IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T)No. 6395 of 2008 Decided on : 18.03.2011 Rajinder Singh and others ..… Petitioners. Versus Himachal Pradesh Krishi Vishva Vidalaya and others ……Respondents Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the Petitioners : Mr. Ranjan Sharma, Advocate. For the Respondents : Mr. Lokender Thakur, Advocate for respondent No. 1. None for respondents No. 2 and 3. V.K.Sharma, Judge (oral). The petition has been filed on the following prayers vide para 7 (i) to (v):- “(i) That the promotion of the respondents 2 and 3 to the Post of Junior Engineers on 31.12.1988, vide Annexure A- 10, may kindly be quashed and set-aside. (ii) That the R&P Regulations dated 27.1.1986 vide Annexure A-3 for the post of Junior Engineer, may be declared contrary to the Act and the Statute and be declared 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 illegal and may kindly be quashed and set- aside. (iii) That the Respondent University may be directed to frame new R&P Regulations for promotion to the post of Junior Engineer, in accordance with the Act and the Statute forthwith. (iv) That the Respondent University may be directed to amend the existing R&P Regulations vide Annexure A-3, by providing promotional avenues to the applicants, i.e the Work Inspectors forthwith. (v) That if the relief(s) (i) to (iii) is not maintainable, then the Respondent University may be directed to consider the case of the applicants, i.e. the Work Inspectors, for promotion to the post of Junior Engineer, in pursuance to the decision of the Board of Management dated 2.12.1986, by adopting the R&P Rules for the post of Junior Engineer which are existing in the HPPWD and the 5% quota meant for work Inspector, for the post of Junior Engineer, forthwith.” 2. In reply, respondent No.1 has taken the following stand vide paras 6(iv) & (v), (vi) & (vii), (x) and (xii) (m), (n), (o) & (p):- “(iv) & (v) That since the post of Junior Engineer is a technical post, which c an be manned only by a qualified diploma holders, it cannot be earmarked to promotion quota by way of 75 percent. However, in order to give some incentive to internal candidates 10% of these posts have been earmarked 3 under promotion quota from amongst the categories of Surveyors as is evident from promotion rules annexed as Annexure A-3. (vi) & (vii) That the promotion rules followed and adopted by the respondent university vide Annexure A-3 only entitle the surveyors to be considered under promotion quota for promotion to the post of Junior Engineer. (x) That the rules of promotion for Junior Engineer Annexure A-3 do not make a provision for consideration of applicants for promotion to the post of Junior Engineers. (xii) (m) (n) (o) & (p) That since the promotion rules do not contain a provision for consideration of the applicants for promotion to the post of Junior Engineers, so the request of the applicants cannot be accepted.” 3. The petitioners were at the relevant time working in the respondent-University as Work Inspector/Motor Mate. Later on, the post of Motor Mate was also re-designated as Work Inspector. Their grievance is that though vide notification dated 27.1.1987, Annexure A-3, the Board of Management of the respondent-University decided that the promotion Rules in respect of Engineering & Architectural posts in the University shall be the same as obtaining in H.P.P.W.D. However, as per Annexure to the said notification, the post of Surveyor alone was included in the feeder category for promotion to the post of Junior Engineer, 4 which is the next promotional post for the petitioners. The co-ordinate post of Work Inspector, which as per the Himachal Pradesh Public Works Department, Subordinate Services Class III Junior Engineer (Civil) (Technical) Recruitment Rules, 1979, Annexure A-4 (a legible copy whereof has been brought on record by the learned counsel for the petitioners during the course of hearing) is also one of the posts in the feeder category for promotion to the post of Junior Engineer, was excluded. Thus, in essence, the Annexure to notification dated 27.1.1987, Annexure A-3, is in contradiction with the main notification incorporating the decision of the Board of Management. According to the petitioners, for want of promotional avenues they are stagnating in the same post for the last many years and in view of the above dichotomy in the Annexure to notification dated 27.1.1987, Annexure A-3, this situation is going to persist indefinitely, unless rectified. 4. Reliance in this regard is placed on the law laid down by the Hon’ble Supreme Court in the following decisions: 1. State of Tripura and others vs. K.K.Roy, (2004) 9 Supreme Court Cases 65, paras 4 and 5, whereof are as under:- “4.Indisputably, the post of Law Officer-cum- Draftsman is a single cadre post. It is also undisputed that there does not exist any promotional avenue therefor. The respondent 5 is holder of a Master Degree as also a Degree in Law. He was appointed in the year 1982. If the contention of the appellant is to be accepted, the respondent would be left without being promoted throughout his career. In almost an identical situation, a Bench of this Court in Council of Scientific and Industrial Research and Another Vs. K.G.S. Bhatt held : (SCC pp. 638-39, para 9) "...It is often said and indeed, adroitly, an organisation, public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career, One must, therefore, be given opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See : Principles of Personnel Management by Flipo Edwin B., 4th edn., p. 246). Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors." (See : Personnel Management by Dr. Udai Pareek, p. 277). There cannot be any modern management much less any career planning, manpower development, management 6 development, etc., which is not related to a system of promotions..." 5. The matter came up for consideration again in Dr. Ms. O.Z. Hussain Vs. Union of India, wherein this Court in no uncertain terms laid down the law stating: "...Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers..." 2. Food Corporation of India and others vs. Pashotam Das Bansal and others, (2008) 5 Supreme Court Cases 100. Paras 12 and 13 of the judgment are extracted below:- “12. When employees are denied an opportunity of promotion for long years (in this case 30 years) on the ground that he fell within a category of employees excluded from promotional prospect, the Superior Court will have the jurisdiction to issue necessary direction. 13. If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the Court although may not issue any direction as 7 to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a Superior Court of the country.” 3. A Satyanarayana and others vs. S. Purshotham and others, (2008) 5 Supreme Court Cases 416. Paras 27 and 30 of the report are re-produced below:- ”27. However, such a Rule must apply to both the groups. Promotion to a higher post from the officers of a particular cadre would depend upon a large number of factors a person may retire; he may be departmentally proceeded against, he may be sent on deputation; he may resign; Cessation of employment, thus, may be on various grounds. If the number of posts is limited despite uncertainty with regard to arising of any vacancy on any higher post, the validity of such a rule would be open to question. 30. Although mere chance of promotion is not a fundamental right, but right to be considered therefor is In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all time to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India.” 8 5. Reliance has also been placed on a Division Bench judgment of this Court in CWP No. 935 of 2001, State of Himachal Pradesh vs. Vijay Kumar Sharma, wherein, it has been held that Assured Career Progression Scheme is not a substitute for promotional avenues. Relevant portion whereof reads thus: “The framing of scheme notified on 15th December, 1998 cannot be assumed and treated as a substitute for promotional avenues. The grant of next higher scale, proficiency step up etc. are having so many conditions attached as noticed hereinabove under the notification dated 15th December, 1998.” 6. In view of the above, the petition is disposed of with a direction to respondent No.1-University to consider the case of the petitioners for inclusion of the post of Work Inspector in the feeder category for promotion to the post of Junior Engineer strictly in accordance with notification dated 27.1.1987, Annexure A-3 and the law laid down by the Hon’ble Supreme Court and this Court in the judgments referred to here-in-above, within six months from the date of production of copy of this judgment by the petitioners and thereafter consider their case for promotion to the post of Junior Engineer, in accordance with law. 9 7. The petition, as also pending CMP(s), if any, stand disposed of in the above terms. (V.K. Sharma) Judge 18th March, 2011. Lsp*