Mohan Lal Sharma vs Chaudhary Sarwan Kumar
2023 Latest Caselaw 15730 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

LPA No.155 of 2023 Reserved on:25.09.2023 Pronounced on:09.10.2023

.

     Mohan Lal Sharma                                            ......Appellant
                                     Versus





     Chaudhary Sarwan Kumar, Himachal Pradesh
     Krishi Vishav Vidalaya, Palampur              ...Respondent

__________________________________________________________ Coram:

Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. Hon'ble Mr. Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

     For the appellant
                         r :                 Ms. Reeta Hingmang, Advocate.

     For the respondent    :                 Ms. Aruna Chauhan, Advocate.

     M.S. Ramachandra Rao, Chief Justice.

This Letters Patent Appeal is preferred by the appellant against

the judgment dt. 23.03.2023 passed by the learned Single Judge in CWP

No.3499 of 2019, in so far as the learned Single Judge had held against

the appellant.

2) The appellant joined the first respondent-University as a Mortar

Mate w.e.f. 03.03.1979 and his services were regularized w.e.f.

24.07.1996 as Junior Technician (Work Inspector).

3) The said post of Junior Technician (Work Inspector) is the feeder

category for promotion to the post of Junior Engineer (Civil).

4) As per a Notification dt. 16.01.2013 ( Annexure P-1), the

Recruitment & Promotion Rules for filling up the post of Junior

Engineer (Civil) was issued, and as per the said rules, the said post of

.

Junior Engineer (Civil) is to be filled in 75% by way of direct

recruitment and 25% by way of promotion from 7 feeder categories, of

which post of Junior Technician/Work Inspector is one.

5) Clause 13(vii) thereof states that 4% posts of Junior Engineers

(Civil) would be filled from among Work Inspectors, who are

matriculates or possess equivalent recognized qualification with at least

15 years of regular service or regular combined with continuous ad hoc

service rendered, if any, in the grade, and completed successfully the

prescribed Departmental Training Course of six months duration, failing

which, the quota will go to the first category of Surveyors.

6) The appellant, according to Annexure P-3 dt. 11.07.2002, a

communication addressed by the Estate Officer of the respondent-

University to the Principal of Government Polytechnic, Sundernagar,

Himachal Pradesh,was sponsored to undergo the training course in the

Government Polytechnic, Sundernagar, but the duration of the said

course was only three months and not six months, as prescribed in the

rules mentioned supra in Annexure P-1.

The contention of the appellant /petitioner in the Writ Petition

7) The appellant contended that a clarification was sought by the

Registrar of the respondent-University from the Engineer-in-Chief,

.

HPPWD on 05.04.2014 on the subject "Promotion to the post of Junior

Engineer (Civil) from feeder category-Clarification regarding" as to

whether incumbents similarly situated, as the petitioner, who had

undergone three months Departmental Training Course instead of six

months as required by the Recruitment & Promotion Rules, can be

considered for promotion to the post of Junior Engineer(Civil).

8) Apparently, the Engineer-in-Chief, HPPWD wrote to the

Registrar of the respondent-University on 19.04.2014 that in the Public

Works Department (PWD), Work Inspectors who had training only for

three months had been considered for promotion before promulgation of

the provision for six months training in the Recruitment & Promotion

Rules of Junior Engineers for promotion to the said post from the feeder

category of Work Inspectors.

9) The appellant contended in the Writ Petition that in June, 2014,

he came to know that the 2nd respondent in the Writ petition, had been

promoted to the post of Junior Engineer (Civil) from the feeder category

of Surveyors on 21.06.2014, vide order Annexure P-10 dt. 21.06.2014,

though previously the said individual's promotion was turned down vide

Annexure P-11 dt. 20.02.2006; that the promotion of the 2nd respondent

in the Writ petition to the post of Junior Engineer (Civil) was an

accommodation through back door, which is to be treated as an outcome

of favouritism and nepotism; and the same has to be nullified because it

.

was done to accommodate the said individual because of non-

availability of post of Junior Engineer (Civil) to the share of Surveyor

Category, according to the quota allotted.

10) Appellant therefore sought the relief of declaration that he is

entitled to promotion to the post of Junior Engineer (Civil) and the

respondent should be directed to consider his case for promotion to the

post of Junior Engineer (Civil). He also sought a declaration that the

office order dt. 20.06.2014, promoting the 2nd respondent in the Writ

petition to the post of Junior Engineer (Civil), was null and void.

The reply of the respondent in the Writ Petition

11) Reply was filed by the 1st respondent-University stating that only

4% quota out of 25% posts from Junior Engineers (Civil) had been

earmarked for the category of Work Inspectors, and though the

appellant-petitioner fulfilled the requisite 15 years of service, he had

only three months training instead of six months training prescribed

therein.

12) It was therefore contended that the appellant did not meet the

requirement of minimum requisite qualification for promotion to the

said post of Junior Engineer (Civil) after 28.05.2005, on which date, the

Recruitment & Promotion Rules for the said posts had been amended.

The order of the learned singe Judge.

.

13) The learned Single Judge held that since the respondent-

University had not called upon the appellant-petitioner to undergo the

six months Departmental Training, and it is also not it's contention that

he was asked to undergo further Departmental Training of three months

and he had refused, he cannot be made to suffer for such an acts of

14) to omission of the part of the respondent-University.

He held that the condition of undergoing Departmental Training

of six months, as is contained in the Recruitment & Promotion Rules,

cannot create a hurdle in the path of an incumbent for promotion who

had undergone Departmental Training of lesser duration on the asking

of the respondent-University and who subsequently, was not called upon

to undergo further training of three months, so as to become eligible in

terms of the R&P Rules.

15) He also opined that the appellant-petitioner was made to undergo

only three months Departmental Training, since at that relevant point of

time only such amount of training was contemplated in the rules for

being eligible for promotion to the post of Junior Engineer (Civil).

16) The learned Single Judge also noted that the appellant had

superannuated in 2018, but he allowed the Writ petition to the extent of

directing the respondent-University to hold a Review DPC to consider

the appellant's case for promotion against the post of Junior Engineer

(Civil) from the date when his name was rejected for want of six

.

months' Departmental Training Course on the strength of the certificate

of three months Departmental Training Course, which he is possessing.

17) He also directed that if the appellant is found eligible for

promotion, he should be promoted to the post of Junior Engineer (Civil)

without disturbing any other incumbent who stood promoted against the

said post; and that he should be given notional benefits from the date he

is found fit for promotion by the DPC r up to the date of his

superannuation, and post superannuation benefits be granted in actual by

determining them as if the petitioner-appellant superannuated from the

post of Junior Engineer (Civil).

The instant LPA

18) Challenging the same, this LPA is filed by the appellant to the

extent the learned single Judge granted only notional benefits and not

actual benefits and also contending that they ought to be granted from

September,2014 when the Writ Petition was filed as he had become

entitled to be promoted to the post of Junior Engineer (Civil) after

fulfilling the requisite qualification.

19) We do not agree with the said contentions for the following

reasons:

20) This is because it is settled law that no promotion or seniority can

.

be granted from a retrospective date when the employee has not been

borne in the cadre. (Vinod Verma vs. Union of India)1.

21) In Ganga Vishan Gujrati vs. State of Rajasthan2, the Supreme

Court held that seniority has to be reckoned from the date of substantive

appointment and unless a statutory rule so provides, it cannot be

reckoned from a retrospective date. It also observed

retrospective seniority was to be given from the date on which a r that if a

vacancy arose, it would lead to a situation that a person, who is not

qualified to take the examination on the date when the vacancy arose,

would get seniority.

22) This principle was also reiterated in State of Bihar & Others vs.

Arbind Jee3, wherein, the Supreme Court held that seniority benefit can

accrue only after a person joins service and to say that benefits can be

earned retrospectively, would be erroneous.

23) Having regard to this well settled legal position, we reject the plea

of the appellant that actual benefits should have been granted to the

appellant from the date of filing of the Writ petition and not from the

(2019) 20 SCC 576

(2019) 16 SCC 28

(2021) 14 SCC 38

date he is found eligible for promotion by the DPC up to the date of his

superannuation, as was done by the learned Single Judge.

24) We may also point out that monitory benefits can only be granted

.

from the date the appellant is given promotion since prior thereto he had

not worked on the post of Junior Engineer (Civil) and, therefore, cannot

claim the said benefit.

25) Therefore, we find no error in the judgment of the learned Single

Judge, warranting interference by us in Letters Patent Jurisdiction.

26)

27)                                    to

Accordingly, the LPA fails and is dismissed.

Pending miscellaneous application(s), if any, shall also stand

disposed of.

                                                    (M.S. Ramachandra Rao)
                                                          Chief Justice



                                                       (Rakesh Kainthla)
      October 10, 2023                                     Judge




          (Yashwant)