IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.: 4509/2008 Decided on: 4.7.2011 _____________________________________________ B.K.Sharma. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Ms. Pratima Malhotra, Advocate. For the Respondents: Mr. Vikas Rathore, Dy. A.G. with Mr. R.P. Singh, Asstt. A.G. for respondents No.1, 2, 4 and 5. Mr. D.K. Khanna, Advocate for respondent No.3. _____________________________________________________ Justice Rajiv Sharma, Judge (oral). Petitioner was appointed as Junior Engineer in Public Works Department on 17.12.1966. He was transferred to Irrigation and Public Health Department on 20.2.1989. He assailed this order by filing O.A. No. 35 of 1990 before the erstwhile Himachal Pradesh Administrative Tribunal. The learned Tribunal allowed the petition vide judgment dated 23.6.1995. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 Respondent-State filed Special Leave Petition before the Hon’ble Supreme Court. The Hon’ble Supreme Court was pleased to dismiss the same on 21.1.1996. 2. Petitioner was promoted to the post of Assistant Engineer while working in the Irrigation and Public Health Department on 19.3.1996, vide Annexure A-5. The judgment dated 23.6.1995 was implemented vide Annexure A-3 on 4.5.1996. Petitioner was permitted to join his duties in Public Works Department. The Departmental Promotion Committee met for making promotions to the post of Assistant Engineer on 1.8.1996 in Public Works Department. By that time, as noticed above, the petitioner had already joined his duties in the Public Works Department. He had a right to consideration in his parent department, i.e. Public Works Department on the basis of seniority assigned to him. Name of the petitioner was considered for promotion to the post of Assistant Engineer. He was not found suitable. 3. Respondent No.3 was directed to produce the records of the Departmental Promotion Committee met on 1.8.1996 to ascertain whether the A.C.Rs. of the petitioner of Public Works Department or Irrigation and Public Health Department have been taken into consideration. It is reiterated that the transfer of the 3 petitioner to Irrigation and Public Health Department had already been struck down by the Tribunal by way of judgment dated 23.6.1995. It is evident from the record produced by the H.P. Public Service Commission that the A.C.Rs. of the petitioner of the period he has worked in the Irrigation and Public Health Department have been taken into consideration for the years 1988-89, 1992-93, 1993-94 and 1994-95. A.C.Rs for the years 1990-91 and 1991-92, as per the record, were not available. The Court is of the considered view that the A.C.Rs. of the period when the petitioner was working in Irrigation and Public Health Department were not to be taken into consideration since the transfer of the petitioner to Irrigation and Public Health Department was struck down by the learned Tribunal from Public Health Department. In other words, this period was to be ignored. It is for the Department concerned to consider the suitability of an employee for promotion. The employee has only right to be considered for promotion. However, this right has to be considered in a just and fair manner. The Departmental Promotion Committee was only required to look into the A.C.R.s of the petitioner when he was working in Public Health Department. 4. Surprisingly, the petitioner has not been found suitable by the Departmental Promotion 4 Committee on the basis of A.C.Rs. of the petitioner when he was working in Irrigation and Public Health Department. However, the fact of the matter is that the petitioner even on the basis of these A.C.Rs. stood promoted to the post of Assistant Engineer on 19.3.1996 in the Irrigation and Public Health Department. It is thus evident that the petitioner has not been dealt with in a just and fair manner by the respondents. 5. Mr. R.P. Singh, learned Assistant Advocate General has argued that the petitioner cannot be considered for promotion at this belated stage to the post of Assistant Engineer. This issue is no more res integra in view of the law laid down by their Lordships of the Hon’ble Supreme Court in Union of India and another versus Hemraj Singh Chauhan and others, (2010) 4 SCC 290. Their Lordships have held as under: “35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a welfare State. 36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution. 5 48. The Court is satisfied that in this case, for the delayed exercise of statutory function the Government has not offered any plausible explanation. The respondents cannot be made in any way responsible for the delay. In such a situation, as in the instant case, the directions given by the High Court cannot be said to be unreasonable. In any event, this Court reiterates those very directions in exercise of its power under Article 142 of the Constitution of India subject to the only rider that in normal cases the provision of Rule 4(2) of the said Cadre Rules cannot be construed retrospectively.” 6. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Respondents are directed to consider the case of the petitioner for promotion to the pot of Assistant Engineer on the basis of A.C.Rs. recorded in the Public Works Department before he was transferred to Irrigation and Public Health Department from the date his juniors were promoted within a period of 16 weeks after the production of certified copy of this judgment by the petitioner. In case the petitioner is found suitable, he shall be entitled to all the consequential benefits. Pending application(s), if any, also stands disposed of. No costs. (Justice Rajiv Sharma), Judge. 4.7.2011 *awasthi*