Himachal Pradesh High Court
Date Of Decision: 20.3.2025 vs State Of Himachal Pradesh And Anr on 20 March, 2025
Author: Sandeep Sharma
Bench: Sandeep Sharma
2025:HHC:6444
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.3247 of 2019
Date of Decision: 20.3.2025
______________________________________________________________
Tarun Kumar Sharma and Ors.
.........Petitioners
Versus
State of Himachal Pradesh and Anr.
.......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioners: Mr. Jia Lal Bhardwaj, Senior Advocate with Ms.
Dhanwanti, Advocate.
For the respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan
Kahol, Mr. Vishal Panwar and Mr. B.C. Verma,
Additional Advocates General and Mr. Ravi
Chauhan, Deputy Advocate General.
____________________________________________________________________
Sandeep Sharma, J. (Oral)
Petitioners herein were appointed in 2010, through the then recruiting agency i.e. Himachal Pradesh Subordinate Staff Selection Board, Hamirpur, on the posts of Hostel Superintendents in various Polytechnics/colleges under the Directorate of Technical Education, Vocational & Industrial Training and are on the same post for the last around 15 years. Admittedly there is no further promotional avenue for the category of Hostel Superintendents. It is the case of the petitioners that they are stagnating in the cadre for a considerable period of time and they possess master's degrees in English and Economics. It is borne from record that the petitioners earlier approached erstwhile Himachal Pradesh Administrative Tribunal, by way of OA No. 7281 of 2018,
-2- 2025:HHC:6444 seeking direction to the respondents to provide them promotional avenue and to finalise the Recruitment and Promotion Rules for the post of Lecturer (Applied Sciences and Humanities), so as to include Hostel Superintendents in feeder category, on the analogy of Computer Assistants, who were provided similar quota for promotion to the post of Lecturer (Computer Engineering). The Original Application so filed by the petitioners was disposed of on 27.12.2018, with a direction to the petitioners to represent their case to respondent No.1, and respondent No.1 was directed to decide the same in light of law laid down in Dr. Ms. O.Z. Hussain v. Union of India and others, AIR 1990 SC 311, in view of the fact that a proposal to include the category of Hostel Superintendents in the feeder cadre for the post of Lecturer (Applied Sciences and Humanities) was already pending consideration with the Government.
2. Pursuant to direction passed by the erstwhile Tribunal and making representation by the petitioners, respondents have rejected the case of the petitioners vide order dated 29.4.2019 (Annexure P-3). Now the petitioners are before this Court, in the instant petition, seeking following main relief(s):
"i) That a writ in the nature of certiorari may kindly be issued to quash the impugned order dated 29.4.2019, passed by respondent No.1 to reject the joint representation of the petitioners for providing promotional avenues to the category of Hostel Superintendent to the posts of Lecturer (Applied Sciences and Humanities) Class-I (Gazetted) and further a writ in the nature of mandamus may kindly be issued directing the respondents to provide promotional avenues to the category of the Hostel Superintendents either to the posts of Lecturer (Applied Sciences and Humanities) Class-I (Gazetted) on the analogy
-3- 2025:HHC:6444 of Computer Assistants and Console Operators to the posts of lecturer Computer Engineering ( Polytechnic) Class-1 (Gezetted) or to any other higher posts and justice be done.
ii) That a writ in the nature of mandamus may kindly be issued to promote the petitioners to the post of Lecturer (Applied Sciences and Humanities) Class-1 (Gezetted) after completion of nine years regular services as Hostel Superintendents with all consequential benefits such as pay scale, increments, seniority etc., and further the arrears alongwith interest @9% per annum may kindly be directed to be paid by the respondents to the petitioners from the date the same fell till its realization and justice be done."
3. Stand of the respondents in their reply is that the post in which promotional quota is being sought, is a post to be filled in 100% by way of direct recruitment and the petitioners are borne in a non-teaching cadre, whereas, Computer Assistants and Demonstrators who were granted promotional quota in respective post, belong to a teaching cadre, as they impart instructions to the students and category of petitioners is not engaged in teaching profile. Respondents further have taken a ground that the post in question is to be filled up as per the norms prescribed by All India Council for Teacher Education (AICTE) and there is no scope of lateral entry to the post.
4. I have heard learned counsel for the parties and perused the pleadings.
5. It is one of the pleas of the petitioners, that since they possess master's degrees in different subjects, they are entitled to be included in the feeder cadre for the post of Lecturers (Applied Sciences and Humanities). Clause 7 of the Recruitment and Promotion Rules of the post, in which promotional quota is sought, provides as under:
-4- 2025:HHC:6444 "7. Minimum educational qualifications and other qualifications required for direct recruits:
Essential.- Ist Class Master's Degree in appropriate subject viz:
Physics, Chemistry, Mathematics or English from a recognized University."
6. Though, afore Rules, prescribe minimum educational qualification of a first class Master's degree in appropriate subject, but the recruitment to said post is to be done 100% by way of direct recruitment through a recruiting agency. Not to mention, post being a teaching post, appointment thereto is to govern by AICTE norms, thus, the plea of the petitioners for providing them some quota in appointment to the post, by way of promotion, does not appear to be feasible.
7. So far plea of the petitioners that similar benefits stands extended to the category of Computer Assistants and Demonstrators, is concerned, there are two factors viz. firstly, as per respondents, aforesaid category is involved in a job profile of imparting instructions to students and assisting Lecturers in teaching and secondly, incumbents of aforesaid category necessarily possess educational qualification in the field of computer, whereas, category of petitioners possess educational qualification in different subjects, therefore, providing them promotional quota may be impracticable for various reasons such as Hostel Superintendents holding different degrees are to be adjusted in their subjects and secondly, there may be incumbents, who do not possess such degree and thus, inter-se seniority of incumbents may be disturbed, which may further multiply the litigation.
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2. Learned counsel for the petitioners at this stage, drew attention of this court to Recruitment & Promotion Rules to the post of Lecturer Computer Engineer (Polytechnic) Class-1 (Gezetted) in the department of Technical Education, Vocational and Industrial Training, Himachal Pradesh wherein, Rules 10 and 11 (after amendment) provide as under:
"10. Method(s) of recruitment, whether by direct recruitment or by promotion, deputation, transfer and the percentage of post(s) to be filled in by various methods
-i) 90% by direct recruitment on a regular basis or by recruitment on contract basis as the case may be. The contract employee(s) will get emoluments as given in Column 15-A and will be governed by service conditions as specified in the said column.
ii) 10% by promotion failing which by direct recruitment on a regular basis or by recruitment on contract basis as the case may be. The Contract employees(s) will get emoluments as given in Column 15-A and will be governed by service conditions as specified in the said column.
11. In case of recruitment by promotion, deputation, transfer, grade for which promotion/deputation/transfer is to be made. By promotion from amongst the Computer Assistants and Console Operators having a recognized Bachelors' Degree in Computer Engineering or Computer Science & Engineering or Electronics Engineering or Electronics Engineering with Computer Engineering as one of the elective subject with eight year' regular service or regular combined with continuous adhoc service, if any, in the grade.
Provided that for the purpose of promotion a combined seniority list in respect of eligible Computer Assistants and Console Operators on the basis of length of service from their dates of appointments in their respective cadres without disturbing their unit-wise inter-se seniority shall be prepared."
8. Though, plea of petitioners, seeking parity with category of Computer Assistants and Demonstrators holds ground, but partly for the reason that said relief may become impracticable to be implemented, due to difference of qualifications and partly due to the fact that petitioners are not involved in teaching profile, same cannot be accepted.
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9. Another important aspect of the matter is that it is not in the domain of the Courts to issue directions to the Government to frame rules in a particular manner and it is for the respondents to find a way out to remove stagnation from the cadre of petitioners.
10. However, this court cannot shut its eyes to the plight of the petitioners, who admittedly are stagnating in one post for the last fifteen years and may continue so, lest some promotional avenue is opened for them by the respondents. Though, it is open for the petitioners to compete for the post in question, as per their educational qualification, by participating in selection process, but keeping in view the period of their engagement, this court can take judicial note of the fact, they might have crossed the age limit, debarring them from doing so.
11. Though, another plea has been taken by the respondents to refute the claim of the petitioners that to compensate the petitioners for lack of promotions, they are being granted benefits under career progressions schemes, amended from time to time, but same deserves outright rejection, as this benefit operates in case of those employees also, who have promotional avenues. Moreover, career progression schemes can only compensate employees for lack of timely promotions and cannot replace promotional avenues.
12. By now it is well settled that there should be at least two or three promotional avenue to every employee to improve public service and reduce/remove stagnation and avoid frustration amongst the employee.
-7- 2025:HHC:6444 Reliance in this regard is placed upon the judgment rendered by Hon'ble Apex Court in Food Corporation of India and others vs. Parshotam Das Bansal and others, (2008) 5 SCC100, wherein it has been categorically held that higher courts can issue directions to State/Employer to frame a scheme for providing promotional avenues to these categories, who have been deprived of this privilege. In Satyanarayana and others versus S. Purushotham and others, (2008) 5 SCC 416, Hon'ble Apex Court reiterated that purpose of promotion is to remove stagnation and avoid frustration amongst the employees.
13. Reliance is also placed upon the judgment rendered by Hon'ble Apex Court in State of Tripura and others versus K.K.Roy, (2004) 9 Supreme Court Cases 65, wherein it came to be held that State cannot escape from its constitutional obligation and take a stand that the employee accepted the offer of appointment knowing well that there was no avenue for promotion. The relevant para Nos. 5 and 6 of aforesaid judgment are as under:-
" 5. "...Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers..."
6. It is not a case where there existed an avenue for promotion. It is also not a case where the State intended to make amendments in the promotional policy. The appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondent
-8- 2025:HHC:6444 having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue of appointment, he cannot resile therefrom. It is not a case where the principles of estoppel or waiver should be applied having regard to the constitutional functions of the State. It is not disputed that the other States in India Union of India having regard to the recommendations made in this behalf by the Pay Commission introduced the scheme of Assured Career Promotion in terms whereof the incumbent of a post if not promoted within a period of 12 years is granted one higher scale of pay and another upon completion of 24 years if in the meanwhile he had not been promoted despite existence of promotional avenues. When questioned, the learned counsel appearing on behalf of the appellant, even could not point out that the State of Tripura has introduced such a scheme. We wonder as to why such a scheme was not introduced by the Appellant like the other States in India, and what impeded it from doing so. Promotion being a condition of service and having regard to the requirements thereof as has been pointed out by this Court in the decisions referred to hereinbefore, it was expected that the Appellant should have followed the said principle."
14. True, it is that in aforesaid case Hon'ble Apex Court held that no direction can be issued to the State to grant pay scale equivalent to particular pay scale and promotion, but certainly it can direct to take steps for framing scheme, so that no undue prejudice and hardships are caused to the employee.
15. In similar facts and circumstances, High Court of Chhattisgarh in case titled Rampravesh Pathak vs. State of Chhattisgarh, WPS No.4602 of 2021, decided on 6th September 2021, directed Department concerned to consider the prayer made on behalf of the petitioner in that case for
-9- 2025:HHC:6444 amendment of Recruitment and Promotion Rules, so that stagnation of the petitioner at one post is avoided.
16. At this juncture, learned Additional Advocate General, while making reference to judgment passed by the Hon'ble Apex Court in Dr. Ms. O.Z. Hussain v. Union of India and Ors. 1990 (Supp) Supreme Court Cases 688, argued that benefit of promotion cannot be claimed as a matter of right, however after having perused aforesaid judgment, this Court finds no application of the same as far as in the submission of learned Additional Advocate General, rather perusal of aforesaid judgment advances case of the petitioners.
17. In similar case and circumstances, Division Bench of this Court, in which I was also a Member, having taken note of aforesaid judgment passed by the Hon'ble Apex Court, passed judgment dated 21.12.2023, in CWPOA No. 6283 of 2020, titled Babu Ram Sharma v. State of Himachal Pradesh and Ors., thereby issuing direction to the respondents to consider the case for framing of Recruitment and Promotion Rules for the post of Data Entry Operator and to provide promotional channel to the petitioner. It would be apt to take note of following paras of the afore judgment, which read as under:
"24. Otherwise also, respondents cannot deny creating promotional avenues for the petitioner having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. Besides aforesaid constitutional obligations, the respondent cannot take a stand that the petitioner accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue for
- 10 - 2025:HHC:6444 promotion. In plethora of judgments, it has been held by Hon'ble Apex Court that when employee has been denied an opportunity of promotion for long years on the ground that he fell within the category of employees, excluded from promotional prospects, the superior court will have the jurisdiction to issue necessary direction. It has been repeatedly held that every management must provide realistic opportunities for promising employees to move upward because organization which fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale and ineffectual performance, among both, nonmanagerial employees and their supervisors.
25. Since, it is not in dispute that respondent-State accorded approval for conversion of post of Data Entry Operator to Clerk in the Labour and Employment Department vide Notification dated 20.07.2006(Annexure A-14), prayer made on behalf of the petitioner otherwise deserves to be considered and allowed by the Department because if denied, would amount to infringement of Article 14 of the Constitution of India. Reliance in this regard, judgment rendered by Hon'ble Apex Court in Dr. Ms. O.Z. Hussain Versus Union of India, 1990(Supp) Supreme Court Cases 688, wherein it has been held as under:-
"7.This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public serv- ice and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its
- 11 - 2025:HHC:6444 members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A' category scientists in the non-medical wing of the Directorate."
26. Consequently, in view of detailed discussion made hereinabove as well as law taken into consideration, we find merit in the present petition and accordingly same is disposed of. Respondents are directed to consider the case for framing of Recruitment and Promotion Rules for the post of Data Entry Operator and to provide promotional channel to the petitioner. However, in case the respondents feel incapacitated to do so, for the reason that the cadre of Data Entry Operators is a 'dying cadre', respondents are directed to consider the case for conversion of the posts of Data Entry Operators to those of Clerks or Clerks-cum-Data Entry Operators, so that the petitioner is not compelled to stagnate on one post. Since the petitioner has been fighting for his rightful claim for a considerable time, this Court hopes and trusts that the needful in terms of the extant directions, shall be done expeditiously, preferably within a period of six weeks."
18. No doubt, while exercising power under Article 226, this Constitutional Court cannot issue mandamus directing the State to amend or frame Rules in a particular fashion, since power to frame/amend rules vests with Government, but having taken note of stagnation prevalent in the cadre of petitioners and law on the subject, this Court can certainly direct respondents to create promotional avenues to the cadre of Hostel Superintendents by creating appropriate number of higher posts.
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19. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, present petition is disposed of by directing the respondents to re-consider the matter and take steps for creation of promotional avenues for the cadre of Hostel Superintendents, by creating higher posts or by upgrading existing posts of Hostel Superintendents, so that the incumbents of said cadre get at least one promotion in their service career. At the same time, respondents shall be at liberty that, if feasible, they may consider amending Recruitment and Promotion Rules for the post of Lecturer (Applied Sciences and Humanities) by providing promotional quota, if feasible.
20. Keeping in view the period of stagnation of petitioners and the fact that in the prevailing situation, they will not get even a single promotion, this court hopes that the respondents would take a positive and timely action in the matter.
The petition stands disposed of in the afore terms, alongwith all pending applications.
(Sandeep Sharma), Judge March 20, 2025 manjit