Himachal Pradesh High Court
Ashwani Kumar vs State Of Himachal Pradesh & Others on 23 June, 2025
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 8877 of 2023
Date of Decision: 23.06.2025
.
_______________________________________________________
Ashwani Kumar .......Petitioner
Versus
State of Himachal Pradesh & others ... Respondents
______________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner: Mr. Peeyush Verma, Senior Advocate with
Mr. Ajay Sharma, Advocate.
For the Respondents: Mr. Anup Rattan, Advocate General with
Mr. Rajan Kahol and Mr. B.C.Verma,
Additional Advocate Generals and Mr. Ravi
Chauhan, Deputy Advocate General, for
the respondent/State.
Mr. Rajiv Rai, Advocate, for respondent
Nos. 3 and 4.
_______________________________________________________
Sandeep Sharma, Judge(oral):
Petitioner herein is aggrieved of recommendation
made by the Departmental Promotion Committee dated
01.12.2022 (Annexure P-16), whereby petitioner's case for
promotion to the post of Superintendent Grade -1 has been
rejected, and his earlier promotions to the post of Senior
Assistant in May, 2010 and thereafter, to the post of
Superintendent Grade-II have been held to be erroneous.
Whether the reporters of the local papers may be allowed to see the judgment?
2. Precisely, the grouse of the petitioner, as has been
highlighted in the petition and further canvassed by Mr. Peeyush
.
Verma, learned Senior Counsel representing the petitioner, is
that once this Court, while passing judgment dated 25.11.2022
passed in CWP No.5772 of 2021, tilted Ashwani Kumar Vs.
State of Himachal Pradesh and others, had issued positive
direction to the respondents to consider the case of the petitioner
for promotion against the post of Superintendent Grade-1 latest
by 2nd December, 2022, there was no occasion, if any, for the
Departmental Promotion Committee ( for short 'DPC') to review
earlier promotion given to the petitioner against the post of
Senior Assistant and thereafter, Superintendent Grade-II,
especially when no challenge to the same ever came to be laid
at the behest of so called effected party namely, Sh. Bachhan
Singh.
3. For having bird's eye view, facts relevant for the
adjudication of the case at hand are that petitioner herein was
appointed as Clerk on daily wage basis with respondent No.4-
Trust vide office order dated 22.12.1990 (Annexure P-1).
Subsequently, services of the petitioner were regularized as
Clerk w.e.f.10.07.1996 (Annexure P-2) and thereafter, he was
promoted against the post of Senior Assistant, with further
promotion to the post of Superintendent Grade-II on adhoc basis,
.
vide office order dated 01.01.2018 (Annexure P-5). Next
promotional post from the post of Superintendent Grade-II is that
of Superintendent Grade-1, but since at the time of filing of
earlier writ petition bearing CWP No.5772 of 2021, there are no
R&P Rules in the Trust governing promotion to the afore post,
petitioner after his having completed three years, represented to
the respondent-Trust to promote him to the post of
Superintendent Grade-I, but since no heed was paid to the
request of the petitioner, he approached this Court by way of writ
petition, as detailed hereinabove, wherein it came to be averred
at the behest of the petitioner that one Junior Engineer, Sh.
Prem Chand Sharma, was promoted to the post of Assistant
Engineer despite the fact that there were no R& P Rules existing
in the respondent-Trust with regard to promotion to the said post,
but by applying the analogy of R&P Rules prevailing in other
departments of Government of Himachal Pradesh, where there
exist the posts of junior Engineer as also the Assistant Engineer.
4. Afore petition filed at the behest of the petitioner
came to be resisted on behalf of the respondent-State on the
.
ground that Recruitment & Promotions Rules for promotion to the
post of Superintendent Grade-I were yet not framed and were
under consideration. Co-ordinate Bench of this Court, taking note
of the pleadings adduced on record by the respective parties,
disposed of the petition with 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-1 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-1(Annexure P-12). In the afore
background, issue with regard to promotion of the petitioner from
the post of Superintendent Grade -II to Superintendent Grade-1
came to be placed before DPC, which vide proceedings dated
01.12.2022 (Annexure P-16), though considered the case of the
petitioner in the DPC meeting, but instead of granting him
promotion to the post of Superintendent Grade-1, held him not
eligible to be granted promotion to the post of Senior Assistant
and thereafter, Superintendent Grade-II. The Committee in its
meeting held the petitioner eligible for promotion to the post of
.
Senior Assistant w.e.f 21.12.2017 and thereafter, to the post of
Superintendent Grade-II only after 21.12.2022. In the afore
background, petitioner has approached this Court in the instant
proceedings, praying therein to set-aside aforesaid order and
direct the department to grant him promotion to the post of
Superintendent Grade-1 in terms of judgment dated 25.11.2022
passed by Co-ordinate Bench of this Court in CWP No.5772 of
2021.
5. Pursuant to the notices issued in the instant
proceedings, respondent Nos. 3 and 4 have filed reply, wherein
facts, as have been noticed hereinabove, have been not
disputed, rather an attempt has been made to justify the action of
the DPC by stating that since DPC, after having perused entire
record, found that earlier promotions granted to the petitioner to
the post of Senior Assistant and Superintendent Grade-II were
not in accordance with law and were wrongly granted in the
years 2010 and 2018 respectively, no illegality can be said to
have been committed by the Committee, while holding petitioner
herein entitled for promotion to the post of Superintendent
Grade-II on 21.12.2022.
.
6. Learned counsel for the petitioner vehemently argued
that impugned order passed by the DPC held on 01.12.2022,
inasmuch as it rejected the case of the petitioner for promotion to
the post of Superintendent Grade-1 w.e.f 2.12.2022, is not in
accordance with law and the factual position existing on record.
He submitted that since DPC was only convened to consider the
case of the petitioner for promotion to the post of Superintendent
Grade-1, and prior to afore meeting, no order was ever passed,
thereby holding promotion of the petitioner to the post of
Superintendent Grade-II bad in law, there was otherwise no
occasion for the DPC to go into that aspect of the mater, rather
it ought to have considered the case of the petitioner for
promotion to the post of Superintendent Grade-1, taking note of
the fact that he stood promoted to the post of Superintendent
Grade-II on 01.01.2018. Learned counsel for the petitioner
further argued that once this Court, while passing judgment
dated 25.11.2022, had otherwise issued positive direction to the
respondents to consider the case of the petitioner for promotion
against the post of Superintendent Grade-1 latest by 2nd
December, 2022, DPC could not have gone into the question of
promotion allegedly erroneously given to the petitioner against
.
the post of Senior Assistant and Superintendent Grade-II on
18.5.2010 and 01.01.2018 respectively. He submitted that this
Court, having taken note of promotion granted to the petitioner
against the post of Senior Assistant on 18.5.2010 and
Superintendent Grade-II on 01.01.2018, had proceeded to issue
direction to the respondents to consider the case of the petitioner
for promotion against the post of Superintendent Grade-I latest
by 2nd December, 2022. If it is so, DPC in its meeting held on
01.12.2022 had no occasion to look into the correctness of the
promotion granted to the petitioner against the post of Senior
Assistant and Superintendent Grade-II, rather it ought to have
confined itself to eligibility of promotion, if any, to the post of
Superintendent Grade-1 on account of his being promoted to the
post of Superintendent Grade-II on 1.1.2018.
7. Mr. Rajiv Rai, learned counsel representing
respondent Nos. 3 and 4, while attempting to justify the action of
the DPC, submitted that since, while undertaking exercise in
terms of judgment dated 22.11.2022 passed by this Court, DPC
had an occasion to go through the record and it had come to its
notice that earlier promotion granted to the petitioner to the post
of Senior Assistant and Superintendent Grade-II was not in
.
accordance with law, no illegality can be said to have been
committed by the Committee in concluding that petitioner is not
entitled for promotion, rather he had become eligible for
promotion to the post of Superintendent Grade-II only after
21.12.2022. Mr. Rajiv Rai, Advocate further submitted that since
petitioner has already filed an appeal before the Chairman of the
Trust against the recommendation made by the DPC, the
present petition is not maintainable, especially when the appeal
filed by petitioner is still adjudication.
8. I have heard learned counsel for the petitioner and
have gone through the record carefully.
9. This Court is persuaded to agree with learned Senior
Counsel representing the petitioner that once this Court, while
passing judgment dated 25.11.2022 in the earlier writ petition
having been filed by the petitioner, had found petitioner herein
eligible for promotion to the post of Superintendent Grade-1, and
in that regard, had issued directions to the respondents to
consider him for promotion against the post of Superintendent
Grade-I by 2nd December, 2022, there was no occasion, if any,
for DPC to re-open the issue of promotion of the petitioner to the
posts of Senior Assistant and Superintendent Grade-II, which
.
admittedly never came to be laid challenge in any of the
proceedings by the respondent-Department or by person,
namely Bachhan Singh, who as per DPC proceedings, was
otherwise eligible to be considered for promotion to the post of
Senior Assistant and thereafter Superintendent Grade-II, ahead
of the petitioner. There is nothing on record to suggest that
above named Bachhan Singh ever agitated the issue of
promotion of the petitioner qua the post of Senior Assistant and
thereafter Superintendent Grade-II, ahead of him, rather he
accepted the same. It is only petitioner, who approached this
Court by way of CWP No. 5772 of 2021, seeking therein
direction to the respondents to consider him for promotion to the
post of Superintendent Grade-II on account of the fact that he
had already completed three years service as Superintendent
Grade-II.
10. True, it is that at the time of passing of judgment
dated 25.11.2022 in writ petition detailed hereinabove, there
were no R&P Rules in place for promotion to the post of
Superintendent Grade-I and as such, this Court, having taken
note of the fact that similar situate person i.e. Junior Engineer,
was given promotion on the analogy of R&P Rules existing in
.
other departments, proceeded to direct the respondents to
consider the case of the petitioner for promotion against the post
of Superintendent Grade-1 by 2nd December, 2022.
11. Moreover, careful perusal of judgment dated
25.11.2022, if read in entirety, nowhere suggest that plea now
sought to be taken by the respondents was ever raised.
Similarly, this Court finds that even in the instant proceedings,
the respondents have not raised this plea that promotion of the
petitioner to the post of Senior Assistant and Superintendent
Grade-II in the years 2010 and 2018, respectively, was not in
accordance with law and he was not entitled for the same. Since
the stand which has now been taken by the Departmental
Promotion Committee was never taken by the respondent-
Department and it was never their case, the rightful claim of the
petitioner cannot be permitted to be defeated on the ground
taken by the DPC, which otherwise does not appear to be
legally sustainable.
12. Leaving everything aside, once judgment dated
25.11.2022 passed by this Court has attained finality, and in that
judgment specific direction was issued to the respondents to
consider the case of the petitioner against the post of
.
Superintendent Grade-1, there was no occasion, if any, for DPC
to look into the aspect of promotion of the petitioner to the post of
Senior Assistant and thereafter Superintendent Grade-II.
Moreover, this Court finds that respondent-Department, while
preparing agenda for DPC in terms of judgment dated
25.11.2022 passed in CWP No. 5772 of 2021, nowhere
requested DPC to review the promotion of the petitioner to the
post of Senior Assistant and Superintendent Grade-II, rather
agenda was specifically prepared for consideration of the case of
the petitioner for promotion to the post of Superintendent Grade-
1 from Superintendent Grade-II. However, it appears that DPC,
in violation of mandate contained in the judgment dated
25.11.2022, wrongly undertook the exercise of re-examining the
issue of promotion of the petitioner to the post of Senior
Assistant and Superintendent Grade -II, which otherwise has
attained finality.
13. No doubt, petitioner, prior to filing the petition at
hand, had already filed an appeal before the Chairman of the
Trust, thereby laying challenge to the proceedings of DPC, but
that may not be a reason for this Court to non-suit the petitioner,
especially when issue with regard to violation of directions
.
contained in the judgment dated 25.11.2022, passed by this
Court in the earlier writ petition can only be seen by this Court.
Since this Court, after having taken note of previous promotion of
the petitioner to the post of Senior Assistant and thereafter
Superintendent Grade-II, had directed respondent-Department to
consider the case of the petitioner for promotion to the post of
Superintendent Grade-1 and question with regard to non-
compliance of aforesaid judgment, if any, can be gone into by
this Court in the instant proceedings, pendency of appeal, if any,
filed by the petitioner is of no consequence, rather same shall
stand rendered infructuous on account of judgment passed in
the instant case.
14. Consequently, in view of the detailed discussion
made hereinabove, this Court finds merit in the present petition
and accordingly same is allowed. Impugned minutes of DPC
held on 01.12.2022 (Annexure P-16), are quashed set-aside
inasmuch as case of the petitioner for promotion to the post of
Superintendent Grade-1 from Superintendent Grade-II has been
rejected. Respondent-Department is directed to consider the
case of the petitioner afresh by convening a review DPC
expeditiously, preferably within a period of two weeks, in light of
.
directions contained in judgment dated 25.11.2022 as well as
observations and findings recorded in the instant judgment and
thereafter, necessary orders with regard to promotion of the
petitioner to the post of Superintendent Grade-1 may be passed,
if there is no other legal impediment. Needless to say, promotion,
if any, of the petitioner to the post of Superintendent Grade-1
shall relate back 2nd December 2022, the date on which,
respondents were otherwise required to consider the petitioner
for promotion to the post of Superintendent Grade-1 in terms of
judgment passed by this Court in CWP No. 5772 of 2021.
Pending applications, if any, also stand disposed of.
(Sandeep Sharma),
Judge
June 23, 2025
(shankar)
