Ashwani Kumar Sharma vs Union Of India And Others
2023 Latest Caselaw 15240 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.2509 of 2023 Date of Decision: 04.10.2023

.

_______________________________________________________

Ashwani Kumar Sharma .......Petitioner Versus

Union of India and others ... Respondents

_______________________________________________________ Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1 Yes.

For the Petitioner: Mr. D.K.Khanna Mr. Deven Khanna Advocates.

For the Respondents: Mr. Balram Sharma, Deputy Solicitor General of India.

____________________________________________________________

Sandeep Sharma, Judge(oral):

Being aggrieved and dissatisfied with order dated

14.03.2023 (Annexure P-11), whereby request having been made by

the petitioner for promotion to the post of Senior Scientific Officer

came to be rejected, petitioner is compelled to approach this Court in

the instant proceedings under Article 226 of the Constitution of India,

praying therein for following reliefs:-

"i) That the respondents may be directed to promote the petitioner as Senior Scientific Officer as per recommendation of ACoNFAR (Advisory Committee on Non-Faculty Recruitment) with effect from due date with all consequential benefits when similarly situated persons were promoted as Senior Scientific Officer for post of direct quota, or a supernumerary post may be created and

Whether the reporters of the local papers may be allowed to see the judgment?

post falling in category of Direct Recruit be converted a promotional post.

ii) That the impugned order of rejection dated 14.03.2023 (Annexure P-11) may kindly be quashed and set-aside.

.

iii) That the respondent may be directed to reconsider the

case of promotion of petitioner to the post of Senior Scientific Officer from the date respondent Nos. 4 and 5 have been considered for promotion, with all

consequential benefits.

iv) The promotions orders dated 29.01.2020 vide Annexure P-

12 and order dated 29.01.2020 vide Annexure P-13 may kindly be quashed and respondent institute may be

directed to re-conduct the selection process for promotion to the post of Senior Scientific Officer and consider the petitioner from the date respondent Nos. 4 and 5 were

considered with all consequential benefits.

v) That the respondent s may be directed to pay to the petitioner monetary relief as compensation for mental harassment and damage cause to the petitioner."

2. For having bird's eye view, facts which may be relevant

for adjudication of the case at hand are that on 24.11.2009 petitioner

joined as Scientific Officer in Grade pay of Rs. 5400/- at National

Institute of Technology, Hamirpur, Himachal Pradesh (Annexure P-1).

On 5.02.2014, Recruitment Rules dated 5.02.2014 came to be

promulgated providing therein automatic revision of grade pay of

Rs.5400-6600/- (Annexure P-9). After promulgation of aforesaid

Recruitment Rules, petitioner came to be granted grade pay of

Rs.6600/- with effect from 28.05.2016 through a Selection Committee

vide order dated 31.05.2016 (Annexure P-2). In the month of

October, 2019, National Institute of Technology, Hamirpur invited

applications for promotion to the two posts of Senior Scientific Officer

in the grade pay of Rs.7600/-. Scientific/ Technical Officer with regular

.

service of 10 years, out of which 5 years with Grade pay of Rs. 6600/-

were eligible to apply against the aforesaid promotion posts

(Annexure P-4) . Petitioner herein though was granted pay scale of

Rs. 6600/- vide order dated 31.05.2016, but since he had not

completed requisite period of five years with aforesaid Grade pay of

Rs. 6600/-, he was not permitted to participate in the selection

process and as such, he filed representation, dated 11.05.2021

(Annexure P-5) on the ground that similarly placed Officers working

as Assistant Registrar and Assistant Librarian were granted benefit of

next grade pay of Rs.6600/- immediately after completion of 5 years

of service without holding meetings of selection committee/interview,

whereas petitioner is required to undergo selection process and face

the interview in order to get the next grade pay of Rs.6600/-. On

3.02.2022, grade pay of the petitioner was reviewed and he was given

such benefit with effect from 25.11.2014 instead of 31.05.2016.

(Annexure P-3). After rectification of aforesaid mistake committed by

National Institute of Technology, Hamirpur petitioner again made

representation dated 16.02.2022 (Annexure P-6), requesting therein

for his promotion to the post of Senior Scientific Officer on account of

revision of grade pay and on account of his having acquired the

requisite eligibility with effect from 25.11.2019. In the aforesaid

representation petitioner averred that process for promotion was done

.

in January 2020, but notification regarding revision of grade pay was

issued in February 2022, as a result thereof, he lost an opportunity to

be promoted to the next higher post of Senior Scientific Officer in the

grade pay of Rs. 7600/-. Since in the aforesaid representation,

petitioner also prayed for listing his matter before Advisory Committee

on Non-Faculty Recruitment, matter came to be placed before the

aforesaid committee (Annexure P-10), which after having considered

case of the petitioner made recommendation dated 25.07.2022 to

promote the petitioner against the post of Senior Scientific Officer in

the institute after converting the post available under direct

recruitment quota. In the aforesaid recommendation Committee

categorically observed that injustice has been done to the petitioner

by the institute and he was wrongly ignored at the time of filling of two

promotional posts of Senior Scientific Officer. Committee categorically

observed that had institute granted Grade pay of Rs. 6600/- to the

petitioner well in time, he would have been promoted against the two

posts reserved for promotional quota, but since he has lost this

opportunity, he can be compensated by granting promotion against

the post reserved for direct recruitment. Though, aforesaid

recommendation of the committee was made in July 2022, but since

no action was taken, petitioner again filed representation dated

16.02.2019 (Annexure P-7), seeking promotion to the post of Senior

.

Scientific Officer alongwith consequential benefits, as was allowed in

respect of other counterparts of Computer Centre namely, Sh. Anil

Kumar and Sh. Jagdish Chand Verma against the advertisement

notice dated 7.10.2019. In the aforesaid representation, petitioner

also prayed to create one supernumerary post of Senior Scientific

Officer. Interestingly, National Institute of Technology, Hamirpur vide

communication dated 14.03.2023 while responding to aforesaid

representations filed by the petitioner conveyed that his case was

placed before the Finance Committee and Board of Governor in its

meeting held on 15.12.2022, deferred the agenda item as posts under

promotion category are not available as of now according to RRs. In

the aforesaid background, petitioner has approached this Court in the

instant proceedings, praying therein for the reliefs, as have been

reproduced hereinabove.

3. Pursuant to the notices issued in the instant proceedings,

respondent Nos. 1 to 3 have filed reply, wherein facts as have been

noticed hereinabove have not been disputed, rather stand admitted.

If reply filed by the respondents is read in its entirety, though there is

clear cut admission on their part that petitioner ought to have been

granted grade pay of Rs. 6600/- with effect from 25.11.2014 and on

account of non-grant of aforesaid grade pay, promotion of the

petitioner to the post of Senior Scientific Officer in the grade pay of

.

Rs. 7600/- was denied in the year 2019, but yet an attempt has been

made to carve out a case that in recruitment rules, there is no

provision to fill up post reserved for direct quota by giving promotion

to the post of Senior Scientific Officer, who otherwise under

recruitment rules has different channel of promotion. It has been

further stated on behalf of the respondents that ACoNFAR is an

advisory body not a statutory body and as such, recommendation

given by it are not binding, especially when same are not in line with

recruitment rules framed by Ministry of Education for the posts of

Senior Scientific Officer, which distribute the direct and promotional

posts in the ratio of 50:50, so the 4 posts sanctioned for Senior

Scientific Officers are divided into 2 posts for direct recruit and 2 posts

of promotion category. It has been stated in the reply that two posts

under promotion category are at present filled up and only 2 posts of

Senior Scientific Officer under direct category are vacant at present. It

has been further stated in the reply that Institute is in process to

advertise these two posts of Senior Scientific Officer under direct

category for which petitioner may apply and if found suitable he may

be granted the post of Senior Scientific Officer accordingly.

4. It is quite apparent from the pleadings adduced on

record, especially reply filed by the respondents that petitioner though

was entitled to grade pay of Rs. 6600/- with effect from 25.11.2014,

.

but erroneously such benefit was granted to him on 28.05.2016 vide

order dated 31.05.2016. On 7.10.2019, National Institute of

Technology, Hamirpur invited applications for promotion to the two

posts of Senior Scientific Officer in the Grade Pay of Rs. 7600/-,

though, at that time the petitioner had completed required period of

service but since benefit of grade pay of Rs. 6600/- was granted to

him with effect from 28.05.2016 vide order dated 31.05.2016, he was

not fulfilling the criteria of five years service with Grade pay of Rs.

6600/- and as such, was not considered for promotion at that relevant

time. On account of the clear cut fault of National Institute of

Technology, whereby it failed to grant grade pay of Rs. 6600/- to the

petitioner in the year 2014 despite his being fully eligible, right of the

petitioner to equal opportunity in employment/promotion as enshrined

under Article 16(1) of the Constitution of India is violated.

5. Though, internal committee i.e. ACoNFAR having taken

note of injustice done to the petitioner specifically recommended to

promote him against the post reserved direct recruitment, but such

recommendation has been not accepted on the ground that post

reserved for direct recruitment cannot be filled up from the other

source of recruitment i.e. promotion channel. Since petitioner has

lost the opportunity to be promoted against the post of Senior

Scientific Officer on account of sheer negligence on the part of the

.

respondent -Institute, he deserves to be compensated by offering him

promotion either against the post reserved under recruitment quota or

against the supernumerary post.

6. Learned counsel representing the petitioner fairly states

that petitioner would be content and satisfied in case he is considered

for promotion against the post of Senior Scientific Officer created on

supernumerary basis, but petitioner shall be held entitled for

consequential benefits from the date, he lost his right to be

considered against the post in question in the year 2019 or when

other persons were promoted under the same recruitment process.

7. This Court having perused the material available on

record, especially reply filed by the respondents, is fully convinced

that great injustice has been caused to the petitioner for no fault of

him. Petitioner was not promoted in the year 2019 against the post of

Senior Scientific Officer on account of non grant of grade pay of Rs.

6600/- from due date i.e. 25.11.2014. Since respondent- Institute after

having realized its mistake reviewed the order dated 31.5.2016 and

decided to grant grade pay of Rs. 6600/- to the petitioner with effect

from 25.11.2014, he shall be deemed to have received aforesaid

benefit of grade pay of Rs. 6600/- with effect from the year 2014, if it

is so, he becomes eligible to be considered for promotion against the

post of Senior Scientific Officer advertised in the year 2019, otherwise

.

there shall be clear cut violation of provision of under Article 16(1) of

the Constitution of India, which provides for equal opportunity in

employment. Reliance in this regard is placed upon the judgment

dated 13.08.2019 passed by Co-ordinate Bench of this Court in CWP

No.7957 of 2010, titled Dhanpat Lal Sharma vs. Bhakra Beas

Management Board (BBMB) and another, wherein it has been held

as under:-

"18. Admittedly, the case of the petitioner has not at all been

considered by the respondent-Board for promotion. Once that be so, then the petitioner's fundamental right under Articles 14 and 16 stands breached. It is settled proposition of law that though an employee does not have a fundamental right for promotion, however, he has a

fundamental right for being considered for promotion.

19. In Ajit Singh and others (II) vs. State of Punjab and

others (1999) 7 SCC 209, the Hon'ble Supreme Court held

as under:

"22. Article 14 and Article 16(1) are closely connected.

They deal with individual rights of the person. Article 14

demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16(1) issues a positive command that "there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State". It has been held repeatedly by this Court that sub-clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The

said sub- clause particularizes the generality in Article 14 and identifies, in a constitutional sense "equality opportunity" in matters of employment and appointment to any office under the State. The word 'employment'

.

being wider, there is no dispute that it takes within its

fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who

comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is

not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right.

"Promotion" based on equal opportunity and 'seniority'

attached to such promotion are facets of fundamental right under Article 16(1):

23. Where promotional avenues are available, seniority becomes closely interlinked with promotion provided

such a promotion is made after complying with the principle of equal opportunity stated in Article 16(1). For example, if the promotion is by rule of `seniority-cum-

suitability', the eligible seniors at the basic level as per seniority fixed at that level and who are within the zone

of consideration must be first considered for promotion and be promoted if found suitable. In the promoted

category they would have to count their seniority from the date of such promotion because they get promotion through a process of equal opportunity. Similarly, if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, he will have to be promoted first. If he is not found so meritorious, the

next in order of seniority is to be considered and if found eligible and more meritorious than the first person in the seniority list, he should be promoted. In either case, the person who is first promoted will normally count his

.

seniority from the date of such promotion. (There are

minor modifications in various services in the matter of counting of seniority of such promotees but in all cases the senior most person at the basic level is to be

considered first and then the others in the line of seniority). That is how right to be considered for promotion and the `seniority' attached to such promotion become important facets of the fundamental right

guaranteed in Article 16(1).

Right to be considered for promotion is not a mere statutory right:

24. The question is as to whether the right to be

considered for promotion is a mere statutory right or a fundamental right.

25. Learned senior counsel for the general candidates submitted that in Ashok Kumar Gupta Vs. State of U.P.

(1997) 5 SCC 201), it has been laid down that the right to promotion is only a "statutory right" while the rights covered by Articles 16(4) and 16(4A) are "fundamental

rights". Such a view has also been expressed in Jagdish Lal and some other latter cases where these cases have

been followed. Counsel submitted that this was not the correct constitutional position.

26. In this connection our attention has been invited to para 43 of Ashok Kumar Gupta (supra). It reads as follows:- (SCC p. 239) "43. It would thus be clear that right to promotion is a statutory right. It is not a fundamental right. The right to promotion to a post or class of posts depends upon the operation of the conditions of service. Article 16(4) read with Articles 16(1) and 14 guarantees a right to

promotion to Dalits and Tribes as a fundamental right where they do not have adequate representation consistently with the efficiency of administration... before expiry thereof (i.e. 5 years rule), Article 16(4) has come

.

into force from 17.6.1995. Therefore, the right to

promotion continues as a constitutionally guaranteed fundamental right."

A similar view was expressed in Jagdish Lal versus

State of Haryana, (1997) 6 SCC 538 and followed in some latter cases. In the above passage, it was laid down that promotion was a statutory right and that Articles 16(4) and 16(4A) conferred fundamental rights.

27. In our opinion, the above view expressed in Ashok Kumar Gupta, and followed in Jagdish Lal and other cases, if it is intended to lay down that the right r guaranteed to employees for being "considered" for

promotion according to relevant rules of recruitment by promotion(i.e. whether on basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated

earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed

under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta (1997) 5

SCC 201: 1997 SCC(L&S) 1299 right from 1950."

20. The Hon'ble Supreme Court in Badrinath vs. Government of Tamil Nadu and others (2000) 8 SCC 395, held as under:

"47. Every officer has a right to be considered for promotion under Article 16 to a higher post subject to eligibility provided he is within the zone of consideration. But the question is as to the manner in which his case is to be considered. This aspect is a matter of considerable importance in service jurisprudence as it deals with 'fairness' in the matter of consideration for promotion

under Article 16. We shall therefore refer to the current legal position."

21. The Hon'ble Supreme Court in Union of India and others

vs. Sangram Keshari Nayak (2007) 6 SCC 704, held as

.

under:

"11.Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental

right. Such a right brings within its purview an effective, purposeful and meaningful consideration....."

22. The Hon'ble Supreme Court in Hardev Singh vs. Union of India and another, (2011) 10 SCC 121, held as under:

"17. It cannot be disputed that no employee has a right to get promotion; so the appellant had no right to get promotion to the rank of Lieutenant General but he had a right to be considered for promotion to the rank of Lieutenant General

and if as per the prevailing policy, he was eligible to be promoted to the said rank, he ought to have been

considered. In the instant case, there is no dispute to the fact that the appellant's case was duly considered by the SSB for his promotion to the rank of Lieutenant General."

23. In Major General H.M. Singh, VSM vs. Union of India and

another, (2014) 3 SCC 670, the Hon'ble Supreme Court held as under:

"28.The question that arises for consideration is,

whether the non- consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of

India. The answer to the aforesaid query would be in the affirmative, subject to the condition, that the respondents were desirous of filling the vacancy of Lieutenant General, when it became available on

1.1.2007. The factual position..... he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view, that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the

Presidential order dated 29.2.2008, and thereafter, by a further Presidential order dated 30.5.2008......"

30. Besides the above, we are also of the considered view, that consideration of the promotional claim of the senior most eligible officer,

.

would also fall in the parameters of the rule providing

for extension, if the exigencies of service so require. It would be a sad day if the armed forces decline to give effect to the legitimate expectations of the highest ranked armed forces personnel. Specially

when, blame for delay in such consideration, rests squarely on the shoulders of the authorities themselves. This would lead to individual resentment, bitterness, displeasure and indignation. This could also undoubtedly lead to, outrage at the highest level of the armed forces. Surely, extension

of service, for the purpose granted to the appellant, would most definitely fall within the realm of Rule 16A of the Army Rules, unless of course, individual resentment, bitterness, displeasure and indignation, of army personnel at the highest level is of no r concern to the authorities. Or alternatively, the authorities would like to risk outrage at the highest

level, rather than doing justice to a deserving officer. Reliance on Rule 16A, to deprive the appellant of promotion, to our mind, is just a lame excuse. Accordingly, extension in service granted to the appellant, for all intents and purposes, in our considered view, will be deemed to satisfy the

parameters of exigency of service, stipulated in Rule 16A of the Army Rules.

31.....This because of denial of due consideration to

the appellant, who was the senior most eligible serving Major-General, as against the claim of others who were junior to him. And specially when the

respondents desired to fill up the said vacancy, and also because the vacancy had arisen when the appellant still had 14 months of remaining Army service. Surely it cannot be overlooked that the

Selection Board had singularly recommended the name of the appellant for promotion, out of a panel of four names. In such an eventuality, we would have no other alternative but to strike down the action of the authorities as being discriminatory and violative of Article 16 of the Constitution of India."

24. In Haryana State Warehousing Corporation and others vs. Jagat Ram and another, (2011) 3 SCC 422, the Hon'ble Supreme Court held as under:

"17. In applying the principle of granting promotion on the basis of seniority-cum-merit, what is important is that the inter se seniority of all candidates who are eligible for consideration for promotion should be identified on the

.

basis of length of service or on the basis of the seniority

list as prepared, inasmuch as, it is such seniority which gives a candidate a right to be considered for promotion on the basis of seniority-cum-merit.

18. As was indicated in State of Mysore vs. Syed Mahmood, AIR 1968 SC 1113 that where the promotion is based on seniority-cum-merit, the officer cannot as a matter of right claim promotion by virtue of his seniority

alone, which principle is also reflected in Regulation 8(2) of the 1994 Regulations. Consequently, the candidate had to be fit to discharge the duties of the higher post and

if his performance was assessed not to meet such a

requirement, he could be passed over and those junior to him could be promoted despite his seniority in the seniority list.

19. In the instant case, the only feature which weighed

with the Corporation in granting promotion to Ram Kumar was a comparative assessment between his performance and that of Jagat Ram. While Jagat Ram had got only

one "outstanding" remark in 10 years, Ram Kumar had obtained "outstanding" remark in all the 10 years.

Accordingly, he was preferred to Jagat Ram, whose qualifications were inferior to that of Ram Kumar by

comparison. But, as has been rightly held by the Division Bench of the High Court, in cases of seniority-cum-merit, the comparative assessment is not contemplated and is not required to be made.

20. There is nothing on record to indicate that Jagat Ram was not capable of discharging his functions in the promoted post of Assistant Manager (Administration). He was denied promotion only on 15th ground of the superior

assessment that had been made in favour of Ram Kumar, which, in our view, runs contrary to the concept of seniority-cum-merit....."

25. It needs to be reiterated that public offices, both big and

.

small, are sacred trusts. Such offices are meant for use and

not abuse and in case repositories of such offices surpass the rule, then the law is not powerless and would step into quash such arbitrary orders.

26. As observed above, respondent No.1 is admittedly a State within the meaning of Article 12 of the Constitution of India and, cannot, therefore, act like a private individual, who is free to act in a manner whatsoever he likes, unless it is

interdicted or prohibited by law. It is settled that the State and its instrumentalities have to act strictly within the four corners of law and all its activities are governed by Rules, Regulations

and Instructions and in absence of any of these, they have to

act fairly, justly and above all impartially.

27. From the above discussion, it is manifest that action of respondent No.1 is neither fair nor just, as it was required to consider the case of a Senior Officer before promoting a

Junior Officer that too a deputationist to the post in question i.e. Joint Director/Personal-cum-Legal as against the petitioner, who was a regular employee of the respondent-

Board and had a blemishless records.

28. In view of the aforesaid discussion, I find merit in this

petition and the same is accordingly allowed. The respondent Board is directed to consider the petitioner for promotion to the

post of Joint Director/Personal-cum-Legal from the date when respondent No.2 was promoted to the said post vide order dated 17.5.2010, (Annexure P-5), with all consequential benefits.

8. Consequently, in view of the detailed discussion made

hereinabove as well as law taken into consideration, this Court finds

merit in the present petition and accordingly same is allowed and

respondents are directed to consider the case of the petitioner for

promotion against the supernumerary post of Senior Scientific Officer

.

to be created by the respondent-department. Since the petitioner has

been fighting for his rightful claim for more than seven years, this

Court hopes and trusts that needful in terms of the instant order shall

be done by the respondent expeditiously, preferably within a period of

four weeks. Pending applications, if any, also stands disposed of.

(Sandeep Sharma), Judge October 04, 2023 (shankar)