IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 2263/2008 Reserved on: 5.5.2009 Decided on:7.5.2009 Balak Ram Bhardwaj and others. …Petitioners. 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 petitioners : Mr. D.P. Gupta, Advocate vice Mr. K.D. Shreedhar, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Deputy Advocate General for respondents No.1 and 2. Mr. N.K. Thakur, Advocate for respondents No.3 and 4. Rajiv Sharma, J. The petitioners have assailed the promotion of respondents No.3 and 4 to the post of General Manager on the basis of the recommendations made by the Review Departmental Promotion Committee in April, 1994. Respondents No.3 and 4 were promoted to the post of General Manager, District Industries Centre, Class-I Gazetted on regular basis with effect from 19.2.1986 and 20.8.1992 vide Annexure A-7. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 The case of the petitioners, in nutshell, is that respondents No.3 and 4 could not be considered for promotion to the post of General Manager, District Industries Centre as per the Recruitment and Promotion Rules notified on 16.10.1985. The case of the respondent-State is that respondents No.3 and 4 have been promoted on the basis of the judgment rendered by the Hon’ble Supreme Court in Civil Appeal No. 4038/1988 tilted, M.L. Sharma versus State of Himachal Pradesh. Mr. N.K. Thakur, Advocate has informed the Court that respondents No.3 and 4 have been further inducted into Himachal Pradesh Administrative Services in the year 1997. The petitioners have not assailed the induction of the petitioners to the Himachal Pradesh Administrative Services after they were promoted to the post of General Manager, District Industries Centre in the year 1986 and 1992 vide Annexure A-7. I have heard the learned counsel for the parties and perused the record carefully. Respondents No.3 and 4 have been promoted, as noticed above, vide office order dated 8th May, 1994 with effect from 19.2.1986 and 20.8.1992 as General Manager, District Industries Centre. They have been further inducted into Himachal Pradesh Administrative Services in the year 1997. The petitioners have not assailed office order whereby respondents No.3 and 4 have been inducted into Himachal Pradesh Administrative Services. It was necessary for the petitioners to amend the writ petition to assail the orders whereby respondents No.3 and 4 have been promoted/inducted into Himachal Pradesh Administrative Services. Their Lordships of the Hon’ble Supreme Court in Piare Lal versus Union of India and others, AIR 1975 SC 650 have held as under: 3 “7. When the appeal came up for hearing before us, the State of Punjab filed an affidavit made by H. S. Sekhon, Assistant Inspector General of Police on 2nd January, 1975. The Note of the Chief Secretary to the Government of Punjab, to which we have referred above, was annexed as annexure RA to this affidavit and it also carried the two orders dated 28th October, l966 as Annexures RB and RC. These two orders dated 28th October, l966 clearly showed that the orders of promotion impugned in the petition did not exist any more and the petition had become infructuous and futile. Faced with this situation, the appellant invited us to consider the validity of the two orders dated 28th October, 1966 and contended that they were invalid, since they were based on selections made in accordance with the new principle evolved by the Establishment Board, which principle was different from the one really applicable in the present case. The appellant urged that by reason of Rule 2 (b) of the All India Services (Conditions of Service - Residuary Matters) Rules, 1960, the selections to the Selection Grade posts as also to the posts of Deputy Inspector General of Police were regulated by the principle contained in the circular of the State Government dated 4th/l7th September, 1956 as clarified by the subsequent circulars of the State Government dated 28th June, 1961 and 8th/1lth September, 1961, Annexures RD, RE and RF to the affidavit of H. S. Sekhon, and since this principle had not been followed by the Establishment Board and the President in making the two orders dated 28th October, l966, these two orders were invalid. It was also contended on behalf of the appellant that he was entitled as of right to be promoted to the Selection Grade post as also to the post of Deputy Inspector General of Police merely on the basis of seniority and the two orders dated 28th October, 1966 promoting officers junior to him to these posts, therefore, 4 amounted to withholding of promotion by way of penalty and that attracted the provisions of the All India Services (Discipline and Appeal) Rules, 1955. We do not think we can entertain these contentions urged on behalf of the appellant against the validity of the two orders dated 28th October, 1966, since there is no challenge to these two orders in the petition. The appellant could have very well amended the petition and challenged the validity of the two orders dated 28th October, l966 before the petition was heard and disposed of by the High Court, but the appellant failed to do so. The appellant did not care to apply for amendment of the petition even after the appeal was preferred in this Court and though the appeal remained pending in this Court for about seven years, no application for amendment to the petition was made on behalf of the appellant. It was only after the hearing of the appeal was concluded and when it was pointed out by us that the entire basis of the petition was knocked out by the making of the two orders dated 28th October, 1966 and no relief could be granted to the appellant unless those two orders were successfully impugned, that the appellant asked for time to move an application for amendment of the petition so as to include a challenge to the validity of those two orders. Obviously, we could not grant time for moving such an application for amendment at the stage at which it was sought to be moved. The two orders dated 28th October, 1966 could not be allowed to be challenged by an amendment of the petition more than eight years after the date when they were made. It is not possible to believe that the appellant was not aware of the making of these two orders and that he came to know of them for the first time when the affidavit dated 2nd January, 1975 was filed by H. S. Sekhon on behalf of the State Government. The appellant could have amended the petition earlier, at any rate during the long period of seven years when 5 the appeal was pending in this Court, but the appellant was either lax or negligent. We cannot now, after the lapse of such a long time and particularly after the hearing of the appeal is concluded, allow an amendment to the petition. It must follow a fortiori that, in the absence of challenge in the petition, we cannot examine the validity of the two orders dated 28th October, l966 and strike them down. We must, therefore, hold the petition to have become infructuous by reason of the making of the two orders dated 28th October, l966 and confirm the dismissal of the petition by the High Court, though for different reasons.” Accordingly in view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court, the present petition is not maintainable since the petitioners have not assailed the subsequent office order whereby respondents No.3 and 4 have been promoted/inducted into Himachal Pradesh Administrative Services. Moreover, respondents No.3 and 4 have been promoted to the post of General Manger, District Industries Centre on the basis of the directions issued by the Hon’ble Supreme Court in M.L. Sharma versus State of Himachal Pradesh. In view of the discussion made hereinabove, there is no merit in the present petition and the same is dismissed. There shall, however, be no order as to costs. 7.5. 2009 (Rajiv Sharma ), J. *awasthi*