IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 2485/2008 Reserved on: 3.9.2010 Decided on :20.9. 2010 _____________________________________________ Mohinder Singh. …Petitioner. Versus Himachal Pradesh State Electricity Board and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Dilip Sharma, Advocate. For the Respondents: Ms. Anjula Khajuria, Advocate. Respondents No.2, 3 and 5 to 12 ex parte. _____________________________________________________ Justice Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that as per seniority list Annexure A-2 of the Executive Engineers (Electrical) Degree Holders/Diploma Holders prepared on 30.11.1993, name of the petitioner was reflected at Sr. No. 35. Respondent-Board on the basis of recommendations made by the Departmental Promotion Committee in its meeting held on 7.8.1990, promoted 14 Superintending Engineers (Electrical) working on ad hoc basis 1 Whether reporters of the local papers may be allowed to see the judgment? Yes as Regular Superintending Engineers (Electrical) in the pay scale of Rs. 4500-6300 with effect from 7.8.1990. The Departmental Promotion Committee noted that two posts of Superintending Engineer (Electrical) were being manned by respondents No.5 and 9 on ad hoc basis. Their names, however, were not placed in the select panel, the post being selection. However, the Departmental Promotion Committee directed that their continuance as Superintending Engineer (Electrical) on ad hoc basis may be considered by the Whole Time Members of the Board against 4th and 5th vacancy of the Superintending Engineer (Electrical). Petitioner has placed on record the recommendations of the Departmental Promotion Committee met on 7.8.1990 by way of supplementary affidavit. The relevant portion of the same reads thus: “The D.P.C. also noted that two posts of Superintending Engineer (Electrical) are being manned by Er. R.P. Sood and Er. R.P. Gupta on ad hoc basis. They, however, do not find place in the select panel the post being a selection one. They are otherwise fit to hold the charge of the post of Superintending Engineer (Elect.). The D.P.C. is, therefore, of the view that their continuance as Superintending Engineer (Electrical) on ad hoc basis may be considered by the WTMs of the Board against the Fourth and Fifth Vacancy of Superintending Engineer (Elect.). The D.P.C. was of the view that in view of the control and supervision requirements of the post of Superintending Engineer, it would not be advisable in terms of the organization’s needs to consider Diploma Engineers for the post of Superintending Engineers. The D.P.C. noted that although this approach is at variance with the R&P Regulations still, in view of the functional requirements and the institution’s earlier stand on the issue such a decision seemed cogent and conformity with Organizational Requirements. The D.P.C. was informed that no vigilance case is either pending or contemplated against any of the officers who are within the zone of consideration except the following:- 1. Er. Mohinder Singh.” 2. Thereafter respondent No.2 was promoted as Superintending Engineer (Electrical) on 10.12.1991 and respondents No. 3 and 4 were promoted as Superintending Engineer (Electrical) on ad hoc basis with effect from 2.1.1992. Petitioner approached the erstwhile Himachal Pradesh Administrative Tribunal by way of OA No. 79/1992. The same was decided by the learned Tribunal on 5.11.1992. The order dated 5.11.1992 reads thus: “Shri A.K. Gupta, learned counsel for the applicant, has produced an office order dated July 30, 1992, whereby the disciplinary authority has suo moto reviewed the order dated March 7, 1991 for further enquiry. The Enquiry Officer submitted a supplementary enquiry report vide order dated May 15, 1992 and the disciplinary authority considered the enquiry report alongwith the supplementary enquiry report and decided to issue a warning to the applicant. In these circumstances, we direct the respondent No.1 to consider the case of the applicant for promotion as Superintending Engineer from the date his juniors, that is, respondents No.3 and 4 were promoted within a period of three months from today. This application stands disposed of in above referred terms.” 3. Thereafter an application bearing MA No.2035/1992 was preferred by the petitioner on which the following orders were passed on 27.4.1993: “Application allowed. The direction in order dated November 5, 1992 may be read “We direct the respondent No.1 to consider the case of the applicant for promotion as superintending Engineer from the date his juniors, that is, respondents 2 to 4 were promoted within a period of three months from today”. 4. Thereafter on the basis of the recommendations of the Departmental Promotion Committee, the petitioner was promoted as Superintending Engineer (Electrical) in the pay scale of Rs. 4500-6300 purely on ad hoc basis on 27.2.1993. Thereafter another Departmental Promotion Committee was constituted by the respondent- Board and on the recommendations of the same Annexure A-1 dated 19.12.1994 was issued. The name of the petitioner has been reflected at Sr. No.12. 5. Mr. Dilip Sharma has strenuously argued that issuance of Annexure A-1 dated 19.12.1994 is contrary to the directions of the erstwhile Himachal Pradesh Administrative Tribunal dated 5.11.1992 modified on 27.4.1993. According to him, all the private respondents were junior to his client as per Annexure A-2. He has contended that the case of his client was required to be considered alongwith S/Sh. B.K. Rampal, S.N. Kapoor, A.B. Lal and R.C. Chauhan by the Departmental Promotion Committee which met on 7.8.1990. He also contended that even if departmental inquiry was pending against his client, his client was required to be considered for promotion, as per law. He further contended that it was incumbent for the respondent-Board to consider the case of his client and to keep the same in a sealed cover. He finally contended that the name of his client was recommended by the duly constituted Departmental Promotion Committee, which led to the issuance of Annexure A-11 dated 27.2.1993 whereby he was granted pay scale of Rs. 4500-6300 and the same was fixed on notional basis with effect from 2.1.1992. 6. Ms. Anjula Khajuria appearing on behalf of respondent No.1 has strenuously argued that the case of the petitioner could not be considered even for ad hoc promotion since the departmental inquiry was pending against him. She then contended that the post in question, i.e. Superintending Engineer (Electrical) is a selection post and the Board follows the principles of merit. 7. I have heard the learned counsel for the parties and have perused the pleadings carefully. 8. It is not in dispute that the petitioner rank senior to respondents No.2 to 4 as per Annexure A-2. The Departmental Promotion Committee recommended the name of 14 Superintending Engineers for regular promotion in its meeting held on 7.8.1990. Respondents No.5 and 9 were not included in the select panel. However, for the reasons best known to the Departmental Promotion Committee, it recommended to the Whole Time Members to continue to engage them on ad hoc basis. The recommendations made by the Departmental Promotion Committee, already reproduced hereinabove, were contrary to law. 9. Now, the Court will consider whether the case of the petitioner was required to be considered for ad hoc promotion along with respondents No. 2 to 4 and others or not. The departmental proceedings were initiated against the petitioner on 10.7.1984. He was exonerated by the Inquiry Officer on 19.9.1990. However, the Disciplinary Authority directed the Inquiry Officer to hold fresh inquiry as per order dated 7.3.1991. Petitioner was exonerated on 30.7.1992. He had a right to be considered for ad hoc promotion. The procedure for considering the case for ad hoc promotion even when the disciplinary proceedings/criminal prosecution is initiated against an incumbent is provided under paras 17.8.2, 17.8.3, 17.8.4 and 17.8.5 of the Swamy’s Compilation on Seniority and Promotion in Central Government Service. The same read thus: “17.8.2. In case the Appointing Authority comes to a conclusion that it would not be against the public interest to allow ad hoc promotion to the Government servant, his case should be placed before the next DPC held in the normal course after the expiry of the two years period to decide, whether the officer is suitable for promotion on ad hoc basis. Where the Government servant is considered for ad hoc promotion, the DPC should make its assessment on the basis of the totality of the individual’s record of service without taking into account the pending disciplinary case/criminal prosecution against him. 17.8.3. After a decision is taken to promote a Government servant on an ad hoc basis, an order of promotion may be issued making it clear in the order itself that- (i) the promotion is being made on purely ad hoc basis and the ad hoc promotion will not confer any right for regular promotion, and (ii) the promotion shall be “until further orders”. It should also be indicated in the orders that the Government reserve the right to cancel at any time the ad hoc promotion and revert the Government servant to the post from which he was promoted. 17.8.4. If the Government servant concerned is acquitted in the criminal prosecution on the merits of the case or is fully exonerated in the departmental proceedings, the ad hoc promotion already made may be confirmed and the promotion treated as a regular one from the date of the ad hoc promotion with all attendant benefits. In case the Government servant could have normally got his regular promotion from a date prior to the date of his ad hoc promotion with reference to his placement in the DPC proceedings kept in the sealed cover (s) and the actual date of promotion of the person ranked immediately junior to him by the same DPC, he would also be allowed his due seniority and benefit of notional promotion as envisaged in para 17.6.1 above. 17.8.5. If the Government servant is not acquitted on merits in the criminal prosecution but purely on technical grounds and Government either proposes to take up the matter to a higher Court or to proceed against him departmentally or, if the Government servant is not fully exonerated in the departmental proceedings, the ad hoc promotion granted to him should be brought to an end.” 10. In the instant case, this procedure has not been followed by the respondent-Board. In case the petitioner was considered even for ad hoc promotion and he had been exonerated, his ad hoc promotion was required to be treated as regular. Mr. Dilip Sharma has drawn the attention of the Court to the orders passed by the erstwhile Tribunal dated 5.11.1992 and 27.4.1993. The erstwhile Tribunal had directed the respondent-Board to consider the case of the petitioner for promotion from the date his juniors were promoted. Respondent No.2 was promoted on 10.12.1991 and respondent No.3 and 4 were promoted on 2.1.1992. In sequel to the directions issued by the Tribunal, Class-I Departmental Promotion Committee recommended the name of petitioner for promotion to the post of Superintending Engineer (Electrical) though on ad hoc basis vide order dated 27.2.1993. The respondent-Board has not fully complied with the orders dated 5.11.1992 and 27.4.1993. He was to be considered for promotion with effect from the date his junior respondent No.2 was promoted, i.e. 10.12.1991. 11. There is no merit in the contention of Ms. Anjula Khajuria that respondent No.2 was considered for promotion against the ex-cadre post. A bare perusal of Annexure A-4 makes it abundantly clear that respondent No.2 was promoted as Superintending Engineer (Electrical) and his services were thereafter placed at the disposal of the N.H.P.C. for appointment as Manager (Electrical). He was promoted by the respondent-Board. Similarly, respondents No.3 and 4 were promoted with effect from 2.1.1992. Promotion of the petitioner was to relate back to 2.1.1992 at least from the date his juniors, i.e. respondents No.3 and 4 were promoted. There is also no merit in the contention of Ms. Anjula Khajuria that petitioner could not claim seniority in the grade as per letter dated 27.2.1993. Respondents No.5 to 9 were not to be included in the select list. The recommendations made by the Departmental Promotion Committee were contrary to law. They could not be permitted to continue by the Departmental Promotion Committee. In these circumstances, their continuance was bad in law. Respondent-Board had constituted fresh Departmental Promotion Committee, the proceedings of which have been placed on record by the petitioner vide S-1 alongwith supplementary affidavit. It met on 15.12.1994. Respondent- Board has not given any cogent and convincing reason why the Departmental Promotion Committee was constituted though the case of the petitioner had already been considered on merits by Class-I Departmental Promotion Committee on the basis of Annexure A-11 dated 27.2.1993. The Departmental Promotion Committee which met on 15.12.1994 was in fact a review Departmental Promotion Committee. Para 18.1 of the Swamy’s Compilation on Seniority and Promotion in Central Government Service makes it abundantly clear that the review Departmental Promotion Committee can be convened to rectify certain unintentional mistakes, e.g.:- (a) where eligible persons were omitted to be considered; or (b) where intelligible persons were considered by mistake; or (c) where the seniority of a person is revised with retrospective effect resulting in a variance of the seniority list placed before the DPC; or (d) where some procedural irregularity was committed by a DPC; or (e) where adverse remarks in the CRs were toned down or expunged after the DPC had considered the case of the officer. 12. Now, as far as the case of the petitioner is concerned, it was not again required to be considered by Departmental Promotion Committee on 19.12.1994. The right of the petitioner crystallized on the issuance of Annexure A-11 dated 27.2.1993 at least with effect from 2.1.1992. 13. Accordingly, in view of the observations made hereinabove, the petition is allowed. The petitioner is declared to be deemed to have been promoted with effect from 10.12.1991 as Superintending Engineer (Electrical) and shall rank senior to all the private respondents. Respondent- Board is directed to consider the case of the petitioner for further promotion after ranking him senior to all the private respondents as Superintending Engineers (Electrical). However, it is made clear that the benefits, which have accrued to private respondents, shall not be taken away and if necessary, supernumerary posts be created. No costs. (Rajiv Sharma), Judge 20.9. 2010 *awasthi*