Punjab-Haryana High Court
Bhag Mall vs State Of Punjab And Others on 24 April, 2024
Neutral Citation No:=2024:PHHC:055934
CWP-14124-2018 (O&M) 2024:PHHC:055934
-1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
228
WP-14124-2018 (O&M)
C
Date of decision: 24.04.2024
hag Mall (now deceased)
B
through his legal heirs ...Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY ***** Present : Mr. Vivek Sharma, Advocate for the petitioner. Mr. Swapan Shorey, DAG, Punjab. ***** AMAN CHAUDHARY, J. 1. The prayer made in the present petition is for quashing the reply dated04.10.2017,AnnexureP-9,tothelegalnoticeofthepetitionerandgranting himpromotiontothepostofSuperintendentGrade-I,aswellfurtherprayertofix pension,releasearrearsofpayandpension,withconsequentialbenefitsalongwith penal interest @ 18%. 2. Learnedcounselwouldcontendthatthepetitioner,workingasSenior Assistant since 14.03.1987, was eligible for promotion to the post of Superintendent Grade-I since September, 2014, with no departmental/ police/ vigilance inquiry pending against himasperNotingdated23.09.2014,Annexure P-2. DPC meeting to consider his promotion was fixed for 17.11.2014, wherein the following observations were made: " Regarding para 'C' of Sr. no.2, it is submitted that Sh. Bhag Mal, Senior Assistant was promoted vide Endst. No. Sorts-SS-2-D.A.3-2002/9765-9814, Dated 13.09.2002 as Senior Assistant. Hence, the Storekeeper-cum- Accountant whichhasbeenmentionedinAgendaNote,thesamehasbeen given to this postofSeniorAssistantbythedepartmentinthe district.Hence,whileconsideringtheconcernedemployeeonly asSeniorAssistantitwouldbeappropriatetopromotehimfor the post of Superintendent Grade-1." 1 of 5 ::: Downloaded on - 11-05-2024 01:24:08 ::: Neutral Citation No:=2024:PHHC:055934 CWP-14124-2018 (O&M) 2024:PHHC:055934 -2- 3. However it was adjourned time and again for reasons best known, being finally scheduled for 26.03.2015, but still not held. Thereafter, on 29.04.2015,AnnexureP-5,theSpecialSecretarysoughtinformationfromDirector Sports,Punjabastowhetheranyextensioningovernmentservicehadbeengiven to the petitioner, whereafter, he retired on 30.04.2015, without having been promoted. 4. Onthecontrary,learnedStatecounselsubmitsthatthemeetingcould not take place for administrative reasons and since the petitioner has retired, no relief can be granted. 5. Heard learned counsel on either side. 6. In ordertoproceedtoadjudicatethepresentcase,areferencecanbe made to Chaman Lal Lakhanpal vs. UPSC, 1999(1) SCT 175, wherein non-considerationforpromotionwaschallengedbeforetheDivisionBenchofthis Court, aggrieved of the order passed by the Central AdministrativeTribunal,the petitioner therein had submitted his eligibility for consideration forpromotionto theIndianAdministrativeServiceintheyear1987.TheDPCmeetingof1992,to be constituted under the Indian Administrative Service (Appointment by Promotion) Regulations, 1995, was not held, even though via prior meeting the persons senior to him wereconsidered.Subsequentmeetingsintheyear1994-95 too were adjourned, asaresult,hisconsiderationdidnotmaterialise,thereby,the Tribunal on that premisethatpetitionerwastoretireon30.09.1998fromservice, denied to give any direction that by the time, it would be held, he would stand retired. While allowing the petition, it was observed thus: " 5.Itistheadmittedpositionthatthepetitionerwaseligibleto be consideredforpromotionintheyear1994-95.Itisalsonot disputed that his claim has not been considered. Thus, the petitioner, even if he was approaching the date of retirement whenthematterwaspendingbeforetheTribunal,hadarightto beconsideredwitheffectfromtheduedateandonbeingfound suitable, he could be fictionally granted the relief which had 2 of 5 ::: Downloaded on - 11-05-2024 01:24:09 ::: Neutral Citation No:=2024:PHHC:055934 CWP-14124-2018 (O&M) 2024:PHHC:055934 -3- b een denied to him for no fault of his. The relief could not denied to him merely because a statutory authority viz. the committee as constituted under the Indian Administrative Service (Appointment by Promotion) Regulations, 1995 had not met. The respondents cannot be permitted to take advantage of their own wrong. By sleeping over the matter, theycannotdefeattherightsofacitizenavailabletohimunder the Constitution as well as the statutory provisions of the regulations. 6.Therighttoequalityofopportunityinmattersofpromotion is guaranteed under Article 16 of the Constitution. The right cannot be stifled by an arbitrary failure to perform the duty imposedbystatutoryregulations.Bymerelychoosingtoavoid the meeting, a citizen cannot be denied the right to be considered. xx xx xx 9. It was then urged that the petitioner has since retired from service. Even this cannot be a groundforrefusingtoconsider his claim. The right to be considered had accrued in the year 1994-95. The respondents had failed to consider his claim. They had not discharged their duty as enjoined uponthemby law.Thewrongdonetothepetitionercanonlyberemediedby onemethodviz.directingtherespondentstodotheneedfulon thehypothesisthathewasinserviceattherelevanttime.Ifthe petitionerisfoundsuitableforinclusionintheselectlistandif histurnforappointmentcomesagainstanavailablepostinthe promotion quota, he will be deemed to have been promoted witheffectfromtheduedate.Consequentialreliefsshallensue in accordance with the rules." 7. It would be worthwhile to alsorefertoPremKumarAggarwalvs. StateofPunjabandothers,LPA-1703-2023,decidedon30.01.2024,whereinthe appellant was eligible for promotion to the post of District Treasury Officer, however he retired without having been considered, due to non-convenance of DPC,despitenumerousInstructionsbytheGovernmentofPunjabandsubmission ofseveralrepresentationsforexpeditingthesame.Therespondentsweredirected to consider him for notional promotion to the said post for pensionary benefits. 8. AgainfulreferencemaybemadetoCWP-5148-2020,VijayKumar Bansal vs. State of Punjab, decided on 13.01.2023, wherein the notional promotion was granted owing to the factum that the proposalforpromotionwas made whileinregularservice,howeverDPChadnotconvenedandheultimately 3 of 5 ::: Downloaded on - 11-05-2024 01:24:09 ::: Neutral Citation No:=2024:PHHC:055934 CWP-14124-2018 (O&M) 2024:PHHC:055934 -4- retired.Thereafter,itwasdeterminedthathewasunfairlydeniedthebenefitonthe premise of him that the petitioner retired prior to the approval by the Department. 9. Trite tosaythattheStatemustactreasonablyandfairly.Hon'blethe Supreme Court in State of Maharashtra vs. Jagannath Achyut Karandikar, 1989 Supp (1) SCC 393, had observed that due to the faulty conduct of the Department, no employee should be forced to endure hardships. 10. The Constitution Bench of Hon'ble the Supreme Court while weighing on the importance of Articles14and16(1)oftheConstitutionofIndia in Ajit Singh vs. State of Punjab (1999)7SCC209,observedthatifeligibility andcriteriaforpromotionaresatisfied,howevertherestillisnoconsiderationfor the same, then there is clear violation of fundamental right. A similar legal discourse was reiterated in Ajay Kumar Shukla and Ors. vs. Arvind Rai and Ors,2021 SCC OnLine SC 1195. 11. The legitimate expectation of an employee of promotion in one's service career, which in case, he is unable to obtain, on account ofinactionofthe State, whileinthemeantime,heunfortunatelyretires,withoutaformaltagthereof, would leave him with a brooding sense of injustice. 12. As it emerges that the petitioner being eligible was recommended for consideration for promotion to SuperintendentGrade-I,however,theDPCmeeting was not conducted in a timely manner, either due to blatant dithering by the respondents or owing to theirlackadaisicalapproach,heintheinterregnumhaving retiredonattainingtheageofsuperannuation,thus,hecannotbedeprivedofthathe dulydeserved.ThecontentionoflearnedStatecounselcannotbecountenancedthat, nowthepetitionerhassinceretired,hecannotbegrantedanybenefit,for,inthathe wasnotatfaultandtherespondentsarenotpermittedtotakeadvantageoftheirown illegalaction.Notwithstanding,henolongerbeinginservice,inallfairnessandasa 4 of 5 ::: Downloaded on - 11-05-2024 01:24:09 ::: Neutral Citation No:=2024:PHHC:055934 CWP-14124-2018 (O&M) 2024:PHHC:055934 -5- matterofprincipleaslaiddownintheaboundingjudicialpronouncement,thisCourt rules in his favour. 13. Incumulativeconsiderationoffactsandcircumstancesofthecase,the respondentstoconsiderthepetitionerforpromotionasSuperintendentGrade-Ifrom the due date, albeit on notional basis only for the purpose of pensionary benefits, within a period of two monthsfromwhenaweb-printofthisjudgmentisreceived by the competent authority. (AMAN CHAUDHARY) JUDGE 2 4.04.2024 Hemant hether speaking/reasoned W : es / No Y Whether reportable : Yes / No 5 of 5 ::: Downloaded on - 11-05-2024 01:24:09 :::