Punjab-Haryana High Court
Bhag Mall vs State Of Punjab And Others on 24 April, 2024
Neutral Citation No:=2024:PHHC:055934
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
228
WP-14124-2018 (O&M)
C
Date of decision: 24.04.2024
hag Mall (now deceased)
B
through his legal heirs ...Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
*****
Present : Mr. Vivek Sharma, Advocate for the petitioner.
Mr. Swapan Shorey, DAG, Punjab.
*****
AMAN CHAUDHARY, J.
1. The prayer made in the present petition is for quashing the reply
dated04.10.2017,AnnexureP-9,tothelegalnoticeofthepetitionerandgranting
himpromotiontothepostofSuperintendentGrade-I,aswellfurtherprayertofix
pension,releasearrearsofpayandpension,withconsequentialbenefitsalongwith
penal interest @ 18%.
2. Learnedcounselwouldcontendthatthepetitioner,workingasSenior
Assistant since 14.03.1987, was eligible for promotion to the post of
Superintendent Grade-I since September, 2014, with no departmental/ police/
vigilance inquiry pending against himasperNotingdated23.09.2014,Annexure
P-2. DPC meeting to consider his promotion was fixed for 17.11.2014, wherein
the following observations were made:
" Regarding para 'C' of Sr. no.2, it is submitted that Sh. Bhag
Mal, Senior Assistant was promoted vide Endst. No.
Sorts-SS-2-D.A.3-2002/9765-9814, Dated 13.09.2002 as
Senior Assistant. Hence, the Storekeeper-cum- Accountant
whichhasbeenmentionedinAgendaNote,thesamehasbeen
given to this postofSeniorAssistantbythedepartmentinthe
district.Hence,whileconsideringtheconcernedemployeeonly
asSeniorAssistantitwouldbeappropriatetopromotehimfor
the post of Superintendent Grade-1."
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3. However it was adjourned time and again for reasons best known,
being finally scheduled for 26.03.2015, but still not held. Thereafter, on
29.04.2015,AnnexureP-5,theSpecialSecretarysoughtinformationfromDirector
Sports,Punjabastowhetheranyextensioningovernmentservicehadbeengiven
to the petitioner, whereafter, he retired on 30.04.2015, without having been
promoted.
4. Onthecontrary,learnedStatecounselsubmitsthatthemeetingcould
not take place for administrative reasons and since the petitioner has retired, no
relief can be granted.
5. Heard learned counsel on either side.
6. In ordertoproceedtoadjudicatethepresentcase,areferencecanbe
made to Chaman Lal Lakhanpal vs. UPSC, 1999(1) SCT 175, wherein
non-considerationforpromotionwaschallengedbeforetheDivisionBenchofthis
Court, aggrieved of the order passed by the Central AdministrativeTribunal,the
petitioner therein had submitted his eligibility for consideration forpromotionto
theIndianAdministrativeServiceintheyear1987.TheDPCmeetingof1992,to
be constituted under the Indian Administrative Service (Appointment by
Promotion) Regulations, 1995, was not held, even though via prior meeting the
persons senior to him wereconsidered.Subsequentmeetingsintheyear1994-95
too were adjourned, asaresult,hisconsiderationdidnotmaterialise,thereby,the
Tribunal on that premisethatpetitionerwastoretireon30.09.1998fromservice,
denied to give any direction that by the time, it would be held, he would stand
retired. While allowing the petition, it was observed thus:
" 5.Itistheadmittedpositionthatthepetitionerwaseligibleto
be consideredforpromotionintheyear1994-95.Itisalsonot
disputed that his claim has not been considered. Thus, the
petitioner, even if he was approaching the date of retirement
whenthematterwaspendingbeforetheTribunal,hadarightto
beconsideredwitheffectfromtheduedateandonbeingfound
suitable, he could be fictionally granted the relief which had
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b een denied to him for no fault of his. The relief could not
denied to him merely because a statutory authority viz. the
committee as constituted under the Indian Administrative
Service (Appointment by Promotion) Regulations, 1995 had
not met. The respondents cannot be permitted to take
advantage of their own wrong. By sleeping over the matter,
theycannotdefeattherightsofacitizenavailabletohimunder
the Constitution as well as the statutory provisions of the
regulations.
6.Therighttoequalityofopportunityinmattersofpromotion
is guaranteed under Article 16 of the Constitution. The right
cannot be stifled by an arbitrary failure to perform the duty
imposedbystatutoryregulations.Bymerelychoosingtoavoid
the meeting, a citizen cannot be denied the right to be
considered.
xx xx xx
9. It was then urged that the petitioner has since retired from
service. Even this cannot be a groundforrefusingtoconsider
his claim. The right to be considered had accrued in the year
1994-95. The respondents had failed to consider his claim.
They had not discharged their duty as enjoined uponthemby
law.Thewrongdonetothepetitionercanonlyberemediedby
onemethodviz.directingtherespondentstodotheneedfulon
thehypothesisthathewasinserviceattherelevanttime.Ifthe
petitionerisfoundsuitableforinclusionintheselectlistandif
histurnforappointmentcomesagainstanavailablepostinthe
promotion quota, he will be deemed to have been promoted
witheffectfromtheduedate.Consequentialreliefsshallensue
in accordance with the rules."
7. It would be worthwhile to alsorefertoPremKumarAggarwalvs.
StateofPunjabandothers,LPA-1703-2023,decidedon30.01.2024,whereinthe
appellant was eligible for promotion to the post of District Treasury Officer,
however he retired without having been considered, due to non-convenance of
DPC,despitenumerousInstructionsbytheGovernmentofPunjabandsubmission
ofseveralrepresentationsforexpeditingthesame.Therespondentsweredirected
to consider him for notional promotion to the said post for pensionary benefits.
8. AgainfulreferencemaybemadetoCWP-5148-2020,VijayKumar
Bansal vs. State of Punjab, decided on 13.01.2023, wherein the notional
promotion was granted owing to the factum that the proposalforpromotionwas
made whileinregularservice,howeverDPChadnotconvenedandheultimately
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retired.Thereafter,itwasdeterminedthathewasunfairlydeniedthebenefitonthe
premise of him that the petitioner retired prior to the approval by the Department.
9. Trite tosaythattheStatemustactreasonablyandfairly.Hon'blethe
Supreme Court in State of Maharashtra vs. Jagannath Achyut Karandikar,
1989 Supp (1) SCC 393, had observed that due to the faulty conduct of the
Department, no employee should be forced to endure hardships.
10. The Constitution Bench of Hon'ble the Supreme Court while
weighing on the importance of Articles14and16(1)oftheConstitutionofIndia
in Ajit Singh vs. State of Punjab (1999)7SCC209,observedthatifeligibility
andcriteriaforpromotionaresatisfied,howevertherestillisnoconsiderationfor
the same, then there is clear violation of fundamental right. A similar legal
discourse was reiterated in Ajay Kumar Shukla and Ors. vs. Arvind Rai and
Ors,2021 SCC OnLine SC 1195.
11. The legitimate expectation of an employee of promotion in one's
service career, which in case, he is unable to obtain, on account ofinactionofthe
State, whileinthemeantime,heunfortunatelyretires,withoutaformaltagthereof,
would leave him with a brooding sense of injustice.
12. As it emerges that the petitioner being eligible was recommended for
consideration for promotion to SuperintendentGrade-I,however,theDPCmeeting
was not conducted in a timely manner, either due to blatant dithering by the
respondents or owing to theirlackadaisicalapproach,heintheinterregnumhaving
retiredonattainingtheageofsuperannuation,thus,hecannotbedeprivedofthathe
dulydeserved.ThecontentionoflearnedStatecounselcannotbecountenancedthat,
nowthepetitionerhassinceretired,hecannotbegrantedanybenefit,for,inthathe
wasnotatfaultandtherespondentsarenotpermittedtotakeadvantageoftheirown
illegalaction.Notwithstanding,henolongerbeinginservice,inallfairnessandasa
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matterofprincipleaslaiddownintheaboundingjudicialpronouncement,thisCourt
rules in his favour.
13. Incumulativeconsiderationoffactsandcircumstancesofthecase,the
respondentstoconsiderthepetitionerforpromotionasSuperintendentGrade-Ifrom
the due date, albeit on notional basis only for the purpose of pensionary benefits,
within a period of two monthsfromwhenaweb-printofthisjudgmentisreceived
by the competent authority.
(AMAN CHAUDHARY)
JUDGE
2 4.04.2024
Hemant
hether speaking/reasoned
W : es / No
Y
Whether reportable : Yes / No
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