IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 4219 of 2008 Date of decision: 01.11.2010 _________________________________________________________ Rameshwar Dayal. .....Petitioner. Versus The State of H.P. & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. __________________________________________________________ For the appellant: Mr. Anuj Nag, Advocate. For the respondents: Mr. Anil Jaswal, Deputy Advocate General, for respondents No. 1 and 2. Ms. Archna Dutt, Advocate for respondents No. 5 and 6. V.K. Sharma, J (Oral). The petition has been filed for grant of the following substantive relief vide para 7(1): “7(1) the notifications/orders contained in Annexures A-1 and A-II being illegal, wrong and violative of Article 14 of the Constitution of India may kindly be quashed and set aside as being against the natural justice.” 2. In the reply filed on behalf of the official respondents No. 1 and 2, the following stand has been taken in para 6(3) and (8): “6(3) That the contents of this sub-para of para 6 are also not disputed. However, it is submitted that the applicant was promoted purely on temporary basis with the stipulation that this promotion shall not confer any right on him in the matter of continuance/promotion/seniority etc. in the cadre of Deputy District Attorneys. 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ...2... (8) That in reply to this sub-para of para 6, it is submitted that this Hon'ble Tribunal was pleased to peruse the relevant record, including the proceedings of Departmental Promotion Committees of 1996 and 1997 and the ACRs of the concerned officers, on 14.3.97, which clearly indicate that these D.P.Cs. have taken into account yearwise vacancies and considered eligible officers against yearwise vacancies with their ACRs for the years which were relevant for that particular year as per the instructions of the Government. The D.P.C. of 1996 considered the eligible officers for promotion to the posts of Deputy District Attorneys on the basis of merit- cum-seniority, this being a selection post as per R&P rules and recommended a panel against yearwise vacancies (2 vacancies for the year 1994, 2 for the year 1995 and 4 short term vacancies). Since there had been uncertainty about or available with the department, the said D.P.C. recommended a panel of 4 officers, including the name of applicant, for promotion against the short promoted purely on temporary basis with the stipulation that his temporary promotion shall not confer any right on him in the matter of continuance/promotion/seniority etc. in the cadre of Deputy District Attorneys. The applicant never made any temporary promotion and conditions thereunder. As the applicant was promoted on purely temporary basis against the short term vacancy as recommended by the D.P.C. of 1996, he was again to be considered by the next D.P.C. for promotion against long term regular vacancies as per rules and rightly so, he has been considered for promotion against long term regular vacancies alongwith other eligible candidates by the regular D.P.C. in its Meeting in February, 1997. In so far as the plea taken by the applicant that the deputation vacancies, period of which exceed 3 years shall be treated as clear regular vacancies is concerned, the department can not give guarantee that his present deputation post in the H.P. Legal Aid Authority shall continue to be available with this department for a period exceeding 3 years.” 3. It is apparent from Notification dated 19th January, 1996, Annexure A-3, that the petitioner alongwith respondents No. 7, Shri Ravinder Kumar and 8, Shri Lobhi Ram, was promoted as Deputy ...3... District Attorney (Class II) in the pay-scale of ` 2200-4000/- purely on temporary basis, with immediate effect. It was further stipulated in the Notification, Annexure A-3, that the aforesaid temporary promotions shall not confer any right on the above mentioned officers in the matter of continuance/promotion/seniority etc. in the cadre of Deputy District Attorneys. 4. Thereafter, pursuant to the promotion of private respondents No. 3 to 8, as Deputy District Attorneys (Class-II) in the pay-scale of ` 2200-4000/- on officiation basis, vide Notification dated 1st March, 1999, Annexure A-1, the petitioner, who was earlier promoted as Deputy District Attorney purely on temporary basis vide the aforesaid Notification dated 19th January, 1996, Annexure A-3, was reverted to the substantive post of Assistant District Attorney vide Notification dated 1st March, 1997, Annexure A-2. 5. It appears that in the substantive cadre of Assistant District Attorney, respondents No. 3 to 8 were senior to the petitioner. However, for the reasons best known to the department, the petitioner alongwith his two immediate seniors, namely the aforesaid respondents No. 7, Shri Ravinder Kumar and 8, Shri Lobhi Ram, were promoted as Assistant Deputy Attorney purely on temporary basis vide Notification dated 19th January, 1996, Annexure A-3. However, it further appears that when the regular process for promotion was undertaken, the private respondents No. 3 to 8, who also include the said Shri Ravinder Kumar and Shri Lobhi Ram (respondents No. 7 and 8 herein) were promoted on officiation basis vide Notification dated 1st March, 1997, Annexure A-1, taking into consideration the available vacancy position as existing at that time. In that process, ...4... the petitioner was left out, may be for the reason that he was junior to the private respondents No. 3 to 8. In such circumstances, to my mind, he cannot have any legally enforceable grievance and more so when his promotion as Deputy District Attorney vide Notification dated 19th January, 1996, Annexure A-3, was purely on temporary basis without any right for continuance/promotion/seniority etc. in the cadre of Deputy District Attorneys. 6. The learned counsel for the petitioner submits that Notification dated 1st March, 1997, annexure A-2, whereby he was reverted from the post of Deputy District Attorney is violative of principle of natural justice, inasmuch as that no notice was issued to him before such reversion. In this regard, reliance has been placed on Appar Apar Singh vs. State of Punjab and others, 1970(3) Supreme Court Cases 338. However, in this regard suffice it to say that since the initial promotion was purely on temporary basis with a further rider that the same shall not confer any right on the petitioner in the matter of continuance/promotion/seniority etc. in the cadre of Deputy District Attorney, there was no need for issuance of any such notice and on the other, the facts of the case relied upon are entirely distinguishable from the facts of the present case, as is apparent from paras 29 and 30 of judgment, which are extracted below: “29. We may point out that in The State of Bihar vs. Shiva Bhikshuk Mishra(2), this Court had to consider the applicability of Art. 311(2) to an order of reversion passed on the recommendation of a superior officer. In view of certain contemplated disciplinary proceedings an officer who was officiating in a higher rank was recommended by his superior officer to be reverted to his substantive post. Accepting the said recommendation, the competent authority reverted the officer concerned. The order was ...5... challenged on the ground that it amounts to reducing the rank of the officer concerned and as it has been passed in violation of Art. 311 (2) it was illegal. This Court held that though the order passed did not contain any express words of stigma attributed to the conduct of the officer concerned, nevertheless having due regard to the attendant circumstances under which it was passed, the order was one passed by way of punishment. This Court further held that as Art. 311(2) has been contravened the order is illegal and in consequence set aside the same. This decision affords in our opinion a very close parallel to the case before us. 30. It was not the case of the State before us that the appellant was reverted to his substantive post because the officiating post which he held at the time of reversion i.e. P.E.S. Class II was abolished. It that was so, nothing further remained to be said because his services in the officiating post would automatically come to an end when the post itself comes to an end. Again it was not the case of the State that the appellant was reverted to his substantive post because the permanent incumbent of the higher post in which the appellant was officiating had come back to duty. It was not even the case of the State that the higher post was created for a temporary period and that it had come to an end. If any one of these circumstances had existed one can very well say that the order reverting the appellant to his substantive post could not be said to be by way of punishment. On the other hand the position was that the reversion of the appellant was based entirely and-exclusively on the basis.” 7. In view of the above, the petition deserves dismissal. Ordered accordingly. (V.K. Sharma) Judge 1st November, 2010 (virender)