IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.7867/2008 Reserved on: 20.7.2009 Decided on:4.8. 2009 ________________________________________________ Harmeet Singh and others. …Petitioners. 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 petitioners : Mr. Y.P.S. Dhaulta, Advocate. For the Respondents: Ms. Anjula Khajuria, Advocate ________________________________________________________ Rajiv Sharma, Judge . Brief facts necessary for the adjudication of this petition are that petitioner No.1 was appointed on temporary basis in the year 1979 as Carpenter in Transmission Wing in Civil Construction Division, Jutogh. Petitioner No.2 was appointed as Carpenter on work-charge basis in the year 1979 in Civil Construction Division, Jutogh. Petitioner No.3 was appointed in the year 1979 at Civil Construction Division, Jutogh as mason. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Mr. Y.P.S. Dhaulta, Advocate appearing on behalf of the petitioners has strenuously argued that his clients were eligible to be considered for the post of Foreman as per Annexure A-1 i.e. Recruitment and Promotion Regulations in respect of general civil categories. Alternatively, Mr. Y.P. S. Dhaulta has argued that there should be sufficient promotional avenues available to the category of the petitioners. Ms. Anjula Khajuria, Advocate appearing on behalf of the respondents has vehemently argued that there are no sanctioned posts of Foreman (Civil) in Transmission Wing and the petitioners are not entitled for promotion to the post of Foreman (Civil). I have heard the learned counsel for the parties and have perused the pleadings carefully. The promotion to the post of Foreman (Civil) is regulated under the Recruitment and Promotion Regulations in respect of general civil categories. The post of Foreman is to be filled up 100% by way of promotion. The posts of Carpenter/Mason/Painter/Supervisor etc. are in the feeder category to the post of Foreman (Civil). It will be pertinent to take note of notes (i) and (ii) appended to Annexure A-1, which read thus: (i) “In case of operation Wing cadre in respect of categories at Sr. No.1 and 2 will be maintained at Divisional level and that in respect of categories at Sr. No.3 will be maintained at Circle level. (ii) These regulations would be applicable to all the Wings provided similar sanctioned posts exist there.” 3 It is evident from the language employed in note (ii) that the Regulations are applicable to all the wings provided similar sanctioned posts exist there. According to the reply filed by the respondents, there are no sanctioned posts of Foreman which exist under Transmission Wing. Since the petitioners belong to Transmission Wing they have to be considered against the posts sanctioned in that wing alone. The petitioners cannot have any grievance in case the posts were filled up by way of promotion from the Project Wing. The petitioners could be considered for promotion to the post of Foreman (Civil) if there were sanctioned posts of Foreman (Civil) in Transmission Wing. The promotions are confined to a particular Wing as per footnote (ii) and also based on the seniority maintained in those wings. However, the matter is also required to be looked into from another angle. It is true that as per letter and spirit of the Recruitment and Promotions Rules framed by the Board, the posts are sanctioned according to separate Wings. However, in practice it may result in foreclosing the rights of the petitioners and similarly situate persons for promotion. It is settled law by now that promotions remove the stagnation and improve the public services. There should at least be two to three promotional avenues in every wing of the organization like Himachal Pradesh Electricity Board to remove the stagnation and to improve efficiency. It is also true that the Court cannot direct for framing of a particular set of Recruitment and Promotion Rules. It falls within the realm of policy matter. However, as laid down by their Lordships of the 4 Hon’ble Supreme Court in Food Corporation of India and others Vs. Parshotam Das Bansal and others, (2008) 5 SCC 100, the higher Courts can issue directions to the State/employer to frame a scheme for providing promotional avenues to those categories who have been deprived of this privilege. Their Lordships of the Hon’ble Supreme Court in (2008) 5 SCC 100 (supra) have made the following observations: “The appellant is “State” within the meaning of Article 12 of the Constitution of India. An employee of a State although has no fundamental right of promotion, it has a right to be considered therefore. What is necessary is to provide an opportunity of advancement; promotion being a normal incidence of service. This Court in O.Z. Hussain (Dr.) V. Union of India opined: (SCC pp. 691-92, para 7) “7. This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical “A” Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that o n the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional 5 avenue for the ‘A’ category scientists in the non-medical wing of the Directorate.” The question also came up for consideration in Ujagar Prints (III) Vs. Union of India and Council of Scientific and Industrial Research Vs. K.G.S. Bhatt. In the latter decision, this Court held: (SCC pp.638-39, para 9) “9. …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 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 Edn., 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, manpower development, management development, etc. which is not related to a system of promotions.” When employees are denied an opportunity of promotion for long years (in this case 30 years) on the ground that they fell within a category of employees excluded from promotional prospect, the superior court will have the jurisdiction to issue necessary direction. If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the 6 court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a superior court of the country.” The Apex Court in Satyanarayana and others versus S. Purushotham and others, (2008) 5 SCC 416 have held that the purpose of promotion is to remove stagnation and avoid frustration amongst the employees. In view of the definitive law laid down by their Lordships in (2008) 5 SCC 100 (supra), the respondents are directed to frame a scheme within a period of 8 weeks from today to provide promotional avenues to the category of the petitioners. With these observations, the petition is disposed of. There will, however, be no order as to costs. (Rajiv Sharma), J. 4.8. 2009. *awasthi*