IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 5458 of 2008. Decided on: 29.06.2010. G.C. Pandey. …Petitioner. -Versus- State of Himachal Pradesh and another. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 __________________________________________________________ For the petitioner. : Mrs. Ranjana Parmar, Advocate. For the respondents. : Mr. P.M. Negi, Deputy Advocate General with Mr. Vikas Rathore, Deputy Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Petitioner was appointed as Junior Engineer in the respondent-department. He was promoted to the post of Assistant Engineer on adhoc basis vide notification dated 29.12.1988. He was regularized as Assistant Engineer on 16.03.1995. The post of Assistant Engineer is in feeder category for promotion to the post of Executive Engineer. The State has framed rules under Article 309 called the “Himachal Pradesh Department of Irrigation and Public Health Executive Engineer (Class-1 Gazetted) Recruitment and Promotion Rules, 1997”, notified on 02.04.1997. According to these rules, the post of Executive Engineer is to filled up 70% by promotion from amongst Graduate Assistant Engineers with 8 years regular service or regular combined with continuous ad hoc 1 Whether the reporters of the local papers may be allowed to see the judgment?. (rendered up to 31.03.1991 service) and the remaining 30% by promotion from amongst Diploma Holder Assistant Engineers with 8 years regular service or regular combined with continuous ad hoc (rendered up to 31.03.1991) service; failing which by deputation from amongst the Executive Engineers working in the identical pay scale in other Government Departments. According to Rule 17, every member of the service was required to pass Departmental Examination as prescribed in the Departmental Examination Rules, 1997, as amended from time to time. However, the State Government has carried out the amendment in the Himachal Pradesh Departmental Examination Rules, 1997 on 28th November, 1998. The existing Sub-rule (2) of Rule 23 has been substituted as under:- “A gazetted officer on the attainment of 50 years of age shall not be required to appear in the departmental examination prescribed under these rules, as amended from time to time for the purpose of crossing the Efficiency Bar/Proficiency Step- up/Higher Scale next due and confirmation in the service. However, the Gazetted Officers who have crossed the age of 55 years shall not be required to pass the Departmental Examination prescribed under these rules for the purpose of further promotion.” 2. A bare perusal of the amendment carried out on 28th November, 1998 reveals that a gazetted officer on the attainment of 50 years of age is not required to appear in the departmental examination prescribed in the rules, amended from time to time for the purpose of crossing the Efficiency Bar/Proficiency Step- up/Higher Scale. However, the gazetted officers who have crossed the age of 55 years were not required to pass the departmental examination prescribed under the rules for the purpose of further promotion. 3. The case of the petitioner, in a nut-shell, is that respondents have constituted a Departmental Promotion Committee to consider the cases of the eligible persons for promotion to the post of Executive Engineer. However, the persons who have not passed the departmental examination were also considered for adhoc promotion. 4. The case of the respondents, precisely is that since the name of the petitioner appears at Sr. No. 148 of the seniority list circulated on 30.11.1995, he could not be considered for adhoc promotion. Their further case is that the Executive Engineer is to be promoted on adhoc basis strictly as per the amended rules. The Recruitment and Promotion Rules for filling up the post of Executive Engineer were notified on 02.04.1997 and it was necessary for the incumbents to pass the departmental examination before being considered for promotion. The Assistant Engineers, who were eligible and qualified between 02.04.1997 to 28.11.1998, were required to pass the departmental examination, even for being considered for adhoc promotion. The amendment carried out on 28.11.1998 was prospective and the vacancies which were available between 02.04.1997 to 28.11.1998, were required to be filled up by way of promotion amongst those candidates who have qualified the departmental examination, like the petitioner. The department has considered the cases of those persons for adhoc promotion for the vacancies which became available between 2.4.1997 to 28.11.1998 without their passing the departmental examination. Petitioner has right to be considered for adhoc promotion as per the law laid down by a Division Bench of this Court in Dr. V.K. Bhargava versus State of H.P. and others, Indian Law Reports (Himachal Series) 1985, 358. 5. The Division Bench has held as under: “33. It cannot be possibly disputed that even an ad- hoc appointment to a post is an appointment to an office, howsoever tenuous its character may be. Such ad-hoc appointment authorizes the appointee to occupy the post and to perform the functions and to discharge the duties and to draw the emoluments attached to the post. In case of ad-hoc appointment to any post by way of promotion, there is also the conferment of a higher status or position. When such an appointment is made to any office under the State, Articles 14 and 16 will un-doubtedly have an impact. Article 16, sub-Article (1) provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. It is settled law that Article 16 is only an incident of the application of the concept of equality enshrined in Article 14. Article 16, sub- Articles (1) and (2), really give effect to the equality before law guaranteed by Article 14 and to the prohibition of discrimination gauranted by Article 15(1). These three provisions form part of the same constitutional code of guarantees and supplement each other and they give effect to the doctrine of equality in the matter of appointment and promotion. In other words, Article 16 guarantees that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. (See: General Manager, Southern Railway and another V. Rangachari, Respondent, Gurbux Das, Intervener, AIR 1962 SC 36, The State of Mysore and another V. P. Narasinga Rao, AIR 1968 SC 349, and C. A. Rajendran V. Union of India and others, AIR 1968 SC 507). In deciding the scope and ambit of the fundamental right of equality of opportunity guaranteed by this Article, it is necessary to bear in mind that in construing the relevant Article a technical or pedantic approach must be avoided. Looked at from this angle, there is no reason to exclude the applicability of Article 16 in matters relating to ad-hoc employment or appointment to any office under the State. Any arbitrariness, unfairness or inequality of treatment in the matter of ad-hoc employment or appointment, including an appointment by way of ad-hoc promotion, to any office under the State would, therefore, give rise to a legitimate challenge enforceable in writ jurisdicition on the ground of the breach of Article 16. If there are any policy decisions/executive instructions governing ad-hoc appointments and there is any arbitrary or irrational departure therefrom on the part of the State, the challenge can be justifiably based on the ground that such act impinges upon the guarantee of equality of treatment enshrined in Article 16. If there is a statutory enactment regulating such appointments and there is a breach thereof, an additional ground of challenge based on the infringement of a legal right would also be available. This much on principle. 6. Accordingly, in view of the observations made hereinabove, the petition is allowed. The respondents are directed to consider the case of the petitioner for promotion on adhoc basis for the post of Executive Engineer against the vacancies which were available between 02.04.1997 to 28.11.1998 with all consequential benefits. Since the petitioner has already superannuated, he is only held entitled to monetary benefits. However, it is made clear that the persons who had already been promoted on adhoc basis, the benefits accrued to them shall not be withdrawn. No costs. (Rajiv Sharma) Judge June 29, 2010. (bhupender)