IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 4502 of 2008 (OA 1505/1997) Date of Decision : April 26, 2010 Sh. V. Kahol Petitioner Versus H. P. State Industrial Corporation Ltd. & another Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Ms. Jyotsna Rewal Dua, Advocate, for the petitioner. For the respondents : Mr. D. K. Khanna, Advocate, for respondent No. 1. Ms. Ranjana Parmar, Advocate, for respondent No. 2. Sanjay Karol, J. (Oral) 1. It is not disputed at the Bar that subsequent to the filing of the present petition, after seeking voluntary retirement from service petitioner has shifted to Canada. For the purposes of taking up a fresh job he has also requested respondent No. 1 to issue all certificates. This is evident from Annexure R-2/A (Page 219 of the record). 2. Petitioner was originally appointed on 12.5.1975 as the Deputy Manager with respondent No. 1 organisation. The tentative Whether reports of Local Papers may be allowed to see the judgment? 2 seniority lists (Annexure A-2 and Annexure A-3) and the revised draft seniority list (Annexure A-5) undoubtedly show him to be at Sl. No. 1 as Deputy Manager (Project Division). This position continued even in the year 1986 (Annexure A-6). On 20.3.1984, respondent No. 1 took a decision for keeping the post of a Senior Manager (Projects) in abeyance and inter alia creating two posts i.e. Senior Manager (Mechanical) and Manager (Mechanical). 3. These posts were advertised and applications were invited from direct recruits. The private respondent who resigned from his job, on 4.6.1987 was appointed as the Manager (Mechanical). 4. In the meanwhile, for the posts of Managers (Project Division) which were lying vacant eligible persons including the petitioner were considered for promotion. As is evident from the minutes of the D.P.C. dated 8.5.1986, petitioner and one Sh. R. P. Jain were recommended for appointment as Managers (Project Division). However, their recommendation and appointment was on ad hoc basis for the reason that the R & P Rules were pending approval with the Government. They continued to officiate as such till their regularisation in the year 1992. 5. It is an admitted position that the R & P Rules were notified only on 7.4.1997. 6. The controversy in issue is with regard to the promotion to the next higher post of Senior Manager (Projects). On 19.10.1993 the private respondent was asked to take charge of the said post in terms of the following order: 3 “OFFICE ORDER Shri Chetan Sharma is hereby ordered to take over the acting charge of the post of Sr. Manager (Project) till further orders. Shri Sharma will not be entitled to any financial benefits whatsoever for holding the acting charge of the post of Sr. Manager (Project). for H.P.S.I.D.C. Limited, Sd/- (YOGESH KHANNA) Managing Director.” 7. Subsequently respondent No. 1 decided to fill up this post on regular basis and as such convened DPC. As is evident from the memorandum placed before the DPC (page 111), ad hoc service rendered by an employee was to be taken into account for considering the eligibility for the purposes of promotion to the next higher post. Evidently three persons i.e. the petitioner, private respondent and Sh. R. P. Jain were found eligible for consideration to promotion to the post in question. There is no dispute that even by this time R & P Rules had not been notified and the promotion was sought to be made on the basis of the draft rules which were pending with the Government for approval. It cannot be disputed that the policy/criteria adopted by respondent No. 1 for filling up the said post eventually crystalised in the shape of R & P Rules. 8. The Committee after due deliberation recommended the name of the private respondent to be appointed against the post in question. As such, vide office order dated 7.12.1993 (Annexure A- 4 14) he was promoted with immediate effect. Noticeably the period for which the private respondent had officiated was not taken into account while promoting him. 9. Petitioner has specifically not challenged the order of appointment of the private respondent as Senior Manager (Projects) on the ground of his ineligibility. There are no pleadings or prayer to this effect. Learned Counsel also could not point out the same. However it is now being canvassed that since respondent No. 1 had created a separate cadre for the posts of Senior Managers in the Projects Division therefore he was not eligible for promotion to the post in question. Such submission is based on the information furnished by respondent No. 1 to the petitioner, under the Right to Information Act. 10. It is a matter of record that no seniority list was ever prepared by respondent No. 1 for officers holding the post of Manager (Project Division). In fact private respondent was the only regularly appointed person at that time. In this background information furnished by respondent No. 1 to the effect that no separate orders were issued fixing the seniority of the private respondent, for the reason that he was a single Manager in the cadre cannot be faulted. Petitioner was confirmed as a Manager (Project Division) only in the year 1992 by when the private respondent had already been appointed on regular basis. 11. Importantly it stands clarified by the respondents that in the Project Department itself, post of Manager (Clerical) was created 5 only for the purposes of administrative convenience. The Project Department was actually divided into three units namely (i) Project Promotion Unit, (ii) Investment and Finance Unit and (iii) Monitoring Unit. This was necessitated due to administrative exigencies. A policy decision was taken to strengthen the Project Department comprising of technical appraisal cell by induction of technically qualified persons in the field of Mechanical Engineering. There is nothing wrong with the same. Undoubtedly there is no dispute with regard to the educational qualification of the private respondent. He is a Bachelor of Engineering (Mechanical) whereas petitioner is only M.Sc. (Chemistry). 12. It is urged that private respondent had no experience of five years as a Manager (Project) and hence he was ineligible. It cannot be disputed that as Manager (Technical) he had experience of five years. As such he was eligible. The distinction of different cadres, due to nomenclature of the post, within the Project Department is in fact non existent and fictional. The consistent stand of respondent No. 1 has been to the contrary. At no point, the respondents had intended to create separate cadres for different wings in the Project Department. 13. It also cannot be disputed that while filling up the post in question, petitioner was in fact considered and based on the material before the DPC, the private respondent was found more meritorious and accordingly promoted. 6 14. Initial appointment of the private respondent could not have been challenged being hopelessly barred by time. 15. Hence for the aforesaid reasons I find no merit in the present petition and the same is accordingly dismissed. (Sanjay Karol), Judge. April 26, 2010 (PK)