Himachal Pradesh High Court
______________________________________________________________________ vs Bhakra Beas Management Board (Bbmb) on 18 April, 2018
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.: 7870 of 2012
Reserved on: 05.04.2018
.
Date of Decision: 18.04.2018
______________________________________________________________________
Ajay Kumar ....Petitioner.
Vs.
Bhakra Beas Management Board (BBMB)
and others .....Respondents.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes
For the petitioner: Mr. Deven Khanna, Advocate, vice Mr.
Manish Sharma, Advocate.
For the respondents: Mr. N.K. Sood, Senior Advocate, with Mr.
Aman Sood, Advocate, for respondents
No. 1 to 3.
Mr. Anoop Rattan, Advocate, for
respondents No. 4 to 7.
Mr. M.K. Kapoor, Additional
Superintending Engineer, BBMB, is
present alongwith the record.
Ajay Mohan Goel, Judge (Oral):
By way of this petition, the petitioner has prayed for the following reliefs:
"(i) To consider the case of promotion of present petitioner as Foreman from the date earlier to the promotion of respondents No. 4 to 7 vide order dated 28.12.2011 (Annexure P-2);
Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 20/04/2018 23:19:04 :::HCHP 2(ii) The petitioner may be held entitled to all consequential benefits like arrears of salary and seniority as Foreman w.e.f. the date prior to the promotion of respondents No. 4 to 7 vide order .
dated 28.12.2011 (Annexure P-2);
(iii) That any other relief deemed fit and proper in the facts and circumstances of the case may also be granted."
2. Petitioner joined the services of the respondent-Board as Welder Grade-II on 13.08.1993. He was promoted as Welder Grade-I w.e.f. 12.10.1998. Respondents No. 4 to 7 joined the respondent-Board as Crane Operators Grade-I on 14.10.1994. Respondent-Board has framed Bhakra Beas Management Board Class III &IV Employees' (Recruitment & Conditions of Service) Regulations, 1994. As per these Regulations, there is post of "Foreman all Trades", which is filled up 33% by way of direct recruitment from amongst three year diploma holders in specified technical trade and 67% by way of promotions from respective trades, which so stand mentioned in the said Regulations. These Regulations are appended with the petition as Annexure P-1, perusal thereof demonstrates that the post of Welder Grade-1 as well as Crane Operator Grade-1 are feeder category posts for promotion to the post of "Foreman all Trades". As per the Regulations, Welder Grade-1 becomes eligible for promotion to the post of "Foreman all Trades" after completion of eight years service, whereas Crane Operator Grade-1 gains eligibility after putting in twelve years service. As already mentioned above, ::: Downloaded on - 20/04/2018 23:19:04 :::HCHP 3 petitioner was promoted as Welder Grade-1 w.e.f. 12.10.1998. Thus, after completion of eight years of service, he became eligible for promotion to the post of "Foreman all Trades" w.e.f. 12.10.2006. On the other hand, .
private respondents, who were appointed as Crane Operators Grade-1 on 14.10.1994 gained eligibility for promotion to the post of Foreman all Trades after putting in twelve years service as Crane Operator Grade-1 w.e.f. 14.10.2006. Grievance of the petitioner is that despite his having gained eligibility before the private respondents, promotion to the post of Foreman Grade-1 vide impugned office order Annexure P-2, dated 28.12.2011, private respondents were promoted to the post in issue ignoring his seniority, which act of the respondents, as per the petitioner, was in violation of the 1994 Regulations, as also arbitrary and illegal, as the petitioner has been denied promotion for no fault of his, because it was not the case of the respondent-Board that the petitioner was not eligible for promotion to the post in issue. It is in this background that the petitioner has filed the writ petition praying for the reliefs already mentioned above.
3. Respondent-Board though has not disputed the factual matrix of the case. However, they have justified their act on the ground that as per the 1994 Regulations, the promotional post was "Foreman all Trades" and feeder category from which promotion was to be made comprised of various Trades, therefore, promotions were made by the Board not only on the basis of seniority of eligible candidates, but by also ::: Downloaded on - 20/04/2018 23:19:04 :::HCHP 4 taking into consideration that all Trades were equally represented for the purpose of promotion.
4. I have heard learned counsel for the parties and have .
also gone through the pleadings.
5. It is settled law that though an employee does not has a fundamental right for promotion, however, he has a fundamental right of being considered for promotion.
6. In Ajit Singh and others (II) Vs. State of Punjab and others, (1999) 7 Supreme Court Cases 209, Hon'ble Supreme Court has held as under:
"......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 ::: Downloaded on - 20/04/2018 23:19:04 :::HCHP 5 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 41 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).
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 ::: Downloaded on - 20/04/2018 23:19:04 :::HCHP 6 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 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 seniormost 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 become important facets of the fundamental right guaranteed in Article 16(1). Right to be considered for promotion is not a mere 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 v. State of U.P. ((1997) 5 SCC 201 : 1997 SCC (L&S) 1299) 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(4-A) are "fundamental rights". Such a ::: Downloaded on - 20/04/2018 23:19:04 :::HCHP 7 view has also been expressed in Jagdish Lal (Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S) 1550) 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 ((1997) 5 SCC 201 : 1997 SCC (L&S) 1299). 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 a class of posts depends upon the operation of the conditions of service. Article 16(4-A) read with Articles 16(1) and 14 guarantees a right to promotion to Dalits and Tribes as fundamental right where they do not have adequate representation consistently with the efficiency in administration. ... before expiry thereof (i.e. 5 years rule), Article 16(4-A) 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 (Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S) 1550) and followed in some latter cases. In the above passage, it was laid down that promotion was a statutory right and that Articles 16(4) and 16(4-A) conferred fundamental rights.
::: Downloaded on - 20/04/2018 23:19:04 :::HCHP 827. In our opinion, the above view expressed in Ashok Kumar Gupta ((1997) 5 SCC 201 : 1997 SCC (L&S) 1299) and followed in Jagdish Lal (Jagdish Lal v. State of Haryana, .
(1997) 6 SCC 538 : 1997 SCC (L&S) 1550) 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 ((1997) 5 SCC 201 : 1997 SCC (L&S) 1299) right from 1950."
7. In Badrinath Vs. Government of Tamil Nadu and others, (2000) 8 Supreme Court Cases 395, Hon'ble Supreme Court has 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 ::: Downloaded on - 20/04/2018 23:19:04 :::HCHP 9 jurisprudence as it deals with 'fairness' in the matter of consideration for promotion under Article 16. We shall therefore refer to the current legal position."
.
8. Hon'ble Supreme Court in Union of India and others Vs. Sangram Keshari Nayak, (2007) 6 Supreme Court Cases 704 has 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......."
9. Hon'ble Supreme Court in Hardev Singh Vs. Union of India and another, (2011) 10 Supreme Court Cases 121 has 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 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."::: Downloaded on - 20/04/2018 23:19:04 :::HCHP 10
10. In Major General H.M. Singh VSM Vs. Union of India and another, (2014) 3 SCC 670, Hon'ble Supreme Court has 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 considered against the above vacancy, and also 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 extent 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 Presidential Order dated 29.2.2008, and thereafter, by a further Presidential Order dated 30.5.2008...::: Downloaded on - 20/04/2018 23:19:04 :::HCHP 11
30. Besides the above, we are also of the considered view, that consideration of the promotional claim of the seniormost 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 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 16-A of the Army Rules, unless of course, individual 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 16-A, 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 ::: Downloaded on - 20/04/2018 23:19:04 :::HCHP 12 parameters of exigency of service, stipulated in Rule 16-A of the Army Rules.
31. .......This because of denial of due consideration to the appellant, who was the .
seniormost 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."
11. It is not in dispute that the promotional post in issue is a non-selection post and is to be filled in on the basis of seniority-cum-
merit, as is also evident from the reply so filed by the respondents. At this stage, it is pertinent to point out that out of four private respondents, Raman Kumar and Pawan Kumar have already superannuated during the pendency of this petition.
::: Downloaded on - 20/04/2018 23:19:04 :::HCHP 1312. When it comes to promotion to a non-selection post, the principle which governs the field is that promotion is to be made on the basis of seniority, subject to rejection of an unfit candidate.
.
13. Coming to the facts of this case, the respondent-Board has tried to justify its act of not promoting the petitioner against the post of "Foreman all Trades" when the private respondents, who acquired eligibility after him, were considered and promoted to the said post on the ground that as per the Regulations which governs promotion, because the promotion had to be made from respective Trades from the feeder categories mentioned therein, therefore, the petitioner could have been promoted only if there was a post of Foreman all Trades vacated by a person, who was from the same Trade, as the petitioner. In other words, as per the respondent-Board, had the post of "Foreman all Trades" being vacated by a person who was promoted as such from Welder Grade-1, then the petitioner was eligible for promotion to the said post.
14. In my considered view, there is no merit in the contention of the respondent-Board. This is for the reason that the Regulations which govern promotion to the post of Foreman all Trades do not provide any quota for different categories which find mention therein which are feeder categories for promotion to the post of Foreman all Trades. Even otherwise, it is well settled law that when there are more than one sources of recruitment which also includes promotion to a post in issue, then after persons are appointed to that particular post from various sources, they lose their birth mark. Now incidentally, though on ::: Downloaded on - 20/04/2018 23:19:04 :::HCHP 14 one hand the stand of the respondent-Board is that the petitioner was denied promotion because there was no vacancy of Foreman all Trades vacated by a person who was promoted to the said post from the category .
of Welder Grade-1, but when we peruse the Order vide which the private respondents were promoted to the post(s) in issue, the same demonstrates that private respondents, who otherwise belonged to the feeder category of Operators Grade-1 were promoted against the vacant post of Foreman Special Instrument Repair, Foreman Special Rigging, Foreman Penstock and Foreman Tractor Repair, respectively. This in fact demolishes the very edifice of the case of the respondent-Board, because the promotion order of the private respondents is self speaking that it is not as if promotions from various feeder categories to the post of Foreman all Trades were made only against "respective Trades" Therefore, in my considered view, act of the respondent-Board of denying promotion to the petitioner when persons like the private respondents were promoted to the post of Foreman all Trades, ignoring the fact that the petitioner had eligibility to be promoted to the post of "Foreman all Trades", before private respondent is arbitrary, discriminatory and violative of fundamental right of consideration for promotion of the petitioner.
15. Accordingly, this writ petition is allowed and the respondent-Board is directed to consider and confer promotion to the petitioner against the post of Foreman all Trades as from the date when the private respondents were promoted to the said posts and in the seniority list place the petitioner above the private respondents. It is ::: Downloaded on - 20/04/2018 23:19:04 :::HCHP 15 clarified that the petitioner shall be entitled to deemed promotion, with benefits, which shall also be deemed and actual benefits including promotional and monetary shall accrue upon the petitioner as from the .
date of passing of this judgment.
16. Petition stands disposed of in above terms.
Miscellaneous applications, if any, also stand disposed of.
(Ajay Mohan Goel) Judge April 18, 2018 (bhupender) ::: Downloaded on - 20/04/2018 23:19:04 :::HCHP