Himachal Pradesh High Court
Hitesh Sharma vs State Of H.P. & Anr on 9 May, 2023
Bench: Jyotsna Rewal Dua, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 2076 of 2023 Decided on: 9th May, 2023 _________________________________________________________________ .
Hitesh Sharma ....Petitioner
Versus
State of H.P. & Anr. ...Respondents
_________________________________________________________________ Coram Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge Hon'ble Mr. Justice Satyen Vaidya, Judge 1 Whether approved for reporting?
_________________________________________________________________ For the petitioner: Mr. Sanjeev Bhushan, Senior Advocate r with Mr. Rajesh Kumar, Advocate.
For the respondents: Mr. Y.P.S.Dhaulta, Additional Advocate General.
Jyotsna Rewal Dua, Judge In this writ petition, we are concerned with the post of Additional Commissioner State Taxes & Excise, Grade-I. This is a single cadre post. The post is required to be filled up 100% by promotion from eligible Joint Excise & Taxation Commissioners.
Column No. 11 of the Recruitment & Promotion Rules for the post of Additional Excise & Taxation Commissioner provides following method of promotion: -
"By promotion from amongst the Joint Excise and Taxation Commissioner who are graduate and also possess 03 years regular service or regular combined 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 10/05/2023 20:34:29 :::CIS -2-
with continuous ad hoc service, if any, in the grade, failing which by promotion from amongst the Joint Excise and Taxation Commissioner who are graduate and also possess 05 years regular service or regular combined .
with continuous ad hoc service, if any, combined as Joint Excise and Taxation Commissioner and Deputy Excise and Taxation Commissioner."
2. The respondent convened Departmental Promotion Committee meeting (DPC) for promotion to the single post of Additional Commissioner State Taxes & Excise, Grade-I, (Class-I, Gazetted) on 25.03.2021. The DPC considered three incumbents for promotion viz Sh.R.D. Janaratha, Sh. Rakesh Sharma and Sh.
Hitesh Sharma (Petitioner). The DPC made following recommendations: -
"Sr. Officer's Name Date of joining Date of Remarks No as DETC joining as JETC
1. Mr. R. D. 31.12.2015 05.07.2019 Eligible but Janartha VCC has not been issued by Vigilance Department
2. Mr.Rakesh 13.06.2017 25.10.2019 Not Eligible Sharma
3. Mr.Hitesh 07.10.2010 18.06.2020 Eligible Sharma The DPC has gone through all the record and viz. a viz Seniority list of JETC drawn on 30.04.20, VCCs issued by Vigilance Department, R&P Rules for the post of Additional Commissioner State Taxes and Excise, Grade-I and ACRs of all the officers falling in the zone of consideration (enclosed with the proceedings as Annexure-I).::: Downloaded on - 10/05/2023 20:34:29 :::CIS -3-
The DPC after going through all the relevant record found that although Sh. R.D. Janartha, JETC is also eligible for promotion but his VCC's have been withheld by the Vigilance Department, thus sealed cover .
procedure is being followed in his case. Therefore, only one officer out of three i.e. Sh. Hitesh Sharma, Additional Commissioner State Taxes and Excise, Grade-II fulfils all the criterion for promotion to the post of Additional Commissioner State Taxes and Excise, Grade-II and thus give its recommendation to promote him as Additional Commissioner State Taxes and Excise, Grade-1 in the pay scale of Rs. 15600-39100+ 8400/- Grade Pay with immediate effect."
3. Sh. R.D. Janartha, the senior most out of three incumbents considered by the DPC, was though found eligible, but in view of the fact that his VCC certificate had not been issued by the Vigilance Department, his case was kept in sealed cover. Sh.
Rakesh Sharma, the next person in seniority was also found not eligible at the relevant time. The petitioner at third number was considered eligible and was recommended for promotion to the post in question. He was accordingly promoted as Additional Commissioner State Taxes & Excise, Grade-I, on regular basis on 27.03.2021.
4. Sh. R.D. Janartha filed a writ petition bearing CWP No. 3466 of 2021 in this Court with the grievance that his case could not have been kept in sealed cover. The procedure adopted by the respondents in keeping his case in a sealed cover and ::: Downloaded on - 10/05/2023 20:34:29 :::CIS -4- ignoring him for regular promotion to the post in question, was not in consonance with law. In this writ petition, Sh. R.D. Janartha also impleaded present petitioner as respondent No.4. Sh. R.D. .
Janartha also sought to quash the regular promotion of the present petitioner (Respondent No.4 therein). The petitioner though was served in that writ petition, however, chose not to contest the same. The writ petition was allowed on 22.08.2022 with the following operative directions (relevant to the context): -
"....Further, the act of the respondent-Department of following sealed cover procedure in the case of the petitioner is also held to be bad in law and it is directed that sealed cover be opened forthwith, and in case, the name of the petitioner is found recommended for promotion to the post in issue, then, said recommendation be given effect to forthwith and the petitioner be promoted as from the date when respondent No.4 was promoted to the post in issue, with all consequential benefits, including monetary and seniority."
In the aforesaid directions, the respondents were directed to open the sealed cover adopted by them in the case of Sh. R.D. Janartha, with further directions that in case name of Sh.
R.D. Janartha was found to be recommended for promotion to the post in question, then such recommendations were to be given effect to forthwith. In such eventuality, Sh.R.D. Janartha was to be promoted from the date when respondent No.4 (present petitioner) was promoted to the post with all consequential benefits including ::: Downloaded on - 10/05/2023 20:34:29 :::CIS -5- monetary and seniority.
5. Respondents set out to implement the judgment dated 22.08.2022. In the process, office order dated 04.04.2023, was .
issued, promoting Sh. R.D. Janartha as Additional Commissioner State Taxes & Excise, Grade-I, w.e.f. 25.03.2021. This was the date when the petitioner was promoted on regular basis to the post in question. Since the cadre consisted of only one post, hence, the respondents also passed another office order on the same date i.e. 04.04.2023, ordering reversion of petitioner from the post of Additional Commissioner State Taxes & Excise, Grade-I to Additional Commissioner State Taxes & Excise, Grade-II. It is in the aforesaid background, that the petitioner has filed the instant petition against his reversion.
6. Learned senior counsel for the petitioner contended that the petitioner had been regularly promoted to the post of Additional Commissioner State Taxes & Excise, Grade-I on the basis of recommendations of DPC dated 25.03.2021. It was also submitted that in case of adoption of sealed cover procedure for the senior incumbent, the respondents ordinarily would have made promotion of junior incumbent on officiating basis, but this course was not adopted by the respondents in the instant case, rather the petitioner was promoted on regular basis. It is for this reason the petitioner did not contest CWP No. 3466 of 2021, instituted by Sh. R.D. Janartha. The least that was required from ::: Downloaded on - 10/05/2023 20:34:29 :::CIS -6- the respondents, was to issue a show-cause notice to the petitioner before taking any coercive action against him. Another contention of learned senior counsel for the petitioner is that to obviate the .
difficulties being faced by the petitioner as he has already served as Additional Commissioner State Taxes & Excise, Grade-I on the basis of his regular promotion for a period of two years, the respondents could have examined the matter for creating supernumerary post.
7. We refrain from examining the merits of issues raised by the petitioner in the instant case. However, we do feel that since the petitioner had held the post of Additional Commissioner State Taxes & Excise, Grade-I on regular basis w.e.f. 24.03.2021 onwards, therefore, a show-cause notice deserved to be issued to him. The respondents could not have taken harsh decision of reverting the petitioner without resorting to the principles of natural justice.
Hence for the aforesaid reasons, the present petition is disposed of with the following directions: -
(i) Impugned Office order dated 04.04.2023 (Annexure P-
5) shall be treated as a show-cause notice issued to the petitioner for his reversion from the post of Additional Commissioner State Taxes & Excise, Grade-I to the post of Additional Commissioner State Taxes & Excise, Grade-II.
(ii) The petitioner is permitted to file his response to the ::: Downloaded on - 10/05/2023 20:34:29 :::CIS -7- show-cause notice dated 04.04.2023 (Annexure P-5) within a period of two weeks from today.
(iii) Upon receipt of the response of the petitioner in the .
above manner, the respondents shall take a decision in the matter within two weeks thereafter, in accordance with law. Till such time, the order dated 04.04.2023 (Annexure P-5) to the extent it reverts the petitioner to the post of Additional Commissioner State Taxes & Excise, Grade-II shall not be given effect to The pending miscellaneous application(s), if any, also stand disposed of.
Jyotsna Rewal Dua Judge Satyen Vaidya Judge May 9, 2023 R.Atal ::: Downloaded on - 10/05/2023 20:34:29 :::CIS