IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Writ Petition No.365 of 2004. Judgment Reserved on: 05.09.2008. Date of decision: 23 .12.2008. Shyam Lal Sharma …Petitioner. Versus H.P. Vidhan Sabha & Others …Respondents. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Petitioner: Mr.Bimal Gupta, Advocate. For Respondent No.1: Mr.Surinder Sharma, Advocate. For Respondent No.2: Mr.Ajay Sharma, Advocate. For Respondent No.3: Mr.Ajay Mohan Goel, Advocate. Dev Darshan Sud,J. The petitioner has filed this petition praying for an appropriate writ, order or direction quashing Annexure P-7, order dated 18th May, 2004, promoting respondent No.2 as Senior Reporter on ad hoc basis, Annexure P- 8, ordering that Smt.Urmila Kashyap, respondent No.3 to function as Senior Reporter on temporary basis during the period respondent No.2 is on secondment with Chairman, Himachal Pradesh Marketing Produce and Consumer Federation (HIMFED), (all orders issued by the Secretary of the Vidhan Sabha). Both these orders incorporated the condition that promotions/functional arrangement will not confer any right on the respondents herein. Two other orders passed during the pendency of the writ petition. Annexure P-9A, orders dated 13th October, 2006 regularizing ad 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 hoc appointment of respondent No.2 and Annexure P-9/B, orders dated 31st October, 2006 granting ad hoc appointment to respondent No.3 were also challenged by way of an amendment. The petitioner pleads that he is a Post Graduate and was appointed as a Reporter in the Vidhan Sabha on 11.5.1992 and joined services as such on 12.5.1992. Respondent No.2 was appointed as Reporter on 2.2.1990 and respondent No.3 against the same post on 21.12.1991. The petitioner pleads that he was at Serial No.3 in the seniority list of Reporters as on 1.1.2003, while respondent No.2 was at Serial No.1 and respondent No.3 at Serial No.2. It is undisputed that the post of Senior Reporter is a selection post which is to be filled in 100% by promotion from amongst Reporters with five years regular service or with regular service combined with continuous ad hoc service rendered up to 31.3.98. The petitioner was regularized as Reporter on 3.1.1996 alongwith respondent No.3 vide Annexure P-3/A. The petitioner pleads that there are six permanent posts of Senior Reporters and he has qualified the Departmental Examination in the year 2000 and was as such granted a higher scale w.e.f. 12.5.2000. The case pleaded is that after completing five years of service as Reporter, he became eligible for promotion to the post of Senior Reporter and he was considered and promoted as such on regular basis vide Annexure P-5 which reads:. “No.6-62/81-VS Dated:03.03.2003 Office Order The Hon’ble Speaker is pleased to promote and appoint Shri Shyam Lal Sharma, Reporter as Senior Reporter in the pay scale of Rs.10025-15100/- + 3 Rs.800/- as Secretarial Allowance on ad hoc basis with immediate effect. This ad hoc promotion/ appointment shall not confer any right or claim on Shri Shyam Lal Sharma for regular promotion to the post of Senior Reporter and for the seniority therein.” His case is that he was wrongly shown as ad hoc in the seniority list Annexure P-6A which is unconstitutional and illegal and that for all intents and purposes he was a regularly promoted Senior Reporter. Subsequent to the two orders Annexures P-7 and P-8, two more orders, as noticed above, were passed, Annexures P-9A and P-9B, which have been challenged by amending the writ petition. By the first order, respondent No.2 has been regularized and by the second order, respondent No.3 has been asked to work on ad-hoc basis. Both the orders are subject to the condition that the promotion shall be subject to the decision of this writ petition. The respondents have filed their respective replies. They submit that the order of promotion of petitioner Annexure P-5 is clear and unequivocal conferring no right on the petitioner as his promotion has been made only on ad hoc basis and does not confer any right on him. Having accepted the order without demur, it is not open to him to now allege that his promotion was regular. His only right is for consideration which has been given to him at all the Department Promotion Committees. It is submitted that ad hoc appointment has been resorted to as a temporary measure because in the Departmental Promotion Committee which met on 28.2.2003, the post of Joint Secretary was filled on ad hoc basis and the 4 consequent vacancies in the posts of Editor of Debates, Chief Reporter and Senior Reporter, were also filled in on ad hoc basis. In this same meeting, the promotions for the posts of Deputy Secretary, Under Secretary, Private Secretary and Personal Assistant were made on regular basis. I have heard learned counsel for the parties and have gone through the record of the Departmental Promotion Committees held on 28.2.2003, at which order Annexure P-5 promoting the petitioner and other officers were passed, 2.3.2004 in which respondent No.2 was appointed on ad hoc basis and respondent No.3 was given work entirely on functional basis. Proceedings of 14.6.2004 held pursuant to the orders dated 7.6.2004 passed by a Division Bench of this Court promoting the filling up of the posts on regular basis and 26.10.2006 when the services of respondent No.2 have been regularized. I will be reverting to the proceedings after noticing the submissions made by the learned counsel for the parties. The grievance of the petitioner herein is that his promotion to the post of Senior Reporter is for all intents and purposes regular promotion as his promotion was made in a substantive capacity against a permanent post. He submits that at the time when his promotion was made, there was one permanent vacancy of a Senior Reporter as its incumbent Shri R.L. Mehta had been promoted to the post of Chief Reporter. Prima facie this argument would have solved the entire problem, but for the fact that at the Departmental Promotion Committee held on 20.8.2003, promotions to a number of posts were considered. Ad hoc promotions were made to the posts of Joint Secretary, Editor of Debates, Chief Reporter and Senior Reporter. The promotion of Sh.R.L. Mehta was 5 purely on ad hoc basis and there was no permanent vacancy of Senior Reporter available but only ad hoc vacancy as Shri R.L. Mehta held a lien against the post of a Senior Reporter. It is not as if it is only the case of the petitioner herein which was considered for promotion and only he was promoted on ad hoc basis. The record shows that ad hoc promotions were made to four posts each resulting in the incumbent holding his lien against the post from which he was promoted. It would thus be clear that there were no regular promotions from the feeder cadre. There is nothing in these proceedings to show that the petitioner was the only one considered on ad hoc basis. Subsequently, on 2.3.2004, another Departmental Promotion Committee was convened at which, the case of respondents No.2 and 3 were considered and respondent No.2 was promoted on ad hoc basis. Learned counsel appearing for the petitioner submits that this act on the part of respondent No.1 smacks of malafides as he could not be reverted and respondent No.2 appointed in his place. Ad hoc promotion confers no right and it is only the right of consideration which is to be granted to an incumbent. At this Departmental Promotion Committee, the cases of all three, that is, petitioner, respondents No.2 and 3 were considered. The submission that at the time when the first ad hoc arrangement was made, respondents No.2 and 3 did not possess the requisite mandatory requirement of having passed the Departmental Examination and therefore, the case could not be re-considered, also cannot be accepted in view of what has been discussed hereinafter. Needless to say that this test was also cleared by both the respondents in a short span of time after the ad hoc arrangement on 28.2.2003. 6 On 7.6.2004, this Court had permitted the post of Senior Reporter to be filled in on regular basis. The order reads:- “7.6.2004 Present: Mr.Kuldip Singh,Sr.Advocate with Mr.Jitender Thakur, counsel for the petitioner. Mr.K.D. Sood, counsel for respondent No.1. Mr.Ajay Sharma, counsel for respondent No.2. Mr.Sood, learned counsel appearing for respondent No.1 submits and states before us that within two weeks from today, respondent No.1 shall take steps to ensure that process for regular promotions in the cadre of Senior Reporters gets started and is completed in the shortest possible time. Because of this statement of Mr.Sood, at present we feel that we should not interfere with the impugned orders and permit the respondent No.1 to go ahead with the process of filling up the posts on regular basis. In compliance of the aforesaid directions, respondent No.1 shall file an affidavit on the next date. List on 5th July, 2004. Dasti copy” No regular vacancy was available. The Departmental Promotion Committee, which met on 14.6.2004, considered the cases of the petitioner and respondents No.2 and 3. The Annual Confidential Reports for work appraisal of all the three, namely, the petitioner, respondents No.2 and 3 were considered. Admittedly, the petitioner had worked as Private Secretary to the Secretary, Vidhan Sabha for the years 2000-2001, 2001- 7 2002, 2002-2003, which post could not be equated with that of Reporter (which is the feeder cadre) as the duties and skills required for discharge of duties are different. That is to say the post of a Reporter entails higher qualifications and responsibilities as the minimum educational qualifications required for Reporter is that an incumbent should be a graduate with a minimum speed of 160 words per minute in English/Hindi shorthand and 60/40 words per minute in English/Hindi typing respectively. The post of Private Secretary is a promotion post. The minimum qualification required being 10+2 with 80/70 words per minute in English/Hindi shorthand and 40/30 words per minute in English/Hindi typing respectively. The petitioner on the date of ad hoc arrangement did not have the requisite experience as a Reporter as is evident from the memorandum prepared for the consideration of the Departmental Promotion Committee, but despite this, the case of all the three were considered and respondent No.2 was found to be higher in merit and consequently it was recommended that he be kept on ad hoc basis till the availability of a vacancy on regular basis. In compliance to the order dated 7.62004, CMP No.841 of 2004 was filed by respondent No.1 in which a prayer was made that permission may be accorded to make promotion to the post of Senior Reporter on ad hoc basis against the temporary stop-gap vacancy caused due to ad hoc promotion of Mr.R.L. Mehta, Senior Reporter to the post of Chief Reporter. This application was allowed by this Court on 20.7.2004 in the following terms:- 8 “20.7.2004: Present: Mr.Kuldip Singh, Sr.Advocate, with Mr.Bimal Gupta, Advocate, for the petitioner. Mr.K.D. Sood, Advocate, for respondent No.1. Mr.Ajay Sharma, counsel for respondent No.2. CMP No.686/2004. Dismissed as infructuous. CWP No.365/2004 Heard. The petition is admitted. Mr.K.D. Sood, appears for respondent No1. and Mr.Ajay Sharma appears for respondent No.2. Let notice be served upon respondent No.3 returnable in six weeks. CMP No.841/2004. For the reasons stated, the application is allowed. Order in terms of prayer part of the application. However, any promotions made on adhoc basis, as has been referred to in the application shall abide by the result of this petition. List after pleadings are complete. Dasti copy.” Thereafter, another Departmental Promotion Committee, as noticed, was held on 26.10.2006 when a regular vacancy for the post of Senior Reporter became available on the superannuation of Shri H.D. Verma, Senior Reporter on 31.10.2006. The service record including the Annual Confidential Reports of all the three parties to this petition, namely, the petitioner and respondents No.2 and 3, was considered and respondent 9 No.2 was promoted on regular basis against a regular vacancy caused by the superannuation of Shri H.D. Verma, Senior Reporter on 31.10.2006. One ad hoc vacancy of the post of Senior Reporter held by respondent No.2, became available for being filled again on ad hoc basis and it was filled in accordingly by promoting respondent No.3. At the cost of repetition, I may state that at all the Departmental Promotion Committees, the cases of all three were considered. At the first, Departmental Promotion Committee held on 28.2.2003, the reasons for exclusion of respondents No.2 and 3 was that they had not qualified the Departmental Examination. They however cleared this, within a short span after the ad hoc arrangement was made. At the subsequent Departmental Promotion Committees, cases of all three were considered and accordingly orders were passed. I may also add that on 28.2.2003 when it was the case of the petitioner alone which was considered, his Annual Confidential Reports and work appraisal for the last three years i.e. 2000-2001, 2001-2002 and 2002-2003 were not of having worked as a Reporter but as a Private Secretary to the Secretary carrying much lower responsibilities and qualifications. In these circumstances, to say that he was the most competent person to be considered would be a fallacy. The arrangement was rightly considered by the respondent No.1 as meeting the exigency and treated as ad hoc. Learned counsel for the petitioner submits that after the first consideration, on 28.2.2003 there could have been no subsequent consideration by any Committee. He places reliance on para-16.33 of the Hand Book of Personnel Matters. He submits that all subsequent 10 proceedings are illegal as they were in contravention of this provision. This submission cannot be accepted. In Chief Commercial Manager, South Central Railway, Secunderabad and Others vs. G.Ratnam and Others, (2007)8 SCC 212, the Supreme Court holds that the administrative instructions are not justiciable. The Court Rules: “18. We are not inclined to agree that the non- adherence of the mandatory Instructions and Guidelines contained in paragraphs 704 and 705 of the Vigilance Manual has vitiated the departmental proceedings initiated against the respondents by the Railway Authority. In our view, such finding and reasoning are wholly unjustified and cannot be sustained. 19. … … The executive orders appropriately so- called do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued. Such an order would confer no legal and enforceable rights on the delinquent even if any of the directions is ignored, no right would lie. Their breach may expose the subordinate authorities to disciplinary or other appropriate action, but they cannot be said to be in the nature of statutory rules having the force of law, subject to the jurisdiction of certiorari. 20. It is well-settled that the Central Government or the State government can give 11 administrative instructions to its servants how to act in certain circumstances; but that will not make such Instructions Statutory Rules which are justiciable in certain circumstances. In order that such executive instructions have the force of Statutory Rules, it must be shown that they have been issued either under the authority conferred on the Central Government or the State Government by some statute or under some provision of the Constitution providing therefor. Therefore, even if there has been any breach of such executive instructions that does not confer any right on any member of the public to ask for a writ against government by a petition under Article 226 of the Constitution of India”. The Hand Book is not a statutory Code. At this juncture, the case may be considered from another perspective, that is, that since the promotion of the petitioner was on ad hoc basis, it cannot be claimed that only nomenclature has been changed and the petitioner is singled out for invidious and discriminatory treatment. It is settled law that continuing against a post on ad hoc basis does not grant any right to a party. (See: Union of India and Others vs. Bigyan Mohapatra and Others, 1993 Supp (2) SCC 239). More over, petitioner has no lien against the post which he was holding was on ad hoc basis, but his lien will continue in the substantive post i.e. Reporter. Learned counsel for the petitioner has placed reliance on State of Haryana and Others vs. Piara Singh and Others, (1992)4 SCC 118. 12 I need not consider this judgment as the directions issued already stand over ruled by a decision of the Supreme Court in Secretary, State of Karnataka and Others vs. Uma Devi (3) and others, (2006)4 SCC 1, which reads: “ 20. We may now consider, State of Haryana v. Piara Singh and Others, (1992)4, SCC 118. There, the court was considering the sustainability of certain directions issued by the High Court in the light of various orders passed by the State for the absorption of its ad hoc or temporary employees and daily wagers or casual labour. This Court started by saying (SCC p.134, para 21) "21. ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making rules under the proviso to Article 309 of the constitution or (in the absence of such rules)by issued rules/instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights. statutory provisions, rules and other instructions, if any governing the conditions of service." 13 This decision was subsequently reiterated by the Court in Principal, Mehar Chand Polytechnic and Another vs. Anu Lamba and Others, (2006)7 SCC 161 and National Fertilizers Ltd. and Others vs. Somvir Singh, (2006)5 SCC 493. Considering that the petitioner’s promotion was on ad hoc basis on evaluation of his service record of performance, not against the feeder post of the Reporter, but that of Private Secretary to the Secretary which posts are not inter-changeable and the post of Private Secretary carries lower responsibilities and duties, he could not claim to have unquestioned merit for being promoted. When the petitioner was promoted on ad hoc basis he had a lien against his substantive post of Reporter. In Balkrishna Pandey vs. State of Bihar and Others, (1996)2 SCC 282, in paragraph the Court held: “ 5. It is settled law that an employee on temporary promotion would continue to hold the lien in his substantive post until it is duly terminated. He cannot hold two substantive posts at the same time. Once it is concluded that the appellant is a deputationist working in the Directorate of S. E. P. , his name was rightly not shown in the seniority list of that Department. Therefore, he continued to hold his lien and seniority as Junior Statistical Supervisor in the parent department. On reversion, he came back to his post as a junior Statistical Supervisor and in his own right he was promoted as S. S. A. Since the fifth respondent happened to be a permanent incumbent in the Directorate of S. E. P. he was promoted as S. S. A. When further vacancy in the higher ladder, namely, S, R. A. , had fallen vacant, 14 he was considered and promoted in that vacancy. Under those circumstances, the High Court is well justified in refusing to interfere with the matter and we do not find any justification warranting interference”. The decision of the Rajasthan High Court in Shiv Charan Sharma and others vs. State of Rajasthan and others, 1994(2) SLR, 625, also lays down this principle:- “14. … … … … … …It is a settled principle of service jurisprudence that a person who is appointed on ad hoc/urgent temporary basis, does not get a right to hold the post and he has to make a room for accommodation of a regularly selected persons. This principle of law is applicable in the cases of direct recruitment as well as promotion. Thus, the first part of submissions advanced by the learned counsel for petitioners, is rejected.” The promotion order Annexure P-5 is absolutely clear when it provides that the petitioner is promoted on ad hoc basis and has no right to be considered against a permanent post. The submission made on behalf of the petitioner herein that only his promotion be treated as permanent promotion and terming it as on ad hoc is against law, cannot be accepted because, as noticed, the Committee was concerned not only with the promotion of the petitioner but to four other posts also which orders were also made on ad hoc basis. Most vital factor for consideration is that the Constitutional right of the petitioner is for consideration and has been granted to the petitioner at every Departmental Promotion Committee. It is 15 not as if he has been ousted from consideration. The post of senior reporter is a selection post based on merit-cum-seniority and merit has to be given primacy. The petitioner cannot claim promotion as an indefeasible right. Learned counsel appearing for the petitioner has placed reliance on the decision of the Supreme Court in I.K. Sukhija and Others vs. Union of India and Others, (1997)6 SCC 406, to urge that the promotion of the petitioner was on regular basis. In that case, the Supreme Court was dealing with the promotions of the petitioner therein and on appraisal of the facts, found that the promotions were on regular basis and could not be termed as ad hoc merely because such label had been appended. The case is confined to its own facts as in the present case it is not only promotion of the petitioner herein, as noticed, but also the promotions of the Joint Secretary, Editor of Debates, Chief Reporter and Senior Reporter, which have been made on ad hoc basis. Submission made on behalf of respondent No.1 that this was made due to exigency of service cannot be doubted more-so, when the service record for appraisal of the petitioner for the last three years from 2000-2001, 2001-2002 and 2002-2003 was not of a Reporter in the feeder cadre but against that of Private Secretary to the Secretary, Vidhan Sabha. He obviously, could not claim permanence of promotion only on the basis that he had passed the Departmental Examination. The post could well have been kept vacant, but that would have caused administrative problems to respondent No.1. Learned counsel then places reliance on the decision of Supreme Court in Raj Kumar vs. Rohtas and Others, (2005) 12 SCC 160, to say that the qualification necessary for being considered and promoted is as 16 on the date when the consideration takes place and not subsequent acquisition of such qualifications. All that need be said in this case is that on 28.2.2003 the consideration of the Annual Confidential Reports of the petitioner for appraisal, none of them were those of his work as a Reporter but as a Private Secretary to the Secretary, Vidhan Sabha, which post could not be equated with the post of a Reporter as the qualifications and skills required were distinct and apart. On subsequent dates when the Departmental Promotion Committee met for consideration against both ad hoc and permanent vacancy, the case of all the incumbents including the petitioner was considered. It is undisputed that a regular vacancy became available on the retirement of Shri H.D. Verma on 31.10.2006. Even if it is assumed for the sake of arguments that the promotion of the petitioner was to continue on ad hoc basis till that date, the case of all the three had to be considered and it cannot be said that on that date the respondents No.2 and 3 were ineligible. Being a selection post, it was merit which was to be given primacy. The petitioner herein, also did not have the requisite work appraisal for three years from 2000-2001,