Reserved On: 12.09.2023 vs State Of H.P. & Others
2023 Latest Caselaw 17356 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 8185 of 2022 Reserved on: 12.09.2023 Date of Decision: 02.11.2023 Devinder Dutt Sharma .....Petitioner.

.

Versus

State of H.P. & Others .....Respondents.

Coram

Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Hon'ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting? Yes _____________________________________________ For the petitioner : Mr. Hamender Singh Chandel, Advocate.

For the respondents: Mr. Anup Rattan, Advocate General with Mr. Rajesh Mandhotra, Additional Advocate General, for respondent No.1/State.

r Mr. Adarsh K. Vashista, Advocate, for

respondents No. 16 & 17.

None for respondents No.2 to 15 & 18 to 20.

Bipin Chander Negi, Judge The petition has been filed seeking following

substantive reliefs:-

".i. That the impugned notification dated 28.12.2021, Annexure P-13 may kindly be quashed and set-aside. All the proceedings consequent to which notification dated 28.12.2021 have been issued may also be held illegal

and set aside;

ii. That the respondent department may be directed to convene DPC from due date and consider and promote the petitioner as Director Health and Family Welfare to the Government of Himachal Pradesh with all consequential benefits."

2. The factual matrix in the case at hand is that the

petitioner was initially appointed as a Medical Officer on

adhoc basis on 13.08.1991. Thereafter, on 13.12.1992, the

petitioner was appointed on regular basis through selection

by the Himachal Pradesh Public Service Commission. The

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final seniority list of Medical Officers, as it stood on

30.03.2000, was issued on 05.03.2001.

3. Subsequent to the aforesaid, the petitioner was

promoted as a Block Medical Officer on 08.11.2010. The

tentative seniority list of Block Medical Officers, as it stood

on 01.07.2013, was circulated on 25.07.2013.

4. Thereafter, the petitioner was promoted as a

Chief Medical Officer (CMO) on 27.12.2016. The promotion

was to take effect on 24.05.2016. The tentative seniority list

of CMO/DDHS/Medical Superintendent/Principals (Training)

as it stood on 01.11.2017 was circulated on 18.11.2017.

5. That one Dr. Keshav Ram (respondent No.10)

had filed a representation dated 23.02.2019. In the said

representation, the said respondent No.10, had challenged

the position assigned to him in the final seniority list of

Deputy Directors/CMO/ Medical Superintendent/ Principal

(Training), as it stood on 01.11.2017. The contention of the

said respondent No.10 was that the position assigned to the

petitioner above him was not appropriate for the reason that

the petitioner was junior in the feeder post of Medical Officer

and the selection list drawn by the Himachal Pradesh Public

Service Commission.

.

6. That on consideration of representation of

respondent No.10 (Dr. Keshav Ram) a review Departmental

Promotion Committee (for short "DPC") was held on

20.02.2020 and the following was recorded therein:

"The Committee, after perusing the final seniority list of MOs as it stood on 30.03.2000, issued on 05.03.2001 and the assessment already made by the original DPC, recommended to place the name of Dr. Devender Dutt Sharma at Sr. No. 2-A in between Dr. Sushil Chander

(Sr. No. 766) and Dr. Devender Kumar Sharma, (Sr. No. 802 A-I) in the panel for the year 2010."

7. That on 02.09.2021, the present petitioner was

promoted as a Joint Director. Thereafter, a review meeting

of the DPC was held on 3.12.2021 for reviewing the

recommendations of the DPC held on 12.04.2016,

31.12.2016 and 01.09.2021. The review DPC held on

03.12.2021 observed as follows:

" As per general principle for promotion, the list of eligible officers is prepared strictly in order of their position in the seniority list but in the instant case it was by an omission that a junior medical officer was placed above his seniors which is required to be rectified to this extent by reviewing the minutes of the meeting held on dated 12.04.2016, 31.12.2016 and 01.09.2021 by placing the name of Dr. Devinder Dutt Sharma at appropriate place of promotion in the list of eligible officers."

8. In pursuance to the aforesaid, the DPC after

perusing the final seniority list of Medical Officer, as it stood

on 31.03.2000, issued on 05.03.2001, recommended the

promotion of the petitioner to the post of Deputy

Director/CMO w.e.f. 09.01.2017. Previously as has been

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stated supra, the petitioner had been promoted as a CMO

on 27.12.2016 w.e.f. 24.05.2016.

9. After having taken a decision to promote the

petitioner to the post of Chief Medical Officer w.e.f.

09.01.2017 and further to withdraw the promotion order of

the petitioner to the post of Joint Director Health dated

02.09.2021 a show cause notice was issued to the petitioner

on 18.12.2021. A perusal of the aforesaid notice appended

alongwith the petition, Annexure P-10, clearly reflects that it

is for the first time the petitioner was informed of

representation (s) made by Dr. Keshav Ram, Dr. Harsharan

Kaur and Dr. Ghanshyam Upadhaya for rectifying their

promotion to the post of Joint Director keeping in view the

Notification dated 11.03.2010. The petitioner was afforded

an opportunity of two days to make a representation qua

the notice dated 18.12.2021, issued in this regard.

10. In pursuance to the said notice a representation

dated 20.12.2021 was made by the petitioner, wherein

extension of 7 days time to file a reply was made. Since the

same was beyond the stipulated two days time, therefore,

while passing the impugned Notification dated 28.12.2021,

the same was considered and rejected. Other than the

.

aforesaid, the petitioner had submitted a reply dated

24.12.2021 addressed to the Secretary (Health and Family

Welfare) and received in the Office of Director of Health

Services on 27.12.2021.

11. Thereafter, vide the impugned Notification dated

28.12.2021 appended r alongwith Annexure P-13, the

petitioner was ordered to be promoted to the post of Block

Medical Officer w.e.f. 09.01.2017. Further the promotion

given to the petitioner to the post of Joint Director vide

Annexure P-9 dated 02.09.2021 was withdrawn.

12. In the aforesaid facts and attending

circumstances, the main grievance of the petitioner is that

on a consideration of representation dated 23.02.2019, on

20.02.2020 seniority positions which were undisputed since

05.03.2001 i.e. in the case of Medical Officers, seniority

positions as on 25.07.2013 i.e. in the case of Block Medical

Officers, seniority positions as on 18.11.2017 in the case of

seniority of CMOs/ DDHs/Medical Superintendents/

Principals (training) have now been ordered to be changed.

It has been further contended that seniorities which had

been fixed and had remained in existence for a reasonable

period cannot be challenged after an unduly long period.

.

According to the learned counsel for the petitioner, seniority

list, which had remained in existence for 3 to 4 years

unchallenged should not have been disturbed. In support of

the aforesaid contention, learned counsel for the petitioner

has placed reliance on (2010) 12 SCC Page 471 and a

judgment delivered by a coordinate Bench of this Hon'ble

Court in CWP No. 1218 of 2021, titled as Suresh Kapoor &

others vs. State of H.P. & others, decided on 01.12.2022.

Besides the aforesaid, the petitioner has argued

that Rules of natural justice in the case at hand have been

observed more in their breach, rather than in their

observance. It is the specific grievance of the petitioner that

before action could have been taken on the representation,

filed belatedly by Dr. Keshav Ram on 23.02.2019, the same

should have been forwarded to the petitioner for his

response, as allowing of the same without hearing the

petitioner would visit the petitioner with serious civil

consequences. Other than the aforesaid, the petitioner has

argued that this is not a fit case for post decisional hearing,

rather in the facts and attending circumstances the pre-

decisional hearing was warranted.

13. On the other hand, learned counsel for the

.

respondents have argued that their action of rectifying the

seniority list is well within their competence. Besides the

aforesaid as per the respondents there is no infraction of

Rules of natural justice in the case at hand. According to

them, Notification dated 28.12.2021 i.e. Annexure P-13 is a

decision arrived at after hearing the petitioner. The same

according to them is, therefore, not a case of a post

decisional hearing.

14. From the aforesaid facts and attending

circumstances, it is clearly evident that the petitioner was

initially appointed as a Medical Officer way back in the year

1992. The final seniority list of Medical Officers as it stood

on 30.03.2000 was issued on 05.03.2001. Thereafter, the

petitioner was promoted as a Block Medical Officer on

08.11.2010 and the seniority list of Block Medical Officer

was circulated on 25.07.2013. In the same, the petitioner

was senior to Dr. Keshav Ram, Dr. Harsharan Kaur and Dr.

Ghanshyam Upadhaya. The same was never challenged or

assailed by the aforesaid three individuals subsequent

thereto promotions were effected to the post of Chief

Medical Officer and the petitioner was promoted to the post

of Chief Medical Officer on 27.12.2016 w.e.f. 24.05.2016.

.

Herein again a seniority list was circulated on 08.11.2017. In

the said list again, Dr. Keshav Ram, Dr. Harsharan Kaur and

Dr. Ghanshyam Upadhaya were junior to the petitioner. The

same was never assailed by the aforesaid three individuals.

15. It is only when a representation is filed on

23.2.2019 by Dr. Keshav Ram that a review DPC is held on

20.02.2020. In pursuance to the aforesaid review DPC held

on 20.02.2020, vide Notification dated 11.03.2020, the

recommendations made for promoting the petitioner to the

post of Block Medical Officer, in the panel for the year 2010,

was altered. As has already been stated supra, the seniority

list pertaining to Block Medical Officers was circulated vide

memo dated 25.07.2013. No objection qua the same were

ever filed by the aforesaid three individuals namely Dr.

Keshav Ram, Dr. Harsharan Kaur and Dr. Ghanshyam

Upadhaya. Hence, to lay a challenge to the same in the year

2019 and to get the same reviewed in the year 2020 is

patently illegal as the same has not been done within the

prescribed period i.e. 3 to 4 years as laid down in the

aforesaid authoritative pronouncement of the Apex Court as

relied upon by the petitioner.

16. Besides the aforesaid, once a representation

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laying challenge to the seniority assigned to the petitioner

had been filed by Dr. Keshav Ram on 23.02.2019. A copy of

the same should have been forwarded to the petitioner for

his response. The same was essential in order to comply

with the Rules of natural justice, as the allowing of the

aforesaid representation r was to have serious civil

consequences on the petitioner. Rather than following the

aforesaid procedure, the respondents-authority held a

review DPC made alterations in the settled seniority of Block

Medical Officer. Thereafter, held a review DPC on

03.12.2021, whereby the date of promotion of the petitioner

to the post of Chief Medical Officer was changed from

24.05.2016 to 09.01.2017 and further a recommendation to

withdraw promotion of the petitioner to the post of Joint

Director had also been taken.

17. Post taking the aforesaid decision a show cause

notice was issued to the petitioner on 18.12.2021 vide

Annexure P-10, the petitioner was, therefore, subjected to a

post decisional hearing. The case in hand is not a fit case

wherein a post decisional hearing should have taken place.

Rather, to the contrary before holding the review DPCs

dated 20.02.2020 and 03.12.2021, the petitioner should

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have been heard on the representation made by Dr. Keshav

Ram dated 23.02.2019.

18. Besides the aforesaid, the time afforded to

respond to the notice was a mere two days. Though a

response was filed wherein a specific objection was taken

with respect to the challenging a seniority list and changing

the same after a period of more than 10 years. The said

representation so made by the petitioner is alleged to have

been considered and rejected while passing the impugned

order, Annexure P-13, but from a perusal of the same it is

clearly evident that issue of a belated challenge has

nowhere been considered in the impugned order.

19. For the aforesaid reasons, the impugned

Notification dated 28th December, 2021 is quashed in so far

as it pertains to the petitioner. The respondents are directed

to restore the seniority of the petitioner prior to the DPCs

conducted on 20.02.2020 and 13.12.2021 with all

consequential benefits.

Pending miscellaneous application(s), if any,

shall also stand disposed of.

(Vivek Singh Thakur)

.

                                           Judge






                                     (Bipin Chander Negi)
                                            Judge
    02.11.2023 (Nisha)




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