IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.:685/2007 Reserved on: 6.6.2008 Decided on: 18.7.2008 Ajay Kumar …Petitioner. Versus Bhakra Beas Management Board. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Shrawan Dogra, Advocate. For the respondents : Mr. N.K. Sood Advocate. No.1 to 3. Rajiv Sharma, J. The brief facts necessary for the disposal of this writ petition are that the petitioner was appointed as Welder Grade-II on 13th August, 1993. The post of Welder Grade-II is in feeder category for promotion to the post of Welder Grade-I. The promotion from Welder Grade-II to Welder Grade- I is regulated under the Bhakra Beas Management Board Class-III and Class-IV Employees (Recruitment and conditions of Service) Regulations, 1994. Regulation 15 deals with the cadre of Welder Grade-I, the same reads thus: 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 15. Welder Grade-I 17 1365- 45- 1500- 50- 2000- 60- 2060- 70- 2410 (i) By direct recruitmen t (33%) Matric with Industrial Training certificate in Welder Trade and holding certificate to undertake Radiography quality Welders on Carbon Steels. 2 years experience in welding to high pressure parts (Carbon Steel Pipes and Tubes) Head of Department (ii) By promotion from amongst Welders (67%) (i) Matric with Industrial Training Institute in Welding Trade (ii) Non-matric Industrial Training Institute in Welding Trade. 2 years experience 3 years experience (iii) Matric with experience in welding trade 3 years experience (iv) Non-matric who can read and write with experience in Welding trade. 4 years experience. It is evident from the reading of Regulation 15 of the Bhakra Beas Management Board Class-III and Class-IV Employees (Recruitment and conditions of Service) Regulations, 1994 that 33% posts are to be filled up by way of direct recruitment and remaining 67% posts are to be filled up by way of promotion from amongst Welders. The candidates who have passed matriculation examination with Industrial Training Certificate in Welding trade with two years experience are eligible for promotion from Welder Grade-II to Welder Grade-I. In case of non-matriculation candidates , who can read and write are required to have four years experience for being considered for promotion to the post of Welder Grade-I. The petitioner became eligible for promotion as per the Regulations on 13th August, 1995. He was not considered for promotion from Welder Grade-II to Welder Grade-I. In the meantime, one Sh. Jagir 3 Singh filed a civil suit seeking promotion from Welder Grade-II to Welder Grade-I. The suit was dismissed by the trial court. He preferred an appeal before the learned District Judge. The learned District Judge passed a decree holding Sh. Jagir Singh eligible to the post of Welder Grade-I as on 24.7.1995. The management preferred an RSA against the judgment and decree passed by the learned District Judge. The Regular Second Appeal was dismissed on 8.6.2006 by this Court. The judgment was implemented by the management and Sh. Jagir Singh was promoted from due date i.e. 24.7.1995. The petitioner made a representation on 19.9.1997 through proper channel. The representation made by the petitioner was not addressed to and in the meantime the management made promotion of other persons as Welder Grade-I on 20.11.2001. The petitioner made representation through proper channel after the judgment rendered by this Court in RSA No. 170/2006 on 22.1.2007. He submitted reminders on 14.2.2007 and 12.3.2007. These were not considered by the management. In nutshell the case of the petitioner as per the pleadings is that he was eligible and qualified to be considered for promotion from Welder Grade-II to Welder Grade-I immediately after putting in two years service as Welder Grade-II i.e. 13.8.1995. The management has resisted this petition by filing a detailed reply. The case of the management is that the judgment of this Court rendered in RSA No. 170/2006 has been implemented and Sh. Jagir Singh has also been promoted. As far as vacancy position is concerned, the case set up by the respondent- management is that there were no vacancies available for the promotion with effect from 22.7.1995 to 11.10.1998 and its further case is that the promotions were not made due to administrative grounds. S/Sh. Joginder Pal, Sant Ram and Parma Nand were promoted on 12.10.1998, 18.1.1999 and 19.1.1999. The petitioner in fact was promoted on 12.12.2003. The 4 name of respondent No.4 was deleted and Sh. Sant Ram was added as party-respondent during the course of the hearing of this petition. Mr. Shrawan Dogra, Advocate has strenuously argued that his client had become eligible and was bound to be considered for promotion on 13th August, 1995. He also contended that his client is matriculate with ITI certificate and the decision of the management not to consider him for promotion from due date is arbitrary thus violative of Articles 14 and 16 of the Constitution of India. He further contended that the management should have promoted the petitioner before S/Sh. Joginder Pal, Sant Ram and Parma Nand, who had become eligible according to him only in the year 1996. Mr. N.K. Sood, Advocate appearing on behalf of the management has vehemently argued that there were no vacancies available with effect from 22.7.1995 to 11.10.1998 in the promotion quota and the management had decided not to fill up these posts. His further contention is that S/Sh. Joginder Pal, Sant Ram and Parma Nand were promoted due to exigency of service against the vacancies reserved for direct recruitment. I have heard the learned counsel for the parties and have also perused the pleadings of the parties. What emerges from the material facts is that the petitioner was appointed as a Welder Grade-II on 13.8.1993. He was to be considered for promotion as per the existing Regulations, the relevant extract of which has already been reproduced hereinabove. The plea of the management is that there were no vacancies available with effect from 22.7.1995 to 11.10.1998 and the management had taken administrative decision not to fill up these posts. It appears that the management had waited for S/Sh. Joginder Pal, Sant Ram and Parma Nand to have four years experience to 5 consider them for promotion before the petitioner. If the candidates are available as per the Recruitment and Promotion Rules/Regulations, there is no reason why they should be deprived of their promotion and the employer cannot wait for indefinite period to allow other candidates to acquire the requisite experience at the cost of those candidates, who are eligible and qualified. In the present case, the petitioner was better placed vis-à-vis S/Sh. Joginder Pal, Sant Ram and Parma Nand. He had completed his two years service on 13.8.1995. He was matriculate with certificate from the ITI. S/Sh. Joginder Pal, Sant Ram and Parma Nand are not matriculate and they had completed four years service after the petitioner had become eligible. The management has adopted a different stand as far as S/Sh. Joginder Pal, Sant Ram and Parma Nand are concerned. The management besides waiting for considerable period for making them eligible for promotion had promoted them against the quota reserved for direct recruitment. The reason assigned is that it was due to exigency of service. These persons have been promoted with effect from 12.10.1998, 18.1.1999 and 19.1.1999. Since the petitioner was fully eligible on 13th August, 1995. He was to be considered for promotion against the vacancies which were available for direct recruitment quota before these three persons were considered for promotion. The case of the petitioner was at par with Sh. Jagir Singh. Shri Jagir Singh had filed a suit, which was dismissed by the learned trial court. The learned District Judge has allowed the appeal and held Shri Jagir Singh eligible for promotion with effect from 24.7.1995. The Regular Second Appeal preferred by the management bearing RSA No. 170/2006 was dismissed by this Court on 8.6.2006. The representations made by the petitioner seeking similar treatment vis-à-vis Jagir Singh, were not addressed to. In fact, the judgment in case of Jagir Singh has been implemented by the 6 management and he has been promoted as Welder Grade-I with effect from 24.7.1995. It is true that no employee has a right for promotion, however, he has a right to be considered for promotion in accordance with law. The management during the course of hearing was directed to file a supplementary affidavit giving therein the exact details of the vacancies which were available with effect from 22.7.1995 to 11.10.1998 onwards. The management has filed the supplementary affidavit but has reiterated the earlier stand, which it had taken in the reply filed to the writ petition. It will be pertinent to notice that Sh. Joginder Pal and Parma Nand have already been retired and it is only Sh. Sant Ram, who is serving with the management. He has been promoted on 18.1.1999 and the petitioner has been promoted as Welder Grade-I with effect from 12.12.2003. Their Lordships of the Hon’ble Supreme Court in C.O. Arumugam and others versus State of Tamil Nadu and others, 1991 Supp. (2) SCC 199 have held that every civil servant has a right to have his case considered for promotion according to his turn and it is a guarantee flowing from Articles 14 and 16 (1) of the Constitution of India. Their Lordships have further held that the consideration of promotion could be postponed only on reasonable grounds and to avoid arbitrariness, it would be better to follow certain uniform principle. Their Lordships have held as under: “As to the merits of the matter, it is necessary to state that every civil servants has a right to have his case considered for promotion according to his turn and it is a guarantee flowing from Articles 14 and 16(1 of the Constitution. The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principles. The promotion of persons against whom charge has been framed in the disciplinary proceedings or charge-sheet has been filed in criminal case may be 7 deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted.” Their Lordships in Nirmal Chandra Bhattacharjee and others versus Union of India and others, 1991 Supp (2) Supreme Court Cases 363 have held that an employee cannot be made to suffer on account of intervening events. Their Lordships have held as under: “One of the principles of service is that any rule does not work to prejudice of an employee who was in service prior to that date. Admittedly the vacancies against which appellants were promoted had occurred prior to restructuring of these posts. It is further not disputed that various other posts to which class `IV' employees could be promoted were filled prior to 1/08/1983. The selection process in respect of Ticket Collectors had also started prior to 1/08/1983. If the department would have proceeded with the selection well within time and would have completed it before 1/08/1983 then the appellants would have become Ticket Collectors without any difficulty. The mistake or delay on the part of the department, therefore, should not be permitted to recoil on the appellants. Paragraph '31' of the restructuring order itself provides that vacancies in various grades of posts covered in different categories existing on 31/07/1983 would be filled in accordance with the procedure which was in vogue before 1/08/1983.” It is evident from the regulations framed by the Board that an incentive has been given to those employees to be considered for promotion, who are better qualified vis-à-vis less qualified candidates. 8 The very purpose of framing the regulations will be defeated if the employer waits for considerable time to enable the less qualified candidates to acquire the requisite experience. In the present case as per the regulations, the petitioner was bound to be considered for promotion before those persons, who are less qualified and were not in possession of requisite experience vis-à-vis the petitioner. The employer in the present case has taken the stand which is diametrical opposite to the intention of the regulations making authority. The employer must always ensure that the regulations are followed in letter and spirit and no departure is made from the same to eliminate the vice of discrimination. Consequently, in view of these observations, the writ petition is allowed. The respondents are directed to consider the petitioner for promotion to the post of Welder Grade-I with effect from 12.10.1998 within a period of four weeks from today. The petitioner will be held entitled only to seniority with effect from 12.10.1998. It is clarified that while implementing the judgment, the management will ensure that no incumbent is reverted and if necessary a supernumerary post be created to balance the equities. There shall be no order as to costs. July 18, 2008 (Rajiv Sharma ), J. *awasthi*