IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 4954 of 2008 Decided on : 24.11.2010 R.S. Negi and others ..…Petitioners. Versus State of Himachal Pradesh and others …… Respondents. Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the Petitioners : Ms Salochna Kaundal, Advocate. For respondents : Mr. Anil Jaswal, Dy. Advocate General, for respondents No. 1 and 2. Mr. D.K. Khanna, Advocate, for respondent No.3. None for respondent No.4. V.K. Sharma, Judge (Oral) The petition has been filed for grant of the following substantive reliefs vide para 7 (i) to (iv):- “(i) That the Statistical Assistants be declared to be lawfully entitled for relaxation from the requirement of essential educational qualifications prescribed for promotion to the post of ARO (Assistant Research Officers) in the facts and circumstances of the case. (ii) That letter dated January 31, 1997 (Annexure A-8 of the respondent No. 3 Commission to the respondent No.1 declining the case of the applicants/Statistical Assistants for the relaxation be kindly declared illegal and set aside. (iii) That the respondent No.3 Commission be directed to reconsider the case of the Statistical Assistants and to 1 Whether reporters of the local papers may be allowed to see the judgment? No, 2 grant approval for one time relaxation to the in-service Statistical Assistants as on November 21, 1981. (iv) That, in the alternative, the respondents No.1 and 2 be directed to grant relaxation to the Statistical Assistants from essential qualifications notwithstanding the denial of approval for relaxation by respondent No.3 Commission.” 2. In reply on behalf of respondents No. 1 to 3, the following averments have been set up vide para 6(xv) to 6(xix):- “That in reply to para-6(xv) to 6(xix), it is submitted that as per submission made in the preceding paras, the R & P Rules in which the said qualification bar was prescribed notified in the year 1981 and therearfter none of the applicants have improved their qualification. As already stated in reply to para-(xii) to 6-(xiv), the respondents considered the request of the applicants favourably. But the Graduate Statistical Assistants also represented against granting any relaxation and in view of adequate number of persons with higher education available with the department the request of the applicants was not accepted by the Government. Even otherwise, looking the nature of work in the modern educated era, the O.A. deserves to be dismissed straightway.” 3. The learned counsel for the petitioners submits at the very outset that petitioner No.1 Mr. R.S. Negi has since died and his legal representatives have not been brought on record. It is further stated that out of the remaining petitioners No. 2 to 7, all others except petitioner No. 6 Shri Ram Sarup, have since acquired requisite qualification for promotion as Asstt. Research Officer and have also been promoted as such. Thus, 3 apparently the petition survives only qua petitioner No.6 Shri Ram Sarup. 4. In view of the above reply coupled with the facts and circumstances of the case and on and overall view of the matter, it shall be expedient and in the interest of justice that in case petitioner No. 6 Shri Ram Sarup submits a representation along with a copy of this judgment to respondent No.1 within one month from today, the said respondent shall consider and decide the same finally within next three months by taking into consideration the law laid down by the Hon’ble Supreme Court in: (1) Council of Scientific and Industrial Research and another versus K.G.S. Bhatt and another, AIR 1989 Supreme Court 1972. Para 9 of the judgment being relevant is extracted below:- “9. That then is the scope of bye-law 71(b)(ii). But that does not mean that we should interfere with the relief granted to respondent 1. By pointing out the error that crept into the decision of the Tribunal, we need not take to its logical end which will defeat justice. Respondent I is not a lay-man. He is a highly qualified engineer. Although joined service with a diploma in Engineering, he later passed Bachelor of Engineering (B. E)' and also acquired M.Tech. degree and one, more diploma (D.P.M.). He was, however, left without opportunity for promotion for about twenty years. This is indeed a sad commentary on the appellant's management. It is often said and indeed, adroitly, an organisation public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by 4 an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See: Principles of Personnel Management by Flipo Edwin. B.4th Ed. p. 246). Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for promotion is bound to pay -a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non- managerial employees and their supervisors.", (See: Personnel Management by Dr. Udai Pareek p. 277). There cannot be any modern management much less any career planning, man-power development, management development etc. which is not related to a system Of promotions. (See: Management of Personnel in Indian Enterprises by Prof. N. N. Chatterjee, Chap. 12, p. 128). The appellant appears to have overlooked this basic requirement of management so far as respondent I was concerned till N. R. and A. S. were introduced.” (2). A Satyanarayana and others versus S. Purushotham and others, (2008) 5 Supreme Court Cases 416, wherein it has been held vide para 30 of the judgment:- “30. Although mere chance of promotion is not a fundamental right, but right to be considered therefor is. In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a 5 category of employees for all times to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India.” (3). State of Himachal Pradesh versus Vijay Kumar Sharma, 2008 (6) SLR-180 laying the following rule of law in para 10 of the report:- “The judgment in Food Corporation of India and others versus Parashotam Das Bansal and others, 2008 (2) Scale 205 has been considered by their Lordships of the Hon’ble Supreme Court in A. Satyanarayana and others versus S. Purushotham and others, 2008 (6) Scale 563. Their Lordships have held as under: “The Superior Courts, while exercising their power of judicial review, must determine the issue having regard to the effect of the subordinate legislation in question. There must exist a rational nexus between the impugned legislation and the object of promotion. Promotions are granted to a higher post to avoid stagnation as also frustration amongst the employees. This Court, in a large number of decisions, has emphasized the necessity of providing for promotional avenues. [See Food Corporation of India and Ors. v. Parashotam Das Bansal and Ors. [Civil Appeal No.991 of 2008 decided on 5.2.2008]. The State, keeping in view that object, having found itself unable to provide such promotional avenue, provided for the scheme of Accelerated Career Progress (ACP). The validity and effect of the impugned legislation must be judged keeping in view the object and purport thereof. This Court would apply such principle of interpretation of statute which would enable it to subserve the object in place of subverting the same. To the said extent, the rule maintain a birthmark which runs counter to the decisions of this 6 Court in Dwarka Prasad & Ors. v. Union of India & Ors. [(2003) 6 SCC 535]. Although mere chance of promotion is not a fundamental right, but right to be considered therefor is. In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all time to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India.” 5. Reliance has also been placed on a common judgment dated 29.4.2009 rendered by a learned Single Judge of this court in CWP (T) No. 2697/2008, titled Dhani Ram versus Himachal Road Transport Corporation with CWP (T) No. 2698/2008, titled Om Parkash versus Himachal Road transport Corporation as up- held in LPA No. 75 of 2009, titled Himachal Road Transport Corporation versus Shri Om Parkash. 6. In order to enable respondent No.2 to appreciate the matter properly, it is directed that petitioner No.6 Shri Ram Sarup shall also supply duly authenticated copies of the aforesaid judgments along with the representation. Needless to say that consequential benefits, if any, shall follow the decision on the representation. 7. The petition stands disposed of in the above terms. In view of the disposal of the main petition, pending application(s) if any, shall also stand disposed of as infructuous. (V.K. Sharma) Judge. 24th November, 2010 (lsp)