gives a candidate a right to be considered for promotion on the basis of seniority-cum-merit.
18. As was indicated in State of Mysore vs. Syed Mahmood, AIR 1968 SC 1113 that where the promotion is based on seniority-cum-merit, the officer cannot as a of matter of right claim promotion by virtue of his seniority alone, which principle is also reflected in Regulation 8(2) of the 1994 Regulations. Consequently, the candidate rt had to be fit to discharge the duties of the higher post and if his performance was assessed not to meet such a requirement, he could be passed over and those junior to him could be promoted despite his seniority in the seniority list.
19. In the instant case, the only feature which weighed with the Corporation in granting promotion to Ram Kumar was a comparative assessment between his performance and that of Jagat Ram. While Jagat Ram had got only one "outstanding" remark in 10 years, Ram Kumar had obtained "outstanding" remark in all the 10 years.
Accordingly, he was preferred to Jagat Ram, whose qualifications were inferior to that of Ram Kumar by comparison. But, as has been rightly held by the Division Bench of the High Court, in cases of seniority-cum-merit, the comparative assessment is not contemplated and is not required to be made.
20. There is nothing on record to indicate that Jagat Ram was not capable of discharging his functions in the promoted post of Assistant Manager (Administration). He was denied promotion only on 15th ground of the superior ::: Downloaded on - 07/10/2023 20:33:47 :::CIS 16 assessment that had been made in favour of Ram Kumar, which, in our view, runs contrary to the concept of seniority-cum-merit....."
25. It needs to be reiterated that public offices, both big and .
small, are sacred trusts. Such offices are meant for use and not abuse and in case repositories of such offices surpass the rule, then the law is not powerless and would step into quash such arbitrary orders.
26. As observed above, respondent No.1 is admittedly a State within the meaning of Article 12 of the Constitution of India and, cannot, therefore, act like a private individual, who of is free to act in a manner whatsoever he likes, unless it is interdicted or prohibited by law. It is settled that the State and its instrumentalities have to act strictly within the four corners rt of law and all its activities are governed by Rules, Regulations and Instructions and in absence of any of these, they have to act fairly, justly and above all impartially.
27. From the above discussion, it is manifest that action of respondent No.1 is neither fair nor just, as it was required to consider the case of a Senior Officer before promoting a Junior Officer that too a deputationist to the post in question i.e. Joint Director/Personal-cum-Legal as against the petitioner, who was a regular employee of the respondent-
Board and had a blemishless records.
28. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed. The respondent Board is directed to consider the petitioner for promotion to the post of Joint Director/Personal-cum-Legal from the date when respondent No.2 was promoted to the said post vide order dated 17.5.2010, (Annexure P-5), with all consequential benefits.
8. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds ::: Downloaded on - 07/10/2023 20:33:47 :::CIS 17 merit in the present petition and accordingly same is allowed and respondents are directed to consider the case of the petitioner for promotion against the supernumerary post of Senior Scientific Officer .
to be created by the respondent-department. Since the petitioner has been fighting for his rightful claim for more than seven years, this Court hopes and trusts that needful in terms of the instant order shall be done by the respondent expeditiously, preferably within a period of of four weeks. Pending applications, if any, also stands disposed of.
rt (Sandeep Sharma),
Judge
October 04, 2023
(shankar)
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