Himachal Pradesh High Court
Shri V.P. Rana vs The State Of Himachal Pradesh & on 21 November, 2022
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No.250 of 2019
Decided on: 21.11.2022
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Shri V.P. Rana ....Petitioner.
Versus
The State of Himachal Pradesh &
others .... Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the petitioner : Mr. Karan Singh Parmar, Advocate.
For the Respondents : M/s Sumesh Raj, Dinesh Thakur,
Sanjeev Sood, Additional
Advocates General, with Mr. Amit
Kumar Dhumal, Deputy Advocate
General, for respondents No.1 to 3-
State.
Respondents No.4 & 5 ex parte.
Name of respondent No.6 stands
deleted.
Ajay Mohan Goel, J (Oral)
The controversy involved in the present petition is in a very narrow compass.
2. The case of the petitioner is that he was serving in the respondent Department as a Statistical Assistant. The next 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 24/11/2022 20:31:17 :::CIS 2promotional post from the post of Statistical Assistant is that of Employment Officer, Recruitment & Promotions Rules whereof .
are appended with the present petition as Annexure A-1. In terms of said Recruitment & Promotion Rules, the post of Employment Officer is to be filled in from amongst Statistical Assistant/Senior Assistant, who possess six years regular service or regular combined with continuous adhoc (rendered upto 31.03.1998) service, if any, in the grade. The petitioner has also appended with the petition as Annexure A-2 the Recruitment and Promotion Rules to the post of Superintendent Grade-II, in terms whereof, the feeder channel for said post is Senior Assistant and a Senior Assistant who possesses six years regular service is stated to be eligible for promotion to the post of Superintendent Grade-II.
3. The grievance of the petitioner as has been raised in the petition is that the respondent/Department took option from the private respondents, who were serving as Senior Assistants, on 29.09.2001 and all respondents opted for being promoted to the post of Superintendent Grade-II. Subsequently, again on 21.03.2002, option was taken from them and this time, they opted for promotion against the post of Employment ::: Downloaded on - 24/11/2022 20:31:17 :::CIS 3 Officer. According to the petitioner, the option once exercised, exhausts the right of the incumbent and the act of the .
respondent/Department of seeking option time and again from the private respondents has jeopardized the future career of the petitioner at the time when he was to be promoted as Employment Officer, he was not promoted on account of this repeated option being sought from the private parties.
Accordingly, the petitioner has prayed that the promotion which has been granted to the private respondents against the post of Employment Officer be quashed and set aside and the respondents be directed to consider the case of the petitioner for promotion to the post of Employment Officer from the date of promotion orders appended with the petition as Annexure A5/A.
4. The response stands filed to the writ petition.
Learned Additional Advocate General by placing reliance on the same in general and preliminary submissions thereof in particular has submitted that on 29.09.2001, the Department had sought option from twelve Senior Assistants for promotion against the post of Superintendent, Grade-II or Employment Officer. Accordingly, Senior Assistants from whom options were sought exercised their options. Mohinder Singh, Senior ::: Downloaded on - 24/11/2022 20:31:17 :::CIS 4 Assistant, Sub-Office, Employment Exchange, Tissa, exercised his option for promotion against the post of Superintendent, .
Grade-II. Jagdish Kumar, Senior Assistant did not opt for any channel of promotion and Amar Singh was not invited at all by the Department to give his option. One Smt. Shally Vaidya, Senior Assistant had opted for the post of Employment Officer and she was accordingly promoted as Employment Officer in terms of promotion order dated 03.04.2022. Mohinder Singh, Senior Assistant was not considered that time when he had opted for promotion to the post of Superintendent, Grade-II and Jagdish Kumar, Senior Assistant was also not considered for promotion to the post of Employment Officer as he had not opted for the said promotional channel. The Department as per its practice again invited applications from the Senior Assistants for filling up the post of Superintendnet/Employment Officer vide letter dated 21.03.2002. The options were also sought from the officials mentioned hereinabove. This time, Mohinder Singh changed his option and opted for promotion against the post of Employment Officer, whereas Jagdish Kumar, Senior Assistant and Amar Singh, Senior Assistant also opted for the post of Employment Officer. In this view of the matter and in view of the ::: Downloaded on - 24/11/2022 20:31:17 :::CIS 5 revised options of Mohinder Singh, said Mohinder Singh as well as Jagdish Kumar were promoted against the post of .
Employment Officer on 21.06.2002.
5. Learned Additional Advocate General has argued that in light of said option being available to the Senior Assistants, no illegality was committed by the Department by seeking the option from Mohinder Singh, as when the subsequent option was sought from Mohinder Singh, he still was holding the feeder category post. Accordingly, he argued that as there is no merit in the present petition, the same be dismissed.
6. I have heard learned counsel for the parties and have gone through the pleadings as well as documents on record.
7. It is evident from the facts of the case that whereas for Statistical Assistants, there is only one channel of promotion, i.e. to the post of Employment Officer, however, on the other hand, for the post of Senior Assistant there are two channels of promotion, i.e. the Employment Officer and Superintendent, Grade-II. In the present case, it is evident from the record that respondent Mohinder Singh had earlier opted for promotion to ::: Downloaded on - 24/11/2022 20:31:17 :::CIS 6 the post of Superintendent, Grade-II in the year 2001, however, he could not be promoted to the said post for one reason or the .
other. Thereafter, again in the year 2002, option was sought from Moninder Singh once again and this time he changed his option from the stream of Superintendent, Grade-II to the stream of Employment Officer. This resulted in the promotion of Mohinder Singh against the post of Employment Officer, whereas but natural, the petitioner could not considered for promotion to the said post.
8. This court is of the considered view that taking into consideration the fact that whereas, for a Statistical Assistant there was only one channel of promotion and on the other hand, for the post of Senior Assistant there were two channels of promotion, the act of respondent-Department of giving more than one opportunity to the Senior Assistants to exercise their options is arbitrary and not sustainable in the eyes of law. The doctrine of election, at the very first instance, puts an onus upon an employee to make a choice as to whether he wants to opt for promotion to stream 'A' or stream 'B'. Once, he has exercised that particular option, then this Court is of the considered view that he cannot be subsequently permitted to ::: Downloaded on - 24/11/2022 20:31:17 :::CIS 7 resile from that option of his and allowed to opt for the other stream. This is for the reason that herein as already mentioned .
hereinabove, the Senior Assistants were having two channels of promotion as compared to the Statistical Assistants. Now, in case the Senior Assistants at every stage are allowed an option to either opt for promotion to the post of Employment Officer or Superintendent, Grade-II, then this Court is of the considered view that the doctrine of election looses its significance because such an incumbent will at every stage opt for the post which is available and the person from the other stream, i.e. the stream of Statistical Assistant will be left high and dry, for the simple reason that Statistical Assistant has only one channel of promotion. Therefore, the act of respondent-Department of again seeking option from Mohinder Singh in the year 2002 is bad and not sustainable in the eyes of law. Once, he had opted for the channel of Superintendent, Grade-II in the year 2001, then his right for being considered for promotion to the post of Employment Officer stood exhausted and he was to wait for promotion against the post of Superintendent, Grade-II only as per his seniority and turn and subsequently, he could not have ::: Downloaded on - 24/11/2022 20:31:17 :::CIS 8 been allowed to resile from his earlier option and again go for a fresh option.
.
9. Accordingly, in view of the above observations, this petition succeeds and it is held that the act of the respondent-
Department, seeking the subsequent option from Mohinder Singh, who had earlier opted for promotion to the post of Superintendent, Grade-II is bad in law. The obvious result thereof is that the promotion which were conferred upon Mohinder Singh vide Annexure A-5 is held to be bad.
10. At this stage, the Court stands informed that Mohinder Singh as well as the petitioner had superannuated during the pendency of the present petition. Taking into consideration this fact, though this Court has held the promotion of Mohinder Singh to be bad in law, but it is not quashing the said promotion and a direction is hereby issued to the respondents to hold a review Departmental Promotion Committee qua the petitioner and consider his candidature for promotion to the post of Employment Officer as from the date when Mohinder Singh and other incumbents were promoted against the post of Employment Officer and if found otherwise eligible as per his seniority, then he be conferred promotion to ::: Downloaded on - 24/11/2022 20:31:17 :::CIS 9 the said post from the said date with all consequential benefits.
The Court purposely is granting all consequential benefits .
including pension etc. to the petitioner for the reason that the present petition was filed by the petitioner as far back as in the year 2002. Needful be done within a period of thirty days from today.
11. With these observations, the petition is disposed of, so also the pending miscellaneous applications, if any.
(Ajay Mohan Goel) Judge November 21, 2022 (Rishi) ::: Downloaded on - 24/11/2022 20:31:17 :::CIS