Himachal Pradesh High Court
Girdhari Lal Verma vs State Of H.P. & Another on 14 December, 2022
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 3729 of 2020
Reserved on 6.12.2022
.
Decided on : 14.12.2022.
Girdhari Lal Verma ...Petitioner.
Versus
State of H.P. & another ...Respondents
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1
For the petitioner : Mr. Lovneesh Kanwar, Advocate.
For the respondents : Mr. Desh Raj Thakur, Addl. A.G.
with Mr. Narender Thakur, Dy.
A.G., for respondent No.1.
Mr. Virbahadur Verma, Advocate,
for respondent No.2.
Satyen Vaidya, Judge:
By way of instant petition, petitioner has prayed for the following substantive reliefs:-
"i). That the orders dated 21.3.2017, vide Annexure A-18, denying consideration and resultant promotion to the applicant as a Joint Secretary in the respondent-Board, may kindly be quashed and set aside forthwith;
ii) That the respondent No.1 may be directed to consider and then to promote the applicant as 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 14/12/2022 20:33:29 :::CIS -2-
Joint Secretary on regular or on ad-hoc basis (whichever is beneficial) from due dates w.e.f. 16.8.2014 when case was recommended/ .
forwarded by the respondent Board to Govt. for ad-hoc promotion) or w.e.f. 25.9.2014 (Department of Personnel gave its approval for ad-hoc promotion to respondent No.1) or w.e.f. 30.9.2014 (date of retirement of applicant) which is beneficial, as per the past practice borne out from Annexure A-26 or even otherwise, with all consequential benefits, forthwith.
iii) That the respondents may be directed to give benefit of higher pay fixation on promotion as Joint Secretary on regular or ad-hoc basis, from due date as in relief (ii) above, and to give benefit of higher pay fixation for all revised retiral benefits including monthly pension w.e.f.
1.10.2014 till May 2017 and thereafter with all consequential benefits forthwith;
iv) That the denial of consideration and the resultant promotion as Joint Secretary, either on ad-hoc or on regular basis from due dates as in relief (ii) above, may kindly be held as discriminatory, arbitrary malafide, violative of OM's and Law and violative of Articles 14 and 16 of the Constitution of India, forthwith"
2. Brief facts necessary for adjudication are as under:::: Downloaded on - 14/12/2022 20:33:29 :::CIS -3-
2.1 Petitioner was initially appointed as clerk in respondent No.2 Board on regular basis w.e.f.
.
2.4.1976. From time-to-time petitioner earned promotions to the post of Senior Assistant, Section Officer, Assistant Secretary and lastly as Deputy Secretary w.e.f. 4.2.2013. Petitioner joined as Deputy Secretary on 16.2.2013 and retired from said post on 30.9.2014.
2.2 There were two posts of Joint Secretaries in respondent No.2 Board. Though the Service Committee of respondent No.2 had placed before the Board, draft R & P Regulations for the post of Joint Secretary on 5.6.2013 but R & P Regulations for said post came into effect on 28.7.2015.
2.3 In absence of R & P Regulations, the post of Joint Secretary, till 2009, was being filled up from the feeder category of Deputy Secretaries on ad-hoc basis by application of principle of seniority-cum-fitness.
2.4 As per Draft R & P Regulations, the post of Joint Secretary was to be filled up from incumbents, who had rendered 30 years of service in the respondent No.2 Board, out of which, five years of ::: Downloaded on - 14/12/2022 20:33:29 :::CIS -4- combined service regular/ad-hoc was required as Section Officer, Assistant Secretary and Deputy .
Secretary in the Board and further atleast one year service was required as Deputy Secretary.
3. Petitioner has sought above noted reliefs by making assertions as under:
3.1 As per draft regulations, he had become eligible for being considered for promotion to the post of Joint Secretary on 16.2.2014, when he had rendered one year of service as Deputy Secretary.
3.2 Respondent No.2 Board recommended/ forwarded the case of petitioner to respondent No.1 for approval for promoting him as Joint Secretary on 16.8.2014. The matter remained pending at various levels and finally on 25.9.2014, the Department of Personnel allowed respondent No.2 Board to fill up the available vacant posts of Joint Secretary, as per law.
3.3 The aforesaid approval reached in the office of respondent No.2 after retirement of petitioner.
Therefore, the petitioner retired without being considered for the post of Joint Secretary.
::: Downloaded on - 14/12/2022 20:33:29 :::CIS -5-3.4 On 14.4.2016, respondent No.2 promoted S/Sh. Vijay Kumar and Chaman Lal as Joint .
Secretaries. Petitioner represented to the respondents to consider and grant the resultant promotion to the petitioner as Joint Secretary on ad-hoc or on regular basis or even on notional basis from due date.
3.5 The claim of petitioner was rejected by respondents vide order dated 21.3.2017, on the grounds firstly that till the date of retirement of petitioner, there was no approval for filling up the post of joint secretary and secondly, R & P Regulations for the said post were not in existence.
4. Aggrieved against aforesaid rejection, petitioner approached the erstwhile H.P. State Administrative Tribunal by filing O.A. No. 47 of 2017. On abolition of the State Administrative Tribunal, aforesaid O.A. came to be transferred to this Court and was registered as CWPOA No. 3729 of 2020 i.e. the instant petition.
5. I have heard the learned counsel for the parties and have also gone through the record.
::: Downloaded on - 14/12/2022 20:33:29 :::CIS -6-6. The first question that arises for consideration is whether the petitioner had acquired any right to be promoted to .
the next higher post of Joint Secretary?
7. The answer is in negative for the reason that mere existence of post or vacancy does not confer any right on the incumbents in the feeder category to claim promotion. Only right of consideration for promotion exists. However, in the given facts of the case, even such right cannot be held to have existed in favour of petitioner in absence of R & P Regulations for the post of Joint Secretary in respondent No.2 Board till the date of retirement of petitioner.
8. Noticeably, only draft regulations had been framed and were pending for approval by competent authority. Learned Counsel for petitioner has contended that petitioner was entitled to promotion even on the basis of draft regulations. In support of such contention, he placed reliance on following extract from the judgment passed by Hon'ble Supreme Court in Vimal Kumari v. State of Haryana reported in (1998) 4 SCC 114.
"6. The Draft Rules were prepared in 1983 and since then they have not been enforced. It is, no doubt, open to the Government to regulate the service conditions of the employees for whom the Rules are made by those Rules even in their "draft stage" provided there is clear intention ::: Downloaded on - 14/12/2022 20:33:29 :::CIS -7- on the part of the Government to enforce those Rules in the near future. Recourse to such Draft Rules is permissible only for the interregnum to meet any emergent .
situation. But if the intention was not to enforce or notify the Rules at all, as is evident in the instant case, recourse to "Draft Rules" cannot be taken. Such Draft Rules cannot be treated to be Rules made under Article 309 of the Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subjects covered by the Draft Rules nor can such Draft Rules exclude the jurisdiction of the Government, or for that matter, any other authority, including the appointing authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them.
7. In the instant case, as pointed out above, the Draft Rules were prepared in 1983. They have been lying in a nascent state since then. In the meantime, many promotions, including that of the appellant were made on the basis of "seniority" which, in the absence of any Rule made under Article 309, could be legally adopted as the reasonable basis for promotion. Seniority having thus been adopted as the criteria for making promotion on the post of Superintendent could not have been displaced by the Draft Rules and the High Court could not have invoked any provision of those Draft Rules which have been lying frozen at their embryonic stage for more than ten years.
8. In the absence of any decision of the State Government that so long as the Draft Rules were not notified, the service conditions of the appellant or the respondent and their other colleagues would be regulated by the "Draft Rules" prepared in 1983, it was not open either to the Government or to any other authority, nor was it open to the High Court, while disposing of the writ petition, to invoke any of the provisions of those Rules particularly as the Government has not come out with any explanation ::: Downloaded on - 14/12/2022 20:33:29 :::CIS -8- why the Rules, though prepared in 1983, have not been notified for the long period of more than a decade. The delay, or rather inaction, is startling".
.
9. In my considered view, petitioner is not benefited by seeking reliance on aforesaid judgment. Petitioner has not laid any factual turf for deriving such benefit. Even otherwise, in the fact situation of instant case there is nothing to suggest that respondents intended to grant promotion to the post of Joint Secretary on the basis of draft regulations. Even otherwise the benefit, if any, under draft rules can be granted at the option of employer that too for meeting the emergent requirements. The draft rules cannot generally form basis of cause of action for the employee.
10. It is contended on behalf of the petitioner that his case was recommended for promotion by respondent No.2 Board on 16.8.2014 vide Annexure A-10. Perusal of said document reveals that the Secretary of respondent No.2 Board had proposed the ad-hoc promotion of petitioner along with another incumbent to the post of Joint Secretary being the senior most officers in the cadre of Deputy Secretaries. In response, respondent No.1 had conveyed to respondent No.2 Board that the post of Joint Secretaries should be filled up in accordance with Section 23 of the H.P. Board of School ::: Downloaded on - 14/12/2022 20:33:29 :::CIS -9- Education Act. However, these documents did not reflect the intent of Respondents to promote petitioner as Joint Secretary .
on the basis of draft regulations.
11. The claim to ad-hoc promotion on behalf of the petitioner is also not tenable for the reason that there could be no anticipation regarding approval or finalization of R & P Regulations merely because the draft regulations had been prepared. There had to be clear intention on the part of the respondents to enforce those draft Regulations in the near future, which cannot be inferred from the material on record.
12. Petitioner can also not claim right to ad-hoc promotion simply on the basis of practice allegedly adopted by the respondent Board till 2009.
13. In light of above discussion, there is no merit in the instant petition and the same is accordingly dismissed. Pending application(s), if any, also stand disposed of.
(Satyen Vaidya)
14th December, 2022 Judge
(kck)
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