IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 2863 of 2008. Decided on: 06.08.2010. __________________________________________________________ Budhi Singh. … Petitioner. Versus State of Himachal Pradesh and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : None. For the Respondents : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. P.M. Negi, Deputy Advocate General and Mr. R.P. Singh, Assistant Advocate General for respondents No.1 to 3. None for respondent No.4. Rajiv Sharma, J. (Oral): Notice was issued to respondent No.4 and he has been served on 31.12.2009. However, none has put in appearance on his behalf. 2. The petitioner has assailed the appointment of respondent No.4 as Assistant Sub Inspector on ad hoc basis vide letter dated 29th January, 1994. Material facts necessary for adjudication of this petition are that the petitioner joined the Dog Squad of Himachal Pradesh Police, State C.I.D. on 6th August, 1975. He was promoted to the rank of Head Constable on ad hoc basis on 1st April, 1984. He was regularised by 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - bringing him on list C-2 with effect from 15th September, 1988 as Head Constable. However, the respondents No.1 to 3 have promoted respondent No.4 to the post of A.S.I. on ad hoc basis with effect from 29th January, 1994. 3. The case of the petitioner, in a nutshell, is that he was appointed in the Dog Squad on 6th August, 1975 and regularised as Head Constable on 15th September, 1988. However, respondent No.4 was working on ad hoc basis as Head Constable when he was considered for promotion to the post of A.S.I. on ad hoc basis. Moreover, respondent No.4 as per the averments contained in the petition is non-matriculate and the petitioner is matriculate. The case of the respondent-State, precisely, is that respondent No.4 has been considered for promotion as A.S.I. on ad hoc basis as per the provisions of Punjab Police Rules 21.25(2) and Rule 1.4(3) of C.I.D. Manual. It is also averred in the reply that respondent No.4 has been promoted to the post of A.S.I. keeping in view his length of service, better experience in the Police Department. It has been admitted by the respondents in the reply that the petitioner had joined the Dog Squad of C.I.D. on 6th August, 1975 while respondent No.4 had joined the said squad on 20th July, 1983. 4. A bare perusal of the pleadings makes it abundantly clear that the petitioner at the time of considering his case alongwith respondent No.4 for promotion to the post of A.S.I., was working as regular Head Constable and respondent No.4 was only working on ad hoc basis as Head Constable. The petitioner has been working in the Dog Squad with effect from 6th August, 1975 and respondent No.4 with effect from 20th July, 1983. He has been regularised with effect from 15th - 3 - September, 1988. In these circumstances, the respondents No.1 to 3 could not have ignored the case of the petitioner for promotion to the post of A.S.I., though on ad hoc basis, since he was more meritorious being matriculate as well as having been promoted to the post of Head Constable with effect from 15th September, 1988 and respondent No.4 was only working on ad hoc basis. The averment contained in the petition that the respondent No.4 was working merely on ad hoc basis as Head Constable at the time of considering his case for promotion to the post of A.S.I., has not been denied by the respondent-State in the reply. The right to be considered even for ad hoc promotion is covered under Articles 14 and 16 of the Constitution of India. 5. Petitioner has right to be considered for ad hoc 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. The Division Bench has held as under (para 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 - 4 - 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 guaranteed 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 jurisdiction 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 - 5 - thereof, an additional ground of challenge based on the infringement of a legal right would also be available. This much on principle.” 2. Accordingly, in view of the observations made hereinabove, petition is allowed. Promotion of respondent No.4 made vide letter dated 29th January, 1994 is quashed and set aside. Respondents No.1 to 3 are directed to consider the case of the petitioner for promotion to the post of A.S.I. with effect from 29th January, 1994 on ad hoc basis with all consequential benefits, within a period of two months from today. There will be no order as to costs. (Rajiv Sharma), Judge. August 06, 2010. (sck).