IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 4215 of 2008 Decided on: 11.8.2011. __________________________________________________________ Shri Prem Chand … Petitioner. Versus State of H.P. & others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the petitioners : Mr. Neel Kamal Sood, Advocate. For the respondents : Mr. P.K. Sharma, Addl. AG with Mr. Anil Jaswal, Dy.AG for respondents No. 1 to 3. None for respondents No. 4 & 8. Names of respondents No. 5 to 7, 10 & 11 stand deleted. ___________________________________________________________ V.K. Sharma, Judge. (Oral). Counter affidavit in terms of order dated 2.8.2011 filed, which is taken on record. Copy supplied. 2. The petition has been filed with the following substantive prayers vide para 7 (i) to (iii):- (i) That the order dated 19.3.1996 (Annexure A-2) may very kindly be ordered to be quashed and set aside. (ii) That in the alternative direction be issued to respondents No. 1 to 3 to promote the applicant as Naib Tehsildar w.e.f. the date when his juniors were promoted to the post of Naib Tehsildar from feeder category i.e. from Kanungo. (iii) That the name of applicant be ordered to be shown over and above the name of respondent No.4 and further directions be issued to respondents to pay all consequential benefits on account of the promotion of the applicant as Naib Tehsildar from his due date.” 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 3. In reply, the following stand has been taken on behalf of respondents No. 1 to 3, vide para 6 (6), (7) and (8):- “6 (6). As already submitted in preceding paras, promotion orders of Kanungos whose names appear in the panel were issued on 19.3.1996. The Kanungo of Settlement Department i.e. Kangra and Shimla Division, are considered for promotion in Shimla as well as in Kangra Division. The result of the DPC held on 25.7.1995 could not be implemented due to stay orders issued from the Hon’ble Tribunal upto 18.3.1996. In the mean time Kanungos of Settlement Department were also considered for promotion as Naib Tehsildar in Kangra Division and 3 Kanungos whose names also figure in the panel drawn in Shimla Division were promoted in Kangra Division. Contention of the applicant that had the minutes of the DPC during July, 1995 been implemented immediately, 3 persons junior to him would not have been promoted in Shimla Division during March, 1996, because they could not have been considered and granted actual promotion because in their places the Kanungo promoted during November, 1995, in Kangra Division would have been promoted in Shimla Division, is incorrect. In this connection, it is submitted that promotion orders, as submitted in the preliminary submissions, could not be issued immediately after the DPC was held, as a result of stay orders from the Hon’ble Tribunal. In the mean time DPC meeting was held for promotion of Kanungos in Kangra Division and the senior Kanungos whose names existed in the panel in Shimla Division got promoted as Naib Tehsildar in Kangra Division. On the vacation of stay orders, remaining officials in the panel drawn in July, 1995 were promoted as Naib Tehsildars in Shimla Division 3 in accordance with the direction of the Hon’ble Tribunal. Since name of the applicant was not considered during July, 1995, being ineligible for consideration, he was not promoted as Naib Tehsildar vide orders dt. 19.3.1996. (7). Contents of this para are not denied. It may however, be submitted that as per record received from the respective appointing authorities of Kanungos, there was nothing against any of the Kanungos at the time of holding DPC meeting on 25.7.1995. S/Shri Onkar Singh and Harnam Dass who stood promoted during 19.3.1996 pursuant to the recommendations of the DPC held on 25.7.1995 were not facing any departmental action on the date of DPC. These officials were charge-sheeted subsequently but were exonerated of the charge. (8). As for the plea of the applicant that non-consideration of his name has rendered the DPC held in November, 1995 as illegal unlawful, invalid and inoperative in the eyes of law, the applicant should have made the Divisional Commissioner, Kangra as one of the parties, as the DPC meeting during November, 1995 was held in Kangra Division. The respondents No. 4 to 11 have been considered for promotion during July, 1995 when the applicant was not eligible for promotion. Therefore, promotion orders dated 19.3.1996 at Annexure A-2 are just, legal, valid and have been issued after due consideration and deserves to be upheld. The applicant will not suffer any irreparable loss or injury in case promotions given to the respondents No. 4 to 11 are upheld.” 4. On 6.5.2011, the following order was passed by this court in this matter:- “The respondent-State is directed to file a supplementary affidavit, clarifying therein, whether the DPC was convened in the month of November, 1995 and if yes, why the case of the petitioner was not considered, since he had passed the departmental 4 examination on 30th August, 1995, by the next date of hearing. List on 27th May, 2011.” 5. In compliance of the above order dated 6.5.2011, the requisite supplementary affidavit was filed on behalf of respondents No. 1 & 2, paras 1 & 2 whereof are as under:- “1. That no Departmental Promotion Committee meeting was convened in the month of November, 1995 by the Divisional Commissioner, Shimla Division for promotion to the post of Naib Tehsildars. 2. However, a DPC meeting was convened in the month of November, 1995 for promotion to the post of Naib Tehsildars by the Divisional Commissioner, Kangra Division and on the recommendations of DPC, “five Kanungos who were senior to the petitioner were promoted as Naib Tehsildar. Since name of the petitioner did not fall in the zone of consideration being junior Kanungo, his name was not considered for promotion to the post of Naib Tehsildar as intimated by the Divisional Commissioner, Kangra vide his letter No. Div. Commr./B-2 (7)/07-Vol. –X-1889 dated 08.06.2011”, copy of which is attached at Annexure R/A.” 6. The petitioner by filing counter affidavit to the above supplementary affidavit filed on behalf of respondents No. 1 & 2 has stated as under, vide paras 1 & 2 of the counter affidavit:- “1. Contents of para 1 of the supplementary affidavit dated 14.6.2011 are wrong and therefore, denied. It is denied that no DPC was convened in November, 1995. The contents of affidavit are contrary to para 8 of the reply filed by the respondents. 2. Contents of para 2 of the supplementary affidavit are partly correct. The rest of the 5 contents are wrong and therefore, denied. The cadre of Naib Tehsildars is State cadre for promoting Settlement Kanungo as Naib Tehsildar and therefore, the case of the petitioner ought to have been considered for his promotion to the post of Naib Tehsildar. Copy of R/A has not been supplied to the petitioner. The Settlement Kanungo can be appointed throughout the State and can be further promoted as Naib Tehsildar in all Divisions.” 7. There is no reply on behalf of private respondents No. 4 to 11. 8. Some undisputed facts may be noticed first. The petitioner, who at the relevant time was working as Settlement Kanungo in the respondent-Department in Shimla Division, had passed the requisite departmental examination for promotion to the post of Naib Tehsildar on 23.8.1995. Though, he was later on promoted as Naib Tehsildar in the year 1997, yet he is basing his claim for promotion with effect from the date when persons junior to him, namely, respondents No. 4 to 11 were promoted, vide office order dated 19.3.1996, Annexure A-2. 9. As per final seniority list of Settlement Kanungos working in Kangra, Shimla and Kinnaur Districts as on 31.10.1987, Annexure A-1, as also tentative seniority list of Kanungos working in Kangra and Shimla Divisions as on 30.11.1996 issued vide memo dated 17.1.1997, Annexure A-6, the petitioner who is at serial Nos. 181 and 186, respectively, is apparently senior to private respondents No. 4 to 11. However, the fact remains that when the Departmental Promotion Committee (DPC) met for the first time in July, 1995, the petitioner was not eligible for promotion to the post of Naib Tehsildar as by that time he had not qualified the 6 requisite departmental examination entitling him for such promotion. It was soon thereafter, that he passed such departmental examination on 23.8.1995. Thereafter, another DPC was held in November, 1995, but the case of the petitioner was not considered for promotion at that time as according to respondents No. 1 to 3 only those candidates were considered for promotion in the DPC held during November, 1995 whose cases had already been considered earlier in the DPC held in July, 1995, consequent upon which the impugned office order dated 19.3.1996, Annexure A-2, granting promotion to private respondents No. 4 to 11 and others, was issued. However, such stand on behalf of respondents No. 1 to 3 when viewed in the light of the averments set up on behalf of the said respondents in para 6 (8) of the reply and para 2 of the supplementary affidavit which stand already extracted hereinabove, appears to be self-contradictory. Whereas, in para 6 (8), it is stated that the petitioner was not considered for promotion in the DPC held in July, 1995 as he was not eligible for promotion at that time, in para 2 of the supplementary affidavit the stand is that “five Kanungos who were senior to the petitioner were promoted as Naib Tehsildar. Since name of the petitioner did not fall in the zone of consideration being junior Kanungo, his name was not considered for promotion to the post of Naib Tehsildar as intimated by the Divisional Commissioner, Kangra vide his letter No. Div. Commr./B-2 (7)/07-Vol. –X-1889 dated 08.06.2011”. 10. In view of the above, the petition is allowed with a direction to respondents No. 1 to 3/competent authority to consider the case of the petitioner for promotion to the post of Naib Tehsildar along with consequential benefits, if any, by holding a review DPC in accordance with law, with effect from 19.3.1996, that is, when office order, Annexure A-2, was issued whereby persons junior to 7 the petitioner, namely, private respondents No. 4 to 11, Kartar Singh, Jai Krishan, Subhash Chand, Harnam Dass, Baldev Singh, Jagdish Chand and Ram Lal, shown at serial Nos. 8, 9 and 11 to 15, were granted promotion as Naib Tehsildar, within three months from the date of production of copy of this judgment by the petitioner before respondents No. 1 to 3/competent authority. 11. The petition stands disposed of, so also pending application(s), if any. Copy dasti. (V.K. Sharma) August 11, 2011. Judge. (cr)