Ashwani Kumar vs State Of Himachal Pradesh And ...
2022 Latest Caselaw 9897 HP

                                        1

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                   CWP No. 5772 of 2021




                                                                         .
                                                  Decided on: 25.11.2022





       Ashwani Kumar                                              ... Petitioner





                                    Versus

       State of Himachal Pradesh and others                  ... Respondents





      Coram
     The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
     Whether approved for reporting?1 Yes


     For the petitioner:             Mr. J.L. Bhardwaj, Advocate

     For the respondents:            Mr. Sumesh Raj, Dinesh Thakur
                                     and
                                     Sanjeev Sood, Additional Advocate


                                     Generals, with Mr. Amit Kumar
                                     Dhumal,       Deputy     Advocate
                                     General, for    respondents No.




                                     1 to 3.
                                     Mr. Rajiv Rai, Advocate for





                                     respondent No. 4.





      Ajay Mohan Goel, Judge (Oral)

By way of this present writ petition, petitioner has

prayed for the following substantive reliefs:

i). That a writ in the nature of mandamus may

kindly be issued directing respondent No.1 to

accord the permission forthwith to adopt the

Whether reporters of Local Papers may be allowed to see the judgment?

Recruitment and Promotion Rules for the post the

post of Superintendent Grade-I as applicable to

.

the Government of Himachal Pradesh employees

and further to fill up the post;

ii) That the writ in the nature of mandamus may

kindly be issued directing the respondent No.3 to

promote the petitioner to the post of

Superintendent r Grade-I with effect from

01.03.2021 when the petitioner had become

eligible for promotion with all consequential

benefits such as seniority, increment, arrears

and interest @ 9% per annum may kindly be

ordered to be paid on the arrears from the date

the same fell due till its realization and justice be

done."

2. The case of the petitioner is that he was appointed

as a Clerk, on daily wage basis, with respondent No.4-Trust, in

terms of Annexure-A1, dated 22nd of December, 1998. His

services were regularized as a Clerk w.e.f. 10.07.1996.

Thereafter, he was promoted against the post of Senior Assistant

and further to the post of Superintendent Grade-II, on ad hoc

basis, vide Annexure P-3. The petitioner was promoted against

the post of Superintendent Grade-II on regular basis w.e.f.

01.01.2018. The contention of the petitioner is that the next

.

promotional post from the post of Superintendent Grade-II is

that of Superintendent Grade-I, however, in the absence of there

being any Recruitment and Promotion Rules in the Trust,

governing promotion to the said post, the petitioner despite

having completed the requisite number of years for being eligible

for promotion to the post of Superintendent Grade-I, in terms of

the Recruitment and Promotion Rules, which are generally

prevailing in the State of Himachal Pradesh, is being denied

promotion for want of the Recruitment and Promotion Rules. It is

further the contention of the petitioner that in the respondent-

Trust, one Junior Engineer, namely, Sh. Prem Chand Sharma,

was promoted to the post of Assistant Engineer despite the fact

that there were no Recruitment and Promotion Rules existing

with the respondent-Trust with regard to promotion to the said

post but by applying the analogy of the Recruitment and

Promotion Rules prevailing in the other departments of the

Government of Himachal Pradesh, where there exist the posts of

Junior Engineer as also the Assistant Engineer.

3. Mr. J.L. Bhardwaj, learned counsel for the petitioner

has argued that when the Junior Engineer serving in

respondent- Trust could have been promoted by applying the

Recruitment and Promotion Rules, which are prevailing in the

.

other departments of the Government of Himachal Pradesh,

then, the same yardstick had to be applied to the petitioner also

and as the rules in vogue are that a Superintendent Grade-II is

eligible for promotion against the post of Superintendent Grade-I

after completion of three years of service as such, a mandamus

be issued to the respondents to promote him against the post of

Superintendent Grade-I w.e.f 01.01.2021.

4. The petition is resisted by the respondent-State inter

alia on the ground that as Recruitment and Promotion Rules for

promotion to the post of Superintendent Grade-I were yet not

framed and were under consideration, therefore, the petition was

not maintainable and the same was liable to be dismissed.

5. Leaned Additional Advocate General, on the basis of

reply filed to the petition, has submitted that the matter with

regard to the framing of Recruitment and Promotion Rules for

the post of Superintendent Grade-I in the establishment of

respondent No.4-Trust, was under consideration with the

Government and as far as the analogy of a Junior Engineer

having been promoted to the post of Assistant Engineer was

concerned, this was done in lieu of the urgency to fill up the

vacant post of Assistant Engineer as the job of Assistant

Engineer is purely technical in nature and the services of

.

Assistant Engineer were required in the respondent-Trust for

execution of the work having been undertaken by the Trust. The

stand of respondent No.4 is also the same as that of the

respondent-State and the same is not being repeated for the

sake of brevity.

6. During the pendency of these proceedings, on 10th

November, 2022, the Court had passed the following order:

"Instructions in terms of order dated

14.10.2022, have been imparted to learned Additional

Advocate General who has handed over a copy

thereof to the Court, which is ordered to be taken on

record. A perusal of said instructions demonstrates

that the stand of the respondents-State is that the

Temple Trust has sent a proposal/recommendations

to amend the service Bye Laws, for approval of the

government on 7th August, 2022 and the promotion to

the post of Superintendent Grade-1, can be

considered after approval of the said Bye Laws.

Mr. J.L. Bhardwaj, learned Counsel for the

petitioner has submitted that in terms of Annexure P-

6, additional posts, including the post of Assistant

Engineer (Civil), was created in the respondent-Trust

.

which post was to be filled in by way of promotion.

Though till date, the Trust has not framed any service

conditions or promotion rules for filling up the said

post, yet, a Junior Engineer has been promoted

against said post, by invoking the conditions of

Recruitment and Promotion Rules which are prevailing

in departments of the State Government qua the post

of Assistant Engineer. He has further submitted that

whereas the post of Assistant Engineer was created

in the year 2018, the post of Superintendent Grade-1

was created in the year 2016, yet, the same analogy

was not applied by the respondents for filling up the

post of Superintendent Grade-1 by way of promotion,

which act of the respondents is arbitrary and

discriminatory.

Faced with this situation, learned Additional

Advocate General submitted that hearing of the case

be adjourned for next week to enable him to confirm

this aspect of the matter. As prayed for list, on

16.11.2022. On the said date, the case shall be heard

finally on merit."

.

7. Thereafter, when this case was listed on 22nd of

November 2022, the Court passed the following orde:

"Learned Additional Advocate General on the

basis of instructions so imparted, apprised the Court

that the Recruitment & Promotion Rules for the post

of Superintendent Grade1 stand framed.

           Be that    as it     may, the case is ordered to                 be

           listed   on 25.11.2022,    by   which        date,       learned

Additional Advocate General to have instructions in

terms of order dated 10.11.2022."

8. Today, on the strength of the instructions, which

have been imparted by the officers of the respondents, the Court

stands informed that though Sh. Prem Chand Sharma, Junior

Engineer (Civil), was promoted as Assistant Engineer on 1st

August, 2018, but it was his after completion of 29 years of

service as Junior Engineer. Similarly, it further has been

informed to the Court on the basis of the said instructions that

one Sh. Mohinder Singh, Draughtsman was also promoted to the

post of Head Draughtsman on 1st of August, 2018, but this was

also done as Sh. Mohinder Singh had completed 27 years of

service as a Draughtsman.

.

9. Learned Additional Advocate General has further

apprised the Court that the Deputy Commissioner-cum-

Commissioner Temple Trust has informed that whereas the

Chief Commissioner Temple-cum-Secretary (LAC), Government

of H.P. in terms of letter dated 31st October, 2022, has accorded

approval for adoption of Recruitment and Promotion Rules of

Superintendent Grade-I of H.P. Government for Sh. Naina Devi

Ji, Temple Trust, District Bilaspur H.P. and whereas Temple

Trust is undertaking the completion of all codal formalities in

respect of promotion of the petitioner to the post of

Superintendent Grade-I at the earliest, however, in the

meanwhile the Government of Himachal Pradesh vide

Notification dated 14th October, 2022, has taken over Sh. Shakti

Senior Secondary School, Sh. Naina Devi Ji alongwith staff

posted in the said School, and therefore, the petitioner, who is

presently posted in the School, will now have to opt as to

whether he wants to get absorbed with the Education

Department as Superintendent Grade-II or whether he wants to

gain the promotion against the post of Superintendent Grade-I in

respondent No.4-Trust.

10. Having heard learned counsel for the parties and

having gone through the pleadings as well as documents

.

appended therewith, as also instructions which have been

imparted by the officers concerned, though this Court is of the

considered view that no mandamus can be issued that the

petitioner be promoted against the post of Superintendent

Grade-I immediately after competition of three years of service as

Superintendent Grade-II, however, now in view of the fact that

decision has been taken for adoption of Recruitment and

Promotion Rules of the post of Superintendent Grade-I of the

Government of Hiamchal Pradesh for respondent No.4-Trust, it

is incumbent upon respondent No.4 to confer this promotion

upon the petitioner without any further delay. As far as the

absorption of the petitioner in the Department of Education is

concerned, at this juncture, when delay in his promotion, but

obvious, is on account of the non-decisiveness by the

respondents with regard to the framing/adoption of the

Recruitment and Promotion Rules qua the post of

Superintendent Grade-I, this omission on the part of the

respondents cannot act to the deterrence of the petitioner.

11. Accordingly, this writ petition is disposed of by

issuance of a direction to the respondents that after completion

of all codal formalities, the case of the petitioner be considered

for promotion against the post of Superintendent Grade-I latest

.

by 2nd December, 2022, and if found eligible for promotion, then

let said promotion be conferred upon the petitioner forthwith,

and thereafter, if the petitioner gives his option, then, he be

absorbed in the Department of Education, as Superintendent

Grade-I.

12. With these observations, the writ petition is disposed

of. Pending miscellaneous application(s), if any, also stand

disposed of accordingly.

13. As prayed for instruction dated 24th November, 2022

issued by SDM (Sh. Naina Devi Ji) cum-Chairman Temple Trust,

Sh. Naina Deviji to Sh. Rajiv Rai Advocate and another one

issued by Deputy Commissioner-cum-Commissioner (Temple),

Temple Trust, Shree Naina Deviji, District Bilaspur, H.P. of the

same date shall form part of the record.

Downloaded copy.

                                            (Ajay Mohan Goel),
22nd November, 2022                              Judge.
      (narender)