Sh. Dushyant Kumar vs State Of Himachal Pradesh And ...
2023 Latest Caselaw 13756 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

                                                LPA No. 24 of 2023





                                                Reserved on 31.08.2023
                                                Decided on : 15.09.2023





    Sh. Dushyant Kumar                                                  ...Appellant

                 Versus





    State of Himachal Pradesh and another                            ...Respondent.
    Coram

The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.

The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.

Whether approved for reporting?1 For the appellant : Mr. Lovneesh Kanwar, Senior Advocate with Mr. Tek Chand, Advocate.

For the respondent : Mr. Anup Rattan, Advocate General with M/s Rakesh Dhaulta and Pranay

Pratap Singh, Addl. AGs and M/s Arsh Rattan and Sidharth Jalta, Dy. AGs.

Ajay Mohan Goel, Judge

The appellant/petitioner (hereinafter to be referred as

'the petitioner') joined the service of the respondent-Board as a

Clerk on regular basis on 02.04.1976. He was promoted against

the post of Section Officer on 06.10.2008. After passing the

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

Departmental Examination, he was promoted as an Assistant

Secretary w.e.f. 23.06.2011. Thereafter, the petitioner was

.

promoted against the post of Deputy Secretary by respondent no.

1 vide notification dt. 04.02.2013, in the respondent-Board. He

superannuated as such on 30.09.2014.

2. According to the petitioner, in the year 1989, the

State Government created one post of Joint Secretary in the

respondent-Board. The first post was created on 06.11.1989 and

thereafter another post was created on 16.06.2010. However, due

to lack of formulation of necessary Recruitment and Promotion

Rules, the petitioner was not conferred promotion against the said

post, though, he was fully eligible to be considered for promotion

in terms of the draft Recruitment and Promotion

Rules/Regulations. His name was forwarded by the respondent-

Board for promotion against the post of Joint Secretary on

16.08.2014. Though on 25.09.2014, the Department of Personnel

allowed the respondent-Board to fill up the post of Joint

Secretary as per law, however, in the interregnum, the petitioner

retired from service.

3. On 14.04.2016, after the formulation of the

Recruitment and Promotion Rules, respondent-Board promoted

.

S/Sh. Chaman Lal and Vijay Kumar as Joint Secretaries. The

petitioner represented to the respondents to consider his case also

for promotion against the post of Joint Secretary on regular basis

or ad hoc basis, whichever was beneficial to him, from due date,

4. to however, his prayer was rejected vide order dt. 21.03.2017.

Feeling aggrieved, the petitioner filed OA(D) No. 48

of 2017 before the erstwhile Himachal Pradesh Administrative

Tribunal, which after the abolition of the Tribunal, was

transferred to this Court and registered as CWPOA No. 3737 of

2020. The prayer made in the original application was for setting

aside of order dt. 21.03.2017 and for issuance of a direction to the

respondents to consider and promote the petitioner against the

post of Joint Secretary on regular/ad hoc basis, whichever was

beneficial to him from 16.08.2014 as per the past practice and

confer upon him the monetary benefits.

5. Vide judgment dt. 14.12.2022, learned Single Judge

dismissed the petition inter alia by holding that the claim of the

petitioner was not tenable for the reason that there could be no

anticipation regarding approval or finalization of the Recruitment

.

and Promotion Regulations merely because the draft Regulations

stood prepared and the petitioner had no right to claim ad hoc

promotion simply on the basis of past practice being adopted by

the Board. Learned Single Judge also held that draft rules cannot

6. to generally form the basis of cause of action for an employee.

Feeling aggrieved, the petitioner has filed this appeal.

7. Having heard learned Senior Counsel appearing for

the appellant as well as learned Advocate General and having

gone through the judgment passed by learned Single Judge as

well as the writ record, we do not find any merit in this appeal.

Admittedly as on the day when the petitioner superannuated as a

Deputy Secretary, there were no Rules framed for promotion to

the post of Joint Secretary. It is settled law that an employee does

not has a fundamental right of promotion and the only right is

that of consideration (See: Ajit Singh and others vs. State of

Punjab and others2). The appellant simply on the basis of past

practice or on the ground that draft Recruitment and Promotion

(1999) 7 SCC 209

Rules/Regulations stood framed qua the post of Joint Secretary

could not have been granted a mandamus for promotion thereto.

.

8. Hon'ble Supreme Court of India in P.U. Joshi and

Others Versus Accountant General, Ahmedabad and others

and other connected matter3, has been pleased to hold that the

conditions of service including avenues of promotions and

criteria to be fulfilled for such promotions pertain to the field of

policy and the same is within the exclusive discretion and

jurisdiction of the State, subject, of course, to the limitations or

restrictions envisaged in the Constitution of India and it is not for

the statutory Tribunals to direct the Government to have a

particular method of recruitment or eligibility criteria or avenues

of promotion or impose itself by substituting its views for that of

the State.

9. The contention of the appellant that the learned

Single Judge erred in not appreciating that the appellant was

entitled for promotion even on the basis of draft Regulations,

cannot be accepted. Herein, the appellant did not approach the

Court while he still was in service. He superannuated from the

(2003) 2 SCC 632

post of Joint Secretary. The factum of the Recruitment and

Promotion Rules/Regulations for the post of Joint Secretary

.

thereafter having been approved and brought into force and

certain incumbents thereafter having been promoted against the

post in issue, otherwise also, neither created any right in favour

of the appellant nor any cause of action to approach the Court

seeking a direction for his retrospective promotion, that too, from

a date and up to a date when, admittedly, there were no

Recruitment and Promotion Rules/Regulations in vogue of the

post of Joint Secretary. The Department itself in terms of

communication dt. 21.03.2017, rejected the representation of the

petitioner for his consideration for promotion against the post of

Joint Secretary by inter alia mentioning therein that whereas the

final decision on the Rules was taken on 28.07.2015, the

petitioner already stood superannuated on 30.09.2014. We agree

with the said reasons. This is exactly what was held by the

learned Single Judge also.

10. In view of above discussion, as we do not find any

infirmity in the judgment passed by learned Single Judge, the

present appeal being devoid of merit is dismissed. Pending

miscellaneous application(s), if any, also stand disposed of

.

accordingly.

                                    (M.S. Ramachandra Rao)





                                         Chief Justice


                                      (Ajay Mohan Goel)




    September 15, 2023                          Judge
       (narender)