Sh. Man Singh vs R. Santhakumari Velusamy And ...
2021 Latest Caselaw 5609 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

ON THE 7th DAY OF DECEMBER 2021

.

BEFORE

HON'BLE MS. JUSTICE JYOTSNA REWAL DUA

CIVIL WRIT PETITION (ORIGINAL APPLICATION) NOS. 6450 AND 5342 of 2019

Between:-

1. CWPOA No. 6450 OF 2019

SH. MAN SINGH S/O LATE SH. GOVIND RAM,

R/O VILLAGE CHAILI, P.O.MEHLI, TEHSIL AND DISTRICT SHIMLA, PRESENTLY WORKING AS SENIOR ASSISTANT IN ECONOMIC AND STATISTICS

DEPARTMENT HIMACHAL PRADESH, PRESENTLY ON DEPUTATION IN THE OFFICE OF ADG OF POLICE (SV&ACB) H.P. SHIMLA-2.

.....PETITIONER (BY MS. KIRAN DHIMAN, ADVOCATE)

AND

1. STATE OF HIMACHAL PRADESH THROUGH ITS PRINCIPAL SECRETARY (ECONOMICS AND STATISTICS) TO THE GOVT. OF H.P.

SHIMLA-2.

2. DIRECTOR, ECONOMIC ADVISOR, ECONOMIC AND STATISTICS DEPARTMENT HIMACHAL PRADESH, KASUMPTI SHIMLA-9.

3. THE ADDITIONAL DIRECTOR GENERAL OF POLICE, SV & ACB, POLICE HEADQUARTERS, SHIMLA-2.

4. KUMARI NEELAM PATIAL (SPDTT. GRADE-II), C/O DIRECTOR, ECONOMIC ADVISOR, ECONOMIC AND STATISTICS DEPARTMENT

.

HIMACHAL PRADESH, KASUMPTI SHIMLA-9,H.P.

.....RESPONDENTS

(SH. ASHWANI SHARMA, ADDITIONAL ADVOCATE GENERAL WITH SH. VIKRANT CHANDEL DEPUTY ADVOCATE GENERAL AND SH. SUNNY DHATWALAI, ASSISTANT ADVOCATE GENERAL, FOR R-1 TO R-3,

SMT. RANJANA PARMAR, SENIOR ADVOCATE WITH SH. KARAN SINGH PARMAR, ADVOCATE, FOR R-4)

2. CWPOA No. 5342 OF 2019

NEELAM PATIAL, SUPERINTENDENT GRADE-II OFFICE OF DIRECTORATE OF ECONOMICS AND STATISTICS DEPARTMENT, SHIMLA-9 .....PETITIONER

(BY SMT. RANJANA PARMAR, SENIOR ADVOCATE WITH SH. KARAN SINGH PARMAR, ADVOCATE)

AND

1. STATE OF HIMACHAL PRADESH THROUGH SECRETARY (ECONOMICS & STATISTICS) TO THE

GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.

2. ECONOMIC ADVISOR, GOVERNMENT OF HIMACHAL PRADESH, SHIMLA.

3. MAN SINGH S/O SHRI GOVIND RAM, R/O VILLAGE CHAILI, P.O.MEHLI, DISTRICT SHIMLA, H.P.

PRESENTLY ON DEPUTATION IN THE OFFICE OF ADG OF POLICE (SV&ACB), SHIMLA.

.....RESPONDENTS

(SH. ASHWANI SHARMA, ADDITIONAL ADVOCATE GENERAL WITH SH. VIKRANT CHANDEL DEPUTY ADVOCATE GENERAL

.

AND SH. SUNNY DHATWALIA, ASSISTANT ADVOCATE GENERAL, FOR R-1 AND R-2,

MS. KIRAN DHIMAN, ADVOCATE, FOR R-3)

WHETHER APPROVED FOR REPORTING? YES.

_______________________________________________________

These petitions coming on for hearing this day, the

Court passed the following:

r ORDER

Whether post of Superintendent Grade-II against

which respondent No. 4 (Neelam Patial) was promoted on

31.10.2014 fell at roster point No. 5 or 7 of the 13 point roster

followed by the respondents, is the question to be determined in

these two petitions. In case the post in question fell at roster

point No. 7, then it was to be filled up by promotion from an

eligible person belonging to scheduled caste category. In that

eventuality, the petitioner in CWPOA No. 6450 of 2019 (Man

Singh) would succeed. However, if it was roster point No. 5,

then promotion of respondent No. 4 (petitioner in CWPOA No.

5342 of 2019) as Superintendent Grade-II on 31.10.2014

belonging to general category would be saved. Both these writ

petitions involve overlapping facts and common issues, hence,

are taken up together for decision. For convenience, facts and

documents from CWPOA No. 6450 of 2019 are being referred

.

hereinafter.

2. Facts

2(i) The petitioner (Man Singh) was promoted to the

post of Senior Assistant in the year 1999. The next promotional

Grade-II.

r to post from the post of Senior Assistant is that of Superintendent

2(ii) Admittedly, the respondents are following 13 point

roster for filling up the posts of Superintendent Grade-II, which

is a cadre consisting of total two posts. It is not in dispute that

5th post as per 13 point roster is to go to an eligible person

belonging to general category, whereas the 7 th post as per the

roster has to go to an eligible person belonging to scheduled

caste category.

2(iii) A post of Superintendent Grade-II became available

in the respondent department on 11.9.2014. The respondents

treated this post at roster point No. 5. The Departmental

Promotion Committee (in short 'DPC') was convened on

17.9.2014 for filling up this vacancy. The DPC recommended

name of respondent No. 4 belonging to general category for

promotion to the post of Superintendent Grade-II. The

recommendations were implemented by the respondents.

.

Respondent No. 4 was accordingly promoted as Superintendent

Grade-II on 31.10.2014.

2(iv) Aggrieved against the promotion of respondent No.

4 as Superintendent Grade-II, the petitioner preferred this

petition on 23.4.2015 for the following substantive reliefs:-

"i) That the Office Order dated 31.10.2014 (Annexure A-5)

whereby the private respondent has been promoted to the

post of Supdtt. Grade-II may kindly be quashed and set aside.

ii) That the respondents may further be directed to consider the case of applicant for promotion to the post of Supdtt. Grade-II and promote him to the post of Supdtt. Grade-II."

The case put up by the petitioner is that the vacancy

which became available on 11.9.2014 fell at roster point No. 7

and was thus reserved for candidate belonging to scheduled

caste category. That the petitioner was an eligible feeder cadre

personnel belonging to scheduled caste category and was

required to be considered for promotion to the post of

Superintendent Grade-II.

2(v) In reply filed to the petition, respondent-State

conceded its mistake in having wrongly treated the vacancy in

.

question at roster point No. 5. It was submitted that the vacant

post in question actually fell at roster point No. 7 and therefore,

eligible person belonging to scheduled caste category was

required to be considered for promotion against the said roster

point.

During pendency of the petition, the respondents

convened review meeting of the DPC on 16.6.2015.

r The

review DPC concluded that the post in question actually fell at

roster point No. 7 and not at roster point No. 5. Petitioner Man

Singh belonging to scheduled caste cateory was recommended

for promotion against this roster point No. 7. The DPC also

recommended that "the DPC held in 2014 in which the name of

Km. Neelam Patial is recommended against point No. 5

erroneously is set aside after reviewing the DPC and her

demotion to her substantive post of Sr. Assistant be done as

point No. 7 is meant Schedules Caste as per 13 point roster of

reservation. Before issuing demotion orders, her personal

hearing be fixed by the Appointing authority and decision be

conveyed as per instructions as referred in the Memorandum."

2(vi) Based upon the above recommendations of the

review DPC, notice was issued by the respondent department

.

to respondent No. 4 on 16.6.2015 for giving her an opportunity

of hearing in this regard. At this stage, respondent No. 4 filed

CWPOA No. 5342 of 2019 assailing the notice dated

16.6.2015. Substantive relief prayed by respondent No. 4 in her

petition, runs as under:

"i) r to That the impugned communication dated 16 th June, 2015 may kindly be quashed and set aside and both the

Original Applications may be tagged together with and may be heard at an early date in the interest of justice and fair play."

Pursuant to a status quo order passed by learned

erstwhile H.P. Administrative Tribunal on 26.6.2015 in CWPOA

No. 5342 of 2019, respondent No. 4 continued to work as

Superintendent Grade-II in terms of her earlier promotion dated

31.10.2014. In view of the interim order, no further action was

taken by the respondent department on the basis of

recommendations of review DPC dated 16.6.2015 and the

notice dated 16.6.2015.

2(vii) Man Singh (petitioner in CWPOA No. 6450 of 2019)

and Neelam Patial (petitioner in CWPOA No 5342 of 2019)

.

superannuated on 31.3.2016.

3. I have heard learned counsel for the petitioners in

both the petitions and have also heard learned Additional

Advocate General and gone through the case files as well as

hearing of the case.

r to the record produced by the respondent-department during

4. Contentions

4(i) Case of petitioner Man Singh is that six incumbents

had already been promoted to the post of Superintendent

Grade-II prior to 11.9.2014. Names of these six incumbents are

as under:

A. Sh. S.N. Vij B. Smt. Nirmal

C. Sh. B.R. Verma D. Smt. Aruna Sood E. Sh. Rajesh Sawant F. Sh. Ramesh Thakur

Simple case of petitioner Man Singh is that since six

persons had already been promoted as Superintendent Grade-

II, therefore, the next vacancy in the cadre of Superintendent

Grade-II which became available on 11.9.2014 fell at roster

point No. 7. In terms of 13 point roster which is admittedly

.

applicable in the instant case, the 7th vacancy had to be filled in

by promotion of an eligible Senior Assistant belonging to

Scheduled Caste category. The petitioner Man Singh serving

as Senior Assistant w.e.f. the year 1999 was eligible to be

considered for promotion to the post of Superintendent

Grade-II. He belongs to scheduled caste category, therefore,

was required to be considered and promoted as Superintendent

Grade-II.

4(ii) The case of the petitioner Neelam Patial in CWPOA

No. 5342 of 2019 is that Shri S.N. Vij and Smt. Nirmal [at points

A & B of para 4(i) above] were promoted as Superintendent

Grade-II against the up-graded posts. Therefore, reservation

roster cannot be applied qua these two upgraded/created

posts. According to petitioner Neelam Patial, the roster will

have to be applied only from Shri B.R. Verma onwards [at point

C of para 4(i) above]. In case the roster is applied from Shri

B.R. Verma onwards, then the vacancy which became available

on 11.9.2014 would fall at roster point No. 5. Admittedly,

vacancy at roster point No. 5 had to be filled-in by promotion of

a eligible person belonging to general category. Another

submission made on behalf of petitioner Neelam Patial is that at

.

the time of up-gradation of posts held by Shri S.N. Vij and Smt.

Nirmal, the Recruitment and Promotion Rules (in short 'R&P

Rules') for the posts of Superintendent Grade-II had not been

finalized. The R&P Rules were finalized on 12.9.2008.

Therefore, 13 point roster cannot be applied to the posts which

were filled up prior to the finalization of the R & P Rules.

5. In my considered view, the petition filed by Man

Singh (CWPOA No. 6450 of 2019) deserves to be allowed and

CWPOA No. 5342 of 2019 (filed by Neelam Patial) deserves

dismissal for the following reasons:

5(i) On 1.10.2007 government accorded its sanction to

upgrade two posts of Senior Assistants in the respondent

department to Superintendent Grade-II in the pay scale of Rs.

6400-10640 with Grade pay of Rs. 4800/-. Shri S.N. Vij and

Smt. Nirmal were promoted on ahoc basis as Superintendent

Grade-II for a period of six months or earlier vide office order

dated 4.1.2008. Later a meeting of DPC was convened for

filling-in the upgraded posts. The memorandum before the

DPC stated that the posts were upgraded by the government

and the administrative department & the department of

Personnel were of the opinion that there was no requirement to

.

look into the R & P Rules at that time. That the posts being

'non-selection posts' will be filled up by promoting the senior

most officials and 13 point roster of reservation will be applied

whereunder point Nos. 1 and 2 are unreserved. On the basis

of recommendations of DPC held on 9.4.2008, the ad-hoc

promotions of these two officials (Sh. S.N. Vij and Smt. Nirmal

Thakur) were regularized vide office order dated 11.4.2008.

Subsequently, the R & P Rules for the posts of Superintendent

Grade-II were notified on 12.9.2008. In terms of these Rules,

the cadre of Superintendent Grade-II consisted of two posts

which were to be filled up 100% by promotion from amongst

Senior Assistants with six years regular service or regular

combined with continuous ad-hoc service in the grade.

5(ii) After retirement of Shri S.N. Vij & Smt. Nirmal, Sh.

B.R. Sharma & Smt. Aruna Sood and thereafter Sh. Rajesh

Sawant & Sh. Ramesh Thakur were promoted to the posts of

Superintendent Grade-II. Total six incumbents have been

promoted as Superintendent Grade-II. Whether the roster would

be applicable against the upgraded post of Superintendent

Grade-II or not is a question which has been highlighted by

learned counsel for the petitioner Neelam Patial. Hon'ble Apex

.

Court in (2011) 9 SCC 510, titled Bharat Sanchar Nigam

Limited versus R. Santhakumari Velusamy and Others

elaborated the distinction between 'upgradation' and

'promotion'. It was held that if there is mere up-gradation of

posts, then the reservation provisions would not apply but in

case there is promotion, then the reservation provisions would

be applicable. The Apex Court further held that upgradation

merely confers a financial benefit by raising the scale of pay of

the post without there being movement from a lower position to

a higher position. In an upgradation, the candidate continues to

hold the same post without any change in the duties and

responsibility. Where the process is an upgradation

simplicitor, there is no need to apply the rules of reservation but

where the upgradation involves a selection process and is

therefore a promotion, the rules of reservation will apply. It was

also held by the Hon'ble Apex Court that where there is

restructuring of some cadres resulting in creation of additional

posts and filling of those vacancies by those who satisfy the

conditions of eligibility which includes a minimum period of

service will attract rules of reservation. The relevant paras

encapsulating the principles formulated by the Hon'ble Apex

.

Court relating to promotion and upgradation are as under:

"26. In view of the decisions in Dayaram Asanand

Gursahani, Fateh Chand Soni and Ram Prasad, the position that emerges is that even where the upgradation does not involve appointment to a different or higher post,

but is as a result of a promotional process involving selection, then the principles of reservation are attracted.

29. On a careful analysis of the principles relating to

promotion and upgradation in the light of the aforesaid

decisions, the following principles emerge :

(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to higher

position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a

higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving

to a different post. But the mere fact that both - that is advancement to a higher position and advancement to

a higher pay scale - are described by the common term 'promotion', does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.

(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.

(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be

.

referred to as upgradation or promotion to a higher pay

scale. But there is still difference between the two. Where the advancement to a higher pay-scale without

change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay-scale without change of

post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a

process of selection, as contrasted from an upgradation

simplicitor can be said to be a promotion in its wider sense that is advancement to a higher pay scale.

(iv) Generally, upgradation relates to and applies to all

positions in a category, who have completed a minimum period of service. Upgradation, can also be restricted to

a percentage of posts in a cadre with reference to seniority (instead of being made available to all

employees in the category) and it will still be an upgradation simplicitor. But if there is a process of

selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simplicitor. Where the upgradation involves a process of selection criteria

similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation.

.

(v) Where the process is an upgradation simplicitor, there is no need to apply the rules of reservation. But where the upgradation involves selection process and is

therefore a promotion, the rules of reservation will apply.

(vi) Where there is a restructuring of some cadres

resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service,

will attract the rules of reservation. On the other hand,

where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to

provide relief against stagnation, the said process does not invite reservation."

The above judgment was relied upon in (2020) 9

SCC 208, titled Rama Nand and Others versus Chief

Secretary, Government (NCT of Delhi) and Another. In

Rama Nand's case the Apex Court also considered 2008 (9)

SCC 242, titled Union of India versus Pushpa Rani, wherein it

was held that the scheme in question (therein) provided for

restructuring exercise resulting in creation of additional posts in

most of the cadres and there was a conscious decision to fill-up

such posts by promotion from all eligible and suitable

employees and therefore, it was a case of promotion and

consequently, reservation rules were held to be applicable. The

.

relevant paras from the judgment in Rama Nand's case are as

under:

"14. The posts in Pushpa Rani was held to be promotion for the reasons set out in para 28.

"28. In Pushpa Rani, this Court while considering a scheme contained in the Letter dated 9-10-2003 held that it provided for a restructuring exercise resulting in creation of additional posts in most of the cadres and

there was a conscious decision to fill up such posts

by promotion from all eligible and suitable employees and, therefore, it was a case of promotion and, consequently, the reservation rules were applicable."

18. The reasons for coming to this conclusion are based on the principles set out in the BSNL case. No doubt,

sometimes there is a fine distinction which arises in such

cases, but, a holistic view has to be taken considering the factual matrix of each case. The consequence of reorganisation of the cadre resulted in not only a mere re-

description of the post but also a much higher pay scale being granted to the appellants based on an element of selection criteria. We say so as, at the threshold itself, there is a requirement of a minimum 5 years of service. Thus, all Telephone Operators would not automatically be eligible for the new post. Undoubtedly, the financial emoluments, as stated above, are much higher. The third important aspect is that the appellants had to go through the rigorous of a specialised training. All these cannot be stated to be only an exercise of merely re- description or

reorganisation of the cadre. On applying the test in BSNL case as per sub-para (i) of para 29, promotion may include

.

an advancement to a higher pay scale without moving to a

different post. In the present case, there is a re-description of the post based on higher pay scale and a specialised

training. It is not a case covered by sub-para (iii), as canvassed by learned counsel for the appellants, where the higher pay scale is available to everyone who satisfies the eligibility condition without undergoing any process of

selection. The training and the benchmark of 5 years of service itself involve an element of selection process. Similarly, it is not as if the requirement is only a minimum of

5 years of service by itself, so as to cover it under sub-para

(iv)."

5(iii) In the instant case two posts of Superintendent

Grade-II were upgraded/created in the respondent department

in the year 2007. Against these two upgraded posts, Senior

Assistants Shri S.N. Vij and Smt. Nirmal Thakur were promoted

on ad-hoc basis on 4.1.2008. Their ad-hoc promotions were

regularized on 11.4.2008 on the basis of recommendations of

the DPC. The posts of Superintendent Grade-II involve higher

responsibilities and duties than that of Senior Assistant. Post of

Senior Assistant is Class-III post with grade pay of Rs. 4200/-,

whereas post of Superintendent Grade-II is Class-II post with

grade pay of Rs. 4800/-. The posts of Superintendent Grade-II

are 'non-selection' posts. Accordingly, Sh. S.N. Vij & Smt.

Nirmal Thakur were promoted against these two

upgraded/created posts of Superintendent Grade-II initially on

.

ad-hoc basis & later on regular basis. The 13 point reservation

roster was applied while filling up the upgraded posts. Point

Nos. 1 & 2 of this roster were unreserved and were accordingly

filled in. Even after framing of R&P Rules the nature of the

posts remains as 'non-selection'. The senior most Senior

Assistants belonging to general category were, therefore,

considered against the upgraded/created posts of

Superintendent Grade-II. It is on that basis that Shri S.N. Vij

and Smt. Nirmal Thakur were promoted on ad-hoc basis on

4.1.2008 and later on regularized as such on 11.4.2008. In

accordance with the principles formulated by the Hon'ble Apex

Court in above extracted judgments, it has to be construed that

Shri S.N. Vij and Smt. Nirmal Thakur were actually promoted

as Superintendent Grade-II. The upgraded posts carried higher

emoluments and higher responsibilities. These posts were

Class-II posts. Since it was a case of promotions of Shri S.N.

Vij and Smt. Nirmal Thakur, therefore, reservation roster had to

be applied to the posts occupied by them. On applying the

reservation roster from the first roster point occupied by Shri

S.N. Vij, the vacancy which became available on 11.9.2014

would fall at roster point No. 7.

.

Respondents No. 1 to 3 realized their mistake in

wrongly considering this vacancy at roster point No. 5 and

thereafter correctly took steps for rectification of the mistake

committed by them by holding the review DPC on 16.6.2015.

Because of the status quo order passed in the petition filed by

respondent Neelam Patial, no further action could be taken in

the matter. Neelam Patial continued to work as Superintendent

Grade-II till her retirement on 31.3.2016. However, as held

earlier the post in question which became available on

11.9.2014 fell at roster point No. 7 of the 13 point roster and,

therefore, was required to be filled in by promotion of an eligible

person from the feeder category belonging to scheduled caste

category. The review meeting of DPC held on 16.6.2015

correctly recommended for rectification of mistake.

5(iv) For all the aforesaid reasons, CWPOA No. 6450 of

2019 is allowed and CWPOA No. 5342 of 2019 is dismissed.

Following directions are further issued in the matter:

a) Respondents/competent authority will implement the

recommendations of the review DPC held on 16.6.2015 within a

period of three weeks from today. In the review DPC, Man

Singh (petitioner in CWPOA No. 6450 of 2019) has been

.

recommended for promotion as Superintendent Grade-II

against vacancy which became available on 11.9.2014,

therefore, promotion order in accordance with law shall be

issued in his favour within this period. Petitioner Man Singh has

retired on 31.3.2016 without discharging the duties as

Superintendent Grade-II, therefore, consequential benefits due

to him shall be worked out notionally from the date of his

promotion till the date of his retirement. However, all actual

monetary benefits in form of retiral dues and pension etc. shall

be payable to him w.e.f. date of his retirement i.e. 31.3.2016.

This exercise be also completed within the aforesaid period of

three weeks.

b) Since pursuant to an interim order passed in

CWPOA No. 5342 of 2019, Neelam Patial (petitioner in

CWPOA No. 5342 of 2019) had worked as Superintendent

Grade-II w.e.f. 31.10.2014 till her retirement on 31.3.2016,

therefore, emoluments paid to her as Superintendent Grade-II

during this period shall not be recovered from her. However, on

her superannuation, she would get the benefits (retiral dues

pension etc.) admissible to her in accordance with

recommendations of the review DPC dated 16.6.2015.

.

Both the writ petitions are disposed of in above

terms. Pending miscellaneous application(s), if any, shall also

stand disposed of.

    7th December, 2021
       (vs)
                         r         to           Jyotsna Rewal Dua
                                                     Judge